Supreme Court Judgments

Supreme Court of Canada

Timm v. The Queen, [1981] 2 S.C.R. 315

Date: 1981-06-22

Larry Erwin Timm Appellant;

and

Her Majesty The Queen Respondent.

1980: December 4; 1981: June 22.

Present: Laskin C.J. and Martland, Ritchie, Dickson, Estey, McIntyre and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ALBERTA

Criminal law—Rape—Evidence—Early complaint—Definition—Manner of proof—Judge’s role when dealing with this type of evidence on voir dire.

On a voir dire in a rape case, complainant’s statement, which did not contain the word “rape”, was found to be inadmissible as an early complaint; it nevertheless was allowed to be put before the jury. The recipient of the statement who stated that the word “rape” was used, was not allowed to make any mention of “rape” before the jury. Accused appealed a decision of the Court of Appeal setting aside his acquittal and ordering a new trial. The issues raised here were: (1) the definition of “early complaint”; (2) how its proof was to be made; and (3) the role of the trial judge when dealing with this type of evidence on a voir dire.

Held: The appeal should be dismissed.

In a rape case, a complaint is any statement made by the alleged victim which, given the circumstances of the case, would, if believed, be of some probative value in negating the adverse conclusions the trier of fact could draw as regards her credibility had the complainant been silent. The judge, before admitting a complaint as evidence, should hold a voir dire to determine: (a) whether there was some evidence which if believed by the trier of fact would constitute a complaint; (b) that the complaint was not elicited by questions of a “leading and inducing or intimidating character”; and (c) that it was “made at the first opportunity after the offence which reasonably offer[ed] itself”. In determining whether there was evidence which, if believed by the jury, would constitute a complaint, the trial judge should take into account evidence by the victim, if any, as well as that of any person recipient of that complaint. Evidence by a recipient person is admissible on the voir dire and before the trier of fact only if the victim has testified as to the facts material to the commission of the offence; it is not necessary that the victim have testified as to the complaint itself.

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R. v. Cook (1979), 9 C.R. (3d) 85; R. v. Belliveau (1978), 41 C.C.C. (2d) 52; R. v. Waddell (1975), 28 C.C.C. (2d) 315; R. v. Shonias (1974), 21 C.C.C. (2d) 301; R. v. Ball (1957), 25 C.R. 250; R. v. Washington, [1951] O.W.N. 129; R. v. Lillyman, [1896] 2 Q.B. 167; R. v. Osborne, [1905] 1 K.B. 551; Thomas v. The Queen, [1952] 2 S.C.R. 344; R. v. Megson, Battye, and Ellis (1840), 9 C. & P. 420, 173 E.R. 893; R. v. Cummings, [1948] 1 All E.R. 551; R. v. Woodworth, Stutt and Giles (1974), 17 C.C.C. (2d) 509 considered; R. v. Guttridges, Fellowes, and Goodwin (1840), 9 C. & P. 471, 173 E.R. 916; R. v. Wallwork (1958), 42 Cr. App. R. 153; R. v. Christie; [1914] A.C. 545, referred to.

APPEAL from a judgment of the Court of Appeal of Alberta[1], overturning appellant’s acquittal by Cormack J. and a jury and ordering a new trial. Appeal dismissed.

J.E. Faulkner, for the appellant.

Jack Watson and Richard Stelmaczonek, for the respondent.

The judgment of the Court was delivered by

LAMER J.—This is an appeal brought with leave of this Court by the accused whose acquittal on a charge of rape by an Edmonton jury was set aside by the Court of Appeal for Alberta. That Court ordered a new trial.

This appeal raises three issues. They do not warrant my setting out all of the facts of the alleged rape but merely the events that happened immediately after, for all of the issues relate to early complaint evidence, and to be more precise, to the following: (1) the definition of an “early complaint”; (2) how proof of it may be made; (3) the role to be played by a trial judge when dealing with this type of evidence on a voir dire.

At the trial, Catherine, the complainant, testifying in chief, said that Larry, the appellant, with whom she had gone to a party, had raped her and then had driven her to her sister Vivian’s residence. In the course of a voir dire which had been

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entered into in order to determine the admissibility of an alleged early complaint, Catherine said that upon entering the house, she told her sister Vivian: “Larry hurt me.” On cross‑examination there was the following exchange:

Q. Well, you never told her Larry raped me, did you?

A. No, I didn’t.

Q. You never said that?

A. Not that I can remember.

…

Q. But you never told at any time in this—say up to the point that Darlene came in, you never told Vivian that you had been raped?

A. No, not that I can remember. [Emphasis added]

When Vivian was heard as a witness she related the conversation as follows:

Q. Okay. Now this is very important. What were the—as far as you remember, what were the exact words she used on this second occasion after Gerald left, to you? What were her, as best as you can remember, her exact words?

