Appeal from conviction of sexual assault and unlawful confinement. Complainant’s credibility and reliability were central issues at trial. On appeal, issue was whether the trial judge improperly used res gestae statements (a 911 call and a statement made by the complainant to a neighbour after jumping out a window) as confirmatory evidence.

Held: Appeal dismissed.

As per Dinardo, 2008 SCC 24 and Sylvain, 2014 ABCA 153, res gestae statements typically cannot be used as confirmatory evidence. However, defence suggestion that the complainant contrived the 911 call “injected an allegation of ‘fabrication’ into the hearsay analysis. While this was not a traditional allegation of ‘recent fabrication’ that can render prior consistent statements admissible, it engaged similar issues…. The analysis of the trial judge was directly responsive to a defence argument, not to the confirmatory weight of this evidence: R. v Cain, 2018 SCC 20…” Trial judge also did not err in use of statement to the neighbour. Berger JA dissented.

H. Ferg / K. Molle – Defence Counsel