WARNING

The court hearing this matter directs that the following notice should 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Date: 2017-03-28

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Steven Black-Gentles

Before: Justice M. Greene

Reasons for Judgment: Section 276 of the Criminal Code

Counsel:

• T. Goddard for the Crown
• B. Badali for Steven Black-Gentles

Background

[1] The accused is charged with sexually assaulting the complainant. It is alleged that he sexually assaulted her while she was asleep at his residence on November 18, 2015. The accused denies sexually assaulting the complainant. In an affidavit filed with the court, the accused stated that he would never sexually engage with the complainant if he knew she was not capable of consenting. The accused makes no indication, one way or another, in his affidavit whether or not there was sexual activity between himself and the complainant on November 18, 2015. In light of this absence of evidence, it is unclear whether the accused's defence at trial will be an outright denial that he engaged in any sexual activity with the complainant on the day in question or whether his defence will be one of consent or some other defence. In other words, while it is clear that the accused denies committing the offence, it is unknown what defence, if any, he will present at trial.

[2] In the case at bar, the accused seeks leave to cross-examine the complainant on three specific acts:

a) A single prior act of sexual intercourse;

b) Multiple acts of massaging each other over their clothes; and,

c) The complainant allowing the defendant to take a photograph and video of her naked.

[3] In relation to the single act of sexual intercourse, the defendant states in his affidavit that this sexual act was consensual and took place on the first day that he met the complainant. In her statement to the police, the complainant referenced a single act of sexual intercourse with the defendant. She told the police that this occurred approximately one month prior to November 18, 2015 and that she did not really want to engage sexually with the defendant and only did so after she was pressured into it. The complainant was hesitant to allege that she was sexually assaulted by the defendant on this prior occasion, but was clear in her statement to the police that she did not feel that the act was fully consensual.

[4] The complainant, in her statement to the police, denied any other sexual acts with the defendant. Moreover, she told the police that she was not sexually attracted to the defendant and that she made her feelings very well known to the defendant. The accused in his affidavit wrote that there were other sexually related acts between himself and the complainant and that there were discussions between them about sexual activity. In particular, the accused stated in his affidavit that there were a number of instances where he and the complainant massaged each other over their clothes and there was one incident where the complainant permitted the defendant to photograph and video tape her naked. It is these events that the defendant seeks to admit at trial and to cross-examine the complainant upon.

General Legal Principles

[5] Section 276 of the Criminal Code requires an applicant to seek leave of the court before presenting evidence and/or cross-examining a complainant on prior sexual activity. Permission to lead evidence in this area will only be permitted where: the evidence relates to a specific incident of sexual activity; the evidence is relevant to a fact in issue; and, the evidence has significant probative value that is not substantially outweighed by its prejudicial effect. In other words, even where the proposed evidence is determined to have some probative value, it still cannot be admitted into evidence if the prejudicial effect of that evidence on the administration of justice is too high. To that end, the court must consider a host of factors including the potential impact on reporting sexual offences and the impact that the admission of such evidence would have on the privacy rights and personal dignity of the victim.

[6] Moreover, even where the court permits cross-examination on prior sexual activity, that evidence cannot be used to support the inference that the witness is less credible because of his/her prior sexual activity or that the complainant was more likely to consent.

Position of the Parties

[7] In the case at bar, no one disputes that the defendant has articulated specific sexual acts so as to satisfy the first prong in the analysis. Moreover, Crown counsel readily conceded that the first incident of sexual intercourse is relevant as he intends to lead this evidence himself. He further conceded that the prior acts of massaging, if they in fact occurred, may also be relevant. Crown counsel's real concern is on the scope of cross-examination as it relates to these two areas. Crown counsel also took the position that the evidence that the complainant permitted the accused to photograph her naked is not relevant to any fact in issue and therefore is not admissible in law.

[8] Counsel for the accused argued that cross-examination on the prior sexual activity outlined above is relevant to several facts in issue and is necessary for the accused to make full answer and defence. He argued the relevance as follows:

a) Context;

b) To rebut an assertion that the relationship was purely platonic;

c) To support the defence of honest but mistaken belief in consent; and,

d) To address the complainant's credibility.

