WARNING
The court hearing this matter directs that the following notice be attached to the judgment / file:
This hearing is governed by section 278.95 of the Criminal Code:
Publication Prohibited
278.95 (1) A person shall not publish in any document, or broadcast or transmit in any way, any of the following:
(a) the contents of an application made under subsection 278.93;
(b) any evidence taken, the information given and the representations made at an application under section 278.93 or at a hearing under section 278.94;
(c) the decision of a judge or justice under subsection 278.93(4), unless the judge or justice, after taking into account the complainant's right of privacy and the interests of justice, orders that the decision may be published, broadcast or transmitted; and
(d) the determination made and the reasons provided under subsection 278.94(4), unless
(i) that determination is that evidence is admissible, or
(ii) the judge or justice, after taking into account the complainant's right of privacy and the interests of justice, orders that the determination and reasons may be published, broadcast or transmitted.
Offence
278.95 (2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.
☒ These reasons may be published, broadcast or transmitted
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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct 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 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.
486.6 OFFENCE — (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.
Court Information
Ontario Court of Justice
Date: 2020-12-10
Court File No.: Halton 19-1577
Between:
Her Majesty the Queen
— and —
D.B.
Before: Justice A. Calsavara
Pre-Trial Motion to Introduce Other Sexual Activity at Trial
Heard on: August 10, 2020 and October 28, 2020 by Zoom
Reasons for Judgment released on: December 10, 2020
Counsel
Maureen McGuigan — counsel for the Crown
Paul Alexander — counsel for the accused D.B.
Brendan Neil — counsel for the complainant N.S.
Reasons for Judgment
Calsavara J.:
[1]
This is a ruling following a two-stage procedure on the applicant's motion to introduce other sexual activity pursuant to s. 276. At the second stage on October 28th, the complainant was represented by counsel who participated in the hearing with full submissions and cross-examination of the applicant.
[2]
The applicant, D.B., is charged with a single count of sexual assault against N.S. Until the event in question, D.B. and N.S. were a young couple in an intimate relationship for over two years. On that morning, the two were naked in bed together at N.S.' home. The mood was good, and as the complainant described in her statement to the police they were "all lovey-dovey." It is alleged that D.B. pulled N.S. on top of him and was forcefully grabbing her hips, pushing them down. He had an erection. N.S. told D.B. she did not want to have sex. D.B. responded "okay". N.S. remained positioned on top of D.B. He continued to kiss and caress N.S. which—she reported—she was agreeable to; but it is alleged D.B. then "thrusted hard", penetrating her vagina with the tip of his penis without her communicated consent. N.S. froze and got on her elbows and knees, lifting herself away from his penis.
[3]
He seemed not to notice her reaction and continued to caress her. N.S. reported that she eventually got off of him and said, "What was that? I told you I didn't wanna have sex and then you just thrust inside of me." To which, according to N.S., D.B said: "I'm sorry. I'm learning."
[4]
N.S. turned away from D.B., refused his invitation to talk, and asked him to leave.
[5]
In response D.B. got up, got dressed and left N.S.' apartment; but not before leaving behind this note:
Dear [N],
I'm very sorry and ashamed of my actions. What happened is not the person I want to be by any stretch. More than anything, I want to be that safe space for you. I understand that you need time to process, so take as much time as you need. Just know that my arms are ready and open to talk whenever you are. I am deeply committed to this relationship and becoming the best version of myself for it. That includes being a safe place for you.
I love you with all my heart,
[D]
[6]
At the stage one s.278.93 hearing, the Crown confirmed its intention at trial of adducing both 'apologies': the defendant's comments in the bedroom immediately after, and the note.
[7]
It appears to be common ground—based upon the complainant's statement to the police and the applicant's evidence at this hearing—that N.S. disclosed early on in their relationship to D.B. that she is a survivor of sexual violence and suffers from PTSD symptoms as a result. They discussed the resulting effect it had on her throughout the course of their relationship.
[8]
Moreover, as a result of her trauma, according to the applicant, the couple had several discussions about the concept of consent and how the complainant was comfortable communicating her consent in their relationship. N.S. shared with D.B. that she would sometimes have flashbacks while the two of them were together. When that happened, they would stop the activity they were engaged in at the time.