A. Well, she just said that Larry had raped her.

Q. I see. Did she use that word, rape?

A. Yes.

The trial judge ruled that Vivian when testifying before the jury could not “give evidence as to any mention of rape to her by the complainant”; he also ruled that what Catherine had said did not amount to a “complaint”; nevertheless, he allowed her to testify before the jury that she had told her sister, “Larry hurt me.”

The Court of Appeal was of the view that the trial judge “erred in not leaving the sister’s evidence as to what Catherine said to her to the Jury”. This finding was because that Court was of the opinion “that the existence of a recent complaint may be given by the evidence of persons other than the complainant herself”.

Appellant argues before this Court that the Court of Appeal erred in so finding. Appellant further argues that, in any event, even if the trial

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judge was wrong, that error should not have resulted in the setting aside of the acquittal as it was not one of law but at best one of mixed fact and law. Those are appellant’s two grounds of appeal.

Let me say at once that I find no merit in the second ground of appeal.

When ruling on the admissibility of the alleged complaint, the trial judge said the following:

THE COURT: I am satisfied that there was a complaint—or, I’m satisfied that if there was a complaint it was made at the earliest opportunity, but I’m not satisfied that a complaint was made. There is all through this a curious reluctance on the part of the complainant to talk about the experience. Now she herself says—she was questioned very closely on it, whether she had mentioned that Larry had raped her. She said she didn’t say anything, and she said Vivian didn’t say anything. But she presumed that Vivian knew from the look on her—knew from staring at her, and then went to get Darlene Brown. Then after she said that, she summed up her testimony by saying that she didn’t remember much of what she said to Vivian.

Now if indeed she had admitted to Vivian that she had been raped, if there was some sense of delicacy that made her reluctant to talk about rape, she would have gotten rid of that reluctance once the story was out, so to speak, to Vivian. But then she gets up to the hospital and Dr. Morris—was it Morris?

MR. STELMACZONEK: Yes.

THE COURT: He finds that same reluctance in her to talk about rape. Now any inhabitions [sic] she had about speaking of the rape must have been removed when she told, if she did, when she told Vivian she had been raped and Darlene Brown came over having had the previous regrettable experience in that same matter—in that same type of crime, and so that it’s quite apparent to me that she was not talking about rape. If Vivian, Darlene Brown arrived at the conclusion that she had been raped, that’s another thing. But there was no complaint, in my opinion, made to Vivian of rape. The only complaint she made was that Larry hurt her and this is not sufficient to establish that there was a recent complaint of the rape.

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Now gentlemen, this was evidence heard on a Voir Dire, and it’s not admissible. It may not be brought before the jury to establish a recent complaint of rape.

A careful reading of the judge’s remarks reveals that he considered what Vivian said Catherine had told her as relevant in order for him to determine whether there was or was not a “complaint” made by Catherine. It is not unreasonable to assume that had he preferred Vivian’s version of what Catherine had said, he would have ruled that Catherine had in fact made a “complaint”. It is here unnecessary speculation to try to wonder what evidence would then have been left to the jury; if both versions, one could assume that the jury would then have been invited to weigh the evidence anew. But he made a finding of fact, i.e., that what Catherine did say to her sister was, in his opinion, that which she testified to, and then considered that what she said could not be a “complaint”. The findings of law made by the judge in order to make that finding of fact were that it is the proper function of a judge on a voir dire to:

(a) weigh the evidence and determine what was said by the alleged victim;

(b) then determine whether what was said was a complaint that the jury could then consider and give weight to.

The Court of Appeal was of the view, at least this is my understanding of what that Court is saying, that if a judge on a voir dire has evidence before him which, if believed by the jury, would in law constitute a complaint, he must leave it to the jurors to determine what was in fact said and instruct them as to what effect may be given to that evidence. That was a question of law on which the Court of Appeal could properly entertain an appeal by the Crown. Indeed, even though Vivian’s evidence was excluded as the result of a finding of fact, the judge’s entry upon such an enquiry (preferring Catherine’s evidence to that of her sister) was predicated on his assuming, wrongfully in the

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opinion of the Court of Appeal, he had the right to do so. Appellant’s second ground, namely, that the ruling was not one of law, is therefore of no support to his appeal.

As regards the first ground, appellant’s first and main proposition in his factum is as follows:

…it is submitted, evidence of complaint may be admissible notwithstanding discrepancies between the version of the complaint as testified to by the victim and as testified to by the recipient of the complaint, but provided both versions of the complaint are as to a sexual assault. This is precisely what was held in R. v. Kenshol (1978) 43 CCC (2d) 316 (Ont. Co. Ct.).

This proposition raises all three issues.

FIRST ISSUE: What is a complaint?

