This week’s top three summaries: R v R.M., 2023 BCCA 455: judicial #notice, R v S.C., 2023 ONCA 832: prior #consistent stmt, and R v Beauvais, 2024 ONCA 22: #possession alternative inference
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R v R.M., 2023 BCCA 455
[December 11, 2023] Limits of Judicial Notice or Extrinsic Evidence and Misuse of Plausibility as a Standard of Proof [Reasons by DeWitt-Van Oosten J.A. with Willcock and Voith JJ.A. concurring]
AUTHOR’S NOTE: This cases revolved around the trial judge’s use of information from outside the court process to assess the credibility of the accused’s evidence. In order to find the complainant children reliable and credible, she found that “children can and do fall asleep quickly after a traumatic event” to undermine certain credibility submissions of the defence. She also found that case law suggests that determined adult predators will find opportunities to abuse children and will successfully avoid detection to undermine the defence submission that the circumstances suggested in the Crown theory would require the accused to take very unlikely chances of being detected in the alleged crime. In short the Court of Appeal found these observations of the judge were not things that a court could properly take judicial notice of, particularly because of how close they were to the central issues of the case. The case outlines the law on judicial notice and extrinsic evidence. Finally, the use of the term “plausible” within the reasons raised a problem because that is not a defined standard in law as it relates to evidence. Consequently, describing evidence as plausible or not does not disclose a reason for its acceptance or rejection in a criminal trial. The continual use of this term in relation to witness evidence by the judge without defining it led to a second error leading to a new trial.
Factual Background
[5] R.M. was charged with seven offences: (a) three counts of sexual touching contrary to s. 151 of the Criminal Code, R.S.C. 1985, c. C-46 (counts 1, 2, and 6); (b) two counts of sexual assault contrary to s. 271 (counts 3 and 4); and (c) two counts of invitation to sexual touching contrary to s. 152 (counts 5 and 7).
[8] The Information (or charging document) did not particularize the sexual misconduct that underlies each count. Instead, the complainants each testified about multiple incidents involving R.M. that individually and collectively fell within the scope of the charged offences. As long as one incident was found to have been proved in relation to each complainant, the related count would be made out, assuming the Crown established the essential elements of the named offence beyond a reasonable doubt. This would include, where required, proof of a sexual purpose.
[9] It is not necessary for the appeal to set out the entirety of the evidence adduced at trial. Instead, it will suffice to summarize the facts recited by the trial judge in her reasons. I will supplement that summary with portions of the trial transcript where necessary.
Closing Submissions
[44] In closing submissions, trial counsel for R.M. described this case as one in which W.(D.) principles were of “paramount importance” (R. v. W.(D.) [1991] 1 S.C.R. 742 (S.C.C.), 1991 CanLII 93) [W.(D)]). Credibility would be central to the trial judge’s analysis.
[45] The defence argued that the complainants’ evidence lacked specificity. There were also material inconsistencies in their evidence and importantly, some of their claims or descriptions of what occurred with R.M. were “implausible”.
[46] After highlighting what he saw as particularly problematic aspects of the complainants’ testimony, trial counsel submitted the trial judge should have “… serious concerns and reservations about the credibility of the complainants, mostly on the basis of the implausibility of their evidence, but as well internal inconsistencies and contradictions with prior statements” (emphasis added).
[48] In its closing submissions, the Crown agreed with the defence that credibility was the primary issue in the case. Relying on R. v. W. (R.), [1992] 2 S.C.R. 122, 1992 CanLII 56, the Crown encouraged the trial judge to assess the complainants’ evidence keeping in mind that they testified about events which occurred when they were children. In response to defence arguments about “implausibility”, Crown counsel submitted the trial judge should not give those contentions much weight because: “… [the court] sees it regularly, sadly, situations where you think that makes no sense. Who would do that?”
Reasons for Conviction
[50] The trial judge began her reasons by reviewing the evidence. She then instructed herself on the legal principles she was bound to apply in assessing the case.
[51] This included the presumption of innocence and the Crown’s burden to prove all elements of the charged offences beyond a reasonable doubt. She reminded herself of the W.(D.) framework and she noted that if she did not know who to believe after a careful consideration of all of the evidence, she was obliged to acquit: RFJ at para. 159.
Issues on Appeal
[71] On appeal, R.M. alleges five errors. He says the trial judge:
a) improperly took judicial notice of matters extrinsic to the trial process that had a material impact on her credibility and reliability assessments;
b) erroneously decided the case on the basis of plausibility rather than proof beyond a reasonable doubt;
Analysis
[88] As stated, I consider it necessary to address only the first two grounds of appeal, which I will refer to as “judicial notice errors” and “plausibility concerns”.
Judicial Notice Errors
[89] R.M.’s first alleged error is that in her assessment of the evidence, the trial judge improperly invoked and relied upon information outside of (or extrinsic to) the trial process and treated that information as accepted facts without first asking whether it was proper to do so. Moreover, R.M. says the trial judge gave the defence no meaningful opportunity to challenge or rebut the extrinsic facts and it rendered the trial unfair.
Specific Complaints
[90] The first judicial notice complaint arises out of the trial judge’s assessment of C2’s evidence. The defence challenged C2’s testimony about sexual touching during a sleepover on a number of bases, including the plausibility of her evidence that although she was “really scared”, her heart was “racing”, and the incident was shocking and traumatic for her, she fell back asleep shortly thereafter.
[91] The trial judge rejected this challenge, in part, because she had “observed that children can and do fall asleep quickly after a traumatic incident”: RFJ at para. 202, emphasis added. In making this statement, it is unclear whether the trial judge was referring to observations made in cases over which she has presided, as legal counsel in practice, or in her personal life. On appeal, the Crown concedes it is likely the last of these three.
[92] A second and third alleged improper use of extrinsic information involves factual assumptions made about the behavioural pattern, the intentionality, and the detection of adults who perpetrate sexual abuse against children. R.M. says the trial judge accepted these assumptions as true and without exception.