[9]
The defendant seeks to introduce evidence in the following areas in support of his defence of honest but mistaken belief in communicated consent:
(a) Evidence that he and the complainant had established a pattern of non-verbally communicating consent to sex over the course of their relationship
(b) Evidence of their discussions about consent
(c) Evidence of the sexual activity between the couple on the night before the incident
(d) Evidence of their discussions about N.S. being a survivor of sexual violence
[10]
The specific instances of sexual activity and/or discussion about it are set out in the applicant's affidavits (which have been filed as sealed exhibits) and in his testimony during the s. 278.94 hearing.
[11]
The applicant deposed that N.S. disclosed to him early on in their relationship that she was sexually assaulted by a former boyfriend. On many occasions, N.S. would experience PTSD symptoms during sex. According to D.B., N.S. would suddenly freeze and push him away or tell him to stop. They would often talk about it. Other times, N.S. wanted to be held without talking. The applicant, moreover, deposed that N.S told him that when she was triggered during sex, she sometimes became dissociated and felt as though D.B. suddenly became the person who assaulted her in the past.
[12]
According to the applicant, the two discussed the triggers, how to avoid them, and respond. They spoke about this topic a lot and about ways she was healing. Because of this, the applicant maintains that he made a point of discussing consent with N.S. and how they would communicate consent in the moment.
[13]
D.B. maintains that a practice of non-verbally communicating consent developed. A portion of his affidavit (exhibit #2) reads as follows:
Over the course of our relationship, we developed a non-verbal practice of communicating consent. We had many conversations about consent throughout our relationship. On one occasion, after we had been dating for about six months, [N] experienced PTSD symptoms during sex. Following our usual pattern, I immediately stopped and held her. After a while, she began to rock her hips back and forth and grind her pelvis against me. I asked her, "are you really turned on right now?" or words to that effect. She said yes. We proceeded to have sex. I don't remember the specific details of how the sexual encounter unfolded. Afterwards, [N] asked me how I had known that she was so turned on. I told her that I had noticed the back-and-forth movement of her hips pressing into my groin and said that I noticed she made them when she was turned on. She told me that it made her feel good to know that I was following her body language. I asked her, "are you okay with me initiating sex when I notice you making those movements?" She said yes.
After that conversation, it took me a while to get used to communicating consent nonverbally. At first I was uncomfortable proceeding without explicitly asking, so when [N] would experience a PTSD episode and tell me to stop, I would hold her, and if she began to rock her hips and press her pelvis against me, I would ask, "do you want to have sex?" After a month or two, I came to trust her assurance that when she rocked her hips and pressed her pelvis against my groin, she was communicating her consent to sex, and we established our pattern of non-verbal communication of consent. When [N] told me to stop, I would stop and hold her. We went no farther unless [N] changed mind. About 60 to 70 per cent of the time, after I had been holding her for a while, she began to rock her hips back and forth and press her genitals or buttocks against me, and as we had discussed, I relied on this as her way of telling me that she wanted to have sex. We would then go on to have sex. Sometimes we engaged in foreplay first, and other times we proceeded straight to intercourse. This became a standard pattern of communication for us. While we expressed our consent verbally on some occasions, we routinely relied on this non-verbal practice.
[14]
As set out in his affidavit, D.B.'s version of the alleged sexual assault is as follows:
On the morning in question, [N] and I woke up and were cuddling and being affectionate towards each other. She was lying on her side, and she rolled over onto her back to allow me to move her on top of me. As she rolled onto her back, I rolled towards her, put my arms around her, and rolled onto my back so that she could lie on top of me. She lay on my chest and we snuggled. We may have kissed. I caressed her body. Her pelvis was resting on my abdomen. I was aroused and put my hands on her hips to try to slide her down towards my pelvis as an invitation to have sex. It took some strength to move her simply because of the weight of her body resting on mine, but I did not intend to be aggressive or forceful. [N] told me that she did not want to have sex. I said "okay" and did not press her. I continued to hold her and caress her back and buttocks. We may have continued kissing. After several minutes passed-to the best of my memory, it was about seven to ten minutes—[N]'s body language began to change. She started to rock her hips back and forth. Her movements became very sensual, and she began to repeatedly press the opening of her vagina against my penis. I did not attempt intercourse right away. After she continued to press her vagina against me for another minute or two, I felt sure that she was telling me that she wanted to have sex. With my hands on her buttocks, I spread her open and penetrated her vagina with the tip of my penis. My intent was to penetrate her with only the tip to begin with. I cannot say how [N] interpreted my act, but I was trying to be playful, not forceful.
