R. v. P. T., 2014 NLCA 6

Date: 201402 07 Docket: 13/37 Citation: R. v. P. T. , 2014 NLCA 6

Section 486.4 of the Criminal Code respecting the non-publication of the identity of a complainant and any information from which he might be identified applies to this judgment. Section 110(1) of the Youth Criminal Justice Act respecting non-publication of the identity of a person as having been dealt with under this Act applies to this judgment. IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: P. T. APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT Coram: Green, C.J.N.L, Mercer and White JJ.A. Court Appealed From: Provincial Court of Newfoundland and Labrador Clarenville Appeal Heard: November 6, 2013 Judgment Rendered: February 7, 2014

Reasons for Judgment by White J.A. Concurred in by Green C.J.N.L. and Mercer J.A. Corrected decision: The text of the original judgment was corrected on March 13, 2014. A description of the correction is appended. Counsel for the Appellant: Derek Hogan Counsel for the Respondent: Vikas Khaladkar White J.A.: [ 1 ] The focus of this appeal is on whether the trial judge erred in law by using a prior consistent statement made by the complainant to a police constable to confirm the truth of the complainant’s testimony and by relying on the constable’s assessment of the complainant’s credibility.

BACKGROUND [ 2 ] The appellant was convicted of sexual interference with a person under 14 years of age for having touched the complainant, J.S., for a sexual purpose on two occasions between December 1st and December 31st, 1989. At the time, J.S. was 8 years old and the appellant was 16 years old. [ 3 ] At the trial, Constable David Long testified in relation to a statement he took from J.S. on September 1st, 2010. Both Crown counsel and the trial judge stated that this testimony was admitted for the purposes of providing a narrative overview of the case.

Constable Long explained the general nature of the allegations and described J.S.’s demeanor, stating that “he seemed to be reliving the moment in a sense”. [ 4 ] Later in the trial, the appellant testified that J.S. lied about the complaint and alleged J.S. was jealous of the appellant. The appellant elaborated on his allegation and claimed that J.S. was jealous as he has a daughter, a full-time job, a new truck, bikes and a close relationship with his parents.

When the trial judge asked the appellant to clarify why he thought the complainant was jealous of him, the appellant explained that the complainant and his wife had been unable to have children.

Consequently, the appellant said the complainant was “[t]rying to get [his] daughter taken away” and referenced a complaint J.S. made to Child, Youth and Family Services about the appellant. [ 5 ] In his decision, the trial judge concluded that “[t]he most important part of the evidence of Constable Long was that [the complainant] gave a statement and the statement that he gave to Constable Long was consistent to what he said in court”. The trial judge made his assessment of the complainant’s credibility as follows: “And as Constable Long said he was reliving the events.

Watching him on the stand, I believed he was re-living the events and they were highly emotional to him and traumatic”.

ISSUES [ 6 ] Two issues arise in this appeal: 1) did the trial judge err in law by using a prior consistent statement by the complainant to confirm the truth of his testimony, and 2) did the trial judge err in law by relying on a witness’s assessment of the complainant’s credibility? [ 7 ] The appellant and the respondent agree that, in the event that this Court allows the appeal, a new trial should be the result as this is not an appropriate case to apply the curative proviso under section 686(1) (b)(ii) of the Criminal Code . Argument of the Appellant

[8] The appellant argues that the trial judge used narrative evidence by Constable Long for an inadmissible purpose andimproperly relied on Constable Long’s opinion to bolster J.S.’s credibility.

While narrative evidence is intended to further a story andmay be a factor in a complainant’s credibility, the trial judge erred in this case by considering the narrative evidence for its truth andrelying on the narrative evidence as a basis for accepting the complainant’s evidence. [9] Further, the appellant contends that Constable Long exceeded the domain of a lay person, who may give an opinion about “theemotional state of a person” (R. v. Gratt, (SCC), [1982] 2 S.C.R. 819 at paragraph 46), and argues that he spoke insteadabout the complainant’s sincerity and truthfulness.

The credibility of witnesses is to be determined by the trier of fact and not otherwitnesses. In his decision, the trial judge nevertheless referenced Constable Long’s impression of the complainant’s prior consistentstatement and demeanor in support of his own findings. Argument of the Respondent [10] The Crown submits that the trial judge understood the purpose of the narrative evidence and its possible uses. The narrativeevidence became admissible for other purposes upon the appellant’s allegation that J.S. fabricated his complaint.

The appellant’sposition that J.S. lied about the complaint is an allegation of recent fabrication. Prior consistent statements are admissible to rebut theinference that the witness fabricated the story by showing that “the witness’s story was the same prior to the alleged fabrication” (R. v.D.B., 2013 ONCA 578, 310 O.A.C. 294 at paragraph 36).

The prior consistent statements made to Constable Long, while initiallyadmitted as narrative evidence, could subsequently be used to refute such an inference following the appellant’s allegations of recentfabrication. [11] The Crown also argues that the trial judge did not adopt Constable Long’s assessment of the complainant’s demeanor butconducted his own analysis. After finding J.S. to be straightforward and forthright, the trial judge came to the same conclusion asConstable Long.

