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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(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

Date: 2018-04-19

Court File No.: Newmarket 4911-998-17-06054

Between:

Her Majesty the Queen

— and —

Shojun Hu

Application pursuant to section 276

Before: Justice A.A. Ghosh

Heard on: April 12, 2018

Reasons for Judgment released on: April 19, 2018

Counsel:

• V. Szirmak — counsel for the Crown
• S. Weinstein — counsel for the defendant Mr. Shojun Hu

Reasons for Judgment

Ghosh J.:

Charge

[1] Shojun Hu stands charged with a single count of sexual assault, contrary to section 271 of The Criminal Code.

[2] The defendant applies to admit at trial the prior sexual history of the complainant pursuant to section 276 of The Criminal Code.

Evidence on the Application

[3] Affidavits in support of the application were received in evidence, summarizing the respective allegations of the complainant and the applicant. The crown cross-examined the applicant.

[4] It is common ground that the complainant and the applicant had been acquainted two years prior to the alleged sexual assault. Upon initially meeting they regularly communicated mostly on a social media platform for approximately one to two months before they lost contact. Two years later, upon the resumption of their acquaintance, Mr. Hu expressed to the complainant that he was romantically interested in her.

The Anticipated Evidence of the Complainant

[5] The applicant and the complainant resumed contact within some weeks of the alleged sexual assault. C.M. will testify that the applicant had recently hired her as a receptionist and that on July 4th, 2017, the applicant picked her up for her first day in his employ. Mr. Hu told her that they would stop at a house in Markham to check on ongoing renovations there.

[6] C.M. followed him inside at his request. No one else was in the home. The complainant alleges that, once inside, the applicant hugged and attempted to kiss her. She stated "No" and tried to push him away. The applicant offered her money to be his girlfriend. She refused.

[7] The applicant tried to hug her again, put his hand on her breast and touched her vaginal area repeatedly over the clothes. C.M. continued to say "no" and push him away. In the struggle, C.M. was pushed to the floor. She freed herself and demanded that Mr. Hu respect her and continued to say "no".

[8] C.M. ran out of the house in fear. The applicant drove her home without further incident. In her videotaped police statement C.M. conveyed that she was surprised by the applicant's efforts to kiss her. She indicated that the two of them had only been friends, and that they had no previous "relationship" together.

The Evidence of the Applicant

[9] On approximately the 22nd of June, 2017, the two of them had reconnected on the WeChat social media platform and arranged to meet at a coffee shop the following day. During that meeting C.M. expressed interest in the applicant's work, leading the applicant to take her to one of the properties he was managing.

[10] The applicant gave evidence that while at the property, he hugged C.M. When she asked why he had hugged her, the applicant told her that he was interested in dating her and that he was willing to pay her to be his girlfriend. Mr. Hu testified that she told him that she would think about it. He hugged her again and drove her home. The applicant testified that they held hands in the car.

[11] Mr. Hu further represented that on June 24th, 2017, C.M. texted him to ask if he could drive her to buy a pair of shoes and to then take her to an interview. He picked her up from her house and drove straight to the interview given there was not enough time to shop for the shoes. Mr. Hu stated that during the drive they held hands and she hugged him as he dropped her off.

[12] The applicant further testified that on June 29th, 2017, C.M. sent him a message on WeChat and asked if he wanted to have a drink with her. He picked her up from her home and they decided to go to Sunset Beach. Mr. Hu testified that at the beach they hugged and held hands. They returned to the car, where they held hands. C.M. initiated a kiss. As they kissed, the applicant touched her breasts. He then drove her home and, upon arrival, they kissed again.

Analysis

Statutory Framework

[13] For designated sexual offences, section 276(1) of the Criminal Code directs that "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."

[14] Subsection (2) further directs that "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… 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."

[15] Subsection (3) mandates consideration of several factors in determining admissibility, including:

(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.

Positions of the Parties

[16] Mr. Hu's counsel submits that the described acts are of specific instances of prior sexual activity and are relevant to the issues of credibility, consent and to provide context regarding the nature of the relationship between the complainant and the applicant. Intertwined in these identified issues is the defence ability to meaningfully explore a potential falsehood in the complainant's anticipated evidence that she and the applicant did not previously have "sex" or a "relationship" together.

[17] The Crown responds that the evidence of prior acts of sexual activity are not relevant, given the defence position at trial will be that the allegation of non-consensual sexual contact simply did not occur – that there is an insufficient nexus between the evidence and the proffered defence. There is jurisprudence supporting the exceptional admission of prior acts of sexual activity under s.276 where the defence is one of consent or honest mistaken belief in consent. That is apparently not the case here.

Discussion

[18] I agree with the Crown that the complainant's representations that she had not previously engaged in sexual activity with the applicant and that there was no "relationship" are not necessarily inconsistent with the defence position or dispositive of anything. There was some apparent vagueness in the officer's inquiry of C.M. in this area.

[19] However, I also agree with the applicant's counsel that depriving the defence of leading the prior acts and confronting the complainant with them in the context of these same representations would serve to distort the fact-finding process. It would impede my ability to assess credibility. I would be deprived of essential evidence of the context of their relationship, risking that the defence evidence be artificially deemed improbable due to the purportedly platonic dynamic claimed by the complainant.

[20] C.M.'s representations implying or confirming a platonic relationship essentially oppose the anticipated defence evidence that there was prior consensual physical contact between them which may be characterized as sexual in nature. The identified acts constitute "evidence tending to rebut proof introduced by the prosecution regarding the complainant's sexual conduct". Evidence falling into this category was deemed by the Supreme Court as admissible within the s.276 framework: R. v. Seaboyer (1991), 66 C.C.C. (3d) 321 (S.C.C.), paragraphs 409-410.

[21] The prior acts of sexual activity identified in the application are necessary in order for Mr. Hu to make full answer and defence. I am also persuaded that the evidence does not engage the "twin myths" identified in section 276(1) and as discussed by The Supreme Court in R. v. Seaboyer, supra and R. v. Darrach (2000), 2000 SCC 46, 148 C.C.C. (3d) 97 (S.C.C.).

[22] The prior alleged acts of sexual activity are relatively innocuous and arose in the context of an allegedly budding romance with the applicant. Their admission cannot intrude on the complainant's personal dignity in any meaningful sense. Their innocuous quality also signifies the absence of any discriminatory belief or bias in the fact-finding process and that the identified probative value outweighs any risk of prejudice.

[23] In considering all of the factors in section 276(3) and the associated jurisprudence, I have determined that the prior acts of sexual activity will be admitted for the purposes of narrative context, consent and the assessment of credibility.

[24] My thanks to counsel.

Released: April 19, 2018

Signed: Justice A.A. Ghosh