WARNING

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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

BETWEEN:

Her Majesty the Queen

— AND —

P.P.

Before: Justice A.J. Hall

Heard on: July 22, 2015

Reasons for Judgment released on: October 28, 2015

Counsel:

• B. Olesko, counsel for the Crown
• G. J. Partington, counsel for the accused P.P.

A.J. HALL J.:

Introduction

[1] P.P. is charged with committing allegedly numerous sexual assaults against his two biological daughters and his stepdaughter. The offences were allegedly committed against his daughters some 10 to 14 years ago.

[2] Counsel for the accused, Mr. Partington, has brought an application pursuant to section 276 of the Criminal Code to permit him to cross-examine the applicant's daughter; T.P. with respect to allegations of historical sexual assault she disclosed in a videotaped statement she made to the police.

[3] In that statement the applicant's daughter made reference to "Uncle M." a person who she alleges also sexually assaulted her on different occasions, when she was a child. Counsel for the defence, has suggested that these assaults occurred over approximately the same time period as the applicant is alleged to have sexually assaulted her.

Allegations with respect to the applicant:

[4] The applicant's daughter T.P. alleges in her videotaped statement to the police, that she was about six years old when her father "raped" her and that it only happened once in her bedroom on her bed.

[5] She stated that he touched her vagina when her clothes were off and after he touched her, he inserted his fingers and took out his penis.

[6] She further stated that the applicant tried to put his penis into her vagina but "that didn't work out very well". He stopped when she was crying and then took her hand and made her rub his penis.

[7] According to T.P. the alleged sexual assault with the applicant occurred in her bedroom while she and her family lived in a house, which she remembers being green.

Allegations with respect to "Uncle M.":

[8] According to the applicant's daughter T.P., Uncle M. touched her vagina outside of her clothes. The touching happened a lot whenever he was babysitting her.

[9] According to T.P., on one occasion Uncle M. tried to penetrate her. She started to scream and he told her to be quiet and slapped her face and punched her legs. Uncle M. threatened to hurt her if she told anyone.

[10] According to T.P., the sexual assaults with respect to Uncle M. happened after the alleged sexual assault by the applicant.

[11] As well, she said in her statement that the sexual assault by Uncle M. took place while her family lived in a basement apartment which did not have rooms and which was divided by hanging sheets.

The applicant's position:

[12] The applicant primarily argues that T.P.'s prior sexual history is relevant to the issue of identity. If the evidence is admitted, the defence would ask me to infer that because T.P. was a victim of sexual assault as a child she cannot be sure that the person who assaulted her was Mr. P.P.. The applicant grounds are noted below:

(1) The applicant argues that the similarity in the behavior alleged by the applicant and by "Uncle M." is sufficient to support cross-examination of T.P. about the allegations against "Uncle M.";

(2) That the complainant, T.P., is more likely to be mistaken the applicant for "Uncle M." given her age at the time of the sexual assault as well as due to the number of years that passed prior to her reporting the abuse;

(3) That that the applicant has a brother whose name is M. and who allegedly looks similar to the applicant, thus the complainant could be mistaken her father for her uncle;

(4) That the defence has information that there might have been others that sexually abuse T.P. or had the opportunity to sexually abuse T.P. during the relevant time period;

(5) That the cross examination of the complainant on her prior sexual history is relevant to the issue of false memory syndrome.

The Crown's position on the application:

[13] It is the Crown's submission that the strictures of section 276 preclude the applicant from cross-examining the complainant on prior sexual history. This argument is premised on the proposition that there is insufficient evidentiary basis to allege the sexual assaults by other persons, that the events complained of are dissimilar, and on the well-established principle that evidence of a non-consensual activity with one person is not probative of falsity of an allegation of non-consensual activity with another.

Governing principles:

[14] Section 276 excludes, for sexual offences, evidence related to the complainant's sexual activity other than the activity that forms the subject-matter of the charge if the purpose of admitting the evidence to support either of the twin-myths inference. The relevant inference in this case is that because of the activity, the complainant is less worthy of belief.

[15] In order to adduce evidence of the complainant's prior sexual activity section 276(2) sets out three requirements. These are: (1) the evidence relates to specific instances of sexual activity; (2) the evidence is relevant to an issue at trial; and (3) the evidence has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

Issues to be resolved:

[16] The following issues are to be resolved:

(1) Does the proposed cross-examination of the complainant regarding past sexual history engage the twin myths?

(2) With respect to the two sets of allegations, is there any overlap, or are there any significant similarities between the two sets of allegations that would justify the defence's claim that the complainant is transferring or commingling the alleged sexual abuse perpetrated by "Uncle M." to the applicant?

Discussion:

[17] I'm persuaded by submissions of the defence counsel that the purpose of the cross-examination with respect to past sexual history is not to engage "twin myths". The purpose of the cross-examination is to demonstrate that it is quite possible the complainant is confusing the applicant with the person who actually sexually assaulted her when she was a child. This type of evidence in my view is not barred by section 276(1) of the Criminal Code.

[18] Furthermore the allegations of sexual assault against Uncle M. are evidence relating to a specific incident of sexual activity and would pass the first branch of the test under section 276(2).