Further, if the trial judge relied on Constable Long’s assessment of the complainant’s credibility, he was entitled to doso as the appellant had assailed the complainant’s credibility. THE LAW Standard of Review [12] Relying on prior consistent statements for an impermissible purpose constitutes error of law (see R. v. Stirling, 2008 SCC 10,[2008] 1 S.C.R. 272; R. v. Curto, 2008 ONCA 161, 234 O.A.C. 238).

Errors of law are reviewable on the standard of correctness. [13] However, “in a judge alone trial it can generally be assumed that the trial judge is aware of the limited use of the evidence” andthe trial judge’s reasons must disclose misuse of this evidence (Curto at paragraph 36). Deference is owed to a trial judge’s findingsregarding credibility “unless a palpable and overriding error can be shown” (R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621 atparagraph 10). In conducting this analysis, however, the dubious “passage must be read with the balance of the reasons” (Curto atparagraph 48).

There may be no error where it is “clear from [the] judgment that the trial judge was very aware of the limited use of theprior consistent statements and he correctly instructed himself on this point repeatedly” (Stirling at paragraph 4). Prior Consistent Statements [14] As Bastarache J. wrote in Stirling at paragraph 5: It is well established that prior consistent statements are generally inadmissible (R. v. Evans, (SCC), [1993] 2 S.C.R.629; R. v. Simpson, (SCC), [1998] 1 S.C.R. 3; R. v. Béland, (SCC), [1987] 2 S.C.R. 398).

This isbecause such statements are usually viewed as lacking probative value and being self-serving (Evans, at page 643). [15] Such statements, however, may be admitted, contrary to this exclusionary rule, both for narrative purposes (R. v. Dinardo, 2008SCC 24, [2008] 1 S.C.R. 788) and to rebut a suggestion of recent fabrication (Stirling). These exceptions to the rule assist the court inassessing credibility because there is an opportunity for the court “to examine the consistency between what the witness said in the

witness-box and what the witness has said on other occasions, whether on oath or not” (R. v. M.G. (ON CA), [1994],93 C.C.C. (3d) 347, 73 O.A.C. 356 (Ont. C.A.) at paragraph 23). [16] The uses of prior consistent statements are restricted, even under these exceptions. Rosenberg J.A. stated in Curto at paragraph35: The cases make it clear, however, when prior consistent statements are admitted, the contents of those statements are not admissible fortheir truth. This limitation on the use of prior statements helps to balance the probative value and prejudicial effect of the evidence.

Theprobative value lies in the fact that the statement was made. The contents of the statement itself do not add to the probative valuebecause, as I have said, mere repetition of a story on a prior occasion does not generally make in-court description of the events any morecredible or reliable.

This limit on the use of prior consistent statements has been applied with particular rigor in jury trials, where it hasbeen held to be a reversible error for a trial judge not to warn the jury on the limited use of narrative statements. [17] In Stirling, Bastarache J. stated at paragraph 7: Importantly, it is impermissible to assume that because a witness has made the same statement in the past, he or she is more likely to betelling the truth, and any admitted prior consistent statements should not be assessed for the truth of their contents. (

a) Narrative Evidence [18] In R. v. F.(J.E.) (1993) (ON CA), 16 O.R. (3d) 1, 85 C.C.C. (3d) 457, (Ont.

C.A.) at paragraph 33, FinlaysonJ.A. stated that narrative evidence: “…advances the story from offence to prosecution or explains why so little is done to terminate the abuse or bring the perpetrator tojustice.” [19] Once admitted narrative evidence “may be used for the limited purpose of helping the trier of fact to understand how thecomplainant’s story was initially disclosed” (Dinardo at paragraph 37). [20] Thus, the fact that statements were made and the timing of such statements may assist in assessing the complainant’scredibility, but the narrative evidence may not be used as “confirmation of the truthfulness of the sworn allegation” (F.(J.E.) atparagraph 38). [21] In

summary, enhancing credibility and confirming or corroborating a witness’s testimony are prohibited uses of narrativeevidence (Dinardo at paragraphs 37 and 40; R. v. Ward, 2008 NLCA 38, 279 Nfld. and P.E.I.R. 183 at paragraphs 21 to 23). (

b) Rebutting a Suggestion of Recent Fabrication [22] The Ontario Court of Appeal recently held that a statement may be “admissible both as narrative and to rebut the allegation ofrecent fabrication”, notwithstanding that the evidence was first entered for narrative and the allegation of recent fabrication arose afterthe evidence had been admitted to assist with the narrative (D.B. at paragraph 34). [23] The recent fabrication exception applies after the accused alleges that a witness “made up a false story at some point after theevent that is the subject of his or her testimony actually occurred” in order to rebut the allegation (Stirling at paragraph 5).