The case law as regards early complaint evidence (see amongst others R. v. Cook[2]; R. v. Belliveau[3]; R. v. Waddell[4]; R. v. Shonias[5]; R. v. Ball[6]; R. v. Washington[7] amply shows that there exists in this area of the law great uncertainty, at least as to some aspects of that evidence. There is disagreement as to the nature of the complaint that may be put to the jury and by whose testimony; also as to the proper function of a judge holding a voir dire to determine the admissibility of early complaint evidence. Much of this disagreement and uncertainty is, in my opinion, the result of our considering the admissibility of such evidence as an exception to a general exclusionary rule, whilst what is in fact exceptional is the granting of special probative value to the silence of an alleged victim of a sexual offence. Most scholars and many a judge have in the past explained the historical origins of the rule and attempted, with relative success as far as I am concerned, to rationalize the singling out of that group of victims’ complaints as being exceptionally admissible.

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There are today suggestions (see amongst others the Eleventh Report by the Criminal Law Revision Committee of England and Wales and comments by Schiff, in vol. 1 of Evidence in the Litigation Process, at pp. 574 et seq.), that the need for the rule is doubtful and should be reconsidered. We have not been invited by the parties to do so, but I should like to add here that, given the proper opportunity, we should seriously reconsider the soundness of some of the assumptions that are made in order to justify the rule; furthermore, some of those assumptions are even more difficult to accept since the extension of the rule to victims of both sexes and to all sexual offences, including those where consent is not in issue (cf. R. v. Lillyman[8] and R. v. Osborne[9]).[10]

That the trier of fact may be apprised of complaints made by the alleged victim of a sexual offence is an exception to the rule at common law that a witness’ testimony-in-chief may not be buttressed by the party calling her by proving that she has made a prior consistent statement (by asking her or otherwise).

That exception was recognized as necessary to negate the adverse effect the alleged victim’s silence might have on her credibility when relating the circumstances of the offence and, if essential to the commission of the offence or simply averred by the victim, the victim’s credibility when asserting absence of consent. (R. v. Lillyman, supra; R. v. Osborne, supra; Thomas v. The Queen[11], at p. 355). That possible adverse effect is predicated upon the assumption that the true victim of a sexual offence will, under normal circumstances, complain at the first reasonable opportunity. Early complaint evidence seeks to negate the inference

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that could otherwise be drawn from the victim’s silence as a result of that assumption.

This negation being the purpose and that assumption being the justification of the exception to the general rule, one can then logically conclude that the exception should operate whenever the victim’s silence might have, given the nature of the offence and the circumstances of that particular case, an adverse effect on her credibility, and if the victim’s complaint is of such a nature and was made under such circumstances as to be of some probative value in rebutting that adverse effect. Though the rule was extended to all types of sexual offences and to both sexes, an indiscriminate recognition of the assumption does not appear to have been questioned and any victim’s silence is of relevance as regards her credibility. Be that as it may, this case is one of rape where consent is in issue, and we therefore need not consider whether the relevancy of a victim’s silence, and as a corollary that of a victim’s departure from same, can ever be in question, for it undoubtedly will always be relevant in this type of case.

What then is to be determined on a voir dire in a rape case is whether there was a complaint that is of such a nature and made under such circumstances as to be of some probative value in negating beforehand in some way the adverse effect the victim’s silence would have on her credibility as a result of that assumption.

The precise purpose for admitting such evidence, while limiting its use (it is not proof of the facts nor is it corroboration evidence), in turn suggests, in my opinion, a wide definition of what is to be considered a complaint. In my view, any statement made by the alleged victim, which is of some probative value in negating the adverse conclusions the jury might be invited to make and could draw as regards her credibility had she remained silent, is to be considered a complaint. It will have the effect of negating that adverse con-

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clusion if it is in some way supportive of the victim’s credibility by showing consistency between the victim’s conduct after the alleged ravishment and the victim’s narration of same as a witness.

Because it is supportive of the witness’ testimony to the effect that she was the victim of a sexual crime, we refer to it as being a “sexual complaint” or “a complaint of rape…” This is not to say however, as some courts have held, that it must be a complaint that directly alleges a sexual attack; I think it sufficient that the early statement made by the alleged victim be in some way useful to the trier of fact in restricting, if not wholly negating, the adverse effect total silence would have had on the victim’s credibility.

