WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:
IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.
Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:
- OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .
( a ) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
( b ) is guilty of an offence punishable on summary conviction.
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 162.1, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .
(2) MANDATORY ORDER ON APPLICATION — 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 victim of the right to make an application for the order; and
( b ) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
DATE: 2024 07 08 COURT FILE No.: Hamilton 22-Y4710064
BETWEEN:
HIS MAJESTY THE KING
— AND —
O.K., a young person
Before Justice J.P.P. Fiorucci
Heard on June 4, 2024
Reasons for Ruling on Crown’s Seaboyer Application released on July 8, 2024
Counsel: Gloria Huh, for the Crown Michael Puskas, for the accused O.K.
FIORUCCI J.:
INTRODUCTION
1O.K., a young person, is charged with one count of sexual assault between September 1, 2018 and December 10, 2021. The complainant, M.R., alleges that O.K. committed several acts of sexual assault throughout this time frame, the most significant of which was an incident of non-consensual vaginal intercourse on August 7, 2020.
2The Crown brought a Seaboyer application to lead evidence of other consensual sexual activity between M.R. and O.K., including consensual sex on August 8, 2020, and throughout the couple’s dating relationship between August 2020 and December 2021.
3The Defence does not oppose the Crown’s application and filed no responding materials. The parties agree that consent and honest but mistaken belief in communicated consent will be the main issues at trial. However, the Defence has not committed to a position in respect of each of the alleged incidents of non-consensual sex. That is, the Defence has not declared whether O.K.’s position is that some of the incidents simply did not happen. Furthermore, the Defence has not brought a s. 276 application to elicit evidence about how M.R. previously communicated consent to support his belief that M.R. communicated her consent to any of the alleged incidents of non-consensual sex that she alleges.
4On June 4, 2024, I conducted a voir dire to determine the admissibility of the proposed Crown-led evidence. This is my ruling on the Seaboyer application.
BACKGROUND AND FACTS
5The Crown’s application record is Exhibit 1 on the voir dire. The Crown filed the two statements the complainant made to police: (i) a videotaped statement to Detective Duxbury on April 14, 2022; and (ii) a statement she made to Detective Duxbury on May 2, 2024, which is recorded in the officer’s notebook.
6The Crown’s factum is at Tab 4 of Exhibit 1. At paragraph 4 of the factum, Crown counsel provided particulars of the alleged non-consensual sexual touching that occurred within the time frame of the global count of sexual assault. Although the complainant alleges sexual assaults before August 7, 2020, [1] she stated that the most significant incident was the non-consensual vaginal intercourse on August 7, 2020. [2]
The August 7, 2020 Sexual Assault
7M.R. is anticipated to testify that, on August 7, 2020, prior to drinking alcohol with O.K., she told him that she did not want to have sex with him that night. They drank alcohol together and went back to O.K.’s house. They went to O.K.’s bedroom. They were laying in O.K.’s bed, and M.R. was drunk. M.R. says that although she said “no” to sexual touching, O.K. took her clothes off. She described how she was not able to fight back due to her state of intoxication.
8M.R. said that O.K. was initially on top of her and put his penis in her vagina while wearing a condom. O.K. then flipped M.R. over and she was face down while he put his penis in her vagina again. M.R. explained that it hurt and was uncomfortable. M.R. said she would cry and yell, and O.K. put his hand over her mouth so she couldn’t do anything. M.R. was waiting for it to be done. M.R. described how she was just laying there crying the whole time and almost passed out waiting for it to be over.
