Posted Thursday, May 2, 2024:
R. v. Hoffman,
2024 BCCA 98
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2024/03/14
Court of Appeal
Reasons of Chief Justice Marchand (concurred in by Mr. Justice Voith): The appellant, Jason Ryan Hoffman, was convicted by jury of sexually assaulting the complainant on August 17, 2018. There was no dispute that Mr. Hoffman and the complainant had consensual sexual intercourse at the complainant’s apartment on the evening in question. However, the Crown alleged, and the jury appears to have accepted, that Mr. Hoffman forced various sexual activities on the complainant after she withdrew her consent.
Mr. Hoffman’s appeal turns on whether the trial judge erred in dismissing his pre-trial and mid-trial applications to adduce evidence about a previous consensual sexual encounter with the complainant, and the numerous text messages they exchanged between that previous encounter and August 17, 2018. Some of these texts were highly sexualized. Mr. Hoffman contends primarily that, as a result of the judge’s errors: (1) he was unable to effectively challenge the complainant’s credibility; (2) the Crown was able to unfairly undermine his credibility; and (3) the jury was left with a mistaken impression of the events at issue.
Held: Appeal Allowed. The judge largely discharged his duties free of error; however, he fell into error by dismissing the appellant’s mid-trial application under s. 278.92 of the Code at “stage one” of the application process. The evidence at issue went to the credibility of the complainant, a non-twin-myth purpose. It was capable of admission and the application should have proceeded to “stage two”.
Given the central role of credibility in the trial, the excluded evidence had significant probative value that was not substantially outweighed by its prejudicial effect on the proper administration of justice. The excluded evidence was essential to ensuring Mr. Hoffman had a fair trial. The risk of twin-myth reasoning and of offending the complainant’s dignity and privacy could have been adequately addressed by limiting the scope of the cross-examination of the complainant and through appropriate jury instructions. The outcome of Mr. Hoffman’s trial is in doubt. Mr. Hoffman’s conviction is set aside and a new trial is ordered.
Concurring reasons of Madam Justice Saunders (concurred in by Chief Justice Marchand and Mr. Justice Voith): The appeal should be allowed as proposed by the Chief Justice for the reasons he has given. Certainly s. 276 aims to protect legitimate privacy concerns of complainants, but the court’s task in a criminal trial must always be to provide a fair trial to the accused where the basic precepts of criminal justice are observed: the presumption of innocence, proof beyond a reasonable doubt, and the right to make full answer and defence. The right to cross examine a Crown witness on evidence at trial that may reasonably be seen as inconsistent with a witness’ prior statements, without unwarranted constraint, is closely tied to these precepts.
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Posted Monday, April 29, 2024:
Rooney v. Galloway,
2024 BCCA 8
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2024/01/10
Court of Appeal
These appeals and cross appeals arise from a number of pre-trial applications under British Columbia’s Protection of Public Participation Act (“PPPA”).
The underlying defamation action was brought by Steven Galloway, a writer, novelist, and former tenured professor, against multiple defendants. He alleges those individuals defamed him by repeating the allegations that he had sexually assaulted, raped, and physically assaulted A.B. who was a former graduate student. These allegedly defamatory statements occurred in different forums, including on the Internet and on Twitter. Twelve of the defendants sought to have his action dismissed under s. 4 of the PPPA on various bases, including that their expression(s) were protected because they were addressing a matter of public interest. The chambers judge allowed Mr. Galloway’s action to proceed with respect to most of the alleged defamatory statements, but dismissed the action with respect to other statements. She dismissed the claim in its entirety against two defendants (Professor Lyon and Ms. Elliott).
On appeal, the parties (which include a number of the applicants below and Mr. Galloway) assert that the chambers judge erred in applying the test under s. 4 of the PPPA. Mr. Galloway also raises other issues, including whether the Limitation Act barred some of his claims and whether the judge erred in “pruning” certain statements from those that were allowed to proceed against the same applicant.
Held: Defendants’ appeals dismissed. Mr. Galloway’s appeal and cross appeals allowed, in part.
Dealing with the limitations issues, as a preliminary matter, there is a fundamental concern with the suitability of raising limitations defences in the context of these PPPA applications. The chambers judge erred in deciding the many limitations issues that were raised and instead should have deferred these issues for trial on a full record. Given the preliminary stage at which PPPA applications are brought, they are inappropriate for fact intensive inquiries that require a judge to make significant findings of credibility or to draw inferences from competing primary facts. Judges must avoid taking a ‘deep dive’ into the ultimate merits of the claim under the guise of the more limited merits assessment in s. 4 of the PPPA.
The judge dismissed aspects of Mr. Galloway’s claims against A.B., Professor Maillard, Professor Lyon, and Ms. Rooney, on the basis that some of their statements, or the republications of those statements, were statute barred. The judge erred in various ways with respect to several of these statements. Mr. Galloway’s cross appeals with respect to various of these statements is allowed.
The judge did not err in concluding that s. 4 of the PPPA allowed her to dismiss limited aspects of Mr. Galloway’s claim against certain appellants while allowing other aspects of those claims to proceed to trial. Section 4 does not create a prohibition against allowing a judge to “prune” a claim in this way.
The different appellants raise numerous issues and challenge the judge’s application of various elements of the s. 4 framework. Many of these grounds of appeal invite this Court to engage in a re-weighing exercise, which is not the role of an appellate court.
Even post-Hansman v. Neufeld, 2023 SCC 14, the applicable framework from 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22 and Bent v. Platnick, 2022 SCC 23 continues to apply.
In light of the legal framework and evidence, the judge’s reasoning was sound and reflected a thorough consideration of the issues before her. Further, at the threshold stage of a PPPA application, the judge is not to take a deep dive into the evidence. Here, the judge identified the appropriate and relevant legal framework and it was within her discretion to assess whether the criteria under s. 4 of the PPPA were met. Overall, this Court agrees with her conclusions and finds no reviewable errors. Deference is owed to the judge’s findings of fact and her exercises of discretion, absent reviewable error.
Most of the appellants also allege that the judge failed to consider certain aspects of the evidence or that she did not properly address the context for some publications. The judge had extensive material before her and she properly addressed every defence in play.
PPPA applications, such as those on appeal, should not serve to delay an eventual trial. It is in the interests of the parties to have the matter fully heard and adjudicated at trial once the claims pass the PPPA threshold. The judge made clear that the outcome of the PPPA applications was not a final adjudication on the merits of the claims or defences. Her conclusions that allowed Mr. Galloway’s claims to go to trial were reasonable. The ultimate outcome will be determined at trial.
The appeals brought by Professor Maillard, A.B., Ms. Rooney, Dr. Gray, Dr. Smalec, Dr. Anderson, Mx. Rombough, and Dr. Kosman are dismissed. An aspect of Mr. Galloway’s appeal against Professor Lyon is allowed as well as aspects of his cross appeals against each of Professor Maillard, A.B., and Ms. Rooney. Mr. Galloway’s appeal against Ms. Elliott is dismissed.
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