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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

486.2 Mandatory Order on Application

(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.

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

Court: Ontario Court of Justice

Date: December 17, 2015

Between:

Her Majesty the Queen

— AND —

Cameron Wilson

Before: Justice C.A. Parry

Heard on: November 10, 2015

Ruling on Section 276 Application released on: December 17, 2015

Counsel:

• Layla Mehkeri, counsel for the Crown
• Terry McKean, counsel for the defendant Cameron Wilson

DECISION

THE CHARGES TO WHICH THIS RULING PERTAINS

[1] Cameron Wilson stands charged on a four-count Information. Two of those counts involved alleged breaches of probation. The other two counts allege that between April 11 and April 13, 2015, Mr. Wilson (1) committed a Sexual Assault upon V.B., contrary to section 271 of the Criminal Code; and (2) committed the offence of Sexual Interference upon V.B., contrary to section 151 of the Criminal Code.

THE FACTUAL AND LEGAL CONTEXT

[2] The complainant was 13 at the time of the alleged offences and residing in a group home in the Regional Municipality of Waterloo. On the weekend of April 11, 2015, she ran away from her group home with another older resident, A.. She and A. wanted a break from their group home and wanted to find a place to socialize and party. They ended up at the residence of an older friend of A.'s. That friend was B.. While there, the complainant met the accused. The accused lived in another apartment in the same building. She went and joined the accused at his apartment. Sexual activity between the accused and the complainant occurred. All parties agree that this sexual activity was consensual. The only issues to be decided at trial (given the age of the complainant and the age of the accused) is whether the accused can successfully raise the defence of mistaken belief of fact, having regard to the statutory requirement that he satisfy the court that he took all reasonable steps to ascertain her age.

[3] The defence contends that the complainant held herself out to be an older person. During cross-examination of the complainant, she acknowledged that she made an effort on a regular basis to appear older than her age, for the express purpose of finding companions older than her.

[4] By her own admission, she looks older than her biological age. In addition, she made a concerted effort to appear older. She dressed older. She talked older. She associated with older friends like A.. She held herself out on Facebook to be older, 23 in fact. She acknowledges having years of practice at looking older and purports to be successful at fooling other people.

[5] With this context established, the defence seeks to ask the complainant about whether she told the accused that she had engaged in sexual activity with a 30 year old man. The defence does not seek to prove that this prior sexual activity actually took place. Rather, the defence seeks to establish that the claim was made (irrespective of its truth) for the purpose of convincing the accused that she was old enough to engage in lawful sexual activity with the accused. Accordingly, the defence argues that section 276 of the Criminal Code does not apply.

[6] The Crown objects to this line of questioning, arguing that the defence ought to have brought an application under section 276 of the Criminal Code and ought to have followed the procedures mandated by that section.

ISSUE TO BE DECIDED

[7] I am being asked to decide whether the defence line of questioning ("did you purport to the accused to have had sex with a 30 year old man on some prior occasion") is an attempt to elicit evidence of prior sexual activity (sexual activity that is not the subject matter of the charge).

[8] For the reasons that follow, I am of the view that section 276 is not engaged.

[9] The question does not elicit evidence of prior sexual activity. The question elicits evidence of a claim of prior sexual activity. The defence does not seek to prove the truth of the contents of that claim. Indeed, the defence suggests I can proceed on the assumption that the claim is false. The defence submits that the relevance of the claim is its use, together with all of the complainant's other cultivated behaviours, to convince the accused that she was of legally eligible age to engage in lawful sexual activity with the accused.

[10] The Crown relies upon a number of cases to advance its position.

R. v. Crosby, [1995] S.C.R. 912

[11] First, the Crown relies upon R. v. Crosby [1995] S.C.R. 912. There were a number of prior inconsistent statements upon which the defence sought to cross-examine the complainant in this case.