[93] At trial, R.M. argued that the complainants’ evidence should not be believed, at least in part, because R.M. would not have had the opportunity to commit the offences given his work schedule. Moreover, he testified that he was rarely (if ever) alone with the complainants while they were in his house and given the way in which the three families tended to socialize together, there would likely be many others present when he interacted with the complainants, including their parents. In that context, R.M. said it is unlikely he would have committed the acts described by the complainants and not be seen.
[94] Specific to C2’s evidence about the humping incidents, which were said to have occurred “every few times” she was at R.M.’s house, the trial judge acknowledged it was “surprising” that R.M. would have committed these acts given the possibility of detection: RFJ at para. 204. However, she noted that the “case law is replete with similar stories”: RFJ at para. 204. She then cited from Justice Marchand (as he then was) in R. v. C.C.C., 2020 BCSC 1367 [C.C.C]. In rejecting an argument about limited opportunity in that case, Justice Marchand said: “History has shown that adults who perpetrate sexual abuse on children find their opportunities and avoid detection”: C.C.C. at para. 95.
[95] Later in her reasons, the trial judge again referred to the manner in which adults perpetrate sexual offences against children. This time, she invoked factual assumptions about the modus operandi of predatorial offenders while assessing the credibility of R.M.’s denial in relation to both complainants and when considering the potential corroborative effect of the testimony from the complainants’ parents. The trial judge accepted as “true” the parents’ testimony that they did not observe R.M. display any unusual or inappropriate conduct towards their children. However, she explicitly gave that evidence “very limited” weight “… because case law supports that a determined adult predator will find opportunities to abuse children and will successfully avoid detection”: RFJ at para. 227, emphasis added.
Governing Legal Principles
[96] It has long been recognized that trial judges may take judicial notice of facts that were not the subject of proof at trial, accept those facts as true, and rely on them in deciding the case.
[97] As explained in Introducing Evidence at Trial: A British Columbia Handbook, 4th ed. (Vancouver, Continuing Legal Education Society of British Columbia, 2020) at 265–266: “The principle underlying judicial notice is that parties should not have to spend time proving things that are generally known and accepted or that are easily obtained from authoritative standard reference material” (emphasis added).
[98] Judicial notice “expedites the process of the courts, creates uniformity in decision-making and keeps the courts receptive to societal change …”: Sidney N. Lederman, Michelle K. Fuerst & Hamish C. Stewart, Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 6th ed (Toronto: LexisNexis Canada, 2022) at s. 19.25.
[99] For example, the Supreme Court of Canada has taken judicial notice of the history of colonialism and how that history continues to translate into disproportionate rates of incarceration for Indigenous peoples: R. v. Sharma, 2022 SCC 39 at para. 55, citing R. v. Ipeelee, 2012 SCC 13 at para. 60.
[100] Canadian courts have also taken judicial notice of the systemic and background factors affecting Indigenous peoples, including displacement and residential schools: R. v. Parranto, 2021 SCC 46 at para. 80, citing Ipeelee at para. 60 and R. v. Gladue, [1999] 1 S.C.R. 688, 1999 CanLII 679 at para. 83.
[101] In R. v. Le, 2019 SCC 34, the Supreme Court of Canada held that “[e]vidence about race relations … can be derived from ‘social fact’ or the taking of judicial notice”: at para. 71. The Court then took judicial notice of the “… disproportionate policing of racialized and low-income communities …”: at paras. 97, 260.
[102] It is clear from these cases that judicial notice is not extraordinary, and that it can play an accepted and important role in the litigation process. However, judicial notice operates in the context of an adversarial system. Of critical importance to that system is the long-settled “principle that the opposing party must have the opportunity to challenge all facts that are not self-evidently beyond dispute”. Consequently, a court’s authority to take judicial notice is limited to “ensure that a fact accepted as true without further proof actually arises from a common understanding or within a common frame of reference”: Introducing Evidence at Trial: A British Columbia Handbook at 266. See also S. Casey Hill, David M. Tanovich & Louis P. Strezos, McWilliams’ Canadian Criminal Evidence, 5th ed (Toronto: Thomson Reuters Canada Limited, 2013) (updated 2023) at § 26:7.
[103] When a court takes judicial notice of an extrinsic fact, it dispenses with the need to prove the fact and accepts it as having been established: R. v. Williams, [1998] 1 S.C.R. 1128 (S.C.C.), 1998 CanLII 782 at para. 54. The party that seeks to rely on the fact will not bear the burden of proving it. Once this occurs, there is no room to rebut the fact or to test it through cross-examination: R. v. Zundel (1987), 35 D.L.R. (4th) 338 at 391 (O.N.C.A.), 1987 CanLII 121, leave to appeal ref’d, 20310 (04 June 1987).
[104] Accordingly, to preserve trial fairness, the law holds that the closer an extrinsic fact lies “to the dispositive end of the spectrum”, the more stringent the requirements for taking judicial notice: R. v. J.M., 2021 ONCA 150 at para. 33 [J.M.]; R. v. Spence, 2005 SCC 71 at paras. 60–61.
[105] Where a fact is dispositive of an issue in dispute, a judge may only take judicial notice where: (1) the fact is clearly uncontroversial and beyond reasonable dispute; or (2) it is capable of immediate and accurate demonstration by resort to readily accessible and accurate sources: R. v. Find, 2001 SCC 32 at para. 48; Le at paras. 84–85.
[106] The standard for taking judicial notice is less strict in circumstances where an extrinsic fact is relied upon solely for context. When a fact will “… merely paint the background to a specific issue … courts will usually take judicial notice … and the threshold is lower”: Le at para. 85.
[107] Importantly, where an extrinsic fact falls in the middle of the spectrum, in that it may not be dispositive, but does more than “merely paint the background”, a trial judge must not take judicial notice of it without first asking whether that fact “… would be accepted by reasonable people who have taken the trouble to inform themselves on the topic as not being the subject of reasonable dispute for the particular purpose for which it is to be used …”: Spence at para. 65, italics in the original.
Discussion
[108] In alleging judicial notice errors, R.M. relies heavily on the Ontario Court of Appeal’s decision in J.M.