The all or nothing approach, that is letting in only complaints that refer to a sexual assault, is hard to reconcile with the very purpose of the rule, the rebuttal of the inference that silence suggests as a result of the assumption. If silence, given the nature and circumstances of the case considered, is to be of some probative value adverse to the victim, then, subject to the other requirements of the rule and of the other rules of evidence, any departure from silence is relevant and admissible. It will either help the Crown or the defence, but will always, in such a case, serve the jury in weighing the victim’s credibility. Furthermore, not only is the all or nothing approach lacking in logic, it creates insurmountable problems when applied as a rule. Indeed, assuming the victim did speak out (e.g., as in this case, “Larry hurt me”), having precluded the jury from knowing that the victim did not stay mute and from what she said, is the judge then to let the jurors infer adversely to the victim to the same extent as total silence would permit? This query appears to have been present in the trial judge’s mind. Indeed, though he found that the statement made by Catherine (“Larry hurt me”) was not a complaint of rape, he nevertheless left those words to the jury; one may assume that he felt that they were in some way relevant in assessing her credibility. I am of the view that he was right in admitting Catherine’s

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evidence as to what she said she told her sister, for it was, though the trial judge did not think so, evidence of a complaint as that is contemplated by the exception to the rule.

However, with respect, I cannot agree that he should have excluded Vivian’s evidence; and this leads me to the second issue raised by the appeal.

SECOND ISSUE: HOW may proof of a complaint be made?

Given the aforementioned definition of “a complaint”, it is clear that Vivian’s version of Catherine’s words would, and this would be so even if by definition complaints were restricted to express “sexual complaints”, constitute a complaint. Whatever may have been the judge’s reasons for setting aside Vivian’s testimony of what her sister had told her, appellant supports that decision by inviting us to adopt the proposition that

(1) the victim must testify as to the complaint;

(2) the victim’s version of the complaint must be as to a sexual assault;

(3) if the two previous conditions are not met, the recipient of the complaint cannot testify.

In support of this proposition, appellant asks us to consider the reasoning in R. v. Cook, supra. The complainant in that case had not testified at all. The complainant’s mother was heard and she was allowed to relate as a recent complaint what her child, had told her. Brooke J.A., of the Court of Appeal for Ontario, was of the view (Houlden and Thorson JJ.A., concurring) that (at p. 86):

In our view, the evidence of the complainant’s mother as to what was said to her by her child was inadmissible as a recent complaint. In such circumstances as these, where the complainant either does not give evidence or, in the alternative, gives evidence but testifies that he has no recollection of the alleged sexual misconduct, the

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issue of recent complaint does not arise and the purpose for which the evidence would otherwise be admissible does not exist. In the early case of R. v. Guttridges (1840), 9 Car. & P. 471 at 472, 173 E.R. 916, Parke B. said that in such cases:

“I think the safest course will be to reject the evidence, as it is not part of the res gestae, but merely confirmatory evidence.”

Recently, in Phipson on Evidence, 12th ed. (1976), the learned author states at p. 142, para. 355:

“Thus if the alleged victim of indecent assault is unable to give any evidence of it, evidence by another witness of a complaint made to her by the alleged victim shortly after the incident becomes inadmissible.”

My reading of the R. v. Guttridges, Fellowes, and Goodwin case is that it is authority only for the proposition that if the alleged victim has not testified to having been the victim of a sexual offence there is then no credibility to support by proof of an early complaint and no evidence by the recipient of such a complaint is therefore admissible.

The same applies, I suggest, to that passage of Phipson’s 12th edition referred to by the Court of Appeal for Ontario. The words “evidence of it” refer to the “indecent assault” and do not say more than that the declarant must have testified to her having been the victim of the offence.

This appears to be further borne out by Phipson’s reference to Wallwork[12]. In that case, a female child of five years of age who was called as an unsworn witness could not recall anything. As a result, there was no evidence by her of the alleged incest. Her grandmother’s narration of what the young girl told her was received in evidence as an early complaint. Goddard L.C.J. (Donovan and Havers JJ., concurring) ruled that evidence inadmissible in the following terms (at pp. 161-62):

The child had given no evidence because when the poor little thing was put into the witness-box, she said nothing and could not remember anything. The learned judge had expressly told the jury to disregard her evi-

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dence altogether. Therefore, there was no evidence given by her with regard to which it was necessary to say what she had said to her grandmother was consistent; nor could there be any question of the identity of the prisoner or any question of consent. [The underlining is mine]

Again it seems clear that what is relevant is the consistency between her conduct (as distinct from her version of her conduct) shortly after the occurrence and her version of the nature of that occurrence, and this case cannot support the proposition that this consistency is relevant only if first advanced by her in the witness stand.

Appellant further relies on the decision of the Court of Appeal for Ontario in R. v. Shonias, supra. In that case, a fourteen-year-old girl, alleging rape, testified in the course of a voir dire and said that she had told her foster-mother that she had been “beatened up” and that if she did not say more it was because she “didn’t feel like talking”. The trial judge ruled that such a statement was not a complaint that related to a sexual offence and, as a result, she was not asked by the Crown in the presence of the jury to relate what she had told her foster-mother.