[12] In the first statement, the complainant admitted to having consensual intercourse with the accused three days before the date of the sexual assault. The police then asked her if she went to the accused's place on the night of the offence for the same purpose, to which she replied "yes". She then told the police that she changed her mind. At trial, she denied going to the accused's home on the night of the offence for the purpose of engaging in sexual intercourse with him. In my view, cross-examination of the complainant on this prior statement necessarily and implicitly contains the assertion that the prior sexual activity did occur, and that, just like on the prior occasion, she attended the accused's home for the same purpose on the night of the event. Any good cross-examiner would not only ask the complainant if she made the prior statements, but also if she was telling the police officer the truth when making the prior statement (and therefore NOT telling the trial court the truth).

[13] The second prior statement pertained to sexual activity (that actually occurred) between the complainant and the co-accused shortly before the alleged offence. The complainant had given inconsistent statements about the nature of this unwanted sexual activity between her and the co-accused. Again, the premise of the questioning on this statement is the implicit assertion by the defence and acceptance by the complainant that the prior sexual activity with the co-accused actually occurred. In other words, her answers necessarily give rise to evidence of actual prior sexual activity, which had been inconsistently described by her on the occasions of its recounting.

[14] In the third statement, the complainant allegedly told the accused and the co-accused, after the alleged group sexual assault, that she had previously engaged in group sex. The defence sought to establish the complainant's post-offence state of mind through the making of this statement. The majority ruled that the probative value of this evidence was outweighed by its prejudicial effect. However, the majority also indicated that it was open to the accused to adduce this evidence during his testimony: "The accused had ample opportunity to testify as to the complainant's conduct after the alleged assault." The minority, (Sopinka, Iacobucci, and Major JJ.) disagreed, noting "a reference by the complainant immediately after group sex (allegedly non-consensual) to a previous experience with consensual group sex strongly implies that the complainant is equating the two episodes and that they were both consensual". For this reason the minority would have permitted this question. I note the minority position for two reasons. First, I find it compelling and I agree with it. Second, more importantly, and I would say conclusively, it demonstrates that the relevance of the alleged statement comes from the assertion that the prior group sex event occurred – in other words, that the statement about the prior group sex was TRUE; that the complainant equates this real consensual event with the allegedly non-consensual event, thereby making it less likely that the non-consensual event was indeed non-consensual. So again, like the other two statements, this statement seeks to use a declaration about prior sexual activity to prove the truth of the assertion that the prior sexual activity occurred.

[15] To sum up, the use of the prior statements of the complainant in the Crosby case all relied upon the truth of the fact that prior sexual activity in fact occurred. Section 276 was therefore triggered. This case therefore does not assist the Crown.

R. v. Drake, [1998] B.C.J. No. 127 (C.A.)

[16] In Drake, the British Columbia Court of Appeal ruled that the offence of Communication For The Purpose of Prostitution was in fact sexual activity. The Court reasoned as follows:

Mr. Justice Spencer considered that communicating for the purposes of prostitution constitutes "sexual activity" on the part of the communicator. I agree. It is an activity which takes place for a sexual purpose. "Sexual activity" is not limited to overtly sexual acts. I agree with Mr. Justice Spencer.

[17] In other words, the invitation to have sex is a sexual act itself. Section 152 of the Criminal Code (Invitation to Sexual Touching) makes this proposition abundantly clear. In the case before me, the communication in question ("I had sex with a 30 year old") forms part of the sexual activity that is the subject matter of the charge. It forms part of the mutual flirtation between to two people who ultimately engage in sexual activity. It was allegedly stated by the complainant for the purpose of engaging in sexual activity. Therefore the alleged declaration, per se, is not prior sexual activity. Instead, if it can be construed as sexual activity, it is sexual activity that forms part of the subject matter of the charge. Section 276 does not prohibit questions pertaining to sexual activity that forms part of the subject matter of the charge.

[18] Only when the alleged truth of this declaration is admitted into evidence, does the content of the declaration become evidence of prior sexual activity. An allegation that the complainant indicated "I had sex with a 30 year old" while allegedly attempting to seduce the accused is different from an allegation such as, "you previously asked a 30 year old to have sex with you". The latter alleged communication would constitute sexual activity and would be sexual activity that does not form the subject matter of the charge. Assuming without deciding that the former communication constitutes sexual activity, it cannot be said to be sexual activity that does not form the subject matter of the charge.

