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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

WARNING

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

This hearing is governed by section 276.3 of the Criminal Code:

276.3 Publication prohibited. — (1) No person shall publish in any document, or broadcast or transmit in any way, any of the following:

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

Court Information

Ontario Court of Justice

Date: 2018-04-09

Court File No.: Toronto, College Park 17-75000601

Between:

Her Majesty the Queen

— and —

Robert Keith Provo

Before: Justice J.W. Bovard

Heard on: February 23, 2018

Ruling on: An application under section 276.1 of the Criminal Code

Released on: April 9, 2018

Counsel:

Ms. C. Faria — counsel for the Crown
Ms. O. Pollitt — counsel for the defendant Robert Keith Provo

Decision

Bovard J.:

Introduction

[1] Mr. Provo is charged with sexual assault on February 5, 2017. The defence brought an application under section 276.1 of the Criminal Code for an order that it be allowed to (1) cross-examine the complainant about her sexual relationship with Mr. Provo prior to the incident in question, and (2) that it be allowed to cross-examine the complainant with regard to her sexual activity with other persons prior to the incident in question. These are the court's reasons for its ruling on the application.

[2] The defence did not provide a summary of the allegations against Mr. Provo in the application. When I pointed this out during the defence's submissions in court, counsel read the Crown's summary of the allegations and stated that "If I had presented facts to Your Honour I would not have set them out in exactly this – this way".[1]

[3] One would expect the defence to provide a summary of the allegations as part of its application in order to give the court a context in which to determine the application.

[4] After having read the Crown's version of the allegations for the first time in court[2], the defence disagreed with the allegations and made submissions in that regard. However, the submissions were in the nature of submissions after trial, not to provide context for the section 276.1 application.

[5] The defence requested that the court stand down so that it could "provide the defence of the application's relevant facts so that you have context from our perspective … because I do believe that even having reviewed the complaint's video statement on a number of occasions I don't believe that that – I don't believe that it's entirely accurate … it's a synopsis".[3]

[6] In the alternative, the defence asked to be able to make oral submissions in this regard.

[7] The court ruled that the Criminal Code is quite clear as to what is required for an application under section 276.1. Neither of the defence's requests conform to the Criminal Code. Therefore I denied them both[4].

[8] In these circumstances I find that I am entitled to rely on the Crown's summary of the allegations contained in Part 1 of its factum, and on other information that the parties gave to me during the application process.

The Allegations

[9] The allegations are as follows. Beginning in January 2016, Mr. Provo and the complainant had a sexual relationship based on her giving him sex, including sexual intercourse, in exchange for money and or crack cocaine.

[10] On February 5, 2017, Mr. Provo called the complainant to tell her that he was coming over to her apartment. He requested that she meet him in the lobby, which she did.

[11] They went to the complainant's apartment where Mr. Provo told her that he wanted to have sexual intercourse with her. She told him that she did not want to. She told Mr. Provo that she had suffered a laceration to her vagina the previous day.

[12] The complainant performed fellatio on Mr. Provo and then she got on top of him and had sexual intercourse with him. At this point she was in control of the contact.

[13] Mr. Provo then got on top of the complainant. She told him that this was causing her pain and told him to stop. She was crying. She told him again to stop, but he did not. She repeatedly asked him to stop, however he continued penetrating her until he ejaculated.

[14] The complainant went to the shower. While she was in the shower Mr. Provo left the apartment. The complainant called the police to report that Mr. Provo had sexually assaulted her. She went to Mount Sinai Hospital. The police arrested Mr. Provo on the same day. They charged him with sexual assault under section 271 of the Criminal Code.

Particulars of the Application[5]

[15] The particulars of the application are provided in the notice of application and in a supporting affidavit from Mr. Provo. All references to what Mr. Provo said are taken from his affidavit.

[16] I note that there is the following confusion in the defence materials regarding the date of the alleged offence:

1. Notice of Application

(a) In paragraph 1 of the section titled "The Grounds For This Application", it states that "The Applicant stands charged that, on the 5th day of February 2017, he did commit the offence of Sexual Assault …"

(b) In paragraph 6 of the section titled "The Particulars Of The Evidence Sought To Be Adduced …", it states "That the night before the alleged incident, on or around February 3, 2017 … (emphasis added). This would make the alleged incident on February 4, 2017.

