



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. J.F., 2021 ONCA 854

DATE: 20211201

DOCKET:
C67959

Feldman, van
    Rensburg and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.F.

Appellant

Kristin Bailey
,
    for the appellant

Jennifer Epstein
, for the respondent

Heard: November 3, 2021 by
    video conference

On appeal from the conviction entered by
    Justice Myrna L. Lack of the Superior Court of Justice, sitting with a jury, on
    April 5, 2018.

REASONS FOR DECISION


Overview

[1]

After a trial by judge and jury, the appellant
    was convicted of assault causing bodily harm. The appellant appeals from his
    conviction. He has abandoned the appeal against his sentence.

Brief Summary of Facts

[2]

The appellant and the complainant were in a
    long-term relationship. Around 12:30 p.m. on January 30, 2017, the complainant
    called 911 to report that the appellant had choked her. The police responded to
    the call and arrested the appellant.

[3]

The complainant went to the hospital and photos
    were taken of her injuries. The complainant disclosed to the nurse that the appellant
    had choked her. The nurse examined the complainant and observed that she had
    numerous bruises and abrasions on her face and body. The nurse did not detect
    any signs of impairment.

[4]

After leaving the hospital, the complainant
    attended a police station and provided a videotaped statement. In that
    statement, the complainant told the police that she had an argument with the
    appellant over money. After the complainant swore at the appellant, the
    appellant grabbed her from behind, choked her and then sexually assaulted her. In
    that statement, she told the police that she had called 911 and that she went
    to her daughters residence. She told the police that she had told her daughter
    about being choked. However, the complainant told the police that she had not
    disclosed the sexual assault to either her daughter or the nurse at the
    hospital.

The Complainant Recants

[5]

At the preliminary hearing and the trial, the
    complainant recanted all of the allegations. At trial, the complainant
    testified that she had spent the weekend consuming drugs and that she had a
    poor recollection of the events. She testified that on the morning of the
    incident, the appellant came to her house while she was still under the
    influence of the drugs. She yelled at the appellant, tried to punch him, and
    then lost consciousness. When she awoke, she was sitting on the floor against
    the couch and the appellant was tending to her. She and the appellant then had
    consensual sex. The complainant testified that she did not recall calling 911
    or going to her daughters residence, the hospital, or to the police station.

[6]

The trial judge made several rulings.

[7]

The appellants previous conviction for
    assaulting this complainant  a guilty plea to assault causing bodily harm in
    2012  was admitted for the purpose of helping the jury understand the nature
    of the relationship between the appellant and the complainant and to support
    the inference of animus.

[8]

The 911 call was admitted not for the truth of
    its contents but only to help the jury assess the complainants credibility.

[9]

Finally, the complainants police statement was
    admitted for the truth of its contents.

[10]

The appellant advances three grounds of appeal:

1.

The trial judge erred in not instructing the
    jury on prior consistent statements;

2.

The trial judge erred in admitting prior
    disreputable conduct evidence; and

3.

The trial judge erred in admitting the
    complainants statement to the police.

[11]

For the reasons that follow, we dismiss the
    appeal.

(1)

No Prior Consistent Statement Instruction

[12]

The appellant argues that the trial judge should
    have given a limiting instruction on the use of prior consistent statements
    because there was a real danger that the jury would have looked to the
    complainants prior statements
before
she spoke to
    the police as confirmatory of her statement
to
the
    police because they were all consistent. A prior consistent statement
    instruction is given to warn jurors that consistency between statements made by
    a complainant, on its own, provides no insight into the credibility of the
    complainant because repetition does not make a statement more likely to be true.
    The appellant acknowledges that his trial counsel did not ask for this limiting
    instruction, but nevertheless argues that it was required in this case.

[13]

In our view, the trial judge did not err by
    failing to give such an instruction. There was no real risk in this case that
    the jury would err in its reasoning, namely, by finding the complainant was
    telling the truth in the police statement about being choked because it was
    consistent with what she had told people earlier.

[14]

First, the Crown did not argue at trial that the
    consistency of the complainant was a factor to consider in assessing the
    complainants credibility. The consistency of the complainants statements was
    not a live issue at trial, and it was not necessary for the trial judge to
    comment or provide an instruction that would highlight the consistency of the
    complainants statements. This case is not similar to the cases cited by
    counsel for the appellant where the consistency of the complainants account was
    at risk of being used to bolster the complainants credibility or corroborate
    the complainants trial testimony: see e.g.,
R. v. Warren
, 2016 ONCA
    104, 26 C.R. (7th) 390;
R. v. Dinardo
, 2008 SCC 24, [2008] 1 S.C.R.
    788.