[110]….The appellant encouraged the trial judge to find the complainant’s evidence not credible because among other things, it was implausible that she would not have distanced herself from the appellant after the incident in the car: at para. 14. The trial judge rejected this submission for several reasons. One of the reasons arose out of his own experience as a lawyer (at para. 44):
… In many years of appearing before the Ontario Court of Appeal as counsel for accused convicted of interfamilial sexual crimes, I can say that instances in which a complainant fails to distance her or himself from the abuser are not unusual. In fact, as a study of the evidence in appellate cases would I am sure bear out, such cases are commonplace. I am confident that trial and appellate judges, and counsel who deal with these cases, would agree. Despite such strong after-the-fact evidence of association, juries have been known to convict in these circumstances.
[Emphasis from original removed.]
[111] The Ontario Court of Appeal held that the trial judge erred in drawing on his own experience in this way….
[51]….The only facts a trier of fact may consider in making his or her decision in a case is the evidence adduced in the courtroom. Facts that satisfy the criteria for judicial notice are the only exception to that rule … As this court [has] cautioned … “a trial court is not justified in acting on its own personal knowledge of or familiarity with a particular matter, alone and without more.” Accordingly, unless the criteria of notoriety or immediate demonstrability are present, a judge cannot judicially notice a fact within his or her personal knowledge …
[53]….By the time of his reasons, the trial judge had drawn on his personal experience as counsel to conclude that in cases of interfamilial sexual crimes, instances in which a complainant fails to distance her or himself from the abuser are not unusual but “commonplace,” a conclusion approximating a form of generalization.
[112] A similar error was found to have occurred in C.G., another decision from the Ontario Court of Appeal.
[114] In addition to challenging the complainant’s evidence generally, C.G. urged the trial judge to reject the Crown’s case on grounds that he had no opportunity to commit the offences without being detected. He worked night shifts and was only home two nights per week. When he was home, he spent the nights with his spouse. His wife was a light sleeper and she would have woken if C.G. left their bed. The floors in the house were also creaky: at paras. 44–46.
[115] When responding to this submission during closing arguments, the trial judge said this (at para. 45):
As far as why would he take that risk, I think sex offenders take incredible risks all the time and, so you, I mean, you hear, well why would he ever take that risk when somebody was next door or whatever it was, but that’s just the nature of those – of that type of offence, and that’s why in this court, the majority of the cases that we hear are sex offences … Because they’re prepared to take those incredible risks.
[Emphasis added.]
[116] In ordering a new trial, the Ontario Court of Appeal accepted that trial judges are “… entitled to reject an implausibility argument that is based on the unlikelihood that the accused would have taken the risks required to commit the offence with which they are charged”: at para. 46. However, they cannot do so by taking judicial notice of a sweeping contention as if it were a fact, based on their personal recollection and without a proper inquiry:
[46] … Even if the trial judge was not intending to express a universal truth, he was at least of the view that incredible risk-taking is commonplace. If that was the trial judge’s approach, then he erred in doing so … judicial notice cannot be taken of such a contention as if it was a fact. Assuming such a fact could be established, it would require a proper evidentiary foundation. A third possibility is that the trial judge was relying on his personal knowledge or experience as proving that fact. This also would be an error. A trial judge cannot judicially notice a fact within his or her personal knowledge unless the criteria of notoriety or immediate demonstrability are present …
[Emphasis added.]
[117] R.M. says the trial judge made the same error in this case. I agree.
[118] As I read her reasons, the trial judge assessed C2’s testimony about the sleepover, the evidence from the complainants’ parents, and the overall credibility of R.M.’s denial of sexual touching by testing that evidence against factual assumptions about how people conduct themselves in a particular context that she accepted as true, and which were drawn from her personal experience extrinsic to the trial process, or from “stories” or factual narratives that had been proved in other cases. [Emphasis by PJM]
[119] The trial judge assessed the credibility and reliability of C2’s evidence about the sleepover and rejected the defence challenge to that evidence by measuring the credibility and reliability of C2’s testimony against the fact that children “can and do fall asleep quickly after a traumatic incident”: RFJ at para. 202. As noted, the Crown concedes this fact was accepted by the trial judge based on her personal experience in observing children. It was not established by evidence at the trial, expert or otherwise.
[120] In assessing R.M.’s denial of sexual offending based on limited opportunity to commit the offences and inconsistency between the nature and frequency of the interactions described by the complainants and the fact that none of the parents observed anything unusual, the trial judge assigned “very limited” weight to credible Crown evidence that was potentially supportive of R.M.’s defence because she accepted and importantly, she instructed herself, that “… a determined adult predator will find opportunities to abuse children and will successfully avoid detection”: RFJ at para. 227.
[121] The latter fact, as articulated by the trial judge, presupposes a particular intention to search for opportunities to offend and success in avoiding detection. Moreover, it appears to have been accepted as true, universal, and without exception. It was drawn from the trial judge’s understanding of factual matrices proved in other cases, including C.C.C. The trial judge’s reliance on this fact not only assumed that R.M. fit the profile or prototype of a “determined adult predator” before any determination of his guilt, but assumed that because of this profile, he would conduct himself in a particular way (find opportunities to abuse), and importantly, he would successfully avoid detection.
[122] I agree with R.M. that in both scenarios, the trial judge used extrinsic facts as makeweights, which then had the effect of bolstering the credibility and reliability of C2’s description of the sleepover and devaluing the exculpatory potential of R.M.’s testimony in relation to both complainants, as supported by the parents’ evidence. Moreover, she did so without asking whether those facts were properly the subject matter of judicial notice and without providing R.M. a meaningful opportunity to address the issue. This was an error.
[123] As aptly noted in R. v. Ururyar, 2017 ONSC 4428 at para. 58, “… witnesses [in a criminal case, including the accused], are entitled to have their credibility [and reliability] assessed on the basis of the evidence in the case, rather than [with reference to accepted factual assumptions] about human behaviour that have been derived from a trial judge’s … reading of social science literature”, their personal experience or, I would add, findings made in other cases.