9M.R. went on to explain that right after the sexual assault, she went to the bathroom crying. She called or texted a friend M.N. When M.R. returned from the bathroom, she was crying. According to M.R., O.K. immediately realized what he had done saying, “oh my God” “did like I just, like I just raped you”. O.K. was crying and freaking out saying, “What do I do, what do I do?...I can’t believe I just did this”. [3]
Conversations on August 7, 2020 after M.R. left O.K.’s home
10On August 7, 2020, M.N.’s mother, E.N. picked M.R. up at O.K.’s home and brought her to M.N. According to the complainant, later that night, during a telephone call, O.K. told her he would kill himself if she went to the police and that if this got out his whole life would be ruined. M.R. said that she “didn’t do it” meaning she did not call the police because she was afraid of what O.K. would do and what he was saying. M.R. also said that she was not really thinking “in a proper headspace”, was “in shock” and did not want to do anything she would regret and ruin O.K.’s life. [4]
Consensual Sex on August 8, 2020
11On August 8, 2020, O.K. came to M.R.’s house crying and M.R. was trying to make him feel better. They discussed what had occurred the night before. The complainant is anticipated to testify that they had consensual sex on August 8 th . During her video statement to Detective Duxbury, M.R. said:
So, the night after, he came to my house and he was just, like crying and crying and crying. I was trying to make him feel better, like trying to say, like, “I know — like, it’s okay.” Like, I was never, I never like, made it like, he didn’t do it. But I tried to make him feel better. But I was like, you still did this. Like, and, you knew. Like, you can’t take anything back. You still did this. And I would try to make him feel better. And, so we did it again that night because I almost felt bad. And it, and I wouldn’t really say like, I guess it was consensual but like, I did it 'cause I felt bad and I wanted him to feel like it was okay. But it really wasn’t. [5]
Consensual and Non-consensual Sex During Their Dating Relationship
12M.R. says that she and O.K. started dating on August 17, 2020, and continued dating until December 10, 2021. According to M.R., during their dating relationship, there were more consensual than non-consensual sexual encounters. [6]
13The Crown provided particulars of the non-consensual sex that occurred during their dating relationship: (i) O.K. would take M.R.’s clothes off while she was sleeping and masturbate and M.R. would wake up to that; [7] (ii) there were times that O.K. would beg for sex until M.R. acquiesced; [8] and (iii) on one occasion, when they were at a park on a blanket, O.K. kept trying to touch M.R.’s breasts and vagina and kept trying to get her to touch him, even though M.R. continued saying no. [9]
Discussions about Consent and M.R.’s Reasons for Continuing the Relationship after the Sexual Assault on August 7, 2020
14During M.R.’s videotaped police statement, while she was telling Det. Duxbury about the incidents of waking up to O.K. masturbating, M.R. spoke about conversations she had with O.K. about consent:
M.R.: And I, and I would be like, “Why do you not think there’s something wrong with this?” Like , I would try to tell him, like basic consent but I don't know why he never understood the concept of that. Like, it’s, it was so basic stuff that I would try to teach him that was just like, not okay, stuff he would do that was just, that would never be okay in anybody’s — like, and he would just do the bare minimum, like not raping me. And he would be like, “Oh, is that good?” And I’m like, “No. That’s normal.” Like....
Detective Duxbury: And what do you mean by that? Tell me.
M.R . : Like, I had to, I, literally, had to just teach him all that stuff. Like, I had to teach him all these, like about consent and stuff. So, like, eventually, it got better because I would always threaten to leave if this kept continuing. But I think that he knew I wouldn’t even because I was like, so attached to him. [10]
15At another point in her videotaped police statement, M.R. said, “eventually, he started asking before he would do it”. [11] She contrasted this to the August 7, 2020 incident in which he did ask and she said no, “[b]ut he didn’t listen to that”. [12]
16M.R. also provided her reasons for remaining in a dating relationship with O.K. after the sexual assault on August 7, 2020:
M.R.: ...even at that point. We started dating then, like ten days later. I, it, I think it was just a lot of manipulation. I was not thinking properly. And I was also just, like in love with him and I just, like loved him so much and I thought he would change. But he never did. And I almost felt bad because he made me feel so guilty because he would always be the one upset over it. And I’m like, how are you the one crying? I should be the one crying. And I was the one always comforting him about it, which was ridiculous now that I think back at it. But I was just, I guess, I had, I was, like in shock and I wasn’t making proper decisions. [13]
17M.R. also provided details of conversations she had with O.K. during the relationship about wanting to stop being intimate for a while and why they did not stop:
M.R.: And then like, after that, like when we were, when we were, when we were dating and stuff, I would say to him like, “I want to,” like, “I really want to, like stop, like being intimate for a while because I, like I can’t do it.” Like, “I still haven’t healed and it’s not working.” But he would always want to and he would always, like start trying to do stuff like that. And then I would just give in because, like I wanted to make him happy, too. And, but I did say that like, I would want to, I wanted to take a break from that because he knew that I was not ready at all. And, so I was like, “We have to stop doing this. Like, I don't like it and I want to take a break.” But and, but we never really did. [14]
LEGAL PRINCIPLES
18Section 276(1) of the Criminal Code was enacted to prohibit reliance on the twin myths that distort the trial process and operate unfairly for victims in sexual offence prosecutions. [15] In prosecutions for certain enumerated sex offences, including s. 271, evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant (a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or (b) is less worthy of belief.
