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:

110. Identity of offender not to be published.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.

111. Identity of victim or witness not to be published.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.

129. 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:

138. Offences. — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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.

Court Information

Ontario Court of Justice

sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1, as amended;

Date: 2015-02-10

Court File No.: Toronto Y133479-00

Parties

Between:

Her Majesty the Queen

— and —

J.I. and T.M., young persons

Before

Justice Ellen Murray

Reasons for decision released on February 10, 2015.

Counsel:

• Ms. Sarah De Filippis — counsel for the Crown
• Mr. Adam Weisberg — counsel for the accused J.I.
• Ms. Marcy Segal — counsel for the accused T.M.

Decision

MURRAY, J.:

[1] J.I., aged 17 and T.M., aged 18, are charged with sexual assault of G.G. on May 23, 2014. G.G. was 14 years of age at the time.

[2] At the outset of the trial, J.I. sought to introduce evidence of prior sexual activity between himself and G.G. It was agreed with the Crown, subject to the court's approval, that restricted evidence on this topic could be introduced. I ruled that this evidence could be admitted.

[3] J.I. also sought to introduce evidence from G.G.'s social media accounts. This was opposed by the Crown. T.M. took no position on the application. Evidence on the application included printouts from G.G.'s social media accounts, a transcript of her interview with police some days after the incident, and an affidavit from a lawyer assisting J.I.'s lawyer which contained an outline of J.I.'s version of events, related on information and belief.

[4] I dismissed that application, giving brief oral reasons and advising that more fulsome written reasons would follow. These are those reasons.

The Facts

[5] On the night in question G.G. went with some girlfriends to a concert for secondary school students.

[6] G.G. told police that she knew J.I. from school, and that they had "hung out" a few times. She knew T.M. by sight. She had been drinking before and perhaps after arriving at the concert.

[7] It was a hot evening, and G.G. and many others moved in and out of the concert, socializing outside.

[8] At one point, she began talking with J.I. and T.M. G.G. says that they invited her to go for a walk, and she did. She reports that there were some sexual "jokes", and a kiss was exchanged with J.I. When T.M. and then J.I. tried to take things further, she says that she protested "no" repeatedly.

[9] G.G. told police that she was coerced into having sex with both boys, sex which involved fellatio and vaginal intercourse. According to G.G., although she protested, the defendants – one in front of her and the other in back— put their hands on her and kept her from leaving.

[10] J.I. does not deny that he and T.M. had sex that night with G.G., both oral and vaginal, but says that G.G. consented to the activity.

G.G.'s Social Media Accounts

[11] J.I. seeks to introduce screen shots from two of G.G.'s social media accounts, Tumblr and Ask.fm. The evidence is that at the time these accounts were accessed by a lawyer from his lawyer's office, they were apparently not protected and open to anyone.

[12] The material from the Tumblr account consists of hundreds of photographic images, most of which have a sexual element—young women in various stages of undress, sometimes with young men, young women engaged in oral or vaginal sex, sometimes with more than one partner, and a few images of young women engaged in sex in a violent context. Occasionally these images bear cutlines—e.g., "goodbye innocence" or "does your mum know you're a whore?"

[13] The Ask.fm account contains conversations between G.G. and others dating from early 2014. In one conversation, G.G. describes a sexual assault in which she was the victim. In another, she engages in a "sex chat" with an unidentified online user in which the male takes a dominant and at times aggressive role.

The Statute

[14] Section 276 of the Code sets out an exclusionary rule with respect to evidence of a complainant's prior sexual activity in trials for certain offences, including sexual assaults. That section is set out below.

276. (1) In proceedings in respect of an offence under section 151, 152, 153, 153.1, 155 or 159, 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.

Idem

(2) In proceedings in respect of an offence referred to in subsection (1), no evidence shall 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 276.1 and 276.2, that the evidence

(a) is of specific instances of sexual activity;

(b) is relevant to an issue at trial; and

(c) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

Factors that judge must consider

(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.

Analysis

[15] Three issues arise on this application.

1. Does the material J.I. seeks to introduce describe "sexual activity" as contemplated in s. 276?
2. If so, does s. 276 bar its admission?
3. If not, is the material relevant to any issue which I have to decide?

Sexual Activity?

[16] "Sexual activity" is not defined by the Code.

[17] The Crown submits that G.G.'s postings on the social media accounts are "sexual activity" as envisioned by s. 276 because the communication involved was of an explicitly sexual nature and clearly took place "for a sexual purpose". She argues that no overt physical act—such as touching of genitalia—is required for an activity to be characterized as "sexual". In support, she cites R. v. Drakes, a decision of the B.C. Court of Appeal, and R. v. Zachariou, a trial decision of the Ontario Superior Court. In Drakes, the court found that a prior conviction for soliciting was "sexual activity" within the meaning of s. 276 because it was "an activity which takes place for a sexual purpose". In Zachariou, the court found that a prior discussion about engaging in a threesome was "sexual activity" within the meaning of the section.

[18] J.I.'s position is that although these postings and discussions demonstrate a "preoccupation with sex and sexualized violence", they do not constitute "sexual activity". J.I.'s lawyer refers to R. v. Holley, a decision of the Alberta Court of Appeal, and R. v. Harper, a trial decision from the Prince Edward Island Supreme Court. In Holley the defence wished to introduce evidence with respect to prior conversations between the complainant and the accused about the possibility of having sex. The court found that the discussions could not be characterized as "sexual activity". In Harper, the defence wished to introduce evidence about the complainant's discussions of a sexual nature with others in a detox centre. The court held that these discussions did not constitute "sexual activity", but observed that "an invitation for a specific type of activity" might come within s. 276. Counsel submits that in Drakes and Zachariou involved "invitations" to sexual activity, but that such "invitation" is not presenting the instant case.