After I partially penetrated her, she got up on all fours and my penis came out of her. I kept caressing her and did not know that anything was wrong. After about 30 seconds to a minute went by, she confronted me and asked me why I had done that. I asked her what was going on. She told me that I had penetrated her after she told me that she did not want sex. I responded, "I'm sorry, I'm learning." I meant that I was still learning about what would trigger her PTSD symptoms, and I was sorry for inadvertently triggering her. I did not mean that I was learning not to penetrate her when she did not want sex; this was something I did not have to be told. When I initiated intercourse, I honestly believed that she was following our established pattern of communicating consent to me through the movement of her hips and pelvis against my body.
[15]
D.B., moreover, provided an innocent explanation for the apology note that he links to the couple's discussions about N.S's trauma from sexual violence.
[16]
For the reasons that follow, evidence of D.B. and N.S.'s pattern of non-verbally communicating consent in the form of prior sexual activity and discussions between the two over the course of their relationship is admissible at trial under s. 276(2) of the Code. This includes evidence of their discussions about N.S. being a survivor of sexual violence, but evidence touching upon this area will be strictly limited in scope to minimize the impact on the complainant's dignity and security.
Positions of the Parties
Defence
[17]
Mr. Alexander, on behalf of the applicant, submits that this evidence is not being proffered in support of an impermissible inference. Rather the evidence is necessary to raise D.B.'s defence of honest but mistaken belief in communicated consent.
[18]
The applicant concedes that the complainant did not consent to the attempted penetration, but honestly thought she was at the time. Central to his defence at trial is his reliance on what the couple previously discussed and agreed upon as signaling non-verbal consent to sexual activity—a particular body motion akin to a code word. Without evidence of this pattern in the form of prior sexual activity and discussions about it, D.B. would, in effect, be deprived of establishing that he took reasonable steps as that test as set out in s. 273.2(b) has been defined and hence would be deprived of making full answer and defence.
Crown
[19]
The Crown asserts that there is no air of reality to the mistake of fact defence. Firstly, Ms. McGuigan points out, the defendant's version is diametrically opposed to the anticipated evidence of the complainant to such a degree there is no room for a finding of honest but mistaken belief in communicated consent and that D.B.'s defence is really one of consent, guised as honest but mistaken belief. In such case, the proffered evidence is of no relevance and could only support impermissible inferences.
[20]
Secondly, the Crown submits that D.B. is precluded from relying on this mistake of fact defence since he took no reasonable steps to ascertain that the complainant was consenting—most particularly here in the face of a verbal 'no' to sex some minutes before the attempted vaginal penetration. 'Stopping' is not a step. 'Waiting' is not a step; hence, he took no steps. D.B.'s conduct is at least wilfully blind, if not completely reckless.
[21]
Lastly, Ms. McGuigan submits that the evidence sought is too generalized in nature and not of specific instances of sexual activity as mandated by s. 276(2)(c).
Complainant
[22]
Mr. Neil, on behalf of the complainant, echoes the Crown's contention of their being no air of reality to the mistaken belief in consent defence. He asserts that the position of D.B. is founded on 'implied' consent and could only amount to a mistake of law—not one of fact; and is thus, no defence at all.
[23]
The use of prior sexual history, moreover, exacerbates this flawed chain of reasoning as the applicant is relying on consent to past sexual activity as a basis of his belief she consented when she clearly articulated a 'no' to intercourse. Tarnishing the 'reasonable steps' inquiry with consent to sexual activity in the past cloaks what is in fact stereotypical inference drawing—namely, the prohibited inference set out in s. 276(1)(a). With or without the history, there were no reasonable steps. The defendant could not be sure the complainant was consenting without asking. Given the communicated 'no', he was at best guessing. Moreover, given N.S's particular circumstances as a survivor of sexual violence who suffered from PTSD—facts D.B. knew—reasonable steps in this case requires something more than simply waiting and interpreting a change in the complainant's body language.