19Where the Crown intends to lead evidence of the complainant’s other sexual activity, the trial judge must first conduct a voir dire to rule on its admissibility. The purpose of this vetting process is to ensure that the evidence is not being adduced for an improper purpose related to twin myth reasoning. As the Supreme Court of Canada (SCC) stated in R. v. Barton:
…. First, s. 276(1), which confirms the irrelevance of the "twin myths", is categorical in nature and applies irrespective of which party has led the prior sexual activity evidence….
…Given that the reasoning dangers inherent in prior sexual activity evidence are potentially present regardless of which party adduces the evidence, trial judges should follow this Court's guidance in Seaboyer to determine the admissibility of Crown-led prior sexual activity evidence in a voir dire. [16]
20Therefore, when the Crown intends to lead evidence of the complainant’s sexual activity, other than the sexual activity that forms the subject-matter of the charge, the Crown is obliged to bring a common law Seaboyer application and must establish that the proposed use of the evidence is legitimate. [17]
21In R. v. Seaboyer; R. v. Gayme, the SCC recognized that “[e] vidence of consensual sexual conduct on the part of the complainant may be admissible for purposes other than an inference relating to the consent or credibility of the complainant where it possesses probative value on an issue in the trial and where that probative value is not substantially outweighed by the danger of unfair prejudice flowing from the evidence”. [18]
22In R. v. R.V., the SCC recognized that, in addition to guarding against twin myth reasoning, the trial judge must also guard against “prejudice to the complainant, the trial process and the administration of justice.” [19]
23In R. v. Boyle, Justice Doody of the Ontario Court of Justice provided guidance on the applicable legal principles and how to apply them when the Crown seeks to adduce other sexual conduct evidence. [20] I have drawn from the Boyle decision the following principles which assist in the determination of the Crown’s application:
(a) All evidence is subject to consideration of whether its probative value is exceeded by its potential for prejudice. Relevance is not always enough to achieve admissibility. Evidence should be excluded if its potential prejudice exceeds its probative value; [21]
(b) Prejudice includes the potential to unduly arouse emotions of prejudice, hostility or sympathy. That is less important in a judge alone trial than in a jury trial. Prejudice also includes the potential that the evidence may create a side issue that will unduly distract from the main issues, or that the evidence may consume an undue amount of trial time; [22]
(c) Seaboyer makes clear that prejudice includes prejudice to the complainant’s right of personal dignity and privacy. This led the SCC to enunciate the rule that evidence of prior sexual activity may be admissible for purposes other than one of the twin myths where the evidence has probative value and where that probative value is not substantially outweighed by the danger of unfair prejudice; [23]
(d) Section 276 effectively codifies the principles set out in Seaboyer . In Barton, supra, at para. 80 , and Goldfinch, 2019 SCC 38, at para. 75 , the majority of the SCC has directed trial judges to pay heed to those principles when deciding whether to admit Crown-led evidence of prior or other sexual activity; [24]
(e) When deciding an application to admit Crown-led evidence of other sexual activity, the principles set out in s. 276(3) must be applied and appropriately modified because it is the Crown seeking to tender the evidence. The factors to be considered are: (i) the interests of justice, including the right of the accused to make a full answer and defence; (ii) society's interest in encouraging the reporting of sexual assault offences; (iii) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case; (iv) the need to remove from the fact-finding process any discriminatory belief or bias; (v) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury; (vi) the potential prejudice to the complainant's personal dignity and right of privacy; (vii) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and (viii) any other factor that the judge, provincial court judge or justice considers relevant; [25]