Application to the Facts in the Case at Bar

Relevance

[9] Before any evidence is admitted at a trial and before any cross-examination may take place, the evidence must, at a minimum be relevant to a fact in issue at trial. Evidence that is not relevant to a fact in issue has no probative value. In light of this reality, the assessment under s.276 must start with relevance.

[10] The relevance of the proposed evidence in the case at bar is directly linked to the evidence the Crown intends to use at trial and the position of the prosecution. In the case at bar, it is alleged that the complainant was asleep at the time of the sexual assault. Instinctively it is difficult to imagine how prior sexual conduct of the complainant would be relevant given the nature of the allegation. In the case at bar, however, Crown counsel wants to lead evidence that the complainant was not sexually attracted to the defendant, had never been sexually attracted to him and that she made her feelings well known to the defendant. Crown counsel will argue at trial that this history between the parties gave the defendant motive to commit the offence.

[11] It should also be noted that Crown counsel advised the court that even though the complainant advised the police that she was asleep when the sexual assault took place, the Crown intends to argue that there are three potential routes to a conviction in the case at bar. First, because the complainant was incapable of consenting as she was asleep at the time of the sexual interaction. Second, that even if she was not asleep, she was still incapable of consenting due to the effects of alcohol and drugs and third, that even if the complainant had the capacity to consent, she did not consent.

[12] With this background, I can quickly address two arguments raised by the applicant. The applicant argued that the alleged prior sexual conduct is admissible as it is relevant to the issue of mistaken belief in consent. In my view there is nothing before the court that raises the spectre of an honest but mistaken belief in consent. The accused filed an affidavit with the court that makes no reference to what he believed at the time of the alleged offence nor does he refer to any conduct by the complainant that would cause him to believe she was consenting on the night in question. Moreover, there is no evidence before the court that the accused will take the position at trial that he engaged in any sexual activity with the complainant on the night in question. At this stage, the only evidence I have is that the complainant advised the police she was asleep when the defendant sexually assaulted her and that the accused denies this. Given this limited record before me, I have no basis to conclude that there is an air of reality to the defence of mistaken belief in consent and therefore I would not permit cross-examination for this reason alone.

[13] I can also quickly deal with counsel's argument that the evidence is necessary to rebut the presumption that the complainant, because of the age difference between herself and the applicant, would not have voluntarily had sex with the accused. In my view, this presumption does not arise on the facts of this case. It is conceded that the complainant and the defendant were good friends and that they spent a lot of time together. This, in my view, dispels any concern that a court would automatically reject the possibility of a consensual sexual relationship between the complainant and the accused because of their age. I am mindful that there is a body of authority that has allowed for the admission of evidence of prior sexual contact between the complainant and the accused because as was stated in R. v. Strickland, [2007] O.J. No. 517 (SCJ), "it cannot be doubted that it is more probable that a complainant would consent to sex with a person with whom she had an established sexual relationship than with a person who was a complete stranger…". In the case at bar, the accused and the complainant were not strangers. I would not allow cross-examination for this purpose.

[14] The other two reasons raised by the applicant as the basis for cross-examining the complainant on prior sexual acts, in my view, have substantial merit given the manner in which the Crown intends to prosecute this case. To that end, I note that the Crown intends to put into evidence the first sexual encounter between the accused and the complainant. The accused, in his affidavit clearly disputes the complainant's characterization and timing of this event. In order to make full answer and defence, the accused must be able to pursue this in cross-examination and put his version of events forward. The Crown also intends to lead evidence that the complainant was not sexually attracted to the accused and that she expressed this to the accused on multiple occasions. The accused disputes this characterization of the relationship. As noted previously, the Crown intends to argue at trial that this gave the accused motive to commit the offence. The accused cannot rebut the allegation of motive if he is not afforded the opportunity to explore this issue in the cross-examination of the complainant and put forward his own view of what took place in the relationship. Therefore, this evidence is relevant to a fact in issue at trial.