However, defence counsel knew that the judge intended to consider as admissible evidence by the foster-mother to the effect that the young girl had told her she had been raped. He, therefore, in the course of cross-examining the young girl, elicited what she had said to her foster-mother. Another voir dire was held to determine whether the foster-mother’s version of the complaint was admissible, and that version was ruled admissible and considered by the judge as being capable of forming a complaint by the daughter. Dubin J.A., of the Court of Appeal for Ontario (Martin J.A., concurring), after noting that it was unfortunate that the trial judge had not been apprised of that Court’s decision in R. v. Washington, supra, said (at p. 305):

In view of the judgment of this Court in the Washington case, the learned trial Judge, having ruled that what the complainant said did not constitute a complaint,

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erred in leaving it to the jury that they could find from the evidence of the foster-mother that the complainant had made a complaint that she had been raped by the accused. With respect to the learned trial Judge, he erred in allowing the evidence of the foster‑mother as to the alleged complaint to be admitted into evidence and erred in instructing the jury that from that evidence they could find that the complainant had made a complaint. The evidence of the foster-mother is not admissible independently of the issue as to whether the complainant had made a complaint. Its admissibility is dependent on that issue first having been established.

Gale C.J.O., whilst agreeing in the disposition of the case, said (at p. 302):

I should add that I have some reservations about the correctness of the observations made in R. v. Washington, [1951] O.W.N. 129, in the passage of that judgment, which appears at p. 131, and referred to by my brother Dubin. However, having regard to the fact that this young man in the ordinary course would soon be released from the sentence imposed upon him by the trial Judge, this does not appear to be the appropriate case in which this Court should reconsider the relevant principles laid down in the Washington case.

The Washington case is not reported fully and was summarized in the reports. It appears from that summary that a sixteen-year-old girl, alleging an assault with intent to commit rape, when testifying said that she had told her father: “Daddy, Bubbles Washington [the accused] broke in and beat me up.” Her father’s version of her statement was that she had said: “Bubbles attacked me upstairs in bed.” The trial judge ruled both the daughter’s and the father’s evidence admissible and then told the jury (at pp. 129-30):

“Now, gentlemen, the accused is not charged with merely assaulting and beating the complainant. He is charged with attempted rape. If the complainant did no more than simply say that the accused had beaten her up and assaulted her or that he had broken into the house and beaten her up that evidence so far as the attempted rape is concerned would be inadmissible as hearsay evidence, but if she said what the father says she said then it is admissible. If upon a fair interpretation of the language that she used she could be understood to mean that the accused made an attack upon her

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to satisfy his sexual passions that would be admissible. Whose version is correct? The little girl as to what she said or the father of the girl as to what he says she said? If you believe him then what she said amounts to a complaint because obviously, it seems to me, words that deal with the assault upon a woman coupled with her being in bed imply an attack upon her for sexual reasons, but it is for you to say.”

In appeal, Laidlaw J.A., (Hope and Gibson JJ.A., concurring) held (at p. 131):

As to the second ground, that the evidence of the so-called complaint was improperly admitted, it was doubtful whether what occurred between this girl and her father could properly be taken as a complaint. According to her own evidence it was not a complaint of a sexual attack on her. The father’s evidence conflicted with hers, and his evidence therefore could not be confirmatory, or tend to strengthen the girl’s story, within the established rules as to evidence of complaints. The learned trial judge, having ascertained the conflict in the evidence, should have decided that the evidence of this remark to the father could not be corroborative, and should not have admitted it.

The report indicates (at p. 130) that it had been argued by counsel for appellant that such evidence:

…should not have been admitted at all since the father’s evidence, if accepted, contradicted that of the complainant, and evidence of a complaint was admissible only as confirmatory, and only after the complainant had herself told her story.

The report also lists the authorities relied upon by appellant in support of that proposition as being the following: R. v. Guttridges, Fellowes, and Goodwin[13]; R. v. Megson, Battye, and Ellis[14]; R. v. Lilly man, supra; R. v. Christie[15].

I have already commented on R. v. Guttridges as not being supportive of the proposition advanced, and neither is the Megson case. In that case the victim of a rape had died and as a result had not testified to the facts material to the commission of the offence. She had however complained to the person with whom she lodged. The

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prosecution wanted to adduce this evidence as proof of the rape and of the accused’s guilt. Rolfe B. dealt with the matter in the following terms (at p. 422 of the report):

There is a wide difference between receiving such statements as confirmatory of a prosecutrix’s credibility in a charge of rape, on which she is examined as a witness, and in a case like the present, where the complaint made is to be received as independent evidence. I entertain very great doubts indeed, about the admissibility of such evidence.

and then summing up, said:

I had a strong feeling, that it was not competent to the prosecutor to extract in detail the complaint made by the deceased on her return home. In ordinary cases of rape, where a witness describes the outrage in the witness-box, evidence of her complaint soon after the occurrence of the outrage is properly admissible to shew her credit and the accuracy of her recollection. Here, however, the object was to give in evidence the particulars of the complaint as independent evidence, with a view of shewing who were the persons who committed the offence. [See the case of Rex v. Gutteridge, post [p. 471]]. All that could safely be received was, I think, her complaint that a dreadful outrage had been perpetrated upon her.

