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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Zachariou, 2015 ONCA 527

DATE: 20150713

DOCKET: C57961 and C58051

Strathy C.J.O., MacPherson and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Demos Zachariou and Joseph "Robin" Petersen

Appellants

David E. Harris, for the appellant Demos Zachariou

Mark Halfyard, for the appellant Joseph "Robin" Petersen

Jamie C. Klukach, for the respondent

Heard: July 9, 2015

On appeal from the convictions entered on October 18, 2013 by Justice Michael Code of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] The appellants are two men who were convicted of sexually assaulting the female complainant. They seek a new trial on the basis that the trial judge erred in two respects: by dismissing their mid-trial application for permission to cross-examine the complainant about her past sexual activity under s.276(2) of the Criminal Code; and by not providing a limiting instruction to the jury on the permissible use of the complainant's prior consistent statements.

[2] Following an evening of partying and drinking, the complainant invited the appellants and others to her home. They played video games and continued drinking. The appellant Zachariou went into her bedroom to have consensual sex with the complainant's friend. The complainant stayed on the living room sofa and kissed Petersen. She testified that she passed out and awoke to being sexually assaulted by both appellants. According to the appellants, the complainant never passed out and all sexual contact was consensual.

The mid-trial application

[3] The Crown elicited evidence from the complainant that she was not interested in "three-way" sex. The appellants sought to question her about this. They alleged that, several months earlier, she told Zachariou she was interested in "threesomes," kissed him and invited him and his girlfriend, (who was also her friend), to her home, presumably for a threesome.

[4] The trial judge dismissed the application, the trial continued and both appellants were found guilty of sexual assault. The appellants submit that the trial judge erred because he mischaracterized the live issue in the case as one of consent instead of credibility, and because his assessment of the probative value of the evidence was flawed.

[5] The trial judge correctly identified the issue to be consent. It is routine for the credibility of the complainant to be a pivotal consideration for the trier of fact on the issue of consent. The trial judge recognized this and confirmed that the proposed evidence related to the credibility of the complainant. This was, in fact, the basis upon which he concluded that the relevancy requirement of s. 276 (2)(b) had been met.

[6] Having determined that the proposed evidence was relevant, the trial judge turned to the final requirement for admissibility. Section 276 (2) (c) directs the judge hearing the application to determine whether the proposed evidence: "has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice."

[7] The trial judge analysed the potential use of the evidence and determined that its probative value was limited. In coming to this conclusion he considered the lapse of time between the alleged conversation and the incident in the complainant's home, and the difference between the events described in the proposed evidence and the events that formed the basis of the offence. We note that the proposed evidence did not portray a significantly different picture of the complainant than that already before the jury. The appellants testified in graphic terms about her activities before and during the alleged assault.

[8] In his analysis of prejudice, the trial judge referred to the risk of stereotypical reasoning on the part of the jury – exactly what the section is meant to prevent. He also considered the impact on the trial and the potential that the questioning would lead to a broad inquiry into the sexual history of the complainant.

[9] The trial judge's reasons are reported at 2013 ONSC 6694. In a careful analysis, he balanced the probative value against the prejudicial effect of the proposed questioning. He determined that the evidence did not possess "significant probative value" and that it was "substantially outweighed" by prejudice. The trial judge's balancing reflected the exercise of discretion – best performed by the trial judge - that is contemplated by s. 276. We see no error in his assessment.

The jury charge

[10] The Crown led evidence about conversations and text messages in which the complainant related her version of events to her boyfriend and a friend. The appellants submit that the trial judge should have provided the jury with a limiting instruction on the permissible use of prior consistent complainant's evidence. We do not agree. The evidence was responsive to the defence submission that the complainant had recently fabricated her testimony and addressed

Zachariou's admitted lies and the inconsistency between the complainant's evidence and her statement to the police. The concern raised by the appellants is minimized when, as here, the events described are admitted. The only issue was consent. We note that defence counsel did not request a limiting instruction and did not object to the admission into evidence of the text messages.

[11] For these reasons, the appeal is dismissed.

"G.R. Strathy C.J.O.

"J.C. MacPherson J.A."

"M.L. Benotto J.A."