(f) The fair trial rights of the accused person must also be considered on the application. The principles in Seaboyer , which have been codified in s. 276, have their basis in the residual discretion of a trial judge to decline to admit evidence when its probative value is exceeded by its potential for prejudice. These principles strike a balance among the public interest in having relevant evidence admitted and considered in criminal trials, the accused person's right to a fair trial and to make full answer and defence, and the complainant's rights and interests. Trial judges are required to consider all three when determining whether the evidence should be admitted; [26]
(g) The analysis should first consider whether the evidence led by the Crown has probative value by applying the normal test of relevance. To be relevant, evidence does not have to establish or refute a fact in issue. Evidence is relevant where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would be in the absence of the evidence; [27]
(h) In making this determination, it is important to keep in mind the limitations on “human experience” and “common sense” in determining, among other things, the way in which sexual assault victims will act and react to the circumstances in which they find themselves (R. v. Cepic, 2019 ONCA 541). Evidence which is only relevant to one of the “twin myths” can never be admissible; [28]
(i) Relevance must be determined based on the wording of the charges and the evidence which has been heard to date. In deciding relevance, the trial judge does not make any determination about the credibility and reliability of the evidence led on the application. That determination must await the end of the trial; [29]
(j) The second stage of the analysis is to determine whether the probative value of the evidence sought to be adduced by the Crown is not substantially outweighed by the danger of unfair prejudice flowing from the evidence. The factors set out in s. 276(3) are considered at this stage; [30]
(k) The presumptive inadmissibility of other sexual conduct of the complainant, including consensual sexual conduct, applies to evidence elicited by the Crown. On the voir dire, the Crown must satisfy the trial judge, on a balance of probabilities, that the evidence is relevant and admissible. [31]
ANALYSIS
The Evidence in Issue
24The Crown seeks to elicit: (i) evidence that O.K. and M.R. had consensual sex on August 8, 2020, the day after an incident of non-consensual vaginal intercourse; and (ii) evidence that consensual sexual activity happened during the couple’s dating relationship between August 2020 and December 2021, while incidents of non-consensual sex also occurred in this period. The Crown says that the complainant is aware of the Crown’s intention to lead this evidence at the trial and supports the application.
25The Crown seeks to lead this other sexual activity evidence through M.R. and to cross-examine O.K. about it should he testify at trial. In its materials, the Crown characterized the other sexual activity evidence as follows:
(a) M.R. and O.K. had consensual sex on August 8, 2020, “ because the complainant wanted to assure [O.K.] that she had forgiven him ” for the non-consensual vaginal intercourse that happened the day before; and
(b) During their dating relationship, between August 2020 and December 2021, the “ complainant felt that she had to teach [O.K.] how to seek and obtain consent. There was consensual and non-consensual sex during their relationship. After consensual sex, [O.K.] would ask [M.R.] if he had properly obtained consent ”.
26The Crown says this evidence is probative for three purposes:
(a) to explain the pattern of non-consensual sexual touching in the course of their relationship;
(b) to provide context to the conversations that M.R. recalls about consent with O.K.; and
(c) to allow M.R. to explain the impact of the August 7, 2020 incident on her emotions toward O.K. and the dynamic of their relationship, especially from August 8, 2020 onwards.
Consensual Sex on August 8, 2020
27First, I will deal with the admissibility of the consensual sex on August 8, 2020. The starting point for my analysis is to note that, although the complainant alleges sexual assaults before August 7, 2020, she is clear that the most significant incident was the non-consensual vaginal intercourse on August 7 th . In my view, it is necessary to consider the events of August 7 th to determine whether evidence of the consensual sex on August 8 th is admissible, and if so, for what purpose.
