R. v. G.S., 2023 BCPC 214

Citation: R. v. G.S. 2023 BCPC 214 Date: 20230824 File No: 247640-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REX v. G.S. PUBLICATION BAN PURSUANT TO

SECTION 486.4

(2) C.C.C. RULING OF THE HONOURABLE JUDGE JETT É Counsel for the Crown: J. Baharustani Counsel for the Defendant: K. Bastow and D. Milburn Place of Hearing: Surrey , B.C. Dates of Hearing: 13-16 March, 31 July, 1 August 2023 Date of Judgment: 24 August 2023 Ruling on Admissibility of Prior Consistent Statement [ 1 ] The accused G.S. stands accused of engaging in sexual activity with the complainant B.G. when he was 21 years old and she

was not yet 16. The charges are touching for a sexual purpose a person who was under the age of 16 years contrary to s. 151 of the Code , counselling or inciting a person under the age of 16 to engage in sexual touching contrary to s. 152, and sexual assault contrary to

section 271 of the Code . The information alleges that these offences were committed sometime on or between 1 January 2019 and 25 February 2019. The complainant turned 16 on the 26 th of February 2019. [ 2 ]

Section 150.1 of the Code provides that where the complainant is under 16 years of age, consent is not a defence. Sub-section (4) states that it is not a defence to a charge under ss. 151 and 152 that the accused believed the complainant was 16 years of age or more at the time the offence is alleged to have been committed, unless the accused took all reasonable steps to ascertain the age of the complainant. [ 3 ] The complainant testified that when she was 15 years old, she and the accused engaged in a brief act of vaginal sexual intercourse in a washroom at the accused’s family home.

B.G. was the only witness called by the Crown. B.G. said her friend N. was with her at the house, smoked some weed and fell asleep on the accused’s bed before B.G. joined the accused in the washroom. [ 4 ] In addition to her viva voce evidence, the Crown applied to introduce into evidence her audio and video-recorded police statement pursuant to s. 715.1 of the Criminal Code . The statement was taken on the 28 th of February, two days after B.G.’s 16 th birthday.

The defence objected to the admissibility of certain portions of that statement, but agreed that the balance met the test for admissibility in s. 715.1 . I found that some edits were necessary. An edited version of the transcript was marked as an exhibit. [ 5 ] In her statement, B.G. told police that she spoke to her friend N. after her sexual encounter with the accused and told her what happened. This exchange with the police investigator – identified by the initials N.C. - is found at page 30, lines 633-640: • N.C. Okay. So she was high and sleeping when it happened and then you, said, it’s done.

And left with N… • B.G. Yeah. • N.C. …and told her right away. • B.G. Yeah. • N.C. And what did you tell her? • B.G. I was like, I had sex with him in the washroom. And I was like freakin’ out because like there’s no condom. [ 6 ] Crown counsel applied to tender that portion of the statement under the “narrative as circumstantial evidence” exception to the presumptive rule that prior consistent statements are self-serving hearsay and inadmissible. If admitted under this heading, the evidence can be used to assess B.G.’s credibility ( R. v. Langan , 2019 BCCA 467 ; revs’d 2020 SCC 33 ; R. v.

Gill , 2018 BCCA 275 ). Prior to closing submissions, I advised counsel that the evidence was not admissible under this heading, but was admissible as “pure narrative”, i.e. the fact that it was said. These are my reasons for that decision. [ 7 ] As discussed in R. v. Gill , supra, at paragraph 65 , prior consistent statements are generally inadmissible for two reasons: (1) they lack probative value and; (2) they constitute inadmissible hearsay when adduced for the truth of their contents.

The fact that someone said the same thing on a prior occasion to what was said in court is generally not probative of whether the witness is telling the truth in the witness box. In other words, this type of evidence is not admissible as a form of self-corroboration. See also R. v. Stirling , 2008 SCC 10 ; R. v. Dinardo , 2008 SCC 24 ; R. v.

Khan , 2017 ONCA 114 . [ 8 ] To be admissible, the out of court statement must have some use beyond the prohibited inference that the witness is more likely to be telling the truth because she repeated the same thing more than once: Gill , supra , at para 71 . [ 9 ] Two possible exceptions may override the rule against prior consistent statements. The first is the “pure narrative” exception. Where this exception applies, the prior consistent statement has no substantive value and is simply part of the witness’ story.

The second is often referred to as the “narrative as circumstantial evidence” exception; where this exception applies, the statement is circumstantial evidence relevant to assessing credibility and reliability: See Pacioicco “ The Perils and Potential of Prior Consistent Statements: Let’s Get it Right 2013 17 Can. Crim. L. Rev 181 at pp. 201-203. [ 10 ] In support of his submission that the narrative as circumstantial evidence exception applies in this case, Crown counsel referred me to R. v. Langan , supra , and R. v.

Gill , supra . [ 11 ] In Langan , the majority in the Court of Appeal allowed the appeal and ordered a new trial; the Chief Justice would have dismissed the appeal. The SCC disagreed with the majority, and allowed the appeal for the reasons given by Chief Justice Bauman in dissent. [ 12 ] The issue in Langan was the use to be made of pre and post offence text messages between the complainant and the accused. In some of the post offence messages the complainant made statements which were consistent with her testimony in court.

