R. v. KINAMORE, 2023 BCCA 337, AUGUST 22, 2023.

Facts: The accused was charged with the offence of sexual assault.  At his trial the Crown led evidence of text messages sent between the accused and the complainant (GL).  A section 276 Criminal Code voir dire was not held.  An example of the type of evidence is as follows (see paragraph 53):

Q. And the first thing – words attributed to you there are “god, I’d love to put that to the test”.

A. Yes.

Q. Do you remember what that refers to?

A. Yes. He was constantly making a lot of sexual comments about his life and the girls he’s been with and I was being flirty and sarcastic.

Q. Do you remember what you were saying you’d love to put to the test?

A. No, I don’t remember exactly. It had something to do with him talking abut his performance, how good he was.

Q. And when you say “performance”, do you mean sexual?

A. Yes, I do.

The accused was convicted.  He appealed from conviction, arguing that the trial judge “erred in failing to hold a voir dire to assess the admissibility of the messages exchanged between G.L. and him that referred to sexual activity”.

HELD: The appeal was dismissed.  The British Columbia Court of Appeal concluded that a voir dire was not necessary because the Crown had not led the messages as evidence of consensual sexual conduct (at paragraphs 60 to 63):

It is apparent that they were tendered by the Crown, not as evidence of past sexual history or for the purpose of promoting improper myths or stereotypical generalizations, but rather as evidence that G.L. had no intention of engaging in a sexual relationship with Mr. Kinamore and that Mr. Kinamore could have had no understanding or expectation to the contrary. As found by Chief Justice Bauman, such statements are not caught by s. 276 or subject to the requirement of a Seaboyer voir dire.

Mr. Kinamore submits, however, that the use of the prior communications for this purpose by the judge offends the rule that prior consistent out-of-court statements are presumptively inadmissible. He says that the judge improperly relied upon G.L.’s prior statements to bolster her credibility and, specifically, her testimony that she did not consent to sexual activity with Mr. Kinamore.

In my view, the rule relating to prior consistent statements has no application here. That rule applies to statements made after an event in issue and prohibits the admission of such statements for the purpose of corroborating or bolstering a complainant’s testimony at trial: R. v. Stirling, 2008 SCC 10 at para. 5; R. v. Lopez, 2015 BCCA 294 at para. 30. That is not what occurred here.

Nor do I agree that the judge used G.L.’s prior statements about not wanting to have sex with Mr. Kinamore for an impermissible purpose. The judge did not, for example, infer that G.L. could not have consented to sex because of her past statements, rather, G.L.’s consistently expressed intention was relevant to the judge’s assessment of the plausibility of both parties’ version of events, including the plausibility of Mr. Kinamore’s allegation that G.L. consented to sexual activity. I return to Chief Justice Bauman’s finding in Langan CA. He found the complainant’s prior statement relevant to the judge’s assessment of credibility and, in particular, to the accused’s expectation of possible sexual activity with the complainant. In my view, the judge here used G.L.’s past statements for a similar purpose. I am unable to find that she erred in doing so.