[24]
Lastly, Mr. Neil argues that, even assuming an air of reality to the defence, the evidence is far too prejudicial to the complainant's sense of security and dignity—particularly the evidence that touches upon N.S.'s prior rape and related trauma. Aside from the heightened invasion of privacy such line of questioning entails, Mr. Neil notes that there is a risk questioning in this area could be a triggering event for N.S. and cause her harm.
Analysis
The Test to be Applied
[25]
The admissibility of the proffered evidence is governed by s. 276:
276. (1) In proceedings in respect of an offence under section 151, 152, 153, 153.1 or 155, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, 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.
(2) In proceedings in respect of an offence referred to in subsection (1), evidence shall not be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94, that the evidence
(a) is not being adduced for the purpose of supporting an inference described in subsection (1);
(b) is relevant to an issue at trial; and
(c) is of specific instances of sexual activity; and
(d) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account
(a) the interests of justice, including the right of the accused to make a full answer and defence;
(b) society's interest in encouraging the reporting of sexual assault offences;
(c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;
(d) the need to remove from the fact-finding process any discriminatory belief or bias;
(e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;
(f) the potential prejudice to the complainant's personal dignity and right of privacy;
(g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and
(h) any other factor that the judge, provincial court judge or justice considers relevant.
(4) For the purpose of this section, "sexual activity" includes any communication made for a sexual purpose or whose content is of a sexual nature.
Relevance of the Proffered Evidence
[26]
As I see it, the sought evidence is admissible for two vital purposes: (i) in support of the applicant's defence of honest but mistaken belief in communicated consent, and (ii) for the applicant to explain what he meant by his two post-incident apologies. Neither basis engages a prohibited chain of reasoning.
Honest but Mistaken Belief in Communicated Consent
[27]
Evidence concerning an ongoing sexual relationship between an accused and a complainant risks tainting the fact-finding process. Such evidence is particularly susceptible to invoking the stereotypical-myth-based inference that the complainant is more likely to have consented to the sexual activity in question because she has on other occasions. This is partly why a complainant's sexual history with an accused is rarely admissible squarely on the issue of consent. It is not relevant to that question of whether the complainant in her mind wanted the sexual touching to take place. However, that is not the aim of the evidence in this case.
[28]
In my view, the purpose of the evidence advanced does not engage either of the twin myths codified in s. 276(1). The applicant has clearly delineated his defence to this sexual assault charge and how the proffered evidence is relevant to his defence. The issue for trial is a narrow one. There is no issue the sexual activity took place. Although there are important deviations between the complainant's and defendant's version on exactly what took place, there is a clear consensus on much of the event. How far apart ultimately they will be will no doubt be explored at trial—with a resultant range in possible findings of fact.
[29]
There is also no issue that the complainant did not consent to the sexual activity in question.
[30]
The main issue in this case is whether or not D.B. held an honest but mistaken belief in communicated consent. Tendered for this issue, however, great care must be taken to ensure the accused himself is not relying on an impermissible inference in assuming from past practices the complainant is consenting. That would be a mistake of law, not fact, to infer consent. This is why the Supreme Court, in R. v. Barton 2019 SCC 33 refined the judicial lexicon to add the word "communicated" to this mistaken belief defence. In this way, the Court directed the legal community to focus on this required component of consent – that is, it has been communicated by words or conduct.
[31]
A mistake of fact defence must also zero in on how the past sexual conduct informed an accused's mistake in believing the complainant communicated consent at the time of the specific act in question. Karakatsanis J., in R. v. Goldfinch 2019 SCC 38, explained:
62 Prior sexual activity may be particularly relevant to a defence of honest but mistaken belief in communicated consent (Seaboyer, at pp. 613-16; Darrach, at para. 59; Barton, at paras. 91 et seq.). However, an honest but mistaken belief cannot simply rest upon evidence that a person consented at "some point" in the past: that would be twin-myth reasoning. By definition, the defence must rely upon evidence of how the complainant previously communicated consent so that the accused can adequately support a belief that consent was expressed …
Unlike with the impugned evidence in Goldfinch, however, D.B—the applicant in this case—is not simply relying upon N.S.'s consent at some point in the past.
