



WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under
    ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the
Criminal
    Code
shall continue.  These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the victim or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)      any of the following offences;

(i)       an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)      two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in paragraph (a).

(2)      In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)      at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the victim of the right
    to make an application for the order; and

(b)      on application made by the victim, the
    prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice may
    make an order directing that any information that could identify the victim
    shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other
    than an offence referred to in subsection (1), if the victim is under the age
    of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of
    their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)      In proceedings in respect of an offence
    under section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)      An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community.
2005, c.
    32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18..

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)      For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Farouk, 2019 ONCA 662

DATE: 20190820

DOCKET: C61320

Pardu, Nordheimer and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Farouk

Appellant

Mark Halfyard and Colleen McKeown, for the appellant

Luke Schwalm, for the respondent

Heard: February 27, 2019

On appeal from the convictions entered by Justice Janet
    M. Wilson of the Superior Court of Justice, sitting with a jury, on May 26,
    2014.

Harvison Young J.A.:

A.

Overview

[1]

The appellant attacked the complainant in the elevator
    of her apartment building in the early morning hours of May 25, 2013. He had
    followed her into the building after she was dropped off by friends with whom
    she had spent the evening. His entry into the building and the attack itself
    was largely captured by the buildings surveillance cameras. At trial, the
appellant
    was convicted by a jury of sexual assault, attempted choking with intent to
    overcome resistance to sexual assault, threatening bodily harm and three counts
    of breach of recognizance.

[2]

The central issues at trial were (1) identity; and (2) whether the Crown
    had established that the assault was of a sexual character, sufficient to
    ground a conviction for both sexual assault and choking to overcome resistance.

[3]

The appellant appeals from his convictions for sexual assault and
    choking to overcome resistance alone. He does not challenge those convictions
    on the basis of identity. Instead, he takes issue with the trial judges
    instructions as to the evidence the jury could consider in determining whether
    the appellant applied force in circumstances of a sexual nature (on the sexual
    assault charge) and whether the appellant choked the complainant for the
    intended purpose of enabling him to commit the offence of sexual assault (on
    the attempted choking to overcome resistance charge).

[4]

In particular, he argues that the trial judge erred in two main
    respects: (1) in instructing the jury it could consider evidence that the
    appellant had spoken with two young women at a nightclub earlier in the evening
    in determining whether the assault was of a sexual character; and (2) in
    admitting, and directing the jury it could consider, evidence that the
    appellant had called and texted a body rub service approximately 30 minutes
    after the assault in determining whether the assault was of a sexual character.

[5]

I do not agree and would dismiss the appeal for the following reasons.

B.

Factual Background

The circumstances of the assault

[6]

After spending the night with some friends, the complainant returned to
    her apartment building in Scarborough shortly after 2:30 a.m. on May 25, 2013.
    The buildings security camera footage showed the appellant follow the
    complainant into the vestibule of the building and then through doors only accessible
    by key fob. The complainant did not notice the appellant follow her into the
    building, as she was focused on her cellphone.

[7]

The complainant entered the elevator and pressed the button for the 12
th
floor. The appellant followed her into the elevator, and pressed the button for
    the 14
th
floor. The complainant testified that, as the elevator
    doors were closing, the appellant told her she was cute. She did not respond.
    She testified that the comment made her feel uncomfortable.

[8]

Once the elevator doors closed, the appellant turned and moved in front
    of the complainant. He grabbed her by the neck with both hands, and began to
    choke her. The complainant fought back by kneeing the appellant repeatedly in
    the groin. She also repeated words to the effect of if you let me go I wont
    tell anybody.

[9]

The struggle lasted approximately 12 seconds, before the appellant
    released the complainant and backed away from her. The complainant testified
    that the appellant then threatened her, saying that if she told anyone Ill
    fucking knock your teeth out or Ill fuck you and knock your teeth out.
    While she could not remember the appellants precise words, the complainant
    testified that it was a very clear threat.

