Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


In R. v. Brown, 2022 ONCA 417, May 26, 2022, the accused was convicted of the offence of sexual assault.  At his trial, the Crown presented a recording of a 911 call made by the complainant.  The complainant can be heard crying.  In convicting the accused, the trial judge referred to the call providing “corroboration” of the complainant’s evidence.

On appeal, the accused argued, in part, that the trial judge erred in considering the 911 call as corroborative in nature.

The appeal was dismissed.  The Ontario Court of Appeal held that though the trial judge should not have used the language of corroboration, the 911 call was properly used by the trial judge as confirmatory in nature (at paragraphs 13 to 16):

First, the appellant argues that the trial judge impermissibly used the complainant’s statement to the 911 operator as corroboration of her trial testimony. The trial judge noted that the complainant sounded “distraught, hysterical and somewhat intoxicated” and was “crying and rambling incoherently to some extent”. He concluded that “[t]his 911 dialogue is unquestionably a graphic depiction of her state of mind and entirely consistent with an experience of serious harm, injury and trauma.” Elsewhere in his reasons, he noted “the confirmatory tone and content of the 911 call” as part of the evidence that provided “a significant degree of corroboration” of the complainant’s evidence. The appellant argues that the trial judge strayed from using the 911 call as evidence of state of mind, and impermissibly used it to bolster the complainant’s claim that she was sexually assaulted.

Prior consistent statements are, as the appellant argues, generally inadmissible. Even where admitted under one of the exceptions to the general exclusionary rule, they can never be used for the inference that in-court testimony is more likely to be true because a witness said the same thing on a previous occasion out of court. The trial judge was, however, entitled to use the complainant’s demeanour on the 911 call to draw inferences about the credibility of the complainant’s account, and to rely on this evidence as supporting her testimony of having experienced a violent sexual assault: R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, leave to appeal refused, [2017] S.C.C.A. No. 139, at paras. 31-34; R. v. Steele, 2021 ONCA 186, at para. 94. But the appellant argues that the trial judge went beyond this legitimate use and strayed into using the substance of her statements on the 911 call as corroborative of her testimony at trial.

It should be noted that sexual assault is not an offence for which corroboration of a complainant’s testimony is needed. This court has at times cautioned that it would be best if trial judges did not use the language of corroboration when corroboration is not required for proof of an offence, and when what is meant is simply that the trial judge has found some piece of independent evidence to be confirmatory of a witness’s evidence: R. v. MacKenzie, 2015 ONCA 93, 19 C.R. (7th) 150, at para. 6; R. v. D.A., 2018 ONCA 612, at paras. 17-18. It is evident in this case that the trial judge, although using the language of corroboration, was not using it in its technical, legal sense, but rather to indicate that he found the evidence supported the complainant’s testimony to some degree.

I do not agree that a reading of the trial judge’s reasons as a whole supports the view that the trial judge used the substance of the 911 call as supporting the complainant’s testimony. The central paragraph of the reasons dealing with this evidence focused clearly on demeanour. It was responsive to Crown submissions that sought to use the evidence solely to support the complainant’s state of mind. The phrase “the confirmatory tone and content of the 911 call”, which appears later in the trial judge’s reasons, is clearly a reference to the complainant’s highly emotional state of mind, conveyed not only by the tone that she used, but by the words that she used. The trial judge did not use the 911 statement for the impermissible purpose of equating credibility with repetition.