Docket: CACR2346 Timothy Louie Appellant - v. -, 2014 SKCA 107

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 107 Date: 2014-10-24 Between: Docket: CACR2346 Timothy Louie Appellant - and - Her Majesty the Queen Respondent Between: Docket: CACR23 51 Her Majesty the Queen Appellant - and - Timothy Louie Respondent

Coram: Lane, Herauf and Ryan-Froslie JJ.A. Counsel: Bob Hrycan for Timothy Louie Andrew Davis for the Crown Appeal: From: 2012 SKQB 504 and 2013 SKQB 328 Heard: September 15, 2014 Disposition: Conviction appeal allowed Written Reasons: October 24, 2014 By: The Honourable Mr. Justice Lane In Concurrence: The Honourable Mr. Justice Herauf The Honourable Madam Justice Ryan-Froslie Lane J.A. [ 1 ] This is a conviction appeal and a Crown sentence appeal.

The appellant was sentenced to four years incarceration and was ordered, pursuant to s. 490.012 of the Criminal Code , to comply with the Sex Offender Information Registration Act , SC 2004, c 10 [ SOIRA ] for a 20-year period. The Crown argues that because the appellant was convicted of more than one designated offence the SOIRA order should have been for life. With respect to the conviction appeal, we are all of the view it must be allowed and a new trial ordered.

Therefore, we do not have to deal with the Crown sentence appeal. [ 2 ] The appellant, now a 65-year-old man, was convicted on three counts of sexual assault, sexual interference and invitation to sexual touching against the approximately 9-year-old daughter of one of his co-workers. The events occurred in 1996 and 1997 with the trial taking place in 2012. Approximately three years after the events, the appellant and his family moved to the United States and there was no contact with the complainant or her family until he returned to Canada in 2010.

The complainant did not report the earlier incidents at the time they allegedly occurred, but told her mother about them when she was 15. She told her mother the appellant had raped her. According to the complainant, her mother’s response led to a serious rift in their relationship. [ 3 ] The appellant and his wife returned to Canada in 2010. He testified he and his wife tried to reconnect with the complainant’s father through Facebook but were unable to do so, and thus contacted the complainant through Facebook in order to obtain her father’s contact information.

On receiving the friend request on Facebook, which included the appellant’s profile picture with a young female, the complainant reported the earlier incidents to the police. At trial there were four witnesses: the complainant, her mother, the appellant and his wife. The complainant also returned to speak at the sentencing hearing. [ 4 ] The complainant testified as to repeated sexual acts the appellant engaged in with her. He denied all the allegations.

The main issue at trial was credibility. [ 5 ] The appellant raised several grounds of appeal but, in our view, the appeal turns on the ground the trial judge improperly relied on a prior consistent statement​—that being the complainant reporting the incidents to her mother after the appellant had moved to the United States and several years before reporting the incidents to the police.

The complainant’s statement was not challenged and indeed during cross-examination the appellant’s trial counsel questioned her about it in the context of her relationship with her mother. [ 6 ] The determinative issue arises from this paragraph of the trial judge’s judgment: [55] The complainant’s allegations have credibility as she told her mother about the sexual assaults some eight to nine years prior to reporting the matter to the police. The mother recalled her daughter telling her about the sexual assault but could not even recall her own response.

It therefore does not surprise me that the complainant’s mother had a different view of her relationship with her daughter than her daughter had. [ 7 ] The appellant contends the trial judge used the prior consistent statement to bolster the complainant’s credibility. He argues such a statement is admissible only to rebut the allegation of recent fabrication. [ 8 ] The Crown contends the trial judge made no error and was simply satisfied beyond a reasonable doubt the appellant committed the offences and the evidence supports this conclusion.

The Crown contends the prior consistent statement to the mother was admissible

as part of the narrative and was not relied on to bolster the credibility of the statement itself. In the context of the surroundingexamination-in-chief and cross-examination, the issue was the relationship between the complainant and her mother. The statement wasused, not to establish the truth of the allegation, but simply to assist in the assessment of credibility. The trial judge was clearlyconcerned with either recent fabrication or with faulty memory and the fact the disclosure had been made earlier merely allayed hisconcerns.