[10]

About 17 seconds (as documented by the security video) after the
    appellant released the complainants neck, the elevator arrived at her floor.
    She fled the elevator, ran down the hall to her apartment, unlocked the door
    and collapsed inside on the floor.

[11]

The complainant testified that during the assault, she was fearful that
    she would be raped or badly hurt. In cross-examination, she agreed that the
    appellant had not touched her buttocks, breasts, vaginal area, thighs, back or
    stomach, but explained that this was because she had immediately begun to knee
    the appellant in the groin when he began choking her.

The appellants interactions with women at the nightclub

[12]

Following the assault, the police released a Crime-stoppers statement,
    with still images of the attacker from the buildings security footage, in an
    attempt to identify the attacker. Two individuals  Britany Munro and Daniel
    Drever  came forward and said that they recognized the perpetrator as being
    the appellant. Ms. Munro and Mr. Drever testified that they had seen the
    appellant at the same Pickering nightclub that they frequented on a number of
    occasions. They further testified that they saw him at the nightclub on May 24,
    2013, before the assault, wearing clothes that matched the still images
    released by the police.
[1]


[13]

In particular, Ms. Munro testified that she had spoken briefly to the
    appellant on the night of May 24, 2013. Ms. Munro was on the patio area of the
    nightclub with a friend, smoking. The appellant approached her and asked her
    what she was smoking. She responded that it was an electronic cigarette. The
    appellant asked if Ms. Munro wanted to know what he was smoking. She said no,
    and the appellant walked away. She testified that the entire interaction lasted
    less than a minute.

[14]

Through the appellants phone records, the police were able to identify
    another bar patron  Chelsy McGhee  who had interacted with the appellant on
    the night of May 24, 2013. Ms. McGhee testified that she was standing with her
    friend on the patio of the nightclub, while her friend smoked, when they were
    approached by three men. She began talking with one man (later identified as
    the appellant). Ms. McGhee told the appellant that they were preparing to leave
    to go to another bar. Eventually, the appellant asked for Ms. McGhees phone
    number, which she gave to him. The appellant also asked if he could share a cab
    with Ms. McGhee and her friend to the new bar. Ms. McGhee declined, but
    indicated that the appellant could text her later.

[15]

The appellants cellphone records  which were made an exhibit at trial
     established that the appellant had exchanged a series of text messages and
    phone calls with Ms. McGhee between 12:39 a.m. and 2:33 a.m. The appellant and
    Ms. McGhee did not meet up. The next morning, Ms. McGhee texted the appellant
    and asked him not to contact her anymore.

[16]

As with Ms. Munro, Ms. McGhees evidence was led by the Crown to
    establish identity. The appellants cellular phone records placed him near the
    complainants building at the time of the assault. Thus, the Crown relied on
    Ms. Munros evidence to prove that the appellant, and not someone else, was
    using his phone that night and that he had attended the nightclub on May 24,
    2013.

Post-assault conduct and communication with a body rub
    service

[17]

The jury also heard evidence that, approximately 30 minutes after the
    incident in the elevator, the appellant had exchanged a series of phone calls
    and text messages with a phone number associated with a body rub service.

[18]

The appellants cellphone records established that  between 3:15 a.m.
    and 3:50 a.m.  the appellant exchanged two phone calls and a total of 26 text
    messages  with a 647 number. In 2014, in the course of investigating the
    assault, the investigating officer performed Google searches for the 647
    number and discovered it was associated with a website offering body rub
    services for money. The investigating officer also accessed historical website
    posts (dated April 2013 and October 2013) that suggested sexual services were
    available at the same 647 number. The Crown sought to lead this evidence
    through the investigating officer as evidence of the sexual character of the
    assault.

[19]

The trial judge conducted a
voir dire
and admitted the evidence
    of the appellants contact with the 647 number and the investigating
    officers evidence as to the connection between the 647 number and the
    website. She found that this evidence was relevant to the appellants intention
    at the time of the assault, and whether the assault was of a sexual character.
    The trial judge concluded that the probative value of the evidence outweighed
    its prejudicial effect. However, the trial judge found that a limiting
    instruction was necessary. She also directed that the jury would not be
    provided with the full 647 number, or shown the sexually explicit images on
    the website.

