R. v. A.J.D., 2022 ONCA 867
[69] The appellant submits that the trial judge erred by relying on the diary in a way that went beyond its limited evidential value as narrative. I do not accept this submission.
[70] The legal principles that governed the trial judge’s treatment of the diary are settled law: see R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 78. The complainant’s diary was to be treated in accordance with the law governing prior consistent statements. In general, prior consistent statements are inadmissible because they lack probative value and constitute hearsay when adduced for the truth of their contents (Dinardo, at para. 36).
[71] However, in some circumstances, prior consistent statements are admissible as part of the narrative and may be used by the trier of fact to understand how the complainant’s story was initially disclosed (Dinardo, at para. 37). It is impermissible for the narrative evidence to be used to confirm a complainant’s in-court testimony (Dinardo, at para. 39). However, the narrative evidence can be used for the “permissible purpose of showing the fact and timing of a complaint, which may then assist the trier of fact in the assessment of truthfulness or credibility” (Dinardo, at para. 37). Particularly in cases involving the sexual abuse of children, the prior consistent statements of a complainant may assist the court in assessing the complainant’s likely truthfulness (Dinardo, at para. 38).
[72] The trial judge did not step outside of these parameters in his use of the diary. He was fully aware that he could not use the contents of the diary to confirm the complainant’s in-court testimony. At para. 92 of his reasons, the trial judge explicitly cautions himself to that effect, stating that the fact V.M. made handwritten entries in her diary about the alleged assaults “does not, in any way, prove that any of the incidents occurred”.
[73] The appellant takes issue with the sentence that follows, in para. 92, in which the trial judge said: “[The diary entries] do establish, though, that she was keeping a record of what she says happened before her mother intervened” (the “impugned sentence”). The appellant submits the impugned sentence is sufficiently vague that this court should draw the inference that the real value of the diary was the repetition of the same allegations made at trial.
[74] In my view, this submission is untenable. Immediately before making the impugned sentence, the trial judge expressly stated that the diary did not “in any way” prove that the incidents had occurred. In the face of that caution, the impugned sentence cannot reasonably be construed as the trial judge using the fact of the diary to confirm the complainant’s in-court testimony. Appellate courts are not to scrutinize trial reasons in a search for error nor parse a trial judge’s imperfect or summary expression: R. v. G.F., 2021 SCC 20, at para. 76. Assuming there is some vagueness in the impugned sentence, to conclude the trial judge used the evidence improperly would be an impermissible parsing of the trial judge’s “imperfect or summary expression”: G.F., at para. 76.
[75] In any event, apart from the reference to the diary in para. 92 discussed above, the trial judge made no mention of the diary when determining the complainant’s credibility. The trial judge found the complainant credible after canvassing the strengths and weaknesses of her testimony, and considering it in light of the other evidence that he accepted. That other evidence included the forensic evidence relating to the semen stain on the bikini bottom the complainant was wearing during the final incident and the appellant’s DNA in the semen in the complainant’s underwear, as well as her mother’s corroborative evidence of the events of the last incident.
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