WARNING
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
R. v. Butts, 2012 ONCA 24
COURT OF APPEAL FOR ONTARIO
Rosenberg, Sharpe and Juriansz JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
Christian Butts
Appellant
Timothy E. Breen, for the appellant
Matthew Asma, for the respondent
Heard: November 8, 2011
On appeal from the conviction imposed by Justice T. Bielby of the Superior Court of Justice dated August 11, 2009.
1The appellant was convicted, following a jury trial, of one count of sexual assault and sentenced to forty months imprisonment. He raises two grounds of appeal against the conviction:
that the trial judge erred by excluding evidence that the complainant had consensual sex with another man shortly after the alleged sexual assault; and
that the trial judge erred by leaving it open for the jury to consider the complainant’s incapacity to consent as a basis for liability.
1. Exclusion of the complainant’s subsequent sexual conduct
2The 16 year old female complainant first met the appellant, who she knew by the name Jamie, approximately one month prior to the alleged sexual assault. After the complainant was kicked out of her parents’ home, her boyfriend, I.O., made arrangements for her to stay at the appellant’s apartment, where I.O. had also recently begun living. On the evening of the alleged sexual assault, the complainant, the appellant, I.O. and another friend, M.W., were at the appellant’s apartment.
3The complainant was drinking and vomited in the living room. She proceeded to the bathroom, where she vomited again, and then moved to the bedroom, where she was upset and crying. A short time later, the appellant went into the bedroom. According to the complainant, the appellant then forcibly removed her clothing and had non-consensual intercourse with her.
4After this incident, the complainant returned to the living room. She was still upset and went for a walk with M.W. The complainant admitted, in a statement to the police, that she engaged in consensual intercourse with M.W. in a stairwell approximately 1-2 hours after the alleged assault.
5At the outset of the trial, the appellant's trial counsel brought a Seaboyer application for an order pursuant to the Criminal Code, s. 276, to permit the appellant to lead evidence of the subsequent sexual encounter with M.W. The trial judge disagreed with the defence counsel`s argument that “the evidence of the subsequent sexual encounter [was] relevant to the narrative” of events and would assist the jury in “understanding how the events unfolded.” He dismissed that application on the ground that, in the absence of “expert evidence [as] to how the complainant was supposed to have acted within an hour or two of the alleged assault”, the evidence of the subsequent sexual conduct had little probative value.
6M.W. was then called by the defence and testified that when the complainant and the appellant were in the bedroom, he heard sounds of giggling, laughing and what sounded like two people engaged in consensual sex. Crown counsel cross-examined M.W. to the effect that the complainant wanted to be left alone when she was in the bathroom, despite the attempts by M.W. and I.O. to comfort her. Crown counsel also questioned M.W. about how the complainant’s emotional state could change so rapidly from being upset in the bathroom to apparently giggling and having consensual sex with the appellant. She also asked questions about the complainant’s emotional state after her sexual encounter with the appellant. For example:
Q. Right, Now, I’m going to suggest to you that when you went out into that stairwell with her, she was not behaving normally at first, was she?
A. She was – she was pretty straightforward. Like, she was talking to me…
Q. You were…
A. …and…
Q. I’m sorry.
A. She was talking to me and I was just trying to cheer her up and she was slowly getting back to normal, and she was laughing with me. We were cracking jokes…
Q. Right.
A. …and everything seemed fine.
Q. Which would make sense because you’re a friend of hers; correct?
A. M’hmm.
Q. Right. But when you first went out there with her, she was still upset; right?
A. Yes.
Q. Yes. And you were concerned that she may not be okay; correct?
A. Yes.
Q. So you did have some concerns about [the complainant’s] emotional state in that stairwell, didn’t you?
A. Yes, I did.
Q. Yes. And that evening, throughout the evening, you’ve already told us that [the complainant] wanted you and [I.O.] to leave her alone when she was in the bathroom; correct?
A. That’s correct.
Q. Right. She really didn’t want to be around anybody that evening, did she?
A. At that – at the moment in the bathroom, she didn’t want to be around anybody while she was crying.
7Crown counsel also asked the following questions about the complainant’s boyfriend:
Q. …you knew that she and [I.O.] had been in a relationship; correct?
Q. And I’m going to suggest to you that they were in fact in a relationship on this particular date?
Q. …she and [I.O.] were fine with each other that night; isn’t that correct?
8These questions elicited evidence that the complainant’s boyfriend was present in the apartment that night and the complainant’s relationship with him that night was fine.