[19] The Drake decision therefore does not assist the Crown.

R. v. T.(M.), 2012 ONCA 511

[20] In T.(M.), the complainant had alleged that her biological father abused her over the course of a period of time and that this abuse ended before the accused began abusing her. This abuse was referred to in the videotaped statement of the complainant, a statement admitted at trial, pursuant to section 715.1 of the Code. The defence argued that the prior abuse was relevant to (1) whether the abuse in question actually occurred; and (2) whether the accused was the perpetrator. The defence position depended entirely upon the assertion that the prior abuse took place. The line of questioning pertained to the truth of the existence of prior abuse. The evidence was excluded because it was irrelevant to the issues raised by the defence. The fact that another may have sexually assaulted the complainant was irrelevant to the questions of whether the assault took place and whether the accused was the person who committed them.

[21] This case does not address the issue raised by the defence in the case at bar. It cannot offer any assistance to the Crown.

R. v. Lebrocq, 2011 ONCA 405

[22] The defence attempted to question the complainant about prior sexual abuse allegations made against a third party. The defence brought a section 276 application. The question of whether the application was properly brought under this section was not litigated at trial or on appeal. The defence did not adduce any evidence capable of establishing that the prior allegation was false. The trial court ruled that the evidence of the prior allegation was therefore irrelevant, and in the alternative, that its probative value was outweighed by its prejudicial effect. The trial ruling was summarized by the Court of Appeal as follows:

The trial judge concluded that there was insufficient detail in the application and supporting affidavit to allow her to determine that the proposed evidence was relevant. The application provided no details of the alleged assaults by the other boyfriend or any evidence of whether he had been charged and, if so, the outcome of those charges. In any event, the trial judge concluded that, even if the other boyfriend had been tried and acquitted, it would not follow that the complainant had fabricated her evidence. Rather, it would simply show that the Crown had failed to prove the charges against the other boyfriend beyond a reasonable doubt. In that sense, the proposed evidence was not relevant. Even if it was relevant, the trial judge concluded that it would be inadmissible because it was prejudicial and had a significant potential to mislead the jury into an impermissible line of reasoning. She therefore dismissed the application.

[23] The Court of Appeal agreed with the trial court's ruling on relevance. It was not asked to resolve the question of whether an admitted prior fabrication constitutes evidence of prior sexual activity.

[24] However, other courts have been asked to resolve the question of whether admittedly false prior allegations of sexual abuse trigger section 276. For example, the British Columbia Court of Appeal in R. v. Gauthier, [1995] B.C.J. No. 185, ruled as follows:

Crown counsel before us, who was not Crown counsel at trial, quite properly conceded that the provisions of ss. 276, 276.1 and 276.2 had no application to the limited cross-examination upon which defence counsel proposed to embark at that stage of the trial. Those sections are limited in their application to "evidence that the complainant has engaged in sexual activity" other than that which is alleged to have been without her consent. They have no application to evidence tending to show that the complainant has fabricated stories of sexual activity in which she has admittedly never engaged.

[25] Similarly, writing for the Quebec Court of Appeal in R. v. Gervais (1990), 58 C.C.C. (3d) 141, Justice Fish in a concurring judgment released some time prior to his appointment to the Supreme Court indicated:

59 The appellant contends as well that the trial judge erred in prohibiting cross-examination of the complainant on an earlier and unrelated assault. With respect, I am not persuaded that cross-examination as to a previous allegation of assault necessarily concerns the "sexual activity of the complainant", within the meaning of s. 276. Questions focussing on the fact of the allegation rather than the details of the episode would not, in my view, be caught by the prohibition. As well, circumstances may easily be imagined in which a cross-examination of this kind would be relevant, if not essential, to the defence. For example, a false allegation of sexual assault previously made by the complainant would surely be relevant in relation to a similar though later complaint. In such an instance, even if the questions put did touch on sexual activity, a "mechanical application" of the exclusionary rule in s. 276 would deprive the accused of his right to a fair trial and the trial judge might therefore be well-entitled to permit the cross-examination: see R. v. Williams (1985), 18 C.C.C. (3d) 356 at p. 378, 44 C.R. (3d) 351, 7 O.A.C. 201 (C.A.).