[124] It is a “… fundamental tenet of our criminal justice system … that the guilt of an accused cannot be determined by reference to the guilt of other, unrelated accused persons”, or what has been proved elsewhere: R. v. Sekhon, 2014 SCC 15 at para. 49. To hold otherwise improperly burdens the accused to show that they do not fit the profile of accused people in other cases or that the circumstances of their case are distinguishable, such that the findings made elsewhere have no application. This amounts to an erroneous reversal of the burden of proof (Sekhon at para. 50) and is obviously incompatible with the presumption of innocence.
[127] As explained in R. v. Pastro, 2021 BCCA 149, findings of fact and credibility assessments should not “… rest on a subjective assessment of what a hypothetical complainant or accused might reasonably be expected to do in the circumstances, but on what the evidence establishes the complainant and accused did or did not do in the context of the case being tried”: at para. 42. See also R. v. J.C., 2021 ONCA 131 at para. 58.
[136] I also do not agree that in making the impugned statements, the trial judge in this case was simply applying common sense. I would not describe the statements as being “derived from the common experiences of life”: R. v. H.W.J., 12 B.C.A.C. 81 (B.C.C.A.), 1992 CanLII 5995 at para. 38.
[137] Specific to the second of the impugned extrinsic facts, I accept it is likely uncontroversial and cannot reasonably be disputed that child sexual abuse often happens in private and often goes undetected. As such, the fact that particular acts of alleged sexual touching have not been witnessed or detected by others, even where those acts occurred in close proximity to them, does not mean that a trial judge cannot accept the allegations as true. Non-detection is not determinative of the issue and standing alone, it does not invariably give rise to a reasonable doubt. In my view, that was the point made in C.C.C. and in R. v. E.A.G., 2020 BCSC 1691, another case cited by the Crown.
[138] However, this is not the fact the trial judge took notice of. She accepted that “determined adult predator[s]” will search out opportunities to abuse children and will successfully avoid detection. These are very specific factual assumptions made about the behaviour of a particular type of offender, the accompanying intention, and their detectability. The logical effect of accepting these assumptions as factual truths and weighing potentially exculpatory evidence against them, is that irrespective of the particular circumstances of the case, testimony that no one saw an accused who is charged with sexual offending against children do anything unusual or detected sexual misconduct will have no evidentiary value.
[139] I appreciate there can be a fine line between matters of common sense and human experience (a form of tacit judicial notice) and matters that properly engage the strictures of the judicial notice framework. It is not always easy to distinguish between the two.
[140] However, therein lies the importance of the framework and adherence to the analytical guidance provided in cases such as Spence.
[141] Where it is unclear whether a certain fact is properly the subject matter of judicial notice and that fact is either dispositive of a contested issue or falls somewhere between dispositive and mere background, a trial judge must not rely on the fact without first asking whether it “… would be accepted by reasonable people who have taken the trouble to inform themselves on the topic as not being the subject of reasonable dispute for the particular purpose for which it is to be used …”: Spence at para. 65, italics omitted.
[143] In the circumstances of this case, I consider it plain from the trial judge’s reasons that she relied on her personal observations of children falling asleep after a traumatic event and on factual assumptions made about “determined adult predator[s]”, for a substantive purpose. She did so without asking herself (or the parties) whether these accepted facts were properly the subject matter of judicial notice. Then she proceeded to assess the credibility and reliability of adduced evidence and to determine its probative value, or her possible use of it, based on consistency or inconsistency between that evidence and the accepted facts.
[148] The credibility and reliability of C2’s evidence about the sleepover and the impact of R.M.’s denial on the complainants’ evidence, generally, were key issues in this case and a matter of significant dispute. At trial, both parties agreed that the outcome of the prosecution would stand or fall with the trial judge’s credibility and reliability findings. Indeed, as correctly stated in R.M.’s factum, the trial judge ultimately found that the credibility and reliability of the complainants’ evidence “… positively undermined R.M.’s testimony and prevented it from raising a reasonable doubt” (emphasis added). In other words, she concluded that R.M.’s evidence could not stand in light of the cogency of the complainants’ testimony: Redden at para. 81.
[149] Given this emphasis, I consider the impugned facts to lay close to the “dispositive end of the spectrum”: J.M. at para. 33. They were invoked in relation to a central issue—credibility. At the very least, they fell somewhere in the middle. Before relying on them to assess credibility, reliability, and the value of evidence that carried the potential to support R.M.’s defence, the trial judge was required to ask herself whether the facts, as invoked and framed by her, “… would be accepted by reasonable people who have taken the trouble to inform themselves on the topic as not being the subject of reasonable dispute for the particular purpose for which it is to be used …”: Spence at para. 65, italics removed. She did not conduct this inquiry. Nor did she provide R.M. with a meaningful opportunity to address the issue, including whether it was proper to evaluate his evidence and potentially exculpatory evidence adduced by the Crown applying the profile of a “determined adult [sexual] predator” before a finding of guilt, and to measure the worth of this evidence with that classification in mind. In my view, the Ontario Court of Appeal’s judicial notice analyses in J.M. and C.G. are apposite.
[150] Having found legal error, the next question is whether the errors were palpable and overriding. If they were, this Court has authority to intervene with the trial judge’s credibility and reliability assessments unless the errors are saved by the Crown’s invocation of the curative proviso.
[151] Having carefully considered the issue, I accept that the trial judge’s assessment of C2’s evidence about the sleepover was not grounded exclusively or even predominantly in her reliance on the fact about a child’s capacity to fall asleep quickly after a traumatic event. This was but one factor she considered in her overall assessment of the evidence surrounding this allegation.
[160] I do not consider that the trial judge’s use of the first of the impugned facts went to the core of her assessment of C2’s evidence or eroded the credibility finding overall. As such, I am satisfied this error is properly characterized as harmless for the purpose of the curative proviso.
[161] I have reached a different conclusion about the error in respect of the second extrinsic fact.