[32]
D.B.'s evidence is that on many occasions N.S. would have an episode related to her PTSD during their sexual activity and would withdraw her consent and want to be held. On some of these occasions, after some time N.S. would rock her hips back and forth, pressing her genitals or buttocks against him and as D.B. deposed, "… as we discussed, I relied on this as her way of telling me that she wanted to have sex. We would then go on to have sex. Sometimes we engaged in foreplay first, and other times we proceeded straight to intercourse. This became a standard pattern of communication for us. While we expressed our consent verbally on some occasions, we routinely relied on this non-verbal practice." Earlier, as this pattern began to develop, D.B. maintains he asked N.S., "are you okay with me initiating sex when I notice you making those movements?" to which she replied 'yes'.
[33]
This is the type of history evidence that is capable in law of being admissible to support this defence. Moldaver J. addressed this in Barton:
… in some cases, prior sexual activities may establish legitimate expectations about how consent is communicated between the parties, thereby shaping the accused's perception of communicated consent to the sexual activity in question at the time it occurred. American scholar Michelle Anderson puts it this way: "prior negotiations between the complainant and the defendant regarding the specific acts at issue or customs and practices about those acts should be admissible. These negotiations, customs, and practices between the parties reveal their legitimate expectations on the incident in question" (M. J. Anderson, "Time to Reform Rape Shield Laws: Kobe Bryant Case Highlights Holes in the Armour" (2004), 19:2 Crim. Just. 14, at p. 19, cited in Hill, Tanovich and Strezos, at §16:20.50.30). These "negotiations" would not, however, include an agreement involving broad advance consent to any and all manner of sexual activity.
[34]
By invoking this evidence of past sex and communication about it, the applicant is not saying he is assuming from N.S.'s body language that she consented, nor that because she changed her mind about agreeing to sex in the past that she did that on the occasion in question; rather, his point is that they relied on a pattern of a motion that signaled consent and both agreed to this motion of N.S.'s body moving in a certain way to be an indicator of consent. They specifically discussed this and agreed upon relying on this movement. It follows—accepting the defence evidence at its highest—that D.B. believed N.S. consented this time because of the way she moved her body. He thought that was an indicator—an expression of her consent—based upon this pattern they developed.
[35]
It is not enough for an accused to have an honest but mistaken belief in consent to avail him or herself of this defence in a sexual assault prosecution. The law requires more:
273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where
(a) the accused's belief arose from
(i) the accused's self-induced intoxication,
(ii) the accused's recklessness or wilful blindness, or
(iii) any circumstance referred to in subsection 265(3) or 273.1(2) or (3) in which no consent is obtained;
(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting; or
(c) there is no evidence that the complainant's voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct.
[36]
The Crown argues the 'reasonable steps' precondition is in and of itself a bar to this defence in this case. Emphasizing the verbal 'no' to sex some minutes before the penetration, she points out that D.B. took no steps. Stopping and waiting before penetrating the complainant are not 'steps'- but rather is simply the law. The Crown, moreover, asserts there is also no air of reality to this defence because it is D.B. who put N.S. in the position on top of him, tightly held against him, such that any movement by the complainant could be interpreted as pressing 'the opening of her vagina against my penis'.
[37]
In my view, these are valid points to argue on the ultimate findings in this case at trial, not at this threshold stage. There is an air of reality to the defence. On the crown's latter point, it is not the defendant's evidence that he held her in such a way any movement by N.S. would out of necessity result in her genitals pressing against him. We do not yet know what N.S.'s evidence will be on that point—but, in any event, the evidence is to be taken at its highest in favour of the defence in evaluating whether there is an air of reality.