[20]

Partway through trial  but before the evidence of the appellants
    contact with the body rub service was put to the jury  the police recovered
    the contents of four text messages between the appellant and the 647 number.
    The text messages were of a sexually explicit nature, and included a response
    to an inquiry about pricing for sexual services.

[21]

An additional
voir dire
was held. In response to the trial
    judges suggestion that the recovered text messages were of increased probative
    value if the appellant continued to challenge the connection between the 647
    number and the website, defence counsel conceded that the 647 number was
    connected to a body rub service. The trial judge ultimately excluded the
    contents of the text messages, finding that the prejudicial effect of the
    evidence outweighed its probative value.

[22]

The evidence of the appellants contact with the body rub service was
    led through the investigating officer at trial. She described her internet
    searches, testified that the 647 number was associated with a website
    entitled
www.bodyrublist.com
,
[2]
that the
    website contained a number of sexually explicit photos, offered in calls and
    out calls for twenty four hours, contained the statement fulfill your every
    needs and desires and listed the 647 number as the contact information for
    the woman who would provide the services. She also described the frequency and
    timing of the appellants communications with the 647 number. Again, the jury
    was not shown any images of the website, nor told about the content of the
    appellants text messages to the 647 number.

[23]

Prior to the investigating officers testimony with respect to the
    appellants contact with the body rub service, the trial judge provided a
    limiting instruction to the jury as to what use they could make of this
    evidence. She cautioned that the evidence was admissible and could only be
    considered by the jury in assessing [the appellants] intention and state of
    mind during the elevator incident. She noted that there was nothing illegal
    about communicating with a body rub service, and directed the jury that they
    could not punish him for having communicated with the service, nor conclude
    that because of the appellants communication with the service he was the type
    of person more likely to have committed the offence. The trial judge repeated a
    similar limiting instruction in her final charge to the jury when describing
    the evidence of the appellants communications with the body rub service.

The Jury Charge

[24]

The appellant conceded at trial that if identity was established, he was
    guilty of the lesser offence of assault. Thus, on the sexual assault charge, if
    satisfied that the appellant was the attacker, the jury was required to
    determine whether the force that the appellant applied took place in
    circumstances of a sexual nature. On the attempted choking to overcome
    resistance charge, if satisfied that the appellant was the attacker, the jury
    was required to determine whether the appellant attempted to choke the
    complainant with the intent of rendering her incapable of resisting, and for
    the purpose of enabling him to commit the offence of sexual assault.

[25]

In her charge to the jury, the trial judge correctly outlined the
    necessary elements of the offence of sexual assault. She indicated that if the
    jury was satisfied that the appellant was the individual who attacked the
    complainant in the elevator, the only element of the offence in dispute was
    whether the appellant applied force to the complainant in circumstances of a
    sexual nature. She (again correctly) instructed the jury that they must be
    satisfied beyond a reasonable doubt that a reasonable person, viewing the
    matter objectively, would conclude that the force was applied in circumstances
    of a sexual nature. She directed the jury to consider all of the circumstances
    surrounding the application of force, including the part of the complainants
    body the appellant touched, any words or gestures that accompanied the
    touching, and the purpose of the touching.

[26]

The trial judge then identified a number of points that the jury may
    wish to consider in determining whether the force was applied in circumstances
    of a sexual nature:

·

Before
    the incident, the appellant was at a dance club, making contact with women, including
    Ms. McGhee and Ms. Munro
.
[3]


·

The
    complainant got a ride home with her friend, and would reasonably think she was
    safe when she was dropped off at the front door of her apartment building.

·

The
    security camera footage confirmed that the appellant was sneaking into the
    building in a manner to avoid detection.

·

The
    elevator incident occurred at 2:41 a.m. with no one else in sight.

·

The
    complainant was 18 years of age, and the appellant 32 years of age, at the time
    of the incident.

