Case shows the strength of inmate appeal program, says lawyer
A man who appealed his sexual assault conviction will get a new trial after the Ontario Court of Appeal found the trial judge failed to instruct the jury on the proper use of a statement by the complainant that was consistent with her testimony.
The takeaway for criminal lawyers in R. v. S.C., 2023 ONCA 832, is to look carefully at the evidence and question its purpose, says Chris Rudnicki, who acted as duty counsel for the appellant. “If there are risks associated with the evidence – like improper reasoning – that might pop up, then the jury ought to be instructed on how to avoid those risks,” he says.
Rudnicki says the case also demonstrates the strength of the Pro Bono Inmate Appeal Program, which has a duty counsel roster with lawyers across the province volunteering to act for self-reps pursuing inmate appeals.
“You have people who fall through the cracks of the legal aid system, people who either make a bit too much money for the income cut-off or else have been denied legal aid for one reason or another but who don't have the money to hire a lawyer,” he says. “They get free help from pro bono lawyers to try and identify grounds of appeal, and in some cases are successful.”
In R. v. S.C., a court sentenced the appellant to 42 months imprisonment after a jury found him guilty of sexual assault. He and the complainant had previously been romantically involved, and the complainant testified that on the night of the alleged assault, she was home alone drinking wine until the appellant joined her. She said she refused the appellant’s numerous sexual advances, but he persisted. She began to feel sick, lost consciousness, and woke up while the appellant was sexually assaulting her, she said.
The appellant testified that the sexual encounter was consensual and that when the complainant said she felt sick, he stopped. He denied grabbing, holding, or restraining her.
The next day, the appellant sent the complainant a Facebook message inviting her to have breakfast with him. Her response: “I didn’t want to have sex with you last night. That’s why I kept saying no.”
At trial, Crown counsel told the jury in his closing address that the “most illustrative piece of evidence” was the complainant’s Facebook message, which was “word for word consistent” with what she testified she had said to the appellant before, during, and after the sexual encounter.
“The problem with that submission is that just because someone says something twice, doesn't make it more likely to be true,” says Rudnicki. “It's troubling for the Crown to say to the jury that this is the most important piece of evidence in this case.”
“The law says you can't use prior consistent statements for that purpose,” he says. “The trial judge in this case didn't tell the jury about that rule of law. So, the jury was left with this wrong understanding of what use they could make of the evidence, and that's why the Court of Appeal ordered a new trial.”
The Court of Appeal’s panel, Justices David Paciocco, Jonathon George, and Jonathan Dawe, said that the Crown was “plainly inviting the jury to reason that because the complainant’s message mirrored her evidence at trial, her allegation was more likely to be true.”
The judges also noted that the Crown told the jury to infer from the appellant decision not to answer the complainant’s Facebook message that he was “implicitly accepting that what she wrote was true.”
The appellant raised one ground of appeal; the trial judge erred by not cautioning the jury on the permissible and impermissible uses of the complainant’s prior consistent statement.
The Court of Appeal said that prior consistent statements by witnesses are presumptively inadmissible because they are hearsay. A jury, if not properly instructed, could view the repetition as reinforcing the trustworthiness of the claim. Judges cannot reason that a prior consistent statement corroborates in-court testimony or enhances credibility, said the court.
The court laid out five exceptions to the prohibition. Judges can use prior consistent statements to rebut allegations of recent fabrication, establish prior eyewitness identification, prove a recent complaint, provide evidence of a complainant’s or witness’ emotional state, or “adduce facts as part of the narrative.” The court added that even when one of the exceptions applies, there almost always must be a limiting instruction to prevent the evidence from being misused.
In R. v. S.C., the court said a lack of a limiting instruction was “particularly problematic” because Crown counsel had specifically invited jurors to use the evidence impermissibly, which made a jury direction even more crucial.
On appeal, the Crown argued that the jury could properly use the fact that the appellant did not reply to the complainant’s Facebook message as indicating his guilt. In the Crown’s view, the jury could properly conclude that he did not respond to the allegation that he sexually assaulted the complainant because he knew that the statement was true.
But evidence of an accused’s after-the-fact conduct is only admissible when it is logically relevant to a live material issue, its admission does not offend an exclusionary rule of evidence, and its probative value is greater than its prejudicial effect.
According to the Court of Appeal, the lower court did not answer any questions governing the admissibility of the after-the-fact conduct evidence. The appellant had not raised the issue as a ground of appeal, and the court said it was inappropriate to weigh in on the question at the appellate level. But the court added that even if the jury could properly use this after-the-fact conduct evidence, it had not been instructed that they could only use it properly and could not also use it to corroborate the complainant’s allegations, which the Crown had told them to do. “In other words, even if the evidence did have a proper use in this case, in the absence of any limiting instruction, the jury could just as well have used it improperly.”