[26] Given that the issue was not squarely addressed in Lebrocq and given other appellate authority on the subject, I am not persuaded that the Lebrocq decision assists the Crown.

R. v. B.(S.) 2014 CarswellNfld 204

[27] In the B.(S.) case, the complainant alleged that the accused anally raped her. She told the police that the accused knew she did not like anal intercourse. The accused sought to introduce evidence of a sex video that depicted various sex acts between he and the complainant, including anal intercourse, wherein she asked for anal sex and expressed her enjoyment of it. The accused also sought to introduce text messages wherein the complainant suggested she liked having anal intercourse with the accused. He also sought to introduce evidence of prior text messages which contained proposals by the accused to engage in anal intercourse and the complainant's positive response to this proposal. The defence brought an application under section 276.

[28] Cross-examination on the prior videotaped sex act (in which declarations of her affection for anal intercourse are made) are obviously prior sexual activity. The evidence is put to the witness to prove that the sex act took place and that she liked it, contrary to subsequent assertions of her distaste for that kind of sex.

[29] The question of whether the text messaging by itself would have required a section 276 application was not addressed. It did not need to be. The text messages were secondary to a video which was unquestionably evidence of prior sexual activity. The court was not called upon to address the issue in the case at bar. In any event, it is my view that the sexual banter between the couple (via texting) effectively amounts to a communication for a sexual purpose – in other words, a sex act, but this sex act pre-dated the alleged offence. In our case, the communication that was allegedly made for a sexual purpose forms part of the flirtation that leads up to the offence in question. It forms part of the subject matter of the offence.

[30] I am therefore of the view that the facts of the case at bar are distinguishable from the B.(S.) decision.

CONCLUSION

[31] In my view the defence is seeking to prove that a statement was made, not for the purpose of proving the truth of the contents of the statement, but for the purpose of proving that the complainant was attempting to pass herself off as an older person who affiliated with older people. The defence is therefore not attempting to prove prior sexual activity through proof of the making of the statement. In that regard, I take guidance from the words of Justice Fish J.A., as he then was, in the Gervais decision, wherein he states, "Questions focussing on the fact of the allegation rather than the details of the episode would not, in my view, be caught by the prohibition." Both the Gervais and Gauthier decisions tell us that when one is not relying upon the claim of prior sexual activity for the truth of its contents, but rather suggesting its relevance lies in the mere fact the claim was made, section 276 has no application.

[32] I am also guided by the general principles surrounding the issue of hearsay, wherein it has been long accepted that an out of court statement does not constitute hearsay in situations where the party does not seek to tender the statement for the purpose of proving the truth of its contents, but only for proving the fact that it was said. The purpose for which the party tenders the evidence plays a determinative role in the assessment of admissibility.

[33] Moreover, if the statement can be construed as one that was made for the purpose of engaging in sexual activity, then it might correctly be construed as a sexual activity in and of itself. However, even if it were construed in this fashion (which appears to be the whole purpose of the defence line of questioning), it would be properly construed as sexual activity that forms the subject matter of the charge – namely, one of the many steps in the admittedly consensual mating ritual that led to the consensual sexual activity for which the accused stands charged.

[34] I, therefore, conclude that section 276 is not triggered by asking the complainant whether or not she claimed to the accused to have previously engaged in sexual activity with a 30 year old. The question and answer have relevance to the issue of the accused's defence of mistaken belief of fact (the complainant's age) and the issue of whether the accused took reasonable steps to ascertain the complainant's age.

Released: December 17, 2015

Signed: "Justice C. A. Parry"