·

When
    the appellant got in the elevator, and before the door was closed, he told the
    complainant she was cute. The comment made her feel uncomfortable as she was in
    an enclosed space.

·

When
    the elevator door closed, the appellant immediately put both his hands around
    her throat applying pressure in a choking manner. The complainant fought back
    by kneeing the appellant in the groin.

·

The
    complainant conceded that the person did not touch her breasts, vagina or any
    traditional body part connoting sexual contact. The complainant testified that
    he wouldnt have been able to because she was fighting back so vigorously.

·

An
    indication of the degree of physical force being used in the struggle was the
    observations of the complainants hair flying around her head in the various
    photographs from the security camera footage.

·

The
    appellant then let go of her neck and retreated. His hands were visible and the
    complainant can be seen holding her neck and wiping her mouth. The time of the
    retreat appeared to be 17 seconds, compared to the attack which was
    approximately 12 seconds.

·

The
    complainant testified that she was terrified and thought that she was going to
    be very badly hurt or raped.

·

The
    complainant begged the appellant to stop and repeatedly said no, and promised
    not to tell anyone if he let her go.

·

According
    to the complainants evidence, the appellant then told her that if she told
    anyone he would fuck her and knock out her teeth or that he would knock her
    fucking teeth out.

·

The
    complainant was terrified and afraid to go to the police after this statement
    by the appellant, and only agreed to report the incident after talking to her
    friends and grandmother.

·

The
    complainants cell phone and purse were clearly visible and the appellant did
    not try to rob her of any of these items. The motive for the attack was not
    monetary gain.

·

The
    appellant came back to the building and attempted to access the building
    between approximately 3:02 and 3:09 a.m.

·

For
    a period of approximately 35 minutes, beginning 6 minutes after the appellant
    left the apartment building for the final time and 36 minutes after the
    elevator incident, the appellant was in communication with a body rub service
    offering sexual services for money
.

·

The
    complainant was traumatized by the event, was unable to talk, unable to
    breathe, and was gasping for breath after she collapsed in a heap inside her
    apartment. Initially she was too afraid to report the incident to the police.

The instructions challenged by the appellant this
    appeal are underlined, above.

[27]

On the attempted choking to overcome resistance charge, the trial judge
    correctly identified all the necessary elements of the offence. She instructed
    the jury that, in determining whether the appellant attempted to choke the
    complainant with the intended purpose of enabling the appellant to commit the
    offence of sexual assault, the jury should consider all of the surrounding
    circumstances. She then indicated the jury may wish to consider the same
    list of evidence enumerated above, in determining whether the attempt choking
    was for the intended purpose of enabling committing sexual assault.

C.

analysis

(1)

Did the trial judge err in
    instructing the jury it could consider the evidence of the appellants contact
    with women at the nightclub in determining whether the assault was of a sexual
    character?

[28]

The appellant argues that the trial judge erred in instructing jury that
    it could use the fact that the appellant had been in conversation with women at
    a nightclub, prior to the assault, in assessing whether the attack was of a
    sexual character. The appellant emphasizes that the evidence of the appellants
    interaction with women at the nightclub was led by the Crown, and was only
    relevant to establish identity. The trial judges instruction that the jury
    could consider this evidence in determining whether the assault was of a sexual
    purpose was highly prejudicial, as it invited the jury to engage in
    propensity-based reasoning. As such, the prejudicial effect of this evidence
    greatly outweighed its probative value, and it should not have been left with
    the jury. The fact that the trial judge listed this as the first of the factors
    that the jury may wish to consider highlighted the evidence and heightened
    its prejudicial effect.

[29]

The respondent submits that the inclusion of this among the 18 factors
    that the jury may wish to consider in her closing instructions was relevant
    to the appellants statement of mind when he attacked the complainant later
    that evening, that the evidence was not prejudicial and that there was no risk
    that the jury would misuse the evidence through propensity-based reasoning. There
    was nothing coercive or threatening in the appellants exchanges at the
    nightclub that would suggest he was a person of bad character.

