WARNING

The court hearing this matter directs that the following notice be attached to the file:

This hearing is governed by sections 276.3, 486.4 and 486.6 of the Criminal Code and sections 110(1), 111(1) and 138(1) of the Youth Criminal Justice Act. These sections read as follows:

Criminal Code, R.S.C. 1985, c. C-46

Section 276.3

(1) No person shall publish in any document, or broadcast or transmit in any way, any of the following:

(a) the contents of an application made under section 276.1;

(b) any evidence taken, the information given and the representations made at an application under section 276.1 or at a hearing under section 276.2;

(c) the decision of a judge or justice under subsection 276.1(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 section 276.2, 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.

(2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.

The court hearing this matter has made an order allowing the publication, broadcast or transmission of this determination.

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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Section 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.

Youth Criminal Justice Act, S.C. 2002, c. 1

Section 110

(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.

Section 111

(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.

Section 138

(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) . . . .

(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

Date: 2016-08-24

Court File No.: Brampton 14Y1305

Ontario Court of Justice

Between:

Her Majesty the Queen

• and –

C.L.

Before: Justice P.A. Schreck

Heard on: August 22-23, 2016

Ruling on Section 276 Application

Counsel:

• E. Norman, counsel for the Crown
• C.M. Hogan, counsel for the applicant

SCHRECK J.:

[1] C.L., a young person, is charged with sexual interference, invitation to sexual touching and sexual assault. He has applied, pursuant to s. 276 of the Criminal Code, to adduce certain evidence of prior sexual activity on the part of the complainant. At the conclusion of the application, I indicated to counsel that the application was granted with reasons to follow. These are those reasons.

I. FACTUAL CONTEXT

A. Overview of the Allegations

[2] Both C.L. and the complainant, J.P., are young persons. The offences are alleged to have been committed sometime between November 1 and December 31, 2014, when C.L. was 13 or 14 years old and J.P. was eight. During that period, C.L.'s mother would care for J.P. at her home after school each day while his mother was at work. As well, J.P. and C.L.'s younger brother, G.L., were friends and J.P. would sometimes sleep over at C.L.'s home.

[3] J.P. alleges that on several occasions, C.L. arranged to be alone with him and would remove his pants and then instruct J.P. to lick his penis, which he did. On one occasion, C.L. pulled J.P.'s pants down and licked his penis. The incidents stopped in late 2014 after J.P. told his grandmother what had happened. The families of the two boys discussed the allegations but agreed not to go to the police. The police only became involved approximately a year later when J.P. disclosed his allegations to a CAS worker who was conducting an unrelated investigation in relation to his family.

B. The Evidence Sought to Be Admitted

[4] Counsel for C.L. wishes to cross-examine J.P. about an incident that was alleged to have taken place in the summer of 2013. C.L.'s mother, K.L., testified on the application that J.P. was sleeping over at her home when her younger son, G.L., came into her room at night and told her that J.P. had pulled down his pants and asked him to lick his penis. She called J.P. out of the room and asked him if it was true. J.P., who was crying, admitted that it was. K.L. then called J.P.'s mother, who immediately came over and took him home.

[5] J.P. provided a video statement to the police in which he was asked the following:

Officer: Okay, okay. So has anything else happened with the, the family like between you and G.L. or anything?

J.P.: Sometimes me and G.L. get into fights, but that just happens naturally.

Officer: Okay, but has anything that's happened between you and C.L. happened between you and G.L.?

J.P.: No.

II. ANALYSIS

A. Overview of s. 276

[6] There is no issue that s. 276 of the Criminal Code applies to this evidence. In other words, it is prima facie inadmissible unless it falls within the exception set out in s. 276(2) of the Code. That subsection requires that the evidence be of specific instances of sexual activity (s. 276(2)(a)), that it be relevant to an issue at trial (s. 276(2)(b)) and that it has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice (s. 276(2)(c)).

B. The Nature of the Evidence Sought to be Admitted

[7] Counsel for C.L. concedes that if he is permitted to ask J.P. about this incident and J.P. denies it, he would be bound by the answer as the collateral fact rule would prohibit him from calling extrinsic evidence on the issue: R. v. P.(G.), 31 O.R. (3d) 504 (C.A.) at para. 27. As a result, he is seeking only permission to cross-examine J.P. about the alleged prior sexual activity.

[8] I heard a number of submissions on whether K.L.'s testimony about what G.L. and J.P. told her was admissible under the res gestae exception to the hearsay rule. However, counsel is not seeking to call that evidence. Rather, he is seeking to adduce evidence directly from J.P. If J.P. agrees that the incident took place, this evidence would clearly be admissible. Subject to s. 276, counsel needs only a good faith basis to put the suggestion to J.P.: R. v. Lyttle, [2004] 4 S.C.R. 193 at para. 47.

C. The Requirements of s. 276(2)

(i) Specific Instances of Sexual Activity (s. 276(2)(a))

[9] There is no real issue that the evidence relates to a specific instance of sexual activity, that is, a single incident in the summer of 2013 when J.P. slept over at C.L. and G.L.'s home.