[15] In relation to the photograph and video, Crown counsel argued that this evidence was completely irrelevant. To that end, he argued that the mere fact that a person allows another to photograph them naked does not support the inference that the person being photographed was sexually attracted to the photographer. Counsel for the accused argued that while it does not necessarily mean there was a sexual attraction, it could support this inference and therefore he should be permitted to explore this as it may serve to corroborate the accused's evidence at trial. Moreover, counsel argued that at the very least it establishes a level of intimacy between the complainant and the accused that the complainant appears to deny in her statement to the police.

[16] In many, if not most cases, the fact that a woman permitted a man to take a photograph of her naked will be irrelevant to any fact in issue at a sexual assault trial. This is particularly the case where the sexual assault alleged took place while the complainant was asleep. It is difficult to imagine how in the ordinary course this would be relevant. In the case at bar, however, the Crown has put the nature of the relationship in the months preceding the alleged sexual assault very much in issue. To that end, while the fact of the photograph does not make it more likely that the complainant consented to the sexual acts on the night in question, it does shed light on the whole relationship which has been put in issue by the Crown and could potentially rebut the complainant's assertion of a complete lack of attraction during the entire relationship. I therefore find that this evidence has some relevance. I repeat, however, that this evidence does not support the inference that the complainant was more likely to consent to sexual acts with the accused on the night in question nor is it relevant to her general credibility. It is only relevant to the extent that the entire nature of their relationship has been put into issue.

Probative Value of the Evidence v. Prejudicial Effect

[17] Having established the relevance of this evidence, the court must go on to consider the extent of the probative value of this evidence and the potential prejudice the evidence may have on the administration. The court must consider whether the evidence has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice if it is admitted at trial.

[18] In assessing whether or not the proposed evidence has significant probative value and whether or not this probative value is substantially outweighed by the prejudicial effect of the evidence on the administration of justice, the court is required to consider the factors enumerated in section 276(3) of the Criminal Code. The following factors must be considered:

a) Interest of justice in making full answer and defence;

b) Society's interest in encouraging reporting of sexual offences;

c) Is there a reasonable prospect that the evidence will assist in arriving at a just determination;

d) The need to ensure that there is no discriminatory belief or bias in the fact finding process;

e) The risk that the evidence would 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; and,

g) The right of the complainant to personal security and protection of the law.

A. Interest of Justice in Making Full Answer and Defence

The defendant has a constitutional right to make full answer and defence. Justice is best served if defendants are given the latitude necessary to present all relevant evidence. Given my findings above that the proposed evidence is relevant to a fact in issue and necessary to rebut the Crown's case, this factor strongly supports inclusion of the evidence.

B. Society's Interest in Encouraging Reporting of Sexual Offences

[19] The more invasive the cross-examination and the greater intrusion into a victim's privacy during a trial, the greater the likelihood that victims will not come forward and report incidents of sexual violence. No matter how relevant the proposed evidence is, where it involves exploring the sexual past of a witness, it will inevitably have a chilling effect on a victim's willingness to report a sexual assault. There is a strong societal interest in victims of crimes reporting such crimes to the police.

C. Is There a Reasonable Prospect That the Evidence Will Assist in Arriving at a Just Determination

[20] In the case at bar, given the manner in which this case will be prosecuted, there is a real risk that the defence will not be able to properly put forward a defence and respond to the allegations without relying on this evidence. As such, in my view allowing the defendant to lead evidence of the alleged incidents of massaging and to cross-examine the complainant on the one incident of prior sexual intercourse and the massaging incidents as alleged by the accused is necessary to ensure a just verdict.

[21] The evidence that the complainant permitted the defendant to take a photograph of her naked while of slightly less relevance, as noted above, is still relevant to a fact in issue, namely the nature of the relationship between the complainant and the accused prior to November 18, 2015. Precluding the defence from presenting evidence that has the potential of corroborating his evidence and rebutting the Crown's position at trial would interfere with the court's ability to reach a just determination.