[30]

I would not give effect to this ground of appeal.

[31]

To begin, I reiterate that appellants complaint is not that the jury
    heard the evidence of the appellants contact with women at the nightclub  as
    it was highly probative of the identity issue  but rather that the trial judge
    referred to it in her charge was one of the 18 factors that the jury might
    want to consider in determining whether the attack was sexual in nature.

[32]

The probative value of evidence is a function of the extent to which it
    tends to prove an issue at trial. This requires the trial judge to engage in a
    preliminary weighing of evidence. Thus, in assessing the probative value of
    tendered evidence, the trial judge is to identify the issue in question and the
    strength of the inference sought to be drawn from the evidence, in light of the
    reliability of the evidence:
R. v. Hart
, 2014 SCC 52, [2014] 2 S.C.R.
    544, at paras. 94-95.

[33]

Here, the evidence of the appellants communications with women was left
    with the jury on the issue of whether the assault was of a sexual character. The
    test to be applied in determining whether an assault is of a sexual character
    is objective. The trier of fact must ask itself, [v]iewed in the light of all
    of the circumstances, is the sexual or carnal context of the assault visible to
    a reasonable observer:
R. v. Chase
, [1987] 2 S.C.R. 293, at p. 302.
    The circumstances to be considered include the part of the body touched, the
    nature of the contact, the situation in which the contact occurred, and any
    words or gestures accompanying the act, among other things. The intent or
    purpose of the person committing the act may also be a factor in considering
    whether the conduct was sexual, but it is only one factor to be considered in
    the analysis:
Chase
, at p. 302;
R. v. Marshall
, 2017 ONCA
    801, at paras. 51-53.

[34]

I am prepared to accept that the evidence of the appellants contact
    with women at the nightclub was probative (if minimally so) of the appellants
    state of mind and intent leading up to the assault. The fact that the appellant
    sought out interactions with Ms. Munro and Ms. McGhee in circumstances
    suggesting a sexual interest would make it more probable than not that his
    subsequent interaction with the complainant was an expression of sexual
    interest. This is particularly so when the appellants conduct is viewed in
    context: he interacted with Ms. Munro and Ms. McGhee at the nightclub,
    continued to text Ms. McGhee up until the point he was outside the
    complainants apartment building, and began his interaction with the
    complainant by telling her she was cute.

[35]

The appellants objection to this evidence at trial  and argument on
    appeal  is that this evidence invited the jury to engage in propensity-based
    reasoning. In other words, the jury might reason that because the appellant was
    the type of person who would try to pick-up women at a bar, he was more
    likely to have assaulted the complainant for a sexual purpose. I disagree. On
    the facts of this case and in the context of the trial judges jury charge as a
    whole, the inclusion of  the appellants contact with the women at the
    nightclub as a consideration relevant to whether the attack was sexually
    motivated did not invite the jury to engage in propensity-based reasoning nor
    did it result in moral or reasoning prejudice.

[36]

First, the trial judge organized her recitation of the evidence that
    might the jury may wish to consider in assessing whether the assault was of
    sexual character temporally. The appellant began his night at the nightclub, where
    he spoke with Ms. Munro and Ms. McGhee; thus it was a logical place for the
    trial judge to start in her review of the evidence. The reference to this
    evidence was only one of 18 factors that the trial judge suggested the jury
    may wish to consider. Her instruction did not elevate the importance of this
    evidence.

[37]

Second, I do not agree that, in this day and age, a jury would reason
    that a young man who encounters, speaks with, and obtains telephone numbers
    from women at a dance club is someone likely to commit violent sexual assaults.
    There was nothing coercive or threatening about the appellants conduct at the
    dance club. The appellants conduct was perfectly legal and, on Ms. Munros
    evidence, fairly typical of nightclub goers. This significantly diminished the
    risk of moral and/or reasoning prejudice.

