In R. v. Zou (2017), the Ontario Court of Appeal heard the appeal of a sexual assault conviction. The complainant in this case was an 18-year-old international student attending university in Toronto at the time of the alleged assault. She testified that the appellant, a 33-year-old IT worker, sexually assaulted her at their first meeting, after they met on a social networking app. The appellant was convicted and sentenced to two years in prison, less one day.
The appellant appealed his conviction on the grounds that the trial judge relied on an anonymous email sent to police by the complainant alleging the assault, as corroborating evidence of the complainant’s trial testimony. The appellant argued that the email was admissible as evidence for a limited purpose but the complainant’s own email could not be used, in law, to corroborate her testimony.
In his online profile, the appellant described himself as a photographer, and his profile contained several photographs of young women, one of whom was known to the complainant. After exchanging a few messages, the complainant and appellant agreed to meet at the appellant’s condo/studio for a photoshoot. On the day of their meeting, the appellant took a series of photographs of the complainant, some of which were taken in a tank top he provided and some of which were sexually suggestive. The complainant alleged that she was told how to pose, but the appellant testified that she chose her own poses.
A.Y., the complainant, testified that when they were on the couch looking at the photographs on his camera, the appellant then attempted to kiss and touch her, and she repeatedly told him to stop. She said he did eventually stop and promised he would not make any more advances, but after conversing briefly, the appellant pushed her onto his bed and began groping her. She further testified that she tried to push him away, but could not overcome his assaults. The appellant then allegedly tried to have sexual intercourse with her and she tried to stop him, but when she realized she could not do so, she asked him to use a condom. He produced a condom and they proceeded to have sexual intercourse which A.Y. alleged that she did not consent to but stopped resisting as she believed it was futile. Following the intercourse, she fled to the bathroom and then left the condo as soon as possible. The appellant invited her to come back in a few days to pick up the photographs and then escorted her to the front door of his building to catch a taxi.
The appellant’s version of events was different from the complainant’s. He testified that A.Y. surprised him by trying to kiss him while they were sitting on the couch viewing the pictures on his camera. He stated that he reminded her that he had a girlfriend and she told him she had a boyfriend, but she became angry when he rebuffed her advances. He agreed that he invited A.Y. to return in a few days to pick up her photographs. He said he heard nothing about the alleged sexual assault until about 14 months later when police arrested him.
A.Y. testified that she was very angry for allowing herself to be put in a position where she could be taken advantage of, and the next morning, she sent an email to Toronto police, describing the attack in detail. She used a no-longer-used email address but asked police to reply to her and do something about the attack. Police answered her email 5 ½ months later, asking her to come forward so that they could investigate. They explained that the delay in replying was because police had not checked the police email address in months.
The defence took the position that the A.Y. falsely accused the appellant because her advances had been rebuffed, and the assault never happened.
As is quite common in sexual assault cases, the complainant and the appellant were the only witnesses at the trial. Accordingly, the outcome of the trial rested on the credibility and reliability of the complainant and the appellant.
In order to make his assessment, the trial judge considered the analysis defined in R. v. W.(D.)(1991). He first considered and rejected the appellant’s evidence and concluded that, although the appellant’s testimony was given in a candid and non-argumentative manner, the judge believed his story did “not make sense”. The judge believed that the fact that A.Y. hid her identity, did not pursue the matter when police delayed in responding, and only spoke to police after her boyfriend insisted she do so, is not indicative of someone who is angry and wants the appellant arrested because she was rejected.
The trial judge next assessed A.Y.’s testimony and found it to be credible and reliable. He noted that A.Y. “readily agreed to factual errors in her testimony…and explained the reasons for them”. The judge found her decision to send an anonymous email and not follow up as “consistent with the behaviour of a victim who is ashamed of her own gullibility”. Further, the trial judge noted that the details in A.Y.’s email largely agreed with the details in her testimony and also, A.Y.’s email was sent contemporaneously with the events — he concluded that the email, therefore, corroborated her evidence at trial.
The trial judge used A.Y.’s email as evidence that undermined defence counsel’s argument that A.Y.’s motive was to make a false accusation. He also used the email as evidence of A.Y.’s state of mind (i.e. she was angry and ashamed of her own gullibility) and this supported his view that A.Y.’s testimony was credible. In relying on the email evidence in these two ways, the judge used the email as circumstantial evidence that was relevant to a fact in issue.
The Court of Appeal found that, if the trial judge had used the email evidence only for these two purposes, the grounds of this appeal would likely fail. However, the trial judge went beyond these uses when he described the email as “corroboration of evidence”. “The trial judge used the contents of the email as evidence of the truth of the allegations in the email, and used the consistency between the contents of the email and A.Y.’s testimony to confirm her testimony”.
The appellant relied on R. v. Dinardo (2008), where the court found that “a trial judge’s reference to a prior consistent statement as a “form of corroboration” of the complainant’s evidence constituted reversible error”. The appellant argued that the email evidence did not have the required characteristics for corroborative evidence. It did not come from an independent source. It also could not confirm the accuracy of A.Y.’s testimony unless it was improperly used for the truth of its contents, or the consistency between A.Y.’s testimony and the email was improperly used to confirm her trial testimony.
On appeal, Justice Doherty agreed that, if the trial judge referred to “corroboration” as it is normally used in the law of evidence, he erred in law when he treated the email as corroborative. In assessing the trial judge’s use of the word “corroboration”, Justice Doherty found no ambiguity and nothing that indicated the trial judge meant this to suggest anything other than its generally accepted meaning. One of Crown counsel’s arguments was that the consistency in A.Y.’s description of the events from her first telling in the email to her testimony, supported her credulity, largely because she never wavered. However, Justice Doherty found that if the trial judge accepted this argument, he in fact misused the email to reinforce A.Y.’s credibility.
Justice Doherty held that the trial judge erred in his conclusion that the email was corroborative of the complainant’s evidence, as “in law, it could not have that effect”. On this ground, the Appeal Court allowed the appeal, quashed the conviction, and ordered a new trial.
If you have been detained or arrested on a sexual assault charge, contact Kruse Law immediately to ensure your legal rights are being upheld. At Kruse Law, we have a wealth of experience in sexual assault cases and have successfully defended many clients accused of a sexual assault offence.