[15]

Second, the trial judge provided thorough
    mid-trial and final instructions to the jurors on prior inconsistent statements.
    The trial judge explained that the jury could only use prior inconsistent
    statements to assess credibility and could not use the complainants earlier
    statements, such as the 911 call, as evidence of what actually happened unless
    they were satisfied that the complainant accepted the earlier version as true. Of
    course, the complainant had recanted her prior statements and did not adopt them
    during trial. The jury would have understood that the prior statements
    (specifically, the 911 call and the police statement) were diametrically
    opposed to the complainants trial testimony and that only the inconsistency
    could be used to assess her credibility.

[16]

Third, in another area of her charge, the trial
    judge specifically instructed the jury that it should only rely on the police
    statement if the contents of the statement were confirmed by evidence
not connected
to the complainant. The jurors would have
    understood that they needed to seek out independent evidence of confirmation of
    the police statement before they could act on it. Logically, prior statements
    made by the complainant were not independent sources of confirmation and would
    not have been improperly used by the jury.

[17]

The adequacy of a trial judges instructions
    must be assessed in the context of the particular case on a functional basis. There
    was no realistic risk that the jury would have looked for confirmatory evidence
    in any consistencies between the earlier statements to find that the
    complainant must have been telling the truth in the police statement. The fact
    that defence counsel did not ask for the specific instruction, now sought on
    this appeal, demonstrates that the trial counsel was not concerned about the
    risk that is now complained of by counsel for the appellant.

(2)

Admitting Prior Disreputable Conduct

[18]

The appellant submits that the trial judge erred
    by admitting evidence of the appellants prior assault of the same complainant.
    We do not accept this submission.

[19]

The details of the prior assault were admitted
    for the purposes of understanding the nature of the relationship between the appellant
    and the complainant and to determine whether the appellant had animus toward
    the complainant. The trial judge held that the two incidents were similar in
    that they showed the appellants disposition to assault the complainant when
    she disrespected him.

[20]

The trial judge noted that, for the jury not to
    know about the prior assault would present an artificially sanitized and
    antiseptic picture of the nature of the relationship between the two. The
    trial judge also found that there was little danger of moral prejudice if an
    appropriate caution was given. In our view, the prior conviction is probative
    of the nature of the relationship between the appellant and the complainant and
    was properly admitted, especially in light of the trial judges caution to the
    jury that they must not use the prior conduct to conclude that the appellant is
    a person of general bad character who was more likely to commit the alleged
    assault.

(3)

Admitting the Complainants Police Statement

[21]

The trial judge ruled that the complainants
    police statement was admissible pursuant to the principled exception to the
    hearsay rule enunciated in
R. v. Khelawon
, 2006 SCC 57,
    [2006] 2 S.C.R. 787. Given the complainants recantations, the necessity
    component of the exception was made out and conceded. The trial judge ruled
    that the statement was procedurally reliable because (a) the complainant knew
    the statement was being recorded; (b) she gave the statement under a solemn
    affirmation to tell the truth; (c) her statement appears to be voluntary; and
    (d) the complainant was a witness at trial and available for cross-examination,
    and it was not fatal to the admissibility of the statement that the complainant
    later claimed a lack of memory. The trial judge found that the probative value
    of the statement was extremely high because it was a statement from the
    alleged victim made very soon after the alleged events. The trial judge found
    that its probative value highly outweighed its prejudicial effect and admitted
    the statement for the truth of its contents.

[22]

The appellant argues that because the
    complainant claimed to have no memory of the majority of the weekend, calling
    911, going to the hospital, or making the statement to police, defence counsel
    could not cross-examine the complainant effectively at trial and the trial
    judge erred in finding the contrary.

[23]

In our view, the trial judge grappled with this
    issue and found the opportunity to cross-examine the complainant was not
    illusory. She found that, while the complainant claimed no memory of making the
    statement, the complainant did have a memory of the events of the morning in
    question. She also found that the appellants trial counsel had shown that he
    could effectively cross-examine the complainant on a prior
voir dire
.

[24]

The admissibility of hearsay evidence is a
    question of law. The factual findings that go into that determination are
    entitled to deference. A trial judge is well placed to assess the hearsay
    dangers in a particular case and the effectiveness of any safeguards to assist
    in overcoming them: see
R. v. Chretien
, 2014 ONCA 403, 309 C.C.C. (3d)
    418, at paras. 43-55. We would defer to the trial judges decision in the
    absence of any error.

Conclusion

[25]

For these reasons, the appeal is dismissed.

K.
    Feldman J.A.

K.
    van Rensburg J.A.

S.
    Coroza J.A.