[38]

Third, while the trial judge did not provide a limiting instruction as
    to the use that the jury could make of the appellants contact with women at
    the nightclub (nor was one requested), she did provide a limiting instruction
    with respect to the evidence of the appellants communications with the sexual
    body rub service. Thus, the jury was warned generally about the dangers of
    propensity-based reasoning.

[39]

As a result, I am not satisfied that the probative value of the evidence
    was outweighed by its prejudicial effect, or that it was an error to leave this
    factor with the jury.

(2)

Did the trial judge err in admitting the evidence of the appellants
    post-offence communication with a body rub service?

[40]

The appellant also argues that the trial judge erred in instructing the
    jury that, in determining whether the assault was of a sexual character, they
    could consider the evidence that the appellant had communicated with a sexual
    body rub service approximately 30 minutes after the assault. He argues the
    trial judge erred in admitting this evidence because: (1) the prejudicial
    effect of the evidence outweighed its probative value; and (2) the evidence was
    inadmissible hearsay. I consider both arguments, below.

(i)

Did the prejudicial effect of the evidence outweigh its probative value?

[41]

The appellant argues that the evidence of the appellants communications
    with the service was minimally probative of whether the assault was of a sexual
    character, as the communications occurred more than 30 minutes following the
    assault. On the other hand, the evidence raised a significant risk of moral
    prejudice. The appellant argues that the limiting instructions provided by the
    trial judge were not sufficient to cure this prejudice, and that the evidence
    should not have been left with the jury.

[42]

The respondent submits that the trial judge correctly admitted the
    evidence of the appellants communications with a body rub service roughly 30
    minutes after the attack. The respondent further submits that the appellants
    communications with the body rub website were probative of his intention and state
    of mind at the time of the assault.

[43]

I agree with the trial judges conclusion that the evidence of the
    appellants communications with the sexual body rub service was probative of
    the issue of whether the assault was of a sexual character. A brief chronology
    is helpful to situate the evidence as to the appellants communications with
    the body rub service within the series of events on May 25, 2013, and to
    demonstrate its relevance to the sexual character of the assault.

[44]

The incident in the elevator occurred between 2:39 a.m. and 2:41 a.m.
    The appellant left the building shortly thereafter. Between 2:47 a.m. and 2:57
    a.m., the appellant made three phone calls to various taxi companies. At 3:02
    a.m., the appellant re-entered the main foyer of the apartment building. On
    security camera footage, he could be seen trying to use the keypad of the
    buildings intercom system. At 3:07 a.m., while still inside the foyer of the
    building, he made another call to a taxi company.

[45]

The appellants cellphone records established that  between 3:15 a.m.
    and 3:50 a.m.  the appellant exchanged two phone calls and a total of 26 text
    messages  with a 647 number. As I have noted above (and will return to in
    the my discussion of the hearsay nature of the evidence) the investigating
    officer was able to connect the 647 number to a website offering sexual body
    rub services for money by conducting Google searches and accessing
    historical website posts.

[46]

In this context, the evidence of the appellants communications with the
    body rub service were significantly probative of the sexual character of the
    assault. In particular, it was probative of the appellants intention or
    purpose at the time of the assault. The appellants communications with the
    body rub service give rise to the common sense inference that the appellant was
    interested in engaging in a sexual encounter. Given the temporal proximity
    between the assault, the appellants attempt to regain entry into the apartment
    building and the communications with the body rub service, this evidence gives
    rise to the further common sense inference that the appellants intention or
    purpose was to engage in a sexual encounter at the time of the assault.

[47]

I agree with the appellants submission that the evidence of his
    communications with the body rub service was prejudicial  in the sense that it
    raised the risk of both reasoning and moral prejudice. There was a risk that
    the jury would engage in propensity-based reasoning, and conclude that because
    the appellant was type of person who would pay for a sexual encounter, he was
    more likely to have sexually assaulted the appellant. Similarly, while the
    appellants communications with the body rub service were legal, paying for a
    sexual encounter may be perceived as immoral behaviour.

[48]

However, the trial judge was alive to the potential prejudicial effect
    of this evidence. She ordered that the jury would not be shown any sexually
    explicit images from the website. She refused to admit the contents of the
    appellants text messages, which contained sexually explicit language and a
    discussion of pricing.