This is hardly support for the proposition advanced by appellant in the Washington case; on the contrary it could even support the admissibility of proof of the fact of a complaint even when the complainant has not testified at all, let alone as to her complaint; as this ruling was made at a time when most courts never permitted more than proof of the fact of the complaint and would not permit the adducing in evidence of the terms of the complaint, it could be argued, now that it is well settled law that the contents of a complaint may be proved (see R. v. Lillyman, supra; R. v. Osborne, supra), that this case supports the admission of the contents of a complaint even when the complainant for some reason has not been heard at all. I hasten to add that I would not have followed respondent on such a construction of this decision had respondent taken that position. But that case is surely not support for the appellant’s proposition.

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Likewise of R. v. Christie, supra. A five-year-old boy, allegedly the victim of an indecent assault, gave evidence without being sworn. He was not asked about any identification previous to that which he had made of the prisoner in Court. When his mother testified, she was allowed to relate the following statement made by her son to her and a police constable immediately after the incident giving rise to the charge: “That is the old man, mum.”

As regards that statement’s admissibility, that matter was in no way dealt with “qua” a recent complaint. Indeed Lord Atkinson put the question to be dealt with in this way (at p. 552)

The Attorney-General contended that the entire statement of the boy was admissible on each of four separate grounds:—

(1.) As part of the act of identification, or as explanatory of it.

(2.) As a statement made in the presence of the prisoner in circumstances calling for some denial or explanation from him, the truth of which he admitted by his conduct and demeanour.

(3.) As proof of the consistency of the boy’s conduct before he was examined with his testimony given at the trial.

(4.) As part of the res gestae.

Your Lordships intimated during the course of the argument that you would not consider this third point. It is, therefore, unnecessary to allude to it further. [The underlining is mine]

Lord Moulton did likewise (at p. 558):

The admission of this evidence has been defended on three grounds: (1.) that it was evidence of identification of the prisoner by the boy; (2.) that it was a statement made in the presence of the prisoner coupled with evidence of his behaviour on hearing the statement; and (3.) that it was relevant to the issue of “consistent complaint,” and therefore admissible in the case of an offence such as an indecent assault committed on a small child.

My Lords, I do not propose to deal with the third ground because it is not necessary to do so for the

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purpose of deciding this appeal, and it raises very difficult questions which would be better decided in some case where the admission of the evidence turns directly on the point. I shall, therefore, confine myself to the first and second of the above grounds. [The underlining is mine.]

And Lord Reading (at p. 562):

The Attorney-General submitted that this evidence was admissible, first, because it was part of the act of identification by the boy; secondly, because it was a statement made in the hearing and presence of Christie which had a bearing upon his conduct and demeanour at the time of hearing it; thirdly, because it proved that the boy’s conduct after the offence was committed and before he gave evidence was consistent with the statements made by him at the trial; and, fourthly, because it was part of the res gestae.

During the argument your Lordships intimated that it was not convenient on this appeal to consider the third ground, and there was no further discussion upon it.

As for Viscount Haldane, he agreed with the others but added a few remarks which apply rather to identification evidence than to early complaint. As a result, I fail to see in what way any reference could be made to this case to support the proposition advanced by appellant in Washington.

Finally, the Court of Appeal for Ontario was referred to Lillyman. That is the case which gave the ancient early complaint rule its modern formulation. Hawkins J. stated the case in the following way (at pp. 167-68):

The prosecutrix was called as a witness, and deposed to the acts complained of having been done without her consent. Counsel for the prosecution tendered evidence in chief of a complaint made by her to her mistress, in the absence of the prisoner, very shortly after the commission of the acts, and proposed to ask the details of the complaint as made by the prosecutrix. The admission of the evidence was objected to by the prisoner’s counsel; but the learned judge overruled the objection and admitted the evidence. The mistress then deposed to all that the prosecutrix had said respecting the prisoner’s conduct towards her.

…

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If the evidence was rightly admitted, the conviction was to be affirmed; if otherwise, to be quashed.

The essential ruling in that case (at p. 179) was:

…that the whole statement of a woman containing her alleged complaint should, so far as it relates to the charge against the accused, be submitted to the jury as a part of the case for the prosecution, and that the evidence in this case was, therefore, properly admitted…

The judgment also rationalizes the rule and puts an end to a practice that prevailed with some judges who limited the evidence as to early complaint to the sole fact that a complaint had been made.

