) ) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 963

CITATION : R. v. Boyles, 2013 ONSC 963 COURT FILE NO.: 331-12 DATE: 20130214 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – Daniel Boyles Respondent ) ) ) ) ) ) ) ) Leonard Kim, for the Crown William G. Beach, for the Respondent ) ) HEARD: January 31, 2013 DECISION ON MOTION TO ADMIT PRIOR CONSISTENT STATEMENTS HENNESSY J.: [ 1 ] The accused is charged with one count of sexual assault on K.H. The crown brought this motion to admit two statements made by the complainant to Chrystal Baker Nelson and John Gauthier. [ 2 ] The alleged assault took place on October 1, 2008.

The complaint was made to police in February 2011. The crown seeks to put into evidence these statements made by the complainant for the purpose of explaining that she had disclosed this complaint earlier in time in statements to Ms. Baker Nelson and Mr. Gauthier. The crown submits that these statements are part of the narrative and argues that the statements show the fact and timing of the complaint. [ 3 ] Ms. Baker Nelson gave evidence. She recounted conversations she had with her friend, the complainant, in early February 2011.

She testified that in a communication over the computer, likely through instant\chat messaging that the complainant made the following comments about the accused: • He is bad news • He tried to take advantage of her • He tried to touch her [ 4 ] Ms. Baker Nelson noted that she did not necessarily remember the exact words that the complainant had used. Ms. Baker Nelson agreed that the complainant had not told her that the attempt to touch or to take advantage of her had allegedly occurred three years prior. [ 5 ] The second statement the crown seeks to elicit is from John Gauthier.

The proposed statement was included in a

summary of a police interview with Mr. Gauthier who recalled for the police that a couple of months after the alleged incident, the complainant had told him that the accused had grabbed her while they were outside, put her up against the wall and tried to kiss her. [ 6 ] The accused argues that this proposed evidence amounts to oath helping and that its prejudicial effect outweighs any

probative value that it offers to this trial. The accused submits therefore that it should not be admissible. The accused further submitsthat a jury instruction to the effect that no presumptive adverse inference should be made with respect to the delay in reporting thealleged assault to police would sufficiently deal with the matter. [7] As a general rule prior consistent statements are inadmissible (R. v. Stirling 2008 SCC 10 , [2008] 1 S.C.R. 272,S.C.C. 10).

However, under the narrative exception, prior consistent statements are admissible for the limited purpose of assisting thetrier of fact to assess the credibility of the witness by understanding whether the complainant’s conduct was consistent or inconsistent with the evidence of what has occurred (The Law of Evidence in Canada, Sopinka, Lederman, Bryant, 3rd ed., p. 408). Should thestatements be admitted under the narrative exception, they are admitted for the limited permissible purpose of showing the fact andtiming of the complaint. (R. v.

Dinardo, [2008] L.S.C.R. 788 at para. 37) The limited purpose of admitting prior consistent statementsmust be explained to the jury in a limiting instruction that tells the jury that they are not to look to the content of the statements as proofthat a crime has been committed. [8] I find that the statement allegedly made to Ms. Baker Nelson to be so vague as to have almost no probative value. There wasno reference to time or location of the alleged incident. There were no details of the alleged incident that would allow the listener to thestory to distinguish it in any respect.

The statement does not appear to be part of any narrative, it was made more than two years after thealleged incident and there was nothing before me that tied it to any other series of events that lead to the disclosure to the police. [9] I find that the proposed evidence from Ms. Baker Nelson does not come within the exception to the usual rule that priorconsistent statements are inadmissible. It will not be admitted. [10] The proposed evidence of Mr. Gauthier was much more specific.

There was a reference to where the alleged occurred, i.e., atthe residence of the accused, who was present that evening, the state of intoxication of Mr. Gauthier and the fact that he passed out. Each of these details allowed Mr. Gauthier to identify with some precision, the time and place where the incident allegedly occurred. Although Mr. Gauthier was supposedly intoxicated at the time, he was able to recall the evening that the complainant was talking aboutwhen she disclosed the allegation of the accused’s conduct with her. [11] This proposed statement is much closer in time to the alleged offense.

I find that it is part of the narrative. Mr. Gauthier wasactually present at the time of the alleged offense. Any prejudicial effect that this testimony would have on the accused can beadequately addressed with a limiting instruction in the usual form. [12] The crown’s motion to admit evidence of prior consistent statement is allowed with respect to the proposed evidence of Mr.Gauthier. I will consult with counsel with respect to the timing of that instruction. Madam Justice P.C. Hennessy Released: February 14, 2013 CITATION: R. v. Boyles, 2013 ONSC 963 COURT FILE NO.: 331-12 DATE: 20130214

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – Daniel Boyles DECISION ON MOTION TO ADMIT PRIOR CONSISTENT STAEMENTS Hennessy J. Released: February 14, 2013