[49]

The trial judge also provided a comprehensive mid-trial limiting instruction
    and final instruction that addressed all the necessary elements of such an
    instruction: see
R. v. J.A.T.
, 2012 ONCA 177, 288 C.C.C. (3d) 1 at
    para. 53;
R. v. Largie
, 2010 ONCA 548, 101 O.R. (3d) 561, at para.
    107. The trial judge identified the evidence at issue (the evidence of
    appellants communications with the body rub service), told the jury that they
    could use the evidence only to assess the appellants intention and state of
    mind at the time of the elevator assault (the permitted use), and expressly
    instructed the jury that they could not punish the appellant for this
    behaviour or engage in propensity-based reasoning (the impermissible use).

[50]

In these circumstances, I am satisfied that it was appropriate to admit
    the evidence of the appellants communications with the text messages with the
    body rub service. The communications were significantly probative of the sexual
    character of the assault, and the potential prejudicial effect of the evidence
    was adequately addressed through the trial judges limiting instructions. I
    would note in this regard that our jury system is predicated on the proposition
    that jurors follow a trial judges limiting instructions:
R. v. White
,
    2011 SCC 13, [2011] 1 S.C.R. 433, at para. 56. I am also mindful of the principle
    that a trial judges weighing of probative value and prejudicial effect is
    entitled to significant deference  as the trial judge is generally better
    positioned to understand the likely impact of the evidence on the jurors:
R.
    v. Araya
, 2015 SCC 11, [2015] 1 S.C.R. 581, at para. 31.

[51]

As such, I would not give effect to this ground of appeal.

(ii)

Was the evidence
    of the appellants communications inadmissible hearsay or unauthenticated real
    evidence?

[52]

The appellant argues that the evidence of the appellants communications
    with a body rub service was based on inadmissible hearsay, as the Crown sought
    to rely on the truth of the websites contents  i.e. that the 647 number was
    in fact connected to a sexual service because it was listed on the impugned
    website. The appellant also argues that the contents of the website  as
    described by the investigating officer  was unauthenticated real evidence.

[53]

The respondent submits that this evidence was not introduced for the
    truth of its contents because the relevance of the evidence was that a person
    reading or accessing the website would believe that sexual services would be
    provided. Similarly, the respondent takes the position that the contents of the
    website was not unauthenticated real evidence. The jury did not in fact receive
    any real evidence, as the trial judge ruled the screenshots of the website were
    inadmissible. The investigating officer only generally described the website,
    and testified that the 647 number was associated with sexual body rub
    services.

The website contents as hearsay

[54]

First, I do not agree that the evidence of the appellants
    communications with the body rub service was based on inadmissible hearsay. The
    relevance of the investigating officers evidence that the same 647 number
    the appellant was in communication with on the night of the assault was
    connected to a website offering sexual services did
not
depend on the truth of the websites contents. Stated differently, the
    probative value of the evidence did not depend on the fact that the 647
    number was actually connected to the provision of sexual services, but rather
    that a person who accessed the website would believe the 647 number to be
    connected to the provision of sexual services. The related inference is that a
    person in communication with the 647 number  such as the appellant  would
    believe they were communicating with a sexual body rub service.

[55]

On appeal, the appellant argues that the trial Crowns emphasis in her
    closing submissions as to the number of exchanges and length of time over which
    the appellant communicated with the 647 number belies any suggestion that the
    relevance of this evidence was only that the appellant believed he was
    communicating with a sexual body rub service. I do not agree. The Crowns arguments
    with respect to the frequency and duration of the communications are not
    inconsistent with its position that the appellant need only believe that 647
    number he was communicating with was connected to a sexual service. The
    frequency of the appellants communications with the 647 number supported the
    inference that he was committed to obtaining sexual services  and had not
    accidentally made contact with the 647 number  which in turn strengthened
    the inference that the appellants motive or intention was to seek out a sexual
    encounter when he assaulted the complainant. To the extent this argument also
    supported the inference that the sexual services were
actually
available
    at the

647 number, this did not depend on the purported hearsay quality
    of the websites contents.