28According to M.R., on August 7 th , prior to drinking alcohol with O.K. and prior to their attendance at his home, she told him that they would not be having sex that night. Although she said no to sexual touching in his bedroom, O.K. removed her clothing. M.R. claims that she cried and yelled but O.K. put his hand on her mouth so she couldn’t do anything. She was crying waiting for the sexual assault to be over. M.R. alleges that O.K. recognized that he had “raped” her when she came out of the bathroom crying, and he made admissions against interest to M.R. before she left his home. On the telephone later that night, O.K. made further admissions to M.R. demonstrating that he understood that he had sexually assaulted her. He said he would kill himself if she went to the police and that his whole life would be ruined if this got out.
29M.R.’s conversations with O.K. on August 7, including confronting him about having sexually assaulted her, are not admissible as prior consistent statements to bolster M.R.’s trial testimony that the offence occurred. [32] The fact that a prior out-of-court statement given by a testifying witness is consistent with their in-court testimony cannot be used to support the veracity of their account.
30However, there are permissible uses for M.R.’s evidence of what transpired immediately after the sexual encounter at O.K.’s home on August 7 th and her evidence about the conversations she had with O.K. later that night. First, the evidence is admissible as post-offence demeanour. The authors of Prosecuting and Defending Sexual Offence Cases, Third Edition , state the following about post-offence demeanour:
A trier of fact is entitled to consider the demeanour or emotional upset of a complainant after the alleged offence in assessing credibility. It is a piece of circumstantial evidence that may be used to corroborate or refute the complainant’s version of events. The weight to be given to the evidence is exclusively a matter for the trial judge’s discretion. [33]
31The authors go on to note:
Demeanour evidence has been held to be properly used by a trial judge in rejecting an accused’s claim of consensual sex. In other words, the evidence of the complainant’s state of upset and distress within minutes of the encounter was inconsistent with the accused’s version that the sex was consensual and that the complainant was not upset. [34]
32In this case, M.R.’s emotional state on August 7 th , crying when she came out of the bathroom, coincided with, or prompted, O.K. to admit to her that he had just sexually assaulted her. This admission against interest purportedly made by the accused to the complainant is admissible through the testimony of the complainant, as are the admissions he is alleged to have made to her later that night on the telephone.
33The evidence of M.R.’s discussions with O.K. on August 7 th about the sexual assault that had occurred that night is also admissible for the purpose of “narrative as circumstantial evidence”. A trier of fact can consider the circumstances surrounding the prior consistent statement to assess the witness’ credibility and reliability. [35] The authors of Modern Criminal Evidence explain the narrative as circumstantial evidence exception to the general exclusionary rule relating to prior consistent statements:
For example, in a sexual assault case, the fact and timing of the first disclosure, and the overall context or circumstances of that initial complaint, can be considered by the trier of fact in assessing the complainant’s credibility. Where it emerges spontaneously and/or without delay, that would tend to enhance credibility. Similarly, where the complaint is accompanied by emotion, that may further enrich the witness’s credibility. The prior consistent statement may suggest that the complainant’s conduct was consistent with someone who had been sexually assaulted in circumstances where the defence attempted to show otherwise. [36]
34The authors go on to note that, “the statements are not admissible for their truth and cannot be used to infer that their consistency renders the testimony more credible or offers any corroboration”. [37]
35This brings me to M.R.’s evidence regarding August 8 th . According to M.R., she and O.K. continued to discuss the August 7 th sexual assault when O.K. came to her house on August 8 th crying. Again, M.R.’s evidence about these discussions with O.K. and his contrition for what he had done a day earlier constitute admissions O.K. made against interest and are admissible for that purpose. In essence, M.R. is saying that O.K. continued to recognize that he had sexually assaulted her a day earlier and felt remorse for it.