D. The Need to Ensure No Discriminatory Belief or Bias in the Fact Finding Process and the Risk That the Evidence Would Unduly Arouse Sentiments of Prejudice, Sympathy or Hostility in the Jury

[22] The risk that evidence will be used improperly and that subconscious bias will improperly affect the fact finding process always exists. Trial judges must always be vigilant in ensuring that this does not occur. In my view, in the case at bar, the risk that the evidence will be mis-used is substantially reduced by a number of factors. Firstly, the reason for admitting the evidence has been clearly articulated. Secondly, this matter is proceeding without a jury. As the trial judge I am required to give detailed reasons for my finding of fact. This protects against the use of discriminatory beliefs in the fact finding process. Thirdly, it has been made very clear that the evidence cannot be used to draw inferences about the complainant's general character and credibility nor can it be used to infer that she was more likely to consent. It can be used for a very limited purpose - to rebut the Crown's foundation for the accused's motive to commit the offence and to provide general evidence about the nature of the relationship between the complainant and the accused. For these reasons, while I am mindful of the risks in admitting this evidence, those risks are substantially reduced in the case at bar.

[23] Similarly, as this is a judge alone trial where the potential relevance of the evidence has been clearly articulated and the scope of cross-examination will be limited, there is no realistic risk that the evidence will unduly arouse sentiments or prejudice, sympathy or hostility in the trier of fact.

E. The Potential Prejudice to the Complainant's Personal Dignity and Right of Privacy and the Right of the Complainant to Personal Security and Protection of the Law

[24] There can be no doubt that cross-examination of witnesses about personal private acts will affect the witnesses' privacy interests and runs the real risk of interfering with his/her personal dignity. This is particularly true of acts that are sexual in nature and that take place in private between two people. While the court can take pro-active steps to reduce the impact of admitting such evidence by making it clear that no moral judgment attaches to it and by limiting the scope of cross-examination, the reality of the potential and real impact of this evidence and/or line of cross-examination cannot be ignored.

Conclusion

[25] In balancing and weighing the competing interests outlined above, I am satisfied that the accused can cross-examine and present evidence of the single incident of prior sexual intercourse. The Crown intends to admit it for narrative purposes and to provide a context for the complainant's disinterest in the defendant. According to the affidavit filed with the court, the defendant's evidence on when and how this prior sexual act took place is disputed. To deny the defence an opportunity to fully cross-examine on the timing, the presence or absence of consent and the complainant's attitude towards the defendant before and after the event could potentially distort the fact finding process and will interfere with the defendant's ability to make full answer and defence. In light of this, despite the potential risk to the personal dignity of the complainant and the risk that allowing cross-examination on this area may impact reporting of sexual offences, I will allow cross-examination on this area and for the defence to adduce evidence on this point. In my view the admission of this evidence is highly probative and the danger of prejudice to the administration of justice does not substantially outweigh the probative value of the evidence. Detailed cross-examination of the actual sexual act, however, will not be permitted. It is not necessary to assist with full answer and defence and is utterly irrelevant to any fact in issue.

[26] In relation to the alleged multiple incidents of massaging over the clothing I must also conclude that while there is some prejudice in admitting this evidence, given how vital this evidence is to the defence, I cannot conclude that the prejudicial effect of admitting this evidence substantially outweighs the significant probative value of this evidence. The Crown has advised the court that the entire nature of the relationship, including the timing of certain events, is in issue, as a result, in my view it is necessary to allow the defendant to cross-examine on alleged prior acts of massaging and lead evidence on this point to properly make full answer and defence.

[27] The more difficult area is the issue of the photograph and the video. The defendant alleges that the complainant permitted him to photograph her and take a video of her while she was naked. This is a highly personal act and allowing cross-examination on it could have a real chilling effect on reporting incidents of sexual abuse and will greatly intrude on the complainant's privacy. I am also mindful that taking photographs of someone naked does not necessarily equate with sexual attraction. The difficulty in excluding this evidence is that without having the opportunity to explore in cross-examination the reason for permitting the photograph and video to be taken, it is impossible to exclude sexual attraction from the mix and it therefore may be highly relevant to rebut the Crown's argument in relation to the defendant's motive to commit the offence and the complainant's characterisation of the relationship. While there is some prejudice attached to admitting this evidence the prejudice does not substantially outweigh the significant probative value of this evidence.

[28] Crown counsel concedes that the photograph and video exist. As a result, at this stage there is no probative value to the actual photograph or video being admitted at trial. I therefore prohibit the admission of the actual photograph and video. If, however, during the trial its probative value changes, counsel may make a new application to the court.

Released: March 28, 2017

Justice Mara Greene