9Following the cross-examination, the appellant’s trial counsel renewed the Seaboyer application on the ground that the Crown was advancing the theory that the complainant’s emotional condition was such that she would not have consented to sex. The appellant’s counsel argued that the evidence that she had engaged in consensual sex with M.W. very shortly thereafter, when she was still in an emotional state, should now be admissible. The Crown argued that the cross-examination was targeted at undermining M.W.’s credibility.
10The trial judge dismissed the second Seaboyer application on the basis that the objection of the defence counsel was to “suggestions made by the Crown” and not to “actual evidence…before the court.” As such, any resultant prejudice could be dealt with by instructions to the jury. The trial judge also cautioned Crown counsel not to suggest in her jury address that it was unreasonable to think a person “can go from being on the floor to having, you know, giggling sex a half an hour later”. In response to a question from Crown counsel, the trial judge clarified that he was instructing Crown counsel to avoid “any reference to the time element between the floor and the bedroom”. He also stated that there was no “evidence about human behaviour, how behaviour changes over time, et cetera” before the court and to therefore “stay away from that point.”
11The trial judge’s ruling prevented the defence from establishing in the re-examination of M.W. that despite the complainant’s upset state and her “fine” relationship with her boyfriend who was there that night, she had she engaged in consensual sex in the stairwell shortly afterwards.
12In his jury address, trial counsel for the appellant suggested, among other things, that the complainant was upset with her family, depressed, sick from drinking and that her relationship with I.O. was “not really on”. He suggested that “what you have here is all the makings for someone being open to looking for comfort and acceptance, if even momentarily, in the intimacy of a sexual encounter.”
13Crown counsel, in her jury address, stated that it was the Crown’s theory that the appellant saw the complainant in a weak and vulnerable state and preyed upon her to his own advantage. Crown counsel pointed out that the complainant trusted both M.W. and I.O. She had known M.W. for some time and I.O. was her boyfriend. The appellant was different; the complainant had only known him for a very short time and she testified that she had no romantic or sexual interest in him.
14As to defence counsel’s suggestion that the complainant was seeking comfort from the appellant, Crown counsel responded:
Once again, ladies and gentlemen, I urge you to rely upon your common sense. The evidence from [the complainant] is that she was dating [I.O.] She was having problems with her parents because they did not approve of [I.O.] She did not stop seeing [I.O.] despite the problems it caused with her parents. She was in fact, living with [I.O.] at Jamie’s place. Her loyalty is to Jamie [sic].
15Crown counsel went on to refer to the attempts by M.W. and I.O. to comfort the complainant in the bathroom to bolster her argument that it was unlikely she would seek comfort from the appellant:
M.W. further said I.O. was trying to comfort [the complainant] and that she expressed the desire to be left alone. Further, M.W. himself said he tried to comfort [her] and she again wanted to be left alone. Does it make any sense whatsoever…that if [the complainant] does not want the comfort of her boyfriend and her close friend that she would want the comfort of the defendant, a man she barely knew a man she referred to as only an acquaintance, in whom she had no sexual or romantic interest?
I urge you to find, ladies and gentlemen, that that suggestion defies common sense. [The complainant] denies ever wanting comfort from Jamie and it is clear from the evidence of [M.W.] she wanted comfort from nobody. She wanted to be alone.
16Crown counsel then said the following, which, when read in the context of the cross-examination and overall theory of the case, could leave the impression that it was the Crown’s position that given “her emotional and mental state on the night in question”, the complainant would not have consented to sex with anyone. This was combined with a reference to the sanitized version of the encounter between the complainant and M.W. in the stairwell:
[The complainant] described for you her emotional and mental state on the evening in question. She told you how she tried to fight off Jamie but was unsuccessful. She was a very young girl in an extremely vulnerable state. She was not seeking comfort. She was seeking only to be left alone so she could sober up. Jamie was nine years older than her. He saw her weakened condition and he decided to use it to his own advantage. [M.W.] himself confirms that when [the complainant] left that bedroom and went out in the stairwell, she was angry - at Jamie.
17Defence counsel did not object to Crown counsel’s jury address and did not suggest that she had violated the trial judge’s order. Neither counsel raised any objections to the jury charge.
Analysis
18We agree with the trial judge`s finding that, as per s. 276(1) of the Criminal Code, the excluded evidence, standing on its own, was not admissible to prove that because the complainant had consented to sex on another occasion she was more likely to have consented to sex with the appellant.