[169] In my view, the particular circumstances and the overall context of this case were such that it was incumbent upon the trial judge to carefully analyze the probative value of the parents’ testimony in light of the entirety of the evidence and to ask whether this testimony, coupled with R.M.’s denial, raised a reasonable doubt about the complainants’ allegations, in whole or in part. This is especially so given the conclusion she reached about C1’s description of the groping incidents, which included R.M. “pulling” C1 away from others who were present for the specific purpose of offending: RFJ at para. 181. The trial judge found that this evidence was insufficiently reliable to ground a conviction. She asked whether her conclusion on reliability undermined C1’s “honesty” in respect of the other two experiences described by her: RFJ at para. 183. What she did not ask is whether this finding, considered alongside the parents’ testimony and R.M.’s denial, impacted her assessment of the case as a whole and raised a reasonable doubt.
[170] Rather than engage in a close analysis of what impact, if any, the parents’ evidence had on her assessments of credibility and reliability generally, the trial judge instructed herself that this evidence attracted “very limited” (or negligible) weight because the behavioural pattern, intentionality, and successful non-detection of “determined adult predator[s]” rendered it inconsequential: RFJ at para. 227. She presupposed that R.M. fit the profile of a “determined adult predator” and as a result, assumed he would conduct himself in a particular way and not be detected. Consequently, the fact that the complainants’ parents saw no interaction of concern had no evidentiary value, irrespective of the circumstances.
[171] The Crown says the reference to “determined adult predator[s]” did not play a material role in the trial judge’s overall analysis. Moreover, the trial judge did meaningfully consider R.M.’s arguments about limited opportunity. The Crown contends that in advancing this ground of appeal, R.M. has focused on the impugned statements in isolation and asks this Court to do precisely what G.F. warns against—parse the reasons in a search for error.
[172] I disagree. I accept that the trial judge turned her mind to the parents’ observations when assessing C2’s evidence about the humping incidents (at paras. 203–205); however, even then, the impugned extrinsic fact came into play: at para. 203. Moreover, the parents’ evidence appears to have been disregarded in assessing R.M.’s denial, which did not have to be believed to raise a reasonable doubt, because of the trial judge’s self-instruction about the probative value of this testimony: RFJ at para. 227. Overall, the practical effect of invoking and relying on the second extrinsic fact is that R.M. was substantially deprived of potentially exculpatory evidence.
[173] I am satisfied the error was not only palpable, but overriding and materially affected the case as a whole.
[174] The trial judge found R.M. guilty of all counts because her “belief in the veracity” of the complainants’ evidence “weigh[ed] against” his denial: at paras. 228–229, emphasis added. The assessed strength of that denial, asserted in respect of both complainants, was tainted by the second judicial notice error. The parties agreed that credibility and reliability were central to the outcome of the case. R.M. was entitled to have his evidence properly assessed in the context of all of the other evidence, including the testimony of the complainants’ parents.
[175] That did not happen and in my view, it constitutes reversible error that is neither salvageable by G.F. nor the curative proviso.
“Plausibility” Concerns
[176] I turn now to R.M.’s second ground of appeal.
[177] As framed by R.M. and advanced before us, this ground is multi-faceted. However, for present purposes, it is necessary to address only one aspect of it. R.M. says the trial judge erred by finding that if the things described by the complainants were plausible, their evidence provided a sufficiently cogent basis from which to reject R.M.’s testimony and ground a conviction. Ultimately, this resulted in a lower standard of proof.
[183] The principal argument made under the second ground of appeal is not unlike the one advanced before the Ontario Court of Appeal in R. v. Kiss, 2018 ONCA 184. In that case, one of the challenges to a conviction for sexual assault was that the trial judge applied an incorrect standard of proof when he found the appellant guilty after stating he was satisfied the complainant’s evidence was “… in harmony with the preponderance of the probabilities …”: at para. 29. The Court held that in using this language, the trial judge was “… doing no more … than responding to defence challenges to the plausibility of [the complainant’s] account. The trial judge was saying that he found [the complainant’s] story to be plausible, i.e., in harmony with the way things can and do happen. It was appropriate for the trial judge to have done so”: at para. 31.
[184] I consider the same can be said here. The trial judge referred to the idea of plausibility mostly in response to suggestions by the defence that some of the events described by the complainants, including how they unfolded, were unlikely or inconceivable, and that their evidence should be rejected on that basis. From the reasons as a whole, I am satisfied the trial judge understood that the state’s burden in a prosecution is proof beyond a reasonable doubt, not whether the allegations were plausible. Indeed, this understanding is readily apparent from paras. 234–236 of the judgment, in which the trial judge expressed her conclusion that the Crown had proved all allegations other than the groping beyond a reasonable doubt.
[185] However, there is an aspect of the trial judge’s consideration of plausibility that, in my view, gave rise to reversible error. The Court raised this issue with counsel at the hearing of the appeal and they had an opportunity to address it.
[186] To start with, the trial judge did not define what she meant by the term “plausible” in her reasons.
[187] A definitive definition or interpretation of this term does not emerge from appellate jurisprudence. In Kiss, the term was defined as being “in harmony with the way things can and do happen”: at para. 31. In R. v. Cooke, 2020 NSCA 66, it was interpreted to mean “likely, probable or conceivable”: at para. 40.
[188] In my view, it is the latter interpretation that underlies the defence submissions at trial, as well as the trial judge’s response. The defence argued that certain aspects of the complainants’ testimony, including where and how the sexual touching occurred, were unlikely or even inconceivable, and as a result, their evidence was neither believable nor reliable.
[189] For example, the defence argued that the “sheer number” of the groping incidents described by C1 “ma[de] it implausible”. C1 testified that this conduct happened once a week for as many as six years, and yet no other witness saw any behaviour directed towards C1 (such as carrying her in strange ways or pulling her from a room), or any special attention paid towards her.
[190] As a second example, the defence argued that in order for the sleepover incident to have occurred, it would require that R.M. leave his bed, hope his spouse did not wake up, climb a set of stairs, pass the bedroom of his other children, and then enter the bedroom in which C2 was situated and begin to touch her, the whole time assuming she would not say anything. The defence asked: “what is the likelihood of this occurring?” From R.M.’s perspective, C2’s “evidence on this point [was] implausible”.
[191] In responding to the defence arguments, the trial judge appears to have adopted the same understanding of plausibility.