One of the passages of the judgment is probably at the source of the proposition that, if the victim has not testified to having made a complaint of having been the object of a sexual offence, the recipient of same cannot be heard nor can he complete by his testimony what would, standing alone, not be a true complaint.

Indeed, Hawkins J. speaking for the Court said (at p. 170):

It is necessary, in the first place, to have a clear understanding as to the principles upon which evidence of such a complaint, not on oath, nor made in the presence of the prisoner, nor forming part of the res gestae, can be admitted. It clearly is not admissible as evidence of the facts complained of: those facts must therefore be established, if at all, upon oath by the prosecutrix or other credible witness, and, strictly speaking, evidence of them ought to be given before evidence of the complaint is admitted. The complaint can only be used as evidence of the consistency of the conduct of the prosecutrix with the story told by her in the witness-box, and as being inconsistent with her consent to that of which she complains.

It appears that some were under the impression that those very words justified the proposition. Though Hawkins J.’s statement of the case does not say that the prosecutrix had deposed as to her complaint, the fact that he said in the passage quoted earlier: “… but the learned judge overruled the objection and admitted the evidence. The

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mistress then deposed to all that the prosecutrix had said respecting the prisoner’s conduct towards her” could be construed, though I read it otherwise, as meaning that she had in fact deposed as to her complaint. But any doubt there may be, is in my opinion resolved by a passage of the judgment where he says (at pp. 169-70):

The girl was examined as a witness in support of these charges, and deposed to the acts she complained of having been committed without her consent. For the Crown, evidence was tendered in chief of a complaint made by the girl to her mistress, in the absence of the prisoner, very shortly after the commission of the acts charged, and it was proposed to ask the witness called for that purpose to state the details of the complaint in the language used by the girl. Counsel for the prisoner objected, first, that the complaint could not be given in evidence at all, and, secondly, that even if the fact of a complaint having been made was admissible, the particulars of it could not be elicited in the examination in chief. I overruled both objections, and the complaint with full particulars was deposed to by the witness. The jury found the prisoner guilty on the first count only. That, however, does not affect the question we have to decide, because, although to establish guilt upon that count it was not essential to prove want of consent, yet, as the girl had emphatically stated that whatever was done was against her will, the reasons which in our opinion, as it will appear, made the complaint evidence upon the second and third counts were equally applicable to the first. [Emphasis added]

It appears that in Lillyman the complainant had deposed to the attempted ravishment and sexual assault on her person but not to her complaint. Lillyman is in fact authority for the proposition that evidence of a complaint may be made in part or in toto by evidence adduced through the recipient’s testimony. Arguments to the effect that this cannot be so, because it is only evidence that is supportive of the victim’s credibility, can only justify the conclusion, with which I am in agreement, that evidence of a complaint through the recipient’s testimony cannot be made unless the victim has testified to her ravishment. Indeed, if she has not, the supportive evidence would have nothing to support and it is clear that it cannot be

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tendered as evidence of the facts complained of.[16]

Now to deal with the last of the issues raised by this appeal.

THIRD ISSUE: The role of the judge on the voir dire.

Assuming, as in this case, the victim has testified not only to her ravishment but also to her complaint and that there is conflicting evidence between her version of the complaint and that of the recipient(s), should the judge on the voir dire weigh the evidence and determine whether there has been a complaint before letting the jury be apprised of it and give it whatever probative value it deserves; or, should he limit himself to determining whether there is some evidence which, if believed by the jury, would constitute a complaint.

Since such evidence is admitted for the ultimate purpose of negating the possible probative effect the victim’s silence would have in the eyes of the jury on the victim’s credibility, one could argue that they should be apprised of anything that would have some such negating value. One could then, following this reasoning, argue with some logic that the judge should also let them determine whether it is an “early complaint” and whether it was a “spontaneous” one, if there is as to the latter questions some discrepancy in the evidence between the victim and the recipient of the complaint, as long as there is some evidence which, if believed, would result in the complaints being “early” and “spontaneous”.

Some cases support this view. The preponderant view, however, is that it is for the judge to finally decide whether or not a complaint was elicited by questions of a “leading and inducing or intimidating character” and whether it was made “at the first opportunity after the offence which reasonably offers itself”; and these cases so hold irrespective of whether, there being contradictory evidence regarding those two issues, there is some evidence

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which, if believed, would result in the complaint being “early” and “spontaneous”. (See R. v. Osborne, supra; R. v. Cummings[17]; R. v. Woodworth, Stutt and Giles[18]; R. v. Belliveau, supra).

Logic would then suggest that conflicting evidence as to the existence of the complaint should be dealt with in the same way and be weighed and determined by the judge, at the voir dire. The rule is not the result of cold logic but has come to us from the middle ages and existed long before scholars started rationalizing and categorizing in a system of law the various ways judges dealt with evidentiary problems over the centuries. When the old rule was expanded and reformulated in the last years of the nineteenth century and the first years of the twentieth, it appears that the existence of the complaint was a matter of fact left to the jury whilst the determination of its recentness and of its spontaneity were simply left to the judge, with no reasons given.