[38]
The irony of the Crown's position on the 'reasonable steps' point is that it highlights why the prior sexual history is vital to the accused being able to raise a doubt on the mens rea of this offence. In R. v. Albourkhari, 2013 ONCA 581, the Court of Appeal adopted the test as enunciated by the Manitoba Court of Appeal in R. v. Malcolm:
41 The Manitoba Court of Appeal has described the approach to determining if the accused has taken reasonable steps to ascertain consent as a "quasi-objective test": R. v. Malcolm [cites omitted]. In Malcolm, the court set out a useful approach to the determination, as follows, at para. 24:
First, the circumstances known to the accused must be ascertained. Then, the issue which arises is, if a reasonable man was aware of the same circumstances, would he take further steps before proceeding with the sexual activity? If the answer is yes, and the accused has not taken further steps, then the accused is not entitled to the defence of honest belief in consent. If the answer is no, or even maybe, then the accused would not be required to take further steps and the defence will apply.
42 Thus, while reasonable steps are assessed from an objective point of view, this assessment is informed by the circumstances subjectively known to the accused. The accused is not under a positive obligation to determine all of the relevant circumstances; rather, the assessment is based on the circumstances actually known to him or her at the time: R. v. Darrach (1998), 38 O.R. (3d) 1 (Ont. C.A.), at p. 89, aff'd on other grounds 2000 SCC 46, [2000] 2 S.C.R. 443 (S.C.C.).
D.B. argues that his conduct amounted to reasonable steps; however, regardless of how his actions are ultimately characterized following fulsome evidence at trial, evaluating whether doing 'nothing' in the face of a 'no' minutes ago could entitle D.B. to an acquittal cannot be properly assessed without looking at their pattern of communicating consent non-verbally—as this is part of the circumstances known to D.B. at the time.
D.B.'s Explanation of His (Post-Incident) 'Apologies'
[39]
The evidence concerning the applicant's and complainant's discussions about N.S.'s PTSD and how it related to their sexual history for much of the reasons canvassed above is highly probative of D.B.'s state of mind at the time of the incident and the immediate aftermath, including the oral apology in the bedroom and the written apology note he left in N.S's apartment before leaving. Quite apart from his state of mind, the applicant is entitled to proffer his innocent explanation to what the Crown will undoubtedly argue is akin to a confession to the sexual assault.
[40]
I have not reproduced D.B.'s entire affidavit here, but in it he offered his explanation of what he meant when he apologized and described a number of conversations the couple had about N.S.'s PTSD and D.B wanting their relationship to be a safe space for her. Some of their conversations took place following an episode while the couple were sexually intimate. In striving for this, D.B. deposed to learning about recognizing N.S.'s triggers and responding to them. The apologies, he explained were for guilt he felt for triggering N.S. and making her feel traumatized and unsafe—something he realized after the fact. When he said, "I'm still learning", he said he meant on how to be that safe place for her.
[41]
Furthermore, as both Ms. McGuigan—on behalf of the Crown—and Mr. Neil—on behalf of the complainant—point out, because D.B. is possessed of not only this knowledge of N.S.'s sexual violence in the past but also how it profoundly affected her generally and affected her during sexual intimacy, this is evidence that ought to inform the 'reasonable steps' inquiry. They argue, since these are circumstances subjectively known to the accused at the time of the incident and hence, they say, required him to take further steps.
Conclusion on Relevancy
[42]
Although this is the sort of evidence that significantly impacts upon the complainant's dignity and privacy, it is vitally relevant to the core issues at trial.
Specific Instances of Sexual Activity – Specificity Required is Relative to the Issue
[43]
The specific instances of sexual activity and related conversations are delineated to the requisite degree. The sexual activity and conversations are book-ended by a specified time period and identified by the parties involved and conversations particularized by content.
[44]
Moreover, the degree of specificity required depends upon the context of the case. The purpose of this precondition is to prevent aimless or sweeping inquiries into the complainant's sexual history and to allow judges to properly apply the 276 regime by making an informed analysis of the proffered evidence in a manner that protects the complainant's privacy and to promote trial fairness: Goldfinch, supra para 53-54; R. v. L.S., 2017 ONCA 685 at para 83.
[45]
Given the purpose of the evidence proffered, requiring further details are unnecessary.
