R. v. Ravelo-Corvo

2019 BCSC 2490 R. v. Ravelo-Corvo IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Ravelo-Corvo, 2019 BCSC 2490 Date: 20191122 Docket: 27730-2 Registry: Vancouver Regina v. Renert Alexander Ravelo-Corvo Restriction on publication: A publication ban has been mandatorily imposed under s. 486.4(2) of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify complainant. This publication ban applies indefinitely unless otherwise ordered. Some names have been replaced with initials to comply with this ban. Corrected Judgment: The text of the judgment was corrected on the front page on January 19, 2022. Before: The Honourable Madam Justice Sharma Voir Dire on Admissibility of Evidence Counsel for the Crown: A.C.L. Ip Counsel for the Accused: D.M. Turko, Q.C. Place and Date of Trial/Hearing: Vancouver, B.C. November 20 and 22, 2019 Place and Date of Judgment: Vancouver, B.C. November 22, 2019 [1] THE COURT: This is my ruling on the voir dire regarding the admissibility of certain evidence. [2] The Crown seeks to admit into evidence certain documents and testimony about texts and phone calls between the complainant, L.T., and her friend, A.J. The documents are printed screenshots and/or printed photographs of screenshots taken from the phones of L.T. and A.J. and they represent communication between the two women around the time when the alleged sexual assault took place. The Crown also seeks admission of testimony from L.T. and A.J. about the text messages and calls. [3] Defence objects to the admission of this evidence. Defence's position is that any evidence regarding the content of messages from L.T. to A.J.'s phone is inadmissible hearsay and inadmissible as a prior consistent statement. Defence also says that A.J.'s testimony is inadmissible hearsay, and L.T.'s testimony about the text calls is inadmissible both as hearsay and as a prior consistent statement. Authenticity [4] The Crown submits that it has met the statutory requirements contained in the Canada Evidence Act regarding the authenticity of the documents, which it seeks to adduce at trial. Defence submits the authentication of the evidence does not necessarily render it admissible under the common law rules of evidence. On that basis, defence counsel's position is that only if the evidence is otherwise found to be admissible, would it not contest the authenticity of the documents or that they represent the best evidence. [5] The Crown adduced evidence relevant to authenticity of the documents from Special Municipal Constable Nancy Yingling. I qualified her as an expert to provide opinion evidence about the forensic analysis of digital devices, such as cellular telephones, including the identification, preservation, extraction and interpretation of digital evidence. Her evidence was reliable and credible. Nothing adduced during cross-examination caused me to reduce the weight of her evidence. [6] In addition, L.T. and A.J. testified about the operation of their phones and the times and dates of messages and calls (I am not referring to the content of those at this point). That testimony was consistent with the constable's evidence. Their testimony on these issues was reliable and credible. Nothing adduced during cross-examination to negatively affect the weight of their testimony. [7] I am satisfied that with respect to the documents, Crown has met the test for authentication required for admissibility. I also agree with Crown that those documents represent the best evidence regarding the timing of text messages and phone calls. Specifically, based on the constable's evidence, I find that the time and date stamps on the documents are accurate. Based on the constable's evidence and the testimony I heard from A. J. and L. T., I also find that the phones were operating properly. Based on all of that evidence, I accept that the documents do represent what they purport to be. Admissibility [8] The Crown submits all the evidence adduced on this voir dire is admissible. [9] The Crown submits that the content of the text messages is an exception to the hearsay rule as a spontaneous utterance or res gestae. The defence opposes that position. [10] The parties referred to the following case law about the res gestae. There was not dispute about the legal test. [11] In R. v. Sylvain, 2014 ABCA 153, the issue was whether a 911 call's content could be admitted for the truth of its contents. The issue was addressed in the Court of Appeal because there was no voir dire at trial. It seems at trial there was no objection by the defence. Nevertheless, the issues the court discusses relate to admissibility generally, which is helpful on this voir dire. [12] Starting at paragraph 30, the court reviews the legal principles regarding res gestae noting that part of the concern about its admissibility is that it is hearsay, but it may also be a prior consistent statement. Both are generally inadmissible. The rationale for admitting a spontaneous utterance is that the stress or pressure under which a statement is made would serve to discount the possibility of concoction. [13] The test requires that the statement be reasonably contemporaneous with the alleged occurrence, although exact contemporaneity is not required. The court also notes that spontaneity exists on a spectrum. [14] The court pointed out that, if the evidence meets the traditional tests for the admission of res gestae, it may also, at the same time, meet the modern approach to exceptions to the admission of hearsay, which must be on a principled basis. [15] In Sylvain, the majority concluded that the 911 call was res gestae and therefore admissible (para. 39). That evidence had some similarities to the evidence that is before me (see paras, 21- 23). Specifically, the 911 call was made, according to the complainant, while the accused was on top of her. She made a statement to the 911 operator that the accused was about to rape her. The phone call was cut off and there was then a follow-up call from the 911 operator. There is also the circumstance that while she was on the phone, apparently the accused tried to grab the phone and batted it away from her. [16] The court was satisfied in that case that the content of the call did represent an excited, spontaneous utterance. The majority specifically rejected the defence argument that the Crown was required to have independent confirmation of the complainant's testimony that the call was made during the course of the sexual assault. The court looked at the 911 call in the context of other surrounding facts. In that larger context, it was satisfied that with regard to its timing it was a spontaneous utterance and that was the basis for its admission. [17] Also, in R. v. Gill, 2018 BCCA 275, the court discusses the law relating to res gestae, specifically referring to the Khan case (paras. 