[196] In her testimony, C2 said that while riding the dirt bike, R.M. put his “hands down [her] pants”. R.M.’s hands “… started out on top of [her] pants [on her vagina] and then went in between [her] underwear and pants, went down [her] pants”. After “… [they] went away from everyone so [they] were out of sight … his hands went in between [her] underwear and pants”. In cross-examination, C2 agreed she was probably wearing “tight jeans”. Based on para. 208 of her reasons, the trial judge appears to have accepted that C2 was, in fact, wearing “tight jeans”.
[197] It is unclear to me precisely what the trial judge meant when she said C2’s description of how the sexual touching occurred was “less plausible”: RFJ at para. 208. Based on her other uses of this same term, I interpret the reasons as the trial judge having concluded it was “less likely” or “less conceivable” that R.M. “… was able to get his hand down the front of her tight jeans …”: at para. 208. (I pause to note here that C2’s evidence was inconsistent on this point, also stating that both hands were placed down her pants while riding the dirt bike, not just one.)
[198] The trial judge’s finding of “less plausible” is troublesome. It is one that, in my view, called out for greater analysis and explanation. R.M.’s ability to place one or both hands down the front of C2’s pants while on the bike was not a peripheral matter. To the contrary, it constituted the actus reus of the alleged sexual touching and there was no other evidence on point.
[199] If C2’s description of how the actus reus was committed was unlikely or inconceivable, it was incumbent on the trial judge to ask, analyze, and explain why this conclusion did not materially detract from the Crown’s proof of the allegation or the credibility or reliability of C2’s testimony, overall. Assessing credibility and reliability is a holistic exercise that “… involves assessing the plausibility and coherence of a given witness’s testimony throughout the course of the trial”: R. v. Goldfinch , 2019 SCC 38 at para. 123, Moldaver and Rowe JJ., concurring, emphasis added. A legally incorrect approach to material evidence runs the risk that the final step in the trial process, the overall weighing of the evidence to determine whether the Crown has met its high burden, will be flawed: R. v. B. (G.) , [1990] 2 S.C.R. 57 at 77 (S.C.C.), 1990 CanLII 115 [B. (G.)].
[200] At para. 208 of her reasons, the trial judge said this aspect of C2’s evidence did not “… alone … discredit her testimony”. However, this was a conclusory statement. Respectfully, there is no indication that the trial judge appreciated the critical importance of this evidence to the Crown’s burden of proving the essential elements of sexual touching, or the inconsistencies in C2’s evidence. I appreciate the latitude trial judges have in crafting their reasons; however, in my view, this was an issue for which R.M. was entitled to know why the concerns about C2’s evidence did not leave the trial judge with a reasonable doubt: Gagnon at para. 21.
[204] As with the first ground of appeal, I find this error palpable and overriding. Furthermore, I cannot say with confidence that had this aspect of C2’s evidence been properly analyzed, there is no realistic possibility a new trial would result in a different verdict specific to her allegations. Accordingly, the Crown has not met its “high” burden of showing the error was harmless: R. v. Sarrazin, 2011 SCC 54 at paras. 25–28.
[214] Accordingly, I would allow the appeal and set aside the convictions on all counts. I would order a new trial on counts 1, 2, 3, 4, 6 and 7 of the Information. The Crown having consented, I would enter an acquittal on count 5.
R v S.C., 2023 ONCA 832
[December 14, 2023] Use of Prior Consistent Statements [David M. Paciocco, J. George, and J. Dawe JJ.A.]
AUTHOR’S NOTE: Both the power of this variety of inadmissible evidence and its continual misuse in criminal trials continues to find expression in overturned criminal convictions by appellate courts across the country. This case provides a short pithy summary of the permissible and impermissible uses of prior consistent statements. Here, the prosecutor made specific argument that a prior Facebook post of the complainant was corroborative of her account and then the trial judge failed to give an appropriate limiting instruction that would have undermined this closing argument.
[1] A jury found the appellant guilty of sexual assault. He was sentenced to 42 months’ imprisonment.
[2] The appellant appeals his conviction. With the assistance of duty counsel, he raises one ground of appeal: the trial judge failed to caution the jury on how they could use the complainant’s prior consistent statement.
B. THE CROWN’S CLOSING SUBMISSIONS AND THE TRIAL JUDGE’S FINAL INSTRUCTIONS
[8] During his closing address to the jury, Crown counsel at trial (not Mr. Hay) said this about the complainant’s Facebook message to the appellant:
The most illustrative piece of evidence at this trial, the most telling any only corroborative piece of tangible evidence that reflects the mindset of [the complainant], mere hours after the encounter, is the text message that she sends to [the appellant]. Not only is it word for word consistent with what she describes saying to [the appellant] prior to, during and after the sexual assault, it reveals much about [the appellant] and what happened that evening. At 12:35 p.m. [the complainant] on August 14th wrote “I didn’t want to have sex with you last night that’s why I kept saying no”. It could not be any more in line with her actions and her words, as described by her from the beginning of the interaction when they entered the house, to the end.
[9] In our view, the trial Crown was plainly inviting the jury to reason that because the complainant’s message mirrored her evidence at trial, her allegation was more likely to be true.
[10] Not only did the Crown ask the jury to find that the complainant’s prior consistent statement corroborated her testimony, but it also asked the jury to infer that the appellant’s decision to not respond to the complainant’s message is behaviour consistent with his guilt. Or, put another way, that by not responding to the complainant’s message, the appellant was implicitly accepting that what she wrote was true:
C. THE TRIAL JUDGE ERRED BY NOT INSTRUCTING THE JURY ON HOW IT COULD USE THE COMPLAINANT’S PRIOR CONSISTENT STATEMENT
Prior Consistent Statement
[14] Prior consistent statements by witnesses are presumptively inadmissible. This is so for several obvious reasons, including the fact that they are hearsay, but also because they are a form of oath-helping which will, if a jury is not properly instructed, encourage the jurors to treat the repetition as a “badge of trustworthiness”:R. v. D.K., 2020 ONCA 79, 384 C.C.C. (3d) 405, at para. 35; R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, at para 25. It is impermissible for triers of fact to reason that a prior consistent statement corroborates in-court testimony or that consistency enhances credibility: Khan, at para. 41. A prior consistent statement cannot corroborate in-court testimony since it is not independent proof, coming as it does from the same source as the testimony. Moreover, repetition does not “enhance the value or truth of the testimony”: R. v. Ellard, 2009 SCC 27, [2009] 2 S.C.R. 19, at para. 31. Lies or innocent errors can be repeated as readily as the truth can be repeated. The Crown directly invited the jury to engage in “prohibited inferences”.