[56]

Moreover, the defence conceded at trial  for legitimate strategic
    reasons  that the 647 number was associated with a sexual body rub service.
    The defence did so in the context of the continuing
voir dire
on the
    admissibility of the contents of the appellants four recovered text messages.
    Those text messages tended to show, at the very least, that the appellant
believed
he was in communication with a sexual body rub service and was attempting
    to obtain sexual services.

[57]

The trial judge, correctly in my view, identified that the contents of
    the text messages acquired greater probative value if the defence continued to
    contest the connection between the 647 number and the sexual services. As she
    noted in her
voir dire
ruling, it seemed glaringly obvious based on
    the contents of the text messages that the 647 number was in fact a body
    rub service.

[58]

In these circumstances, there is no merit to the argument that the fact
    of the communications between the appellant and the body rub service shortly
    after the assault was based on inadmissible hearsay. The appellant conceded
    that the 647 number was in fact connected to the website, and clearly did so
    for legitimate strategic reasons. Moreover, the relevance of the investigating
    officers evidence that the same 647 number the appellant was in
    communication with on the night of the assault was connected to website
    offering sexual services did
not
depend on the
    truth of the websites contents.

The website contents as unauthenticated real evidence

[59]

Second, I do not agree that the website contents were unauthenticated
    real evidence. While s. 31.1 of the
Canadian Evidence Act
, R.S.C.
    1985, c. C-5, provides that any person seeking to admit an electronic document
    as evidence has the burden of proving its authenticity, the website contents
    were
not
actually adduced as real evidence at
    trial. Rather, the trial judge ruled the screenshots of the website
    inadmissible on the basis that the probative value of such evidence was
    outweighed by its prejudicial effect, due to the sexually explicit language and
    photos depicted. The investigating officer testified  in general terms  as to
    the contents of the website and its association with the 647 number. While
    the process by which the investigating officer connected the 647 number to
    the website was properly the subject of cross-examination and submissions as to
    the weight that could be afforded to her evidence, it was not a bar to the
    admissibility of her testimony.

[60]

Even if the website contents were to be construed as real evidence
    actually adduced at trial, the investigating officers testimony would appear
    sufficient for the purpose of authentication. The threshold for authentication
    of evidence, both at common law and under s. 31.1 of the
Canadian Evidence
    Act
,

is modest: there must be evidence that is capable of supporting
    a finding that the electronic document is that which it is purported to be:
R.
    v. C.B.
, 2019 ONCA 380, at para. 68. Both circumstantial and direct
    evidence may be relied upon for this purpose:
C.B.
, at para. 68. Here,
    the investigating officer described her Google search for the 647 number
    and the website in general terms. In the circumstances, this would have been
    sufficient for the purpose of authentication. In light of the appellants
    concession at trial that the telephone number to which he sent text messages
    was associated with the website for the body rub service and the operation of
    that business, no further authentication was required in any event.

Disposition

[61]

For the foregoing reasons, I would dismiss the appeal.

Released: August 20, 2019

GP

Harvison Young J.A.

I agree G. Pardu
    J.A.

I agree I.V.B.
    Nordheimer J.A.





[1]
Ms. Munro and Mr. Drevers evidence was led by the Crown to establish identity,
    which was a live issue at trial. Their recognition evidence was the subject of
    a
voir dire
at trial and ruled admissible by the trial judge.



[2]
The investigating officer provided the name of the website in her testimony,
    even though the trial judge had earlier stated that the websites name should
    not be put before the jury.



[3]

At the pre-charge conference, defence counsel objected to the
    inclusion of the appellants contact with women at the nightclub as evidence
    the jury could consider in determining whether the assault was of a sexual
    character. Defence counsel argued that this evidence could lead to
    propensity-based reasoning. The trial judge dismissed the objection, and left
    the evidence with the jury.