(ii) Relevant to an Issue at Trial (s. 276(2)(b))

[10] Counsel for C.L. initially submitted that the evidence sought to be adduced was relevant to two issues. The first was to rebut the potential Crown argument that given J.P.'s age, he would not have had sufficient knowledge about the types of sexual activity he alleged unless C.L. had in fact committed the offences. However, Crown counsel has indicated that she will make no such argument.

[11] The second issue is the credibility of J.P. Counsel for C.L. wishes to show that J.P. was untruthful when he told the police that nothing had occurred between him and G.L. At this stage, I cannot and do not make any determination as to whether the incident between J.P. and G.L. happened or whether J.P. made a prior inconsistent statement with respect to this issue. However, if he admits the prior incident, then it could, but not necessarily would, lead to the conclusion that he lied to the police about an incident very similar to the allegations. Such a prior inconsistent statement on a material issue could, in my view, be relevant to his credibility, which is a central issue at trial. I am accordingly satisfied that the evidence is relevant to an issue at trial.

(iii) Significant Probative Value Not Outweighed by Prejudice (s. 276(2)(c))

(a) The Meaning of "Significant"

[12] The real dispute between the parties relates to s. 276(2)(c), that is, whether the evidence has significant probative value that is not substantially outweighed by its prejudicial effect. The use of the term "significant" was discussed by the Supreme Court of Canada in R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443 at para. 39:

It may be noted that the word "significant" is not found in the French text; the law speaks simply of "valeur probante". The rule of equal authenticity and the rule against unconstitutional interpretation require that the two versions be reconciled where possible. The interpretation of "significant" by the Ontario Court of Appeal satisfies this requirement: Morden A.C.J.O. found that "the evidence is not to be so trifling as to be incapable, in the context of all the evidence, of raising a reasonable doubt" (p. 16). At the same time, Morden A.C.J.O. agrees with R. v. Santocono, 91 O.A.C. 26 (C.A.), at p. 29, where s. 276(2)(c) was interpreted to mean that "it was not necessary for the appellant to demonstrate 'strong and compelling' reasons for admission of the evidence". This standard is not a departure from the conventional rules of evidence.

Also, at para. 41:

In light of the purposes of s. 276, the use of the word "significant" is consistent with both the majority and the minority reasons in Seaboyer, [1991] 2 S.C.R. 577. Section 276 is designed to prevent the use of evidence of prior sexual activity for improper purposes. The requirement of "significant probative value" serves to exclude evidence of trifling relevance that, even though not used to support the two forbidden inferences, would still endanger the "proper administration of justice". The Court has recognized that there are inherent "damages and disadvantages presented by the admission of such evidence" (Seaboyer, supra, at p. 634). As Morden A.C.J.O. puts it, evidence of sexual activity must be significantly probative if it is to overcome its prejudicial effect. The Criminal Code codifies this reality.

In my view, the evidence in this case meets this threshold. The remaining issue is whether the probative value of the evidence is substantially outweighed by its prejudicial effect.

(b) The Factors in s. 276(3)

[13] Section 276(3) of the Code sets out a number of factors I must take into account in determining whether the probative value of the evidence is substantially outweighed by its prejudicial effect:

276. (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.

[14] In considering these factors, I note that the central issue in this case is the credibility of J.P. and that C.L.'s ability to make full answer and defence is directly related to his ability to challenge J.P.'s credibility (s. 276(3)(a)). It follows from this that a proper and accurate credibility assessment is critical to a just determination of this case (s. 276(3)(c)).

[15] I also note that the evidence is not being relied upon for illegitimate inferences (s. 276(3)(d)), that is, the "twin myths" that because a complainant engaged in prior sexual activity, he or she is more likely to have consented to the activity underlying the charges (which is not an issue given the age of the complainant) or is less worthy of belief: Darrach at para. 32. As the Court noted (at para. 35):

The phrase "by reason of the sexual nature of that activity" in s. 276 is a clarification by Parliament that it is inferences from the sexual nature of the activity, as opposed to inferences from other potentially relevant features of the activity, that are prohibited. If evidence of sexual activity is proffered for its non-sexual features, such as to show a pattern of conduct or a prior inconsistent statement, it may be permitted. The phrase "by reason of the sexual nature of that activity" has the same effect as the qualification "solely to support the inference" in Seaboyer in that it limits the exclusion of evidence to that used to invoke the "twin myths" (p. 635). [Emphasis added].

[16] As this is a judge alone trial, there is no concern that the evidence will unduly arouse improper sentiments in a jury (s. 276(3)(e)).

[17] I accept that the admission of the evidence will engage J.P.'s personal dignity and right to privacy (s. 276(3)(f) and (g)). I also accept that allowing J.P. to be cross-examined on the prior alleged incident could lead some individuals to think twice before reporting allegations of sexual assault offences (s. 276(3)(b)). However, after careful consideration I have concluded that these factors do not substantially outweigh the probative value of the evidence.

III. DISPOSITION

[18] For the foregoing reasons, counsel for C.L. will be permitted to cross-examine J.P. on the alleged incident in the summer of 2013 involving him and G.L.

Justice P.A. Schreck

Released: August 24, 2016