Significant Probative Value That is Not Substantially Outweighed by Danger of Prejudice
[46]
I have already analyzed in detail above the significant value of the sexual history /PTSD evidence when addressing the relevance of this evidence. I find that the pattern of non-verbally communicating consent important evidence in establishing the 'reasonable steps' prerequisite and of D.B.'s state of mind at the time of the incident and the immediate aftermath when he apologized. The probative value of evidence is significant in this context when it has more than 'trifling relevance' and is capable in the greater context of the case of raising a reasonable doubt: R. v. Darrach 2000 SCC 46 at para 39-41; L.S., supra at para 90. Not only are these items of evidence vital to D.B.'s mistake of fact defence and to his 'innocent' explanation of what might otherwise appear as a confession, they are fundamental for D.B. to be able to raise a reasonable doubt: Goldfinch, para 69.
[47]
Unfortunately this evidence comes with the risk of adversely impacting on the complainant's personal dignity and right to privacy [276(3)(f)] as well as her personal security [276(3)(g)] because of the harm in real time questioning on this subject-matter may have on her given her PTSD as a consequence of being a survivor of sexual violence. This impact cannot be overstated. She is a survivor who has been re-violated. The defence concede she was. The open question is whether D.B. has the fault requirement for criminal liability. The difficulty is without this evidence, D.B. cannot properly advance his defence.
[48]
Without the mistake of fact defence, D.B. appears to have no defence to this charge and without being able to marshal this evidence so important to his sole defence, he would be deprived of his ability to make full answer and defence. The interests of justice require its admission.
[49]
In order to minimize the detrimental ramifications of the evidence, I encourage counsel to address some or all of the "PTSD" content and past sexual violence through an agreed statement of fact, if possible. It would appear from the applicant's affidavit and the complainant's statement to the police—a transcript of which was filed with the application—that there is some common ground in this area.
[50]
To the extent there is no agreement and the complainant is questioned in this area, the defence is restricted to non-repetitive questions that are focused on the issues of mistake of fact and D.B.'s state of mind in apologizing, post-offence. In particular, the complainant will not be questioned on any details concerning the prior sexual assault. The who, when, where, or how is not relevant or important; nor are any details about it she may have shared with D.B. in a conversation. What is relevant is that she shared the fact she was sexually violated and the conversations N.S.' and D.B. had about the effects her PTSD had on their own sexual history.
[51]
I thank all three counsel for their focused and able submissions on this deceptively complex matter.
Released: December 10, 2020
Signed: Justice A. Calsavara
Footnotes
[1] Included in the applicant's material were text messages exchanged between the defendant and complainant which were two years plus prior to the offence date. They included discussions about sexual activity and expectations, but following the s. 278.92 stage one hearing, I ruled this evidence to be too remote in time and to the material issue of honest but mistaken belief in communicated consent; and therefore, are not capable of being admissible under s. 276(2). This is subject to reconsideration if the evidence at trial recasts their potential relevance beyond what the record now shows.
[2] Following the s. 278.92 stage one hearing, I ruled that evidence of sexual activity between D.B. and N.S. the night before the incident in question was not capable of being admissible pursuant to s.276(2). The evidence sought was merely "to situate the incident in its factual context" whereby the alleged offence occurred after an evening of sex and they awoke naked in bed together at the relevant time. While I accept the applicant was not relying on one of the twin myths in seeking its admission, in my view the evidence is not relevant to the material issue of honest but mistaken belief in communicated consent or to the issue of consent. The fact that the two engaged in sexual activity the night before is not relevant. Evidence that the two were agreeably naked in bed together may be relevant to the factual context, but this can be achieved without reference to what may or may not have occurred the evening before. Additionally, the applicant originally included in his material sexual activity on "the morning of the incident" – however the crown conceded that this evidence is admissible and would be led as part of its case to meet.
[3] The applicant provided a more thorough affidavit following stage one. Both have been marked exhibits on the motion.
[4] Para 93.
[5] Barton, supra, para 93. In support of his position, the applicant also relied on: R. v. M.D.S. 2020 ABPC 19. In a similarly framed 276 argument, MacDonald J. referred to these passages in Barton and Goldfinch in admitting a similar type of evidence which evinced a pattern of non-verbally communicating consent.
[6] 2000 MBCA 77, at para 24, leave to appeal to S.C.C. refused, [2000] S.C.C.A. No. 473.
[7] Assuming his evidence was accepted, or raised a doubt.