The trial judge did not say the fact the matter was repeated made it more credible. The statement was admitted for a properlimited purpose. The Crown relies on R v Dinardo, 2008 SCC 24 at para 37, [2008] 1 SCR 788 [Dinardo], The Honourable Mr. JusticeS. Casey Hill, David M. Tanovich & Louis P.

Strezos, McWilliams’ Canadian Criminal Evidence, loose-leaf, 4th ed, vol 1 (Toronto:Canada Law Book, 2012) at 11–44 and 11–45, and R v G.C., (Ont CA) at paras 20 and 22. [9] The Crown argues, in the alternative, if we find the trial judge improperly relied on the prior consistent statement, we ought toinvoke the curative provisions of the Code because the trial judge’s assessment of credibility was such that he did not believe theappellant in any event. He believed the complainant and he had no doubt as to the appellant’s guilt.

The evidence overwhelminglysupports the conviction; the trial judge’s assessment of credibility was reasonable and there was no miscarriage of justice (s. 686 of theCode). Decision [10] A prior consistent statement is generally inadmissible when admitted for the truth of its contents because it lacks probative valueand constitutes hearsay evidence. The Supreme Court stated this rationale at para. 36 of Dinardo: As a general rule, prior consistent statements are inadmissible (R. v. Stirling, [2008] 1 S.C.R 272, 2008 SCC 10).

There are twoprimary justifications for the exclusion of such statements: first, they lack probative value (Stirling, at para. 5), and second, theyconstitute hearsay when adduced for the truth of their contents. [11] In R v Stirling, 2008 SCC 10 at paras 5 and 7, [2008] 1 SCR 272, the Court sets out the rationale for the inadmissibility of suchstatements as follows: [5] It is well established that prior consistent statements are generally inadmissible (R. v. Evans, (SCC), [1993] 2S.C.R. 629; R. v. Simpson, (SCC), [1988] 1 S.C.R. 3; R. v. Béland, (SCC), [1987] 2 S.C.R. 398).

This isbecause such statements are usually viewed as lacking pro​bative value and being self-serving (Evans, at p. 643).

There are, however,several exceptions to this general exclusionary rule, and one of these excep​tions is that prior consistent statements can be admitted whereit has been suggested that a wit​ness has recently fabricated portions of his or her evidence (Evans, at p. 643; Simpson, at pp. 22-23).Admission on the basis of this exception does not require that an allegation of recent fabrication be expressly made — it is sufficient thatthe circum​stances of the case reveal that the “apparent posi​tion of the opposing party is that there has been a prior contrivance” (Evans,at p. 643).

It is also not necessary that a fabrication be particularly “recent”, as the issue is not the recency of the fab​rication but ratherwhether the witness made up a false story at some point after the event that is the subject of his or her testimony actually occurred (R. v.O’Connor (1995), (ON CA), 100 C.C.C. (3d) 285 (Ont. C.A.), at pp. 294-95).

Prior consistent statements haveprobative value in this context where they can illustrate that the witness’s story was the same even before a motivation to fabricate arose. [7] However, a prior consistent statement that is admitted to rebut the suggestion of recent fabrica​tion continues to lack any probativevalue beyond showing that the witness’s story did not change as a result of a new motive to fabricate.

Importantly, it is impermissible toassume that because a wit​ness has made the same statement in the past, he or she is more likely to be telling the truth, and any admittedprior consistent statements should not be assessed for the truth of their contents. As was noted in R. v. Divitaris (2004), (ON CA), 188 C.C.C. (3d) 390 (Ont. C.A.), at para. 28, “a concocted statement, repeated on more than one occasion, remains con​-cocted”; see also J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 313. This caseillustrates the importance of this point. The fact that Mr.

Harding reported that the appellant was driving on the night of the crash beforehe launched the civil suit or had charges against him dropped does not in any way confirm that that evidence is not fabricated. All it tellsus is that it wasn’t fabricated as a result of the civil suit or the dropping of the criminal charges. There thus remains the very realpossibility that the evidence was fabricated immediately after the accident when, as the trial judge found, “any rea​sonable person wouldrecognize there was huge lia​bility facing the driver” (Ruling on voir dire, June 21, 2005, at para. 24).