[15] There are exceptions to the prohibition against admitting prior consistent statements, including: 1) to rebut an allegation of recent fabrication, 2) to establish prior eyewitness identification, 3) to prove recent complaint, 4) to provide evidence of the emotional state of the complainant or witness, and 5) to adduce facts as part of the narrative: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5; R. v. Bagherzadeh, 2023 ONCA 706, at para. 26.
[16] However, even when a prior consistent statement is admissible under one of these exceptions or on some other proper basis, it must “almost always” be accompanied by a limiting instruction to prevent the evidence from being used for impermissible purposes: Ellard, at para. 42. As Watt J.A. explained in R. v. J.A.T., 2012 ONCA 177, 290 O.A.C. 130, at para. 50:
[17] The trial judge failed to give a limiting instruction. Here, the lack of a limiting instruction was particularly problematic because Crown counsel at trial drew the jury’s attention to the Facebook message and specifically invited the jurors to use it in an impermissible way, by treating it as the “only corroborative piece of tangible evidence that reflects the mindset of [the complainant]”. In our view, this made it all the more important that the jury be directed about what they could and could not do with this evidence.
After-the-Fact Conduct Evidence
[20] The Crown submits that the Facebook message might have been properly used by the jury on the basis that the accused’s after-the-fact conduct – namely, his not responding to the complainant’s message – was behaviour consistent with his guilt. That is, the Crown argues that the jury could properly conclude that the appellant did not respond to the complainant’s message because he knew her statement to be true.
[21] The problem with the Crown’s argument is that evidence of after-the-fact conduct by an accused is properly admissible only if it is logically relevant to a live, material issue in the case; its admission does not offend any other exclusionary rule of evidence; and its probative value exceeds its prejudicial effects: R. v. Gaetan, 2023 ONCA 114, at para. 40. The probative value of after-the-fact conduct evidence depends on the specific nature of the conduct, its relationship to the record as a whole, and the issues raised at trial: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 119, per Martin J. (dissenting, but not on this point); R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 42.
[22] In this case, none of the questions governing the admissibility of after-thefact conduct evidence were answered in the court below. While the appellant does not raise the trial judge’s failure to address these questions as a ground of appeal, if he had, and if an error was found, the remedy would have been to remit the matter back for a new trial so that this issue could be properly litigated. Contrary to what the Crown is effectively asking us to do, it would not be appropriate for us to weigh in on these questions now.
[23] More significantly, even if the evidence of the complainant’s message, and the appellant’s lack of response to it, could properly be used by the jury as afterthe-fact conduct evidence, the jury was not instructed that they could only use this evidence in this manner, and that they could not use the complainant’s prior consistent statement to self-corroborate her allegations, as the trial Crown had invited them to do. In other words, even if the evidence did have a proper use in this case, in the absence of any limiting instruction the jury could just as well have used it improperly.
D. CONCLUSION
[24] The appeal is allowed and a new trial is ordered.
R v Beauvais, 2024 ONCA 22
[January 12, 2023] Possession: Inferences Alternative to Guilt [David M. Paciocco, J. George, J. Dawe JJ.A.]
AUTHOR’S NOTE: This case involved some interesting arguments on possession of child pornography. The essential aspects of the facts involved a computer which everyone in a house had the password to and the presence of a virus on the computer that had the capability of altering the contents of the computer. The role of the trial judge in this circumstantial evidence case was to assess whether the Crown had disproved all reasonable possibilities alternative to guilt beyond a reasonable doubt. Here, the possibility that someone else downloaded and handled the child pornography was not discounted through the evidence and the trial judge did not provide reasons as to why someone else could not have done it. In respect of the virus, the Crown called no evidence to rebut the possibility that someone else, external to the residence, downloaded the material. Because the expert testified that the virus could execute commands from an attacker, this became a reasonable alternative to guilt that had to be negated by the evidence.
A. OVERVIEW
[2] The appellant appeals his convictions. Assisted by duty counsel, he raises one ground of appeal: the trial judge erred by failing to properly consider alternative inferences other than his guilt. The appellant argues that these alternative inferences were not “mere speculation”, but rather were reasonable possibilities as defined in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000. The appellant seeks a new trial.
B. THE TRIAL
[3] Constable Kwon of the Chatham-Kent Police Service, using a special software program to track child pornography, discovered that several gigabytes of material had been downloaded to a subscriber identified as Christopher Hallissey at an address in Chatham. Mr. Hallissey lived at this residence along with the appellant, the appellant’s girlfriend Trish Evans, and Cameron Quick. A fifth person, Leo Leblanc, also lived there during the period when the child pornography was downloaded.
[4] A search warrant was executed at the residence. Electronic devices were located and turned over to Constable Fasullo for analysis. Constable Fasullo analyzed an Acer laptop computer (the “laptop”) with 143 videos, and a Toshiba hard drive with 1 video and 271 images.
[5] At trial it was agreed that:
i) all of these videos and images met the definition of child pornography;
ii) Constable Fasullo was a qualified computer analyst;
iii) the appellant’s nickname is “Moose” (which he used in both his email address and Facebook account);
iv) the downloaded child pornography originated from a file-sharing program called uTorrent;
v) the laptop was password protected;
vi) the laptop was typically left in the living room on a table that was accessible to anyone who lived at, or visited, the residence;
vii) both Mr. Hallissey and Mr. Leblanc would use the laptop but only when permission was granted by the appellant; and
viii) Mr. Leblanc would normally use the laptop when “gaming” (playing video games) with the appellant.
[6] In his statement to the police, and during his testimony at trial, the appellant acknowledged that he was aware of and had used the uTorrent file-sharing program. Both Constable Fasullo and Constable Kwon testified that to download child pornography from the uTorrent program to a computer, one would have to conduct an internet search specifically for child pornography….