36M.R.’s anticipated evidence is that she had consensual sex with O.K. because she felt bad, was trying to make him feel better and “wanted him to feel like it was okay”. The Crown characterizes this as M.R. having consensual sex with O.K. because she wanted to assure him that she had forgiven him. The Court of Appeal for Ontario has held that the fact that the complainant remained in a sexual relationship after an alleged sexual assault is relevant to whether the assault occurred. [38]
37The authors of Prosecuting and Defending Sexual Offence Cases, Third Edition note the following:
This is to say that it is permissible to question the complainant on why they continued to have contact with the person who is alleged to have sexually assaulted them and to make submissions at the conclusion of the trial that the complainant lacked a credible explanation for the continued contact. It is not relevant as a comparison of what would be expected from a stereotypical sexual assault victim, especially in the absence of any questioning on why the post-assault contact continued, nor is it determinative of whether the assault occurred. [39]
38In this case, M.R. provides an explanation for having consensual sex with O.K. on August 8 th . Her explanation is admissible to explain why she continued to have a relationship with O.K., including a sexual relationship. The fact that M.R. had sex with O.K. on August 8 th is not being introduced by the Crown to support one of the “twin myths”. M.R.’s evidence of consensual sex on August 8 th is also intertwined with her evidence regarding O.K.’s continued expressions of remorse for having “raped” her. Her evidence about the events of August 8 th , including the consensual sex that night, assists in understanding the unfolding of events and provides context for the admissions against interest that O.K. made to her on August 8 th .
Consensual Sexual Activity During the Dating relationship
39Similarly, M.R.’s evidence that she started a dating relationship with O.K. in August of 2020, which included consensual sexual activity is not being elicited for a “twin myth” purpose. The reference to consensual sexual activity that the Crown seeks to introduce is again relevant and probative to the issue of why M.R. continued a relationship with O.K. after the August 7 th sexual assault.
40M.R. is anticipated to testify that she continued the relationship because she loved O.K., thought he would change and felt guilty because he was always upset about what had happened on August 7 th . Therefore, the evidence of a consensual sexual relationship continuing with O.K. during their dating relationship also provides context for O.K.’s continued expressions of contrition to M.R. for having sexually assaulted her on August 7, 2020.
41In her videotaped police statement, M.R. said that although she would tell O.K. that she wanted to stop being intimate for a while because she had not healed, O.K. would persist, and she would give in because she wanted to make him happy. Again, this evidence is relevant to M.R.’s reasons for remaining in a dating relationship with O.K., which included consensual sexual activity, and is admissible.
42The parties agree that the main issues at trial will be consent and mistaken belief in communicated consent. M.R. is anticipated to testify that she and O.K. had conversations about consent. When she told the detective about O.K. taking off her clothes while she was asleep and waking up to O.K. masturbating, M.R. said that she confronted O.K. about it being wrong and about “basic consent”. M.R. went on to say that she would try to teach O.K. about consent and would threaten to leave him if things did not get better.
43Section 273.2 (b) of the Criminal Code bars an accused from advancing honest but mistaken belief in communicated consent where “the accused did not take reasonable steps, in the circumstances known to the accused at the time , to ascertain that the complainant was consenting”. Ascertaining the circumstances known to the accused is the first step in the reasonable steps analysis.
44M.R.’s evidence that she and O.K. had discussions about consent throughout their dating relationship has potential relevance on both the issues of consent and mistaken belief in communicated consent. If the discussions about consent happened during an incident which M.R. claims to have been non-consensual, the discussion is relevant and assist the trier of fact in determining whether the complainant subjectively consented to that sexual act, since evidence of the complainant’s words or actions before and during the incident are relevant to the issue of subjective consent.
45M.R.’s evidence that she “had to teach him all these, like about consent and stuff”, implies that at least some of these discussions about sex happened during incidents of consensual sexual contact. These discussions have potential relevance if O.K. claims that he had a mistaken belief that M.R. communicated consent for a certain sexual act that M.R. claims was not consensual. His prior discussions with M.R., even if they happened during a consensual sexual encounter, would be relevant to assessing what was known to O.K. at the time of the alleged non-consensual sexual encounter and whether he took reasonable steps.
