R. v. Farouk, 2019 ONCA 662
PREJUDICIAL EFFECT/PROBATIVE VALUE - SEXUAL ASSAULT - HEARSAY
Facts
The Appellant was charged with and convicted by a jury of sexual assault, attempted choking with intent to overcome resistance to sexual assault, threatening bodily harm and three counts of breach of recognizance.
The Appellant followed the complainant into the elevator of her apartment building around 2:30am. The events that transpired were largely captured by the building’s security cameras. The Appellant grabbed the complainant by the neck with both hands and choked her. The complainant fought back by kneeing the Appellant in the groin. After approximately 12 seconds, the Appellant released the complainant. The Appellant then threatened to hurt the complainant if she told anyone. The complainant agrees that the Appellant had not touched her buttocks, breasts, vaginal area or thighs.
Following a “Crime Stoppers” statement, two individuals came forward and identified the perpetrator as the Appellant whom they had seen frequent nightclubs in Pickering. In particular, they had seen him at the nightclub the night of the assault wearing the same clothes. A third nightclub patron also identified the Appellant as the alleged perpetrator.
Within an hour of the elevator incident, the Appellant’s cell phone records reveal that he exchanged two phone calls and several text messages with a “body rub” service hotline. The investigating officer was able to connect the phone number to a website offering sexual body rub services for money. The Crown tendered this evidence as evidence of the sexual character of the assault. Following a voir dire, the trial judge admitted the evidence but found that a limiting instruction was necessary. Partway through trial, the contents of some of the text messages were recovered. Following a second voir dire, the trial judge excluded the messages themselves finding that the prejudicial effect outweighs the probative value. The jury was not told about the explicit content of the Appellant’s text messages to the “body rub” service. In her limiting instruction to the jury, the trial judge cautioned the jury that they could only use the text message evidence in assessing the Appellant’s state of mind and intention during the assault. Additionally, the trial judge cautioned that there was nothing illegal about communicating with body rub services, or that they were not entitled to use the evidence as propensity evidence.
In her charge to the jury, the trial judge identified a number of “facts” that the jury may consider in determining whether the assault was of a sexual nature such as the fact that the Appellant was at a dance club communicating with women prior to the assault, and that shortly after the assault the Appellant communicated with a service offering sexual services for money.
Issues on Appeal
1. Did the trial judge err in instruction the jury it could consider evidence of the Appellant’s contact with women in determining whether the assault was of a sexual character?
No - the probative value of the evidence outweighs any prejudicial effect. The Appellant’s argument on appeal is that this evidence encourages the jury to engage in propensity based reasoning. The ONCA disagrees. The evidence of the Appellant’s communications with women was probative of the Appellant’s state of mind and intent leading up to the assault in question. His interactions at the nightclub make it more probable than not that his subsequent interaction with the complainant was an expression of sexual interest. This evidence forms part of “all of the circumstances” needed to objectively assess whether an assault is of a sexual character.
The court appears to place great weight on the fact that the trial judge did not emphasize the importance of this evidence in her jury instruction given the list of 18 factors she brought to the jury’s attention.
2. Did the trial judge err in admitting the evidence of the Appellant’s post-offence communication with a “body rub” service?
The Appellant argues that the trial judge erred in admitting this evidence because (a) the prejudicial effect outweighed the probative value, and (b) the evidence as inadmissible hearsay.
a. PV > PE
The ONCA agrees with the trial judge that the Appellant’s communications with the body rub service were probative of the issue of whether the assault was of a sexual character. In particular, it is probative of the Appellant’s intention at the time of the assault. This evidence gives rise to a common sense inference that the Appellant had a sexual interest the night in question. The temporal proximity between the assault and the communications further infers that the Appellant had a sexual intent at the time of the assault.
The trial judge sufficiently addressed the prejudicial effect of the evidence by not allowing the contents of the messages or website be shown to the jury, and by providing a limiting instruction to the jury. It was appropriate for the trial judge to admit the communications evidence.
b. Hearsay
The ONCA finds that the evidence of the Appellant’s communications are not hearsay. The relevance of the investigating officer’s evidence related to the website and phone number did not depend on the truth of the website’s contents. In other words, the communications evidence was probative because it established the Appellant believed he was communicating for the provision of sexual services. Whether the website actually provides those services is irrelevant.
HARVISON YOUNG JA, writing for the court, dismissed the appeal.
Read the full decision here.