[7] During Constable Fasullo’s analysis of the laptop he discovered a virus, accompanied by a warning that it was “dangerous and executes commands from an attacker”. Beyond this warning, Constable Fasullo did not know, and the Crown did not tender any other evidence about, the nature of the virus or what it was capable of doing, including whether it allowed other people to download materials to the laptop remotely. The appellant’s trial counsel argued that it was possible that the virus was responsible for the child pornography being downloaded.
[8] Constable Fasullo further testified that he located child pornography in the laptop’s recycle bin, which was still accessible.
[9] The appellant denied downloading child pornography. He pointed the finger at Mr. Leblanc, explaining that after Mr. Leblanc had accidentally placed his own phone in a washing machine, and out of fear that he would lose photographs of his girlfriend and child, he asked the appellant to download the contents of the phone’s SD card onto his laptop. The appellant testified that he did so, but because the pictures from the SD card were encrypted, he could not view them on his laptop. He subsequently downloaded the SD card onto Trish’s phone, where he viewed images depicting child pornography. The appellant said that, because of what he found, he took steps to evict Mr. Leblanc from the residence and that he flushed the SD card down the toilet.
[10] Mr. Leblanc testified. He denied doing what the appellant had alleged….
[11] As mentioned, the Toshiba hard drive – which, when found, was connected to the laptop – also contained child pornography. While the laptop was the appellant’s, Mr. Hallissey owned the hard drive. Mr. Hallissey testified. Although anime pornography was found on his PlayStation (that he admitted downloading), Mr. Hallissey denied downloading any other child pornography onto either the laptop or the hard drive.
[12] The Crown’s position at trial was that the only reasonable inference to draw from the evidence was that the appellant was responsible for the child pornography found on both the laptop and the hard drive.
D. ANALYSIS
Possibility That Other Individuals in the Residence Downloaded the Child Pornography
[17] While it was open to the trial judge to reject the appellant’s evidence about Mr. Leblanc’s SD card, he failed to assess whether Mr. Leblanc (or anyone else in the home) could have downloaded the materials otherwise. For instance, the appellant testified that every resident had access to his laptop; that the laptop’s password was his birthday and that “[e]veryone knew it”; and that “[i]t could have been anyone but Cameron Quick”, none of which the trial judge ever expressly accepted nor rejected.
[18] It is well-established that a trier of fact can reject some, none, or all of a witness’s testimony: see e.g. R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 10; R. v. Powell, 2021 ONCA 271, at para. 40. Accordingly, the trial judge’s rejection of the appellant’s evidence that the child pornography was downloaded from Mr. Leblanc’s SD card cannot be read as an implied rejection of his testimony in its entirety or as a rejection of the specific points noted above. Furthermore, at no point did the trial judge affirmatively accept Mr. Leblanc’s evidence that he and Trish had to have the password entered by the appellant when they wanted to use the laptop, which the appellant’s testimony contradicted. This critical conflict in the evidence was never resolved by the trial judge.
[19] In light of the evidence and the parties’ submissions, it was essential that the trial judge grapple with the possibility that someone other than the appellant downloaded the child pornography. However, other than to address the suggestion that the images and videos originated from Mr. Leblanc’s SD card, the trial judge failed to do so.
[21] In our view, while it was open to the trial judge to conclude that someone must have intentionally moved these files to the recycling bin, and to infer that this person would have known what they were, this evidence did not answer the central question in this case, which was the identity of the person who downloaded or otherwise had knowing possession of these files. If someone other than the appellant was responsible for the downloads, he or she might also have been the person who moved some of the files into the recycling bin. Given the evidence that the computer was accessible to, and used by others, evidence that files were in the recycling bin did not shed any light on the disputed question of whether the appellant was the person who put them there.
[22] We are also of the view that the trial judge attached undue weight to the presence of the username “Moose” on all of the laptop’s folders and directories that contained child pornography. The trial judge, who called this the “most significant” factor pointing to the appellant’s guilt, failed to recognize that it was uncontested that “Moose” was the only user profile on the laptop. As a result, any files that were downloaded to the laptop would necessarily be saved in directories under that username, whether the downloads were done by the appellant or by anyone else who had access to the laptop.
Possibility that the Computer Virus Allowed a Third-Party Attacker to Download the Child Pornography
[23] Constable Fasullo testified that the scan he conducted on the laptop exposed a virus which could “[execute] commands from an attacker”. Although Constable Fasullo did not testify that the virus in fact allowed a third-party attacker to download child pornography onto the laptop, his evidence was nevertheless sufficient to move this inference from the realm of pure speculation to that of a reasonable possibility. As the Supreme Court cautioned in Villaroman, at para. 35, “[r]equiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts”. It was therefore not incumbent on the appellant to adduce further evidence to positively support this inference. The burden instead rested with the Crown to negate it.
[24] Had Constable Fasullo simply testified to the presence of a virus, and nothing more, the Crown might not have had any further work to do, but his description of the virus in this case as permitting the attacker to execute commands provided an air of reality to the suggestion that someone may have used the appellant’s computer remotely to access and download child pornography. This inference was not speculative but grounded in the expert’s description of the possibility that this virus could provide an external user with the power to execute commands on the computer. This evidence placed a tactical obligation on the Crown to present some evidence to negate the possibility that a third-party attacker was responsible for downloading the child pornography, failing which this evidence could potentially create a reasonable doubt.
[28] As duty counsel made clear, the issue being raised before us on appeal is not whether the verdicts against the appellant were unreasonable. We accordingly need not decide whether a reasonable trier of fact, properly instructed, could have relied on the evidence of the appellant’s use of uTorrent, and the presence of child pornographic files in the recycling bin, to rule out the possibility that the files were downloaded by a remote attacker. That is not what the trial judge did, and we cannot bridge the gap in his reasons and assume that he would necessarily have drawn that conclusion from this evidence if he had properly considered the issue.
CONCLUSION
[30] For these reasons the appeal is allowed, the convictions are set aside, and a new trial is ordered.
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