19It may be that all Crown counsel meant to suggest through her cross-examination and jury address was that given the complainant’s emotional and mental state and her only passing acquaintance with the appellant, she would not have consented to sex with the appellant on the occasion in question. However, the cross-examination must be viewed in conjunction with Crown counsel’s jury address.
20Even though Crown counsel did not violate the trial judge’s order, the effect of the cross-examination and the jury address was to suggest that one reason the complainant would not have consented to sex with the appellant was because she still had a relationship with her boyfriend, I.O. Another effect was to suggest that the complainant would not have had sexual relations with anyone at all because of her emotional and mental state at the time. However, a brief time after she was allegedly sexually assaulted by the appellant and at a time when she was still said to have been in an emotional condition, the complainant had consensual sexual relations with M.W.
21Having excluded M.W.’s evidence about what really happened in the stairwell from the evidentiary record, the Crown’s cross-examination of M.W. and closing statement had the net effect, even if unintended, of presenting the jury with a misleading picture of crucial aspects of the incident that gave rise to this charge. The jury was left with the Crown’s distorted narrative that the complainant was too upset to have consensual sex at a time relevant to the charge and that she would not have consensual sex with the appellant because she remained loyal to her boyfriend.
22The problem that arose is not unlike what occurred in R. v. Clarke (1981), 1981 ABCA 222, 63 C.C.C. (2d) 224 (Alta. C.A.). In that case, the accused’s statement to the police had been excluded as being involuntary. In that statement, the accused had told police that he had a blackout the day of the killing. There was other evidence that many months later the accused had said the same thing to a jailhouse informant. In his closing, Crown counsel had suggested the accused “all of a sudden” spoke about the blackout and that it was “the first time that we have heard about this”. While the facts are more egregious in Clarke than in this case, the principle stated at pp. 238-39 is applicable here:
To leave the jury with the impression that blackout was a concoction that first arose two months after the killing and was therefore a circumstantial contribution to the proof of guilt cannot stand. I recognize counsel's obligation to comment on nothing but the admissible evidence during closing submissions. But this responsibility should not be inverted to encourage jurors to make findings in conflict with undisputed facts which did not reach their attention simply because of trial safeguards. It is not possible to say what role a finding of concoction may have played in the jury's deliberations. [Emphasis added.]
23Similarly, it cannot be said what role Crown counsel’s suggestions about the effect of the complainant’s emotional condition played in the jury’s deliberations. What can be said, however, is that the complainant’s emotional condition formed a central plank in the Crown’s theory that the complainant would not have consented to have sex with the appellant. If the jury accepted that argument because they believed the complainant’s “loyalty” was to I.O. or because she was not capable of having consensual sex when in an emotional or upset condition, the jury would have reached its verdict on a distorted view of the facts.
24In our view, the excluded evidence became relevant to the Crown’s particular theory of the case. Had the Crown not advanced a theory that was inconsistent with the excluded evidence, there would have been no problem. However, given the manner in which the Crown chose to present its case, the excluded evidence acquired significant probative value to the defence on the inferences to be drawn from her upset state and loyalty to her boyfriend. That probative value was not substantially outweighed by any danger of prejudice to the proper administration of justice. In our respectful view, the trial judge erred by permitting this distortion to occur and at the end of the day, the appellant was denied a fair trial.
25For that reason we conclude that that the accused was denied his right to a fair trial.
2. Did the trial judge erred by leaving incapacity to consent with the jury?
26Given our conclusion on the first issue, strictly speaking it is not necessary for me to consider this issue. In any event, we am satisfied that there was no error. Defence counsel raised the issue in his jury address and told the jury that the trial judge would be defining consent and that there can be no consent if the person is “so drunk you don’t know what you’re doing”. The trial judge’s instructions to the jury on consent were correct. He later made it clear that it was the Crown theory that the complainant did not in fact consent; there was no suggestion that the Crown relied on incapacity as a result of intoxication. There was no objection to the charge and no submission from defence counsel in the pre-charge discussion that the trial judge should not deal with the issue. In our view, the defence was not prejudiced by the trial judge’s correct definition of consent.
Disposition
27Accordingly, we would allow the appeal, set aside the conviction and order a new trial. It goes without saying that the admissibility of the evidence of the complainant’s subsequent sexual conduct will have to be assessed afresh at the new trial in the light of the evidence and positions taken by the parties.
“M. Rosenberg J.A.”
“Robert J. Sharpe J.A.”
“R.G. Juriansz J.A.”
RELEASED: January 13, 2012