[19] I agree with the Crown's position on this issue. As she points out, the Supreme Court of Canada in R. v. Chase held that the "sexual" aspect of a sexual assault need not involve touching genitalia:

"If the motive of the accused is sexual gratification, to the extent that this may appear from the evidence, it may be a factor in determining whether the conduct is sexual".

[20] Following this logic, "sexual activity" can be comprised of any activity which the evidence establishes was done for a sexual purpose. It need not involve the touching of body parts. It need not be an "invitation" to touching.

This interpretation accords with the purpose of s. 276—the exclusion of evidence with respect to a complainant's sexual past which has little or no probative value, and which could very well have the effect of deterring complainants from reporting sexual assaults against them. The danger of improper reasoning exists whether the evidence is of an overt sexual activity or, as J.I.'s counsel characterized it, of a "preoccupation" in discussion or posting of sexual activity.

Is the Evidence Admissible?

[21] J.I.'s lawyer says that even if I find that the proposed evidence constitutes evidence of "sexual activity", that the evidence does not offend the "twin myths"; it is not offered to suggest that because of this activity that G.G. is more likely to have consented to have sex with the defendants or that she is less worthy of belief.

[22] Counsel argues that the evidence is relevant for three reasons:

1. Evidence from both accounts will "rebut the presumption" that a complainant as young as 14 would not have the knowledge of sexual activities evident from her complaint, and that this knowledge must have come from her experience as a victim of sexual assault. Counsel relies upon cases in which a court allowed such cross-examination, observing that "common sense" suggested that a child of 12 or 13 would have no knowledge of these activities and that evidence should be allowed to permit an accused to rebut this common sense inference.

2. Evidence from the Ask.fm account with respect to a prior sexual assault portrays a scenario involving more than one assailant, and is similar in important details to G.G.'s description of the alleged assault by the defendants. It is improbable that the same complainant would be assaulted in this fashion on two occasions. J.I.'s lawyer says that this evidence is offered not because of its sexual content, but because the similarity in actions described will assist him in questioning G.G.'s credulity.

3. Evidence from the Tumblr account demonstrates a "pattern of interest in sexual and sexualized violence that are relevant to the complainant's credibility and ease of fabrication that she was the subject of a sexually violent attack".

[23] Counsel submits that G.G.'s credibility is the central issue in the case. J.I.'s position is that G.G. fabricated a story of assault in order to escape her boyfriend's anger if he knew that she had consented to sexual relations with him. Counsel asserts that his client must be able to introduce this material to explore issues related to her credibility.

[24] J.I.'s counsel says that the risks that the evidence would evoke discriminatory beliefs about sexual assault complainants are eliminated because this is a judge-alone trial.

[25] The Crown's submission is that this evidence has no relevance to the issues before the court.

1. She points out that J.I. agrees that G.G. had oral and vaginal sex with him and T.M. in a threesome. No further evidence is required to explain why G.G. would have knowledge of these practices.

2. The Crown argues further that there is little similarity between the events described by G.G. of the night May 23, 2014 and the sexual assault she depicts in her Ask.fm account.

3. The Crown submits that the material on Tumblr and the sex chat on the Ask.fm accounts, while crass and featuring male-dominated sex and occasional images of violence to women, do not indicate a preoccupation with "sex and violence". In any event, she cautions that this argument by J.I. comes perilously close to the reasoning specifically excluded by s. 276(1).

[26] I agree with the Crown that there is no need to resort to G.G.'s social media accounts to explain why a 14 year old would have knowledge of the activities she describes. They are the same activities described by J.I., except for the absence of consent. There is nothing unusual or peculiar in G.G.'s description of the coercive techniques (restraining her with their hands and bodies) which she says were employed by J.I. and T.M. I add that, although 30 years ago it might be a "common sense inference" that a 14 year old girl would not have knowledge of these activities or of coercive techniques, that assumption does not hold true today. Public education and popular culture have ensured that young teenagers have exposure to information from many points of view on these subjects.

[27] There are cases in which a complainant's credibility is in issue in which evidence has been admitted to show that she has given "strikingly similar" descriptions of the actions and statements of previously alleged sexual assaults. However, G.G.'s Ask.fm description of a sexual assault is quite different than her description of the alleged assault by J.I. and T.M. In G.G.'s description of the assault on Ask.fm:

• G.G. was assaulted by one principal aggressor, who pushed her into a group of other males who joined in (not two aggressors);
• The assault took place in a public place, on a dance floor (not in a secluded alley);
• The assault involved digital penetration (not vaginal and oral sex).

[28] As for the third rationale offered for the introduction of this evidence, I agree that a handful of images on G.G.'s Tumblr account depict sexual activity in the context of violence. It goes too far, however, to suggest, as J.I. does, that the account depicts a "preoccupation" with this topic. In any event, I am not persuaded that this or the Ask.fm account material is probative on the issue of G.G.'s credibility. In R. v. Holley Justice Hetherington observed that "If sexual conduct cannot be regarded as logically probative of a complainant's credibility or consent, neither can discussions about sexual conduct." The same logic is applicable to the postings of the complainant on these social media accounts.

[29] In my view, whether the postings and discussions are "sexual activity" or not, the evidence is not admissible because it is not relevant to the determination of whether G.G. consented to have sex with J.I. and T.M.

Released: February 10, 2015.

Justice Ellen Murray