46M.R.’s evidence about the continuing consensual sexual relationship with O.K. during which she had conversations with him about consent is also necessary as narrative to understand the case as a whole and the unfolding of events.
Potential Prejudice and s. 276(3) Principles
47Having considered the principles in Seaboyer , as codified in s. 276(3), for the reasons outlined above, I find that the consensual sex that occurred on August 8, 2020 and throughout the dating relationship is admissible for the specific purposes outlined in this ruling.
48In arriving at this conclusion, I considered that the Crown does not intend to lead details of the consensual sexual acts on August 8, 2020, or details of the other consensual acts that occurred throughout their dating relationship. Although it is an invasion of M.R.’s privacy to elicit evidence that she had consensual sexual relations with O.K., the interference with her privacy rights is minimal because, neither the Crown nor the Defence will be permitted to elicit the details of those consensual sexual occurrences. The evidence is not being introduced to support one of the twin myths, and as the trier of fact in a judge alone trial, I will guard against its use for twin myth reasoning.
49Furthermore, I find that it does not raise potential to create a side issue that will unduly distract from the main issues or consume an undue amount of trial time. To the contrary, the evidence is being led, at least in part, to put into context the complainant’s allegations regarding the non-consensual sexual encounters. It is in the interests of justice, including the accused’s right to make full answer and defence, for M.R. to provide a complete account of her relationship with the accused, which she says included both consensual and non-consensual sexual activity.
50Admission of the evidence, in the circumstances of this case, would have no effect on discouraging the reporting of sexual assault offences. It is apparent from the videotaped statement of M.R. that referring to the consensual sexual relationship with O.K. assists her in relaying her allegations of sexual assault. In this regard, the evidence will assist the trier of fact in arriving at a just determination of the case. The evidence is not being introduced to unduly arouse sentiments of prejudice, sympathy or hostility and these considerations are of lesser concern in a judge alone trial.
51Of primary importance is the caution given by Justice Moldaver in Barton that Crown-led evidence of the complainant’s other sexual conduct does not open “ the door to wholesale admission of [the accused’s] evidence about [the complainant's] past sexual activities, without having to first sift that evidence through the s. 276 filter”. [40] If the Defence wishes to adduce additional details about the Crown-led evidence, or adduce evidence of other sexual activity of the complainant, the Defence is required to bring a s. 276(2) application. [41]
Released: July 8, 2024 Signed: Justice J.P.P. Fiorucci
Footnotes
[1] M.R. said that starting in grade 9 (fall of 2019) and up until August 2020, O.K. would routinely touch her “butt” and “boobs” without her consent and would act like it was funny, but she would respond by repeatedly telling him “no” (Transcript of April 14, 2022 statement, pp. 7 and 22). M.R. also spoke of an incident at her father’s home that happened close to the end of 2019 in which O.K. was touching her leg without her consent and sending videos of it to a friend, H.M. (Notebook statement to Det. Duxbury on May 2, 2024, p. 93). [2] Transcript of April 14, 2022 statement, p. 4. [3] Facts relating to August 7, 2020 incident: Transcript of April 14, 2022 statement, pp. 4, 5, 8, 9, 11, 12, 13 and 