The Chief Justice found that the text messages had probative value based on their conversational nature, which distinguished them from statements typically excluded under the rule against prior consistent statements.

The Chief Justice also considered this evidence within the overall context of the litigation issues introduced by counsel over the course of the trial: [102] Read in the context of the arguments and lines of questioning advanced at trial, the complainant's consistency in telling her story of how "she came to the realization as to what had occurred without her consent, and her reaction to the same" was a contested issue ( RFJ at para. 34). By making a finding on this point, the trial judge was fittingly responding to counsels' submissions.

It was appropriate for him to use the post-visit text messages to assess the conduct of the complainant and her truthfulness in describing it, particularly when the defence used those messages to attempt to contradict her narrative of events and diminish her credibility.

[13] The SCC endorsed Chief Justice Bauman’s view that the statements were admissible under the narrative as circumstantialevidence exception to the general rule prohibiting prior consistent statements. The Chief Justice held that although the prior consistentstatements made by the complainant in her text messages could not be used to suggest that repetition confirms truthfulness, theirprobative value on the facts of that case was derived from inferences arising from the content and context of the prior consistentstatements.

Where the fact, timing and circumstances of the prior statements “yield inferences supporting the truthfulness and reliability”of the witness’ testimony, the prior consistent statements may be employed to support the witness’s credibility. The Chief Justicesuggested that these circumstances might include the fact and timing of the complaint, understanding the sequence of events, andunderstanding the conduct of the complainant: Langan, supra, at para. 93-99. [14] In arriving at his conclusion that the exception applied in Langan, Chief Justice Bauman referred to and followed the court’sreasoning in R. v.

Gill, 2018 BCCA 275. The facts in that case are closer to those I am dealing with here. The defence in Gill was self-defence. Gill testified that he was attacked by two people, one of whom was armed with a handgun. He said he was stabbed in the handduring the attack, obtained control of the handgun, and fired in self-defence. The evidence in question came from his niece, whoaccompanied him off the Temple grounds in the immediate aftermath of the shooting. She testified for the defence.

Crown cross-examined her and elicited evidence that she thought Gill told her he had been stabbed. [15] On appeal, the defence argued that the trial judge misapprehended this evidence (all three Justices on the Court of Appeal agreedwith this submission), and that the evidence was admissible for the truth of its contents, as a type of res gestae, or as a narrativeexception to the rule against prior consistent statements.

In the Court of Appeal the Crown argued – for the first time – that the statementwas an inadmissible prior inconsistent statement, that it was not res gestae, and could not be used for any purpose.

Writing for the court,Justice Fitch found that the evidence was admissible under the narrative as circumstantial evidence exception for the limited purpose ofshowing the fact and timing of the appellant’s complaint that he had been stabbed, and to assist the trier of fact in assessing thetruthfulness of the appellant’s in-court testimony: [85] If admitted under this exception, the statement would not have been admissible for the truth of its contents or to enhance theappellant's credibility through mere repetition.

It could, however, have been used for the limited purpose of assessing the credibility andreliability of the appellant's evidence that he was attacked and stabbed before the shooting. The context in which the statement was madewas capable of grounding an inference that the appellant's in-court version of events was more worthy of acceptance. [16] Crown counsel here submits that this exception also applies to that portion of Ms. Grewal’s police statement that she had sex withthe accused in the washroom, and was “freaking out” because he did not have a condom.

The question I must answer is whether thisstatement has probative value beyond mere repetition. [17] The defence has not challenged the complainant’s assertion that she had a sexual encounter with the accused. When cross-examining the complainant, defence counsel suggested that this event occurred in somewhat different circumstances and on a differentdate, but the defence accepts that the accused and B.G. did engage in a single, brief, act of sexual intercourse. The defence advanced hereis that the Crown has not proved beyond a reasonable doubt that B.G. was under the age of 16 when it happened.

The Crown concedesthat it cannot prove the absence of consent; that defence becomes a live issue if Crown cannot prove B.G. was under the age of 16. [18] In her police statement, B.G.’s conversation with N. is at most a brief

summary of the event; it amounts to little more than anassertion that she and the accused had engaged in an unspecified sexual act in the washroom and her reaction afterwards. While B.G. saidshe reported this to her friend soon after the washroom encounter with the accused, that aspect of her statement was the product of aleading question from the police investigator. [19] I have concluded that this portion of B.G.’s police statement cannot be employed to yield inferences supporting the truthfulnessand reliability of B.G.’s testimony overall.

In light of the other evidence tendered at trial and the theories advanced by both Crown anddefence, I find there is nothing in the surrounding circumstances and context within which this statement was made that would assist mein my assessment of the credibility and reliability of B.G.’s evidence. [20] However, I have concluded that the statement meets the test for admission as “pure narrative.” The evidence is necessary tounderstand the background of the story, its “chronological cohesion” and as an aid to understanding the case as a whole: R. v. F.(J.E.),(1993), (ON CA), 85 C.C.C. (3d) 457 (Ont.

C.A.) at paragraph 38. I instruct myself that I must not use this evidenceas confirmation of the truthfulness of B.G.’s sworn allegations, and that there are no inferences arising from this evidence that wouldmake B.G.’s evidence more compelling. _____________________________ The Honourable Judge M. Jetté Provincial Court of British Columbia