In Lillyman, Hawkins J., in support of giving the jury more than the mere fact of a complaint, said (at p. 177):

After very careful consideration we have arrived at the conclusion that we are bound by no authority to support the existing usage of limiting evidence of the complaint to the bare fact that a complaint was made, and that reason and good sense are against our doing so. The evidence is admissible only upon the ground that it was a complaint of that which is charged against the prisoner, and can be legitimately used only for the purpose of enabling the jury to judge for themselves whether the conduct of the woman was consistent with her testimony on oath given in the witness-box negativing her consent, and affirming that the acts complained of were against her will, and in accordance with the conduct they would expect in a truthful woman under the circumstances detailed by her. The jury, and they only, are the persons to be satisfied whether the woman’s conduct was so consistent or not. Without proof of her condition, demeanour, and verbal expressions, all of which are of vital importance in the consideration of that question, how is it possible for them satisfactorily to

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determine it? Is it to be left to the witness to whom the statement is made to determine and report to the jury whether what the woman said amounted to a real complaint? And are the jury bound to accept the witness’s interpretation of her words as binding upon them without having the whole statement before them, and without having the power to require it to be disclosed to them, even though they may feel it essential to enable them to form a reliable opinion? For it must be borne in mind that if such evidence is inadmissible when offered by the prosecution, the jury cannot alter the rule of evidence and make it admissible by asking for it themselves. [The underlining is mine]

And later on (at p. 178):

…when the whole statement is laid before the jury they are less likely to draw wrong and adverse inferences, and may sometimes come to the conclusion that what the woman said amounted to no real complaint of any offence committed by the accused. [Emphasis added]

There is therefore in Lillyman, and indeed in most cases subsequent to the Lillyman case, though not explicitly said, the suggestion, all the more strong as it seems to be taken for granted, that if there is some evidence which the jury could weigh and consider as a complaint, the judge is to leave it to them subject to his having first determined that it would be an “early” and “spontaneous” complaint. (See amongst others R. v. Ball, supra, and R. v. Waddell, supra). I cannot find much wrong in proceeding this way save possible illogicality in treating differently the issues of “spontaneity” and of “recentness”: indeed, even if there is some evidence that, if believed, would establish the complaint as being an “early” and “spontaneous” one, it is for him, and not for the jury, to make that determination. But as I said earlier, the rule suffers for logic at the outset by the indiscriminate application to all victims of any sex offence of the very assumption upon which it is predicated. Probably the best argument in favour of so doing is that this is the state in which the rule came to us from Lillyman and I can find as many illogicalities created by modifying it as those purportedly done away with.

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NOW TO SUMMARIZE:

1. In a rape case, a complaint is any statement made by the alleged victim which, given the circumstances of the case, will, if believed, be of some probative value in negating the adverse conclusions the trier of fact could draw as regards her credibility had she been silent;

2. Before admitting a complaint as evidence, the judge shall hold a voir dire to determine:

(a), whether there is some evidence which if believed by the trier of fact (in this case the jury) would constitute a complaint;

(b) that the complaint was not elicited by questions of a “leading and inducing or intimidating character”;

(c) and that it was “made at the first opportunity after the offence which reasonably offers itself”.

((b) and (c) are the words of Ridley J. in R. v. Osborne, supra).

3. In determining whether there is some evidence which, if believed by the jury, would constitute a complaint, the trial judge shall take into account evidence by the victim, if any, as well as that of any person recipient of that complaint.

4. Evidence by a recipient person is admissible on the voir dire and before the trier of fact only if the victim has testified as to the facts material to the commission of the offence; but it is not necessary that the victim need have testified as to the complaint itself.

In the case at bar, the trial judge was right in admitting as evidence Catherine’s words “Larry hurt me”, for I am of the view that, given the circumstances of the case, those words, even standing alone, constitute a complaint; indeed, if the jury believes she said that, the statement is of some probative value in negating the effect her total silence would have had on her credibility.

I am also of the view that the judge should have admitted in evidence Vivian’s version of Cathe-

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rine’s complaint. Having done so, he should have instructed the jury that it was their duty to determine what in fact Catherine had said and then give those words whatever probative value they deserved in the light of the usual instructions a judge gives as regards the limited use of complaint evidence. Not having done so, he erred in law, and the Court of Appeal was right, in my opinion, in ordering a new trial.

For these reasons, I would dismiss this appeal.

Appeal dismissed.

Solicitor for the appellant: J.E. Faulkner, Edmonton.

Solicitor for the respondent: The Attorney General for Alberta, Edmonton.