R. v. K., J.S.

R. v. K., J.S. Collection Decisions of the Court of Appeal Date 2005-09-14 Docket numbers C41649 Judges Goudge, Stephen Thomas; Simmons, Janet M.; Armstrong, Robert Patrick Subject Criminal Decision Content DATE: 20050914 DOCKET: C41649 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) – and – J.S.K. (A Young Offender) BEFORE: GOUDGE, SIMMONS AND ARMSTRONG JJ.A. COUNSEL: Louis P. Strezos for the appellant Deborah Krick for the respondent HEARD: August 10, 2005 On appeal from the conviction by Justice Douglas Maund of the Ontario Court of Justice dated February 5, 2004 and from the sentence imposed on March 29, 2004. ENDORSEMENT [1] The appellant appeals from a finding of guilt for sexual assault and from the sentence imposed of five months deferred custody and supervision plus twelve months probation. [2] We accept the appellant’s submission that the trial judge erred by relying on a prior consistent statement made by the complainant to bolster her credibility. [3] Near the outset of his reasons, the trial judge said: The incident described by [the complainant] in these accounts was consistent with the evidence that she gave at trial and she emerged from her cross-examination with the essential elements of the story intact. [4] The “accounts” to which the trial judge was referring were a handwritten letter prepared by the complainant on the day of the alleged assault and a videotaped statement made by the complainant to the police two days after the alleged assault, which was introduced as evidence at trial pursuant to s. 715.1 of the Criminal Code. [5] Read fairly, the trial judge’s comment as set out above was more than simply a narrative statement explaining the evidence that was adduced at trial; rather, it reflects the trial judge’s conclusion that the consistency between the complainant’s evidence at trial and the accounts in issue enhanced the complainant’s credibility. [6] The complainant’s letter was introduced at trial to assist in explaining how the complainant’s allegations came to be reported. At the time of tendering the letter as an exhibit, the trial Crown confirmed that he was not asking that it be accepted for the truth of its contents and, on that basis, defence counsel indicated that he was content that the letter be entered as an exhibit. Neither counsel referred to the contents of the letter during the course of the trial. [7] Viewed in this context, unless he was treating it as a factor enhancing the complainant’s credibility, there was no other reason for the trial judge to refer to the contents of the complainant’s letter and to its consistency with the complainant’s evidence at trial. [8] It is well established that, subject to certain limited exceptions, evidence of prior consistent statements is superfluous and of no probative value: see, for example, R. v. Wood (1989), 51 C.C.C. (3d) 201 (Ont. C.A.). Here, apart from assisting in explaining how disclosure occurred, none of the exceptions apply. Accordingly, the trial judge’s use of the complainant’s letter as a prior consistent statement to bolster the complainant’s credibility was an error. [9] We are not persuaded that this is a case in which it would be appropriate to apply the curative proviso. While it is true that, subsequently in his reasons, when he listed various factors supporting the complainant’s credibility the trial judge did not refer to the consistency of the complainant’s accounts, we cannot be satisfied that the consistency between the complainant’s letter and her trial evidence was an inconsequential consideration in the trial judge’s credibility assessment. [10] Accordingly, the appeal is allowed, the finding of guilt is set aside and a new trial is ordered. In light of the conclusion that we have reached on this ground of appeal, it is unnecessary that we deal with the other issues that were raised. “S.T. Goudge J.A.” “Janet Simmons J.A.” “Robert P. Armstrong J.A.”