The reality is that even when Mr.Harding made his very first comments about who was driving when the accident occurred, he already had a visible motive to fabricate —to avoid the clear consequences which faced the driver of the vehicle — and this potential motive is not in any way rebutted by theconsistency of his story. It was therefore necessary for the trial judge to avoid using Mr. Harding’s prior statements for the truth of theircontents. [12] There is no issue of recent fabrication and the Crown relies on admissibility as part of the narrative.

However, it is not theadmissibility of the statement but rather its use which is in issue. The prior consistent statement may be used in assessing the truthfulnessand credibility of the witness but it cannot be used to corroborate the allegation that an offence was in fact committed. A prior consistentstatement which is admitted under one of the exceptions is not admissible for the truth of its contents.

The fact a complainant stated in thepast that a crime had been committed does not prove that a crime has, in fact, been committed (see R v Bisson, 2010 ONCA 556, 258CCC (3d) 338). [13] The trial judge’s statement at para. 55 of the judgment can be interpreted in two different ways: either the complainant was crediblebecause her prior disclosure was corroborated by her mother (a permissible use) OR the trial judge found her allegations were morecredible because she told her mother about the sexual assault years prior to reporting the matter to the police.

An admissible priorconsistent statement may only be used to bolster the credibility of the person who made the statement. It cannot be used to bolster thecredibility of the contents of that person’s in-court testimony. [14] Earlier in his judgment, before the impugned statement in para. 55, the trial judge stated that he found the complainant’sallegations credible. The paragraph in question also references evidence as to the mother-daughter relationship having deteriorated andperhaps the trial judge was simply referring to the reason why the complainant’s testimony differed from that of her mother and,

therefore, was not being relied on to establish the truth of the allegations. [15] On the other hand, the paragraph could be interpreted as the trial judge using the existence of the prior consistent statement todetermine the complainant’s allegations were more credible as a result. [16] The question is this—do the reasons show the trial judge used the prior consistent statement to support the credibility of thecomplainant’s allegations (which would be an improper use of a prior consistent statement) OR do they show he was using the priorconsistent statement to support the credibility of the complainant?

The paragraph is ambiguous and, because of doubt as to the trialjudge’s usage of the prior consistent statement, in our view, the issue must be resolved in favour of the appellant. Resolving thisambiguity in favour of the appellant leads to the conclusion the trial judge committed an error of law by relying on the prior consistentstatement for the truth of its contents.

If an error of law—was there a miscarriage of justice? [17] Accepting the prior consistent statement was used for the purpose of assessing the truth of the allegations, there follows the issueof the use of the curative provision as argued by the Crown. [18] An error of law must result in a substantial wrong or miscarriage of justice in order to warrant appellate intervention: CriminalCode, s 686(1)(b)(iii); R v Khan, 2001 SCC 86 at para 7, [2001] 3 SCR 823.

To apply this test, the question to be answered is whether“the verdict would necessarily have been the same if such error had not occurred”: R v Bevan, (SCC), [1993] 2 SCR599 at 616. [19] The onus is on the Crown to establish that a legal error did not result in a substantial wrong or miscarriage of justice: R v Sarrazin,2011 SCC 54 at para 25, [2011] 3 SCR 505.

The Crown must establish the error was harmless such that it would have had no impact onthe verdict, or the evidence against the accused was so overwhelming a conviction was the only possible result: R v Van, 2009 SCC 22 atparas 34–36, [2009] 1 SCR 716. [20] In R v S.(D.D.), 2006 NSCA 34, 207 CCC (3d) 319 and in R v B.(D.M.) (2005), (ON CA), 193 CCC (3d) 409(Ont CA), in ruling that a trial judge had improperly used a prior consistent statement, the Nova Scotia and Ontario Courts of Appealrespectively ordered new trials. [21] This was a case of credibility, as the Crown’s case depended solely on the credibility of the complainant.

There was no otherevidence as to the actual offences beyond her testimony. The trial judge believed the testimony of the complainant. We are unable todetermine how much of an impact the prior consistent statement had on the trial judge’s assessment of the complainant’s credibility. Inour view, a new trial must be ordered. [22] The appeal against conviction is allowed and a new trial is ordered. DATED at the City of Regina, in the Province of Saskatchewan, this 24th day of October, A.D. 2014. “Herauf J.A.” Lane J.A. (as authorized by) I concur “Herauf J.A.” Herauf J.A.

I concur “Ryan-Froslie J.A.” Ryan-Froslie J.A.