72-74). It noted specifically that, even if evidence is admitted as res gestae, it is possible that the limitations on its use as a prior consistent statement may apply. In that circumstance, there may be a limitation on whether it can be used to be corroborative. [18] However, on the voir dire, I am analyzing the admissibility. I am not making any kind of a decision at this point of what use the evidence will be used at trial. Res Gestae [19] The Crown says it has met the burden to find that the content is a spontaneous utterance. It refers to L.T.'s testimony that she was scared and that she thought the accused was going to rape her when she sent the text message. The Crown also points out that according to the complainant, a sexual assault had already occurred (the accused had digitally penetrated her without her consent) and that is a relevant circumstance. The Crown says all of these circumstances show the text statement was made when L.T. was under the stress and pressure, thus qualifying as res gestae. [20] The defence argues that it does not meet the test for a res gestae statement in that a text message is not and should not be considered the same way that a spontaneous vocal utterance is made. The defence suggests that the evidence the Crown relies on as indicating spontaneity or contemporaneity was problematic. Specifically, defence referred to the circumstances in which L.T. said she sent the text message, including that she claimed she was on her stomach, the accused was sitting on her buttocks, straddling her; the accused grabbed and swatted the phone away, and; she somehow got it back and sent a message within a few seconds. [21] In essence, the defence argues that there are a number of discrete events that took place in that particular course of time that make the sending of the text unlike a spontaneous vocalization. Defence refers to the fact that the complainant would have had to grab her phone, find A.J.'s number, compose a message, hit send, and then do that again (because there were two messages). In that sense, defence submits it does not qualify in the same way as a spontaneous vocal utterance. [22] I disagree. L.T. said that only a few seconds lapsed between the phone being batted away and her getting it back, and sending the text. The time and date stamp show that the two messages were sent in less than a minute. I also do not agree that the particular distinct steps referred to by the defence are inconsistent with the texts being sent contemporaneously or in the circumstances, akin to a spontaneous utterance. [23] It is common sense and well known that texting is now a ubiquitous form of communication. It is also common sense and well known that it can be done extremely quickly. That is consistent with the time stamps. Moreover, one of the texts is comprised of two words, and the other has one word. In that context, it makes little to no sense to suggest that time was taken for composition in the same way that one might consider composition with a handwritten statement. [24] I agree with the Crown's characterization about this evidence. It would be difficult to conceive of other evidence that would be more contemporaneous than the texts. In any event, exact coincidence with the alleged event is not required to qualify as res gestae. In this case, the temporal connection is very close making for a very strong case that it falls into the category of res gestae. [25] The defence also relied on the case of M.C., 2014 ONCA 611. However, I found that the factual underpinning of that case too different, so it is distinguishable. The temporal aspect was completely different. In that case, statements alleged to have been made by a child complainant at least a year after an event were submitted to be admissible as res gestae. As I understand it, the Crown was relying on medical evidence to indicate that it could be considered a spontaneous utterance because it occurred while the child was undergoing some kind of a seizure. Ultimately, that was rejected. I do find those circumstances to be too different to be helpful. [26] For all those reasons, I conclude that the content of the text messages is admissible as res gestae. Exception to Prohibition of Prior Consistent Statements [27] In the event I am wrong, I analyze Crown's submission that the text message may be admissible as an exception to the prohibition on prior consistent statements. Generally, out of court statements that are consistent with in court testimony is inadmissible, but there are some exceptions. Two elements of the rule relate to inadmissibility: hearsay and the declaratory aspect (R. v. M.C. at para. 59 and Gill at para. 65). [28] If admitted under this exception, the use of the statement would be limited. Specifically, it cannot be used to support the prohibited inference that it is more likely that the person who made the statement was being truthful. In other words, the admission of a statement as an exception to a prior consistent statement cannot be used to be corroborative of an in court statement. [29] The Crown argues in this case that is the texts are prior consistent statements, they should be admissible under an exception because they relate to the narrative of the events (but not in a temporal or chronological way). The Crown argues that it is relevant to the narrative in the sense that it may assist in assessing the credibility or reliability of other evidence. [30] The Crown's position is that the text messages have probative value, independent of whether the content is true. As an illustration, Crown submitted that it would be helpful to assessing other evidence; it is relevant that L.T. claims she sent the message at a time when there had just been, or was about to be, sexual activity to which she did not consent. A number of circumstances may be relevant to assessing the credibility of the accused's assertion of consent. For instance, part of the reasoning on this issue could include the following: if L.T. had consented, why would she be on her phone; why would he try to grab it away; why would she grab it back, and send those text messages? In that sense, Crown submits the text message evidence would be helpful evidence. [31] The Crown also says they may be relevant to her state of mind. Crown could argue that sending the text message during or very close in time to a sexual assault is more consistent with her being scared and in fear, which would tend to weigh against the presence of consent. [32] In my view, if my conclusion that the text message qualifies as res gestae is wrong, I would have found that it is admissible as an exception to the prior consistent statement prohibition, and the use of the evidence would be different. CONCLUSION [33] For all of those reasons, I find that the evidence is admissible. "Sharma J."