The doctrineis not dependent on the “recency of the fabrication” and includes allegations that the events in question did not take place (Stirling atparagraph 5; R. v. O’Connor (1995), (ON CA), 25 O.R. (3d) 19, 100 C.C.C. (3d) 285 (Ont. C.A.) at pages 294 to 295). [24] If a rebuttal is successful, it will “neutralize the challenge or allegation of recent fabrication” by demonstrating the allegationhas no basis (D.B. at paragraph 37). As such, prior consistent statements “may impact positively on the witness’s credibility insofar as

admission of the statement[s] removes a motive of fabrication” (D.B. at paragraph 37). Oath Helping [25] Though evidence of a prior consistent statement may be admissible as narrative evidence or to rebut an allegation of fabrication,evidence intended solely to bolster a witness’s credibility remains inadmissible. This form of evidence usurps the role of the trier of factto determine credibility and, as McIntyre J. stated for the majority in R. v. Béland, (SCC), [1987] 2 S.C.R. 398 atparagraph 12: The repetition of statements by another witness adds nothing to their weight and reliability.

The ultimate decisions as to the truth orfalsity of the evidence of a witness must rest on the exercise of the judgment of the trier of fact. [26] Similarly, the opinion of one witness about the sincerity of another “is irrelevant…as it plays no role in the function of anywitness” (R. v. Brown (1982), 1982 ABCA 292 , 41 A.R. 69, 1 C.C.C. (3d) 107 (Alta. C.A.), aff’d (SCC), [1985]2 S.C.R. 273 at paragraph 6).

While one witness may speak to the character of another witness after the character of the other witnesshas been impeached, these witnesses are restricted in their testimony as explained in McWilliams’ Canadian Criminal Evidence (S.C.Hill, D.M. Tanovich & L.P. Strezos, eds., 5th ed.

Toronto: Canada Law Book, 2013), at page 12-16: Ordinarily, a non-expert witness may only provide evidence as to the good character of the accused by testifying as to his or herreputation in the community but not a personal opinion about the accused’s character nor testimony respecting particular incidentsindicative or supporting of the relevant character trait. ANALYSIS [27] In this case, the reasons for judgment do not demonstrate an awareness of the limitations on the possible uses of thecomplainant’s prior consistent statements.

Instead, the references to this evidence in the trial judge’s reasons for judgment suggestmisuse of this evidence. Impermissible uses of prior consistent statements amount to reviewable error. [28] Prior consistent statements may be admitted to assist with the narrative and to refute allegations of recent fabrication. In thiscase even if the evidence was properly admitted for the narrative, it would not in the circumstances have been admissible to refute theappellant’s allegation that J.S. fabricated his complaint.

To be admissible under this exception, the prior consistent statement must havebeen made before the alleged motive to lie arose. The record does not disclose when the appellant obtained full-time employment orpurchased his truck or became close with his parents but as the appellant’s daughter was born in 2002 and the appellant’s primaryallegation was that J.S. was jealous the appellant had a daughter, the complainant must have pointed to a prior consistent statement madein 2002 or before to refute the allegation.

As such, the statement made to Constable Long in 2010 could not possibly serve to rebut theappellant’s allegation of recent fabrication. [29] In any event, neither properly admitted statements under the narrative exception nor the rebutting recent fabrication exceptionallow the prior consistent statements to be relied upon for the truth of their contents.

The use of Constable Long’s evidence tocorroborate the complainant’s statement in court went to its truth and was a serious misuse of the prior inconsistent statement evidence. [30] Furthermore, neither exception allows the witness to speak to the truthfulness or sincerity of another witness; this constitutesinadmissible oath-helping. Constable Long improperly gave his opinion about the complainant’s credibility and well-exceeded thelimits of good character evidence under the guise of narrative evidence.

As the appellant submitted, this, in itself, would not have beenfatal to the appeal but for the fact that the trial judge proceeded to rely on the statement. The trial judge erred in relying on ConstableLong’s opinion regarding J.S.’s demeanor as it is the trial judge alone who is the trier of fact and who must assess credibility. I do notaccept the Crown’s assertion that the trial judge reached his own conclusions on credibility without relying on Constable Long’sassessment. If that was the case, there would have been no need to refer to Constable Long’s assessment at all. CONCLUSION

[ 31 ] I would grant the appeal and order a new trial. ________________________ C. W. White J.A. I concur: ________________________ J. D. Green C.J.N.L. I concur: ________________________ K. J. Mercer J.A. Correction Notice Corrections made on March 13, 2014: 1. On page 1, there was originally only one publication ban: “

Section 486.4 of the Criminal Code respecting the non-publication of the identify of a complainant or of a witness and any information from which they might be identified applies to this judgment.” The word “identify” was replaced with “identity”, the words “or of a witness” were removed, and “they” was replaced with “he”. In addition, a second publication ban was added. 2. On page 1, the name of the accused was replaced with “P.T.” 3. And in paragraph 16, “Rosenburg J.A.” was replaced with “Rosenberg J.A.”