15; Notebook Statement to Det. Duxbury on May 2, 2024, pp. 89-92. [4] Transcript of April 14, 2022 statement, p. 10. [5] Transcript of April 14, 2022 statement, p. 14. [6] Transcript of April 14, 2022 statement, p. 8. [7] Transcript of April 14, 2022 statement, pp. 18-19. [8] Transcript of April 14, 2022 statement, p. 18. [9] Notebook Statement to Det. Duxbury on May 2, 2024, p. 94. [10] Transcript of April 14, 2022 statement, pp. 18-19. [11] Transcript of April 14, 2022 statement, p. 18. [12] Transcript of April 14, 2022 statement, p. 18. [13] Transcript of April 14, 2022 statement, pp. 13-14. [14] Transcript of April 14, 2022 statement, pp. 14-15. [15] Prosecuting and Defending Sexual Offence Cases, Third Edition , Daniel Brown and Jill Witkin, Emond Montgomery Publications Limited, 2024, Toronto, ON, Chapter 13, p. 396. [16] R. v. Barton, 2019 SCC 33, at para. 80 . [17] R. v. J.J., 2022 SCC 28, at para. 74 ; R. v. Seaboyer; R. v. Gayme, [1991] 2 S.C.R. 577, 66 C.C.C. (3d) 321, at para. 101 , subparagraph 4. [18] R. v. Seaboyer; R. v. Gayme, supra, at para. 101 , subparagraph 2. [19] R. v. R.V., 2019 SCC 41, at para. 78 . [20] R. v. Boyle, 2019 ONCJ 634. At paragraph 6 of the Boyle decision, which was released on September 9, 2019, Justice Doody adopted his understanding of the legal principles in this area, which he set out in his earlier decision in R. v. Boyle, 2019 ONCJ 516 (released on July 12, 2019). [21] R. v. Boyle, 2019 ONCJ 634, at para. 6 , subparagraph 7; R. v. Seaboyer; R. v. Gayme, supra, at para. 40 . [22] R. v. Boyle, 2019 ONCJ 634, at para. 6 , subparagraph 8; R. v. Seaboyer; R. v. Gayme, supra, at para. 40 . [23] R. v. Boyle, 2019 ONCJ 634, at para. 6 , subparagraph 9. [24] R. v. Boyle, 2019 ONCJ 634, at para. 6 , subparagraphs 10 and 11; R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443. [25] R. v. Boyle, 2019 ONCJ 634, at para. 6 , subparagraphs 13 and 14; Section 276(3) of the Criminal Code . [26] R. v. Boyle, 2019 ONCJ 634, at para. 6 , subparagraphs 16 and 17. See also R. v. Darrach, supra , at para. 25 wherein the SCC stated that in Seaboyer the Court found that the principles of fundamental justice include the three purposes of s. 276: protecting the integrity of the trial by excluding evidence that is misleading, protecting the rights of the accused, as well as encouraging the reporting of sexual violence and protecting the “security and privacy of the witnesses”. [27] R. v. Boyle, 2019 ONCJ 634, at para. 6 , subparagraphs 18-21. See R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433; R. v. L.S., 2017 ONCA 685, at para. 89 . [28] R. v. Boyle, 2019 ONCJ 634, at para. 6 , subparagraph 22. [29] R. v. Boyle, 2019 ONCJ 634, at para. 6 , subparagraph 23. [30] R. v. Boyle, 2019 ONCJ 634, at para. 6 , subparagraph 24. [31] R. v. Boyle, 2019 ONCJ 634, at paras. 9-13 . [32] R. v. Ellard, 2009 SCC 27, at para. 31 . [33] Prosecuting and Defending Sexual Offence Cases, Third Edition , supra , Chapter 7, p. 244. [34] Ibid, Chapter 7, p. 244. See R. v. P.R., 2014 ONCA 131; R. v. Hanson, 2013 ONCA 577; R. v. St Roch, 2016 ONCA 530. [35] R. v. Dinardo, 2008 SCC 24, at para. 37 ; R. v. Khan, 2017 ONCA 114, at paras. 31-33 . [36] Modern Criminal Evidence, Matthew Gourlay, Brock Jones, Jill Makepeace, Glen Crisp, Justice Renee Pomerance, Emond Montgomery Publications Limited, 2022, Toronto, ON, Chapter 6, p. 229. See R. v. Curto, 2008 ONCA 161, at para. 37 . [37] Ibid, Chapter 6, p. 229. See R. v. Khan, supra, at paras. 41, 43-44 . [38] R. v. L.S., 2017 ONCA 685, at paras. 88 , 91 and 100. [39] Prosecuting and Defending Sexual Offence Cases, Third Edition , supra , Chapter 7, p. 245. [40] R. v. Barton, supra, at para. 79 . [41] R. v. R.V., supra, at para. 45 .