[19] However, the applicant's allegation of having information that there might have been others that sexually abused or had opportunity to sexually abuse T.P. does not relate to any identifiable instance of prior sexual conduct on the part of the complainant. Without any specific detail the first branch of the test under section 276(2) cannot be passed.

[20] The alleged historical sexual assault with respect to Uncle M. is a specific instance of non-consensual sexual activity. Accordingly, I must now turn my consideration to section 276(2)(b) of the Criminal Code, and determine if the evidence is relevant to an issue in the trial, bearing in mind the factors contained in section 276(3).

[21] The primary issue that the applicant seeks to challenge is the identity of the accused by suggesting that the complainant could have mistakenly attributed or transferred the conduct of Uncle M. to the applicant.

[22] The case law suggests that in order for identity to be challenged by way of cross-examination on prior allegations of sexual assault by a different perpetrator there must be some combination of factors which demonstrate that the reliability of the complainant's memory or the possibility of transference is a real issue in the trial. Courts have found that identity was a real issue where the following factors were present:

(1) similarities between the allegations;

(2) a long period of time between the assault and the trial; or

(3) a temporal overlap between the allegations.

[23] Where the nature allegations of sexual assault are very similar, cross-examination may be warranted. For example, in R. v T.(J.), 2010 ONSC 5246, the complainant described how both perpetrators took her to be photographed, before chaining her up, and assaulting her anally with metal objects.

[24] Although the similarity is not as marked, the nature of the allegations in this case are somewhat similar. T.P. described how both men tried, unsuccessfully, to penetrate her after touching her vagina.

[25] The level of similarity in this case is closer to the situation in R v W(G-M), 2011 ONSC 1361, where some but not all aspects of the allegations were similar. In that case the court allowed cross-examination on those aspects that disclosed similarity. However, an important factor, which militated in favour of cross-examination was the "almost complete overlap in time period" between when the two allegations of assault were occurring.

[26] Therefore, it seems that while it is not necessary that the allegations reach the level of strikingly similarity found in T(J). In my view, where striking similarity is missing there needs to be some other factor that would suggest transference was likely to have occurred in order for it to be considered a real issue.

[27] In her statement, the complainant, identified two distinctive set of allegations of sexual assaults, allegedly committed by two different people, at different points in time, and at two different locations.

[28] T.P. was clear in her statement to the police that the assaults occurred while she was living in different houses, and that while the appellant only assaulted her once Uncle M. repeatedly abused her. She was also clear that the incidents involving Uncle M. only occurred after the one allegation against the applicant. In other words there is no striking similarity between the two sets of allegations. Furthermore, I find that these are two distinct sets of allegations without any kind of overlap in time periods.

[29] Moreover, given the complainant, T.P.'s, ability to differentiate and distinguish between her abusers, there is very little concern that excessive time between the incidents and the time of reporting has rendered her memory unreliable or that she has confused the identity of the two men.

[30] In her interview with the police, T.P. was 16 years of age, reporting sexual assaults that allegedly occurred about 10 years ago and was able to adequately distinguish between the two alleged offenders.

[31] She recounted that her father, the applicant, was tall and skinny, with black hair, tattoos, big eyebrows, missing tooth, and a pockmarked face. In contrast, she describes Uncle M. was an older man who was short and chubby, with dark hair that was not black, dark eyes and mustache.

[32] Without any indication that transference has actually occurred it would too broad a proposition to, as the applicant suggests base cross-examination on the fact that the complainant, T.P., was young when the alleged sexual assault happened thus making it more likely that she was confused as to identity.

[33] Without more factors which could demonstrate that transference or confusion of identity is a valid concern in this case, allegations of sexual assault by Uncle M. are not relevant to a real issue at trial.

[34] I find instructive, on this very point the following comment from the Ontario Court of Appeal:

"As for the second purposed basis of relevancy, the identity of the perpetrator, though both allegations were disclosed at the same time, and the trial judge noted, they were quite distinct. The abuse by E.G.'s father was alleged to have occurred prior to that perpetrated by the applicant without any overlap. The nature of the complainants was different. They took place in different locations and involved different behaviors". R. v. M.T., 2012 ONCA 511, [2012] O.J. No 3418 (C.A) paragraph 51.

[35] Given the distinct nature of the two sets of allegations of sexual assault, I find the defence has failed to establish that the evidence of prior sexual history is relevant to a factual issue before me.

[36] The applicant also argued that the prior sexual history of the complainant T.P. is relevant to the issue of "false memory syndrome". However, the applicant does not elaborate on the submission, explain what false memory syndrome is or how it may play a role in the proceedings. Without any understanding of how this "false memory syndrome" may be relevant to the particular facts of this case, and how the evidence sought will be used in that context it cannot be considered a real issue in the trial.

Conclusion:

[37] The application is denied, the defence will not be allowed to cross-examine the complainant with respect prior sexual history that she disclosed to the police in her statement alleging that she was sexually assaulted by the applicant.

Released: October 28, 2015

Signed: "Justice A.J. HALL"