2. Mr. Provo's affidavit

(a) In paragraph 9, he refers to "The night before the allegations, on or around February 3, 2017 … ". This would make the alleged incident on February 4, 2017.

(b) In paragraph 10, he refers to the complainant calling the police "on February 4, 2017". The allegations indicate that she called the police on the day of the alleged incident; namely, February 5, 2017.

[17] This confusion is a concern because it creates uncertainty in the court's mind with regard to the date that the defence considers as the date of the alleged incident.

[18] However, since the Information clearly states that Mr. Provo is charged on February 5, 2017, I will assume that the defence knows this, and that these discrepancies are the result of inadvertence. Therefore, I will read the defence materials based on the assumption that they agree that the alleged offence date is February 5, 2017.

[19] In the portion of the application that sets out the particulars it states that a mutual friend introduced Mr. Provo and the complainant in December 2015. The friend described the complainant as a sex worker. In his affidavit, Mr. Provo states that this friend told him that the complainant liked to "do sexual favours in exchange for crack cocaine".[6]

[20] The application states in paragraph two that "the first time the Complainant was introduced to the Applicant, she was carrying out a sex act with a man, with three other men watching and participating". This is contradicted by Mr. Provo's affidavit in paragraph three where he states:

The first time I met [the complainant], I was visiting the home of a friend of Max's, named Patrick. I was there with Patrick and Max and we were watching television. [The complainant] then arrived with a mutual friend, named Harold […]. Not even five minutes after they arrive, the [complainant] then began to carry out the sex act of fellatio on Harold, in front of all of us. The rest of us continued to watch television but it was quite awkward that she did this in front of us". (Emphasis added)

[21] After this Mr. Provo drove the complainant and Harold to the complainant's home. While in the complainant's apartment she "continued to carry out fellatio on Harold, and after they were finished, I was then given fellatio". The complainant gave Mr. Provo her phone number.[7]

[22] Mr. Provo states that in January 2016 he and the complainant met to have sex, for which he paid her. After that, they met approximately every two weeks or once a month to have sex. They engaged in oral sex and in sexual intercourse. In exchange for the sex he provided her with money to buy crack cocaine.

[23] Mr. Provo says that the night before the alleged incident the complainant had sexual intercourse with another person. That person inserted bottles in the complainant's vagina, which caused lacerations.

[24] Mr. Provo thinks that the complainant called the police on February 4, 2017 because he "was not able to give her any more money that night for crack cocaine".[8]

[25] Mr. Provo said that the complainant reported a friend of his for having sexually assaulted her. His friend was convicted and served seven months jail for the assault.[9]

Order Requested

[26] Again, there is confusion, imprecision and vagueness in the defence materials with regard to what orders it requests.

[27] In the application (last page), the defence requests orders to allow it to do the following:

Adduce evidence of "previous acts of sexual intimacy between the parties, specifically prior acts of sexual intercourse …";
Cross-examine the complainant "with respect to prior acts of sexual intercourse between herself and the Applicant …";
Adduce evidence "with respect to previous acts of sexual intimacy between the Complainant and third parties.";
Cross-examine the complainant "with respect to prior acts of sexual intercourse between herself and third parties …";

[28] In its factum, Part V, paragraph 25, the defence requests that it be allowed to cross-examine the complainant regarding the following areas:

She had prior sexual contact with Mr. Provo in her apartment on at least 15 occasions "over 2016 and the beginning of 2017";
She consented to sex with Mr. Provo only to obtain crack cocaine from him.
She previously reported a sexual assault "against "Dwyane", in which he was convicted".
She had previous sexual relations with Harold […] in December 2015.

[29] In its submissions in court[10] the defence requested that the court allow it to adduce evidence,

Of sexual activity between Mr. Provo and the complainant in her apartment, 15 times or more during 2016 – 2017;
That the complainant consented to have sex with Mr. Provo in order to obtain crack cocaine and that this was the basis of their relationship;
That the complainant had sexual relations with Harold […] in December 2015;
"evidence of sexual contact between [the complainant] and a Dwyane".

[30] As can be seen, although some of these requests are similar, some are not. This gives rise to confusion as to what the defence is asking.

[31] In dealing with these different, but related requests I will be guided by the procedure set out in the Criminal Code and by the jurisprudence that interprets this procedure.

The Statutory Framework Set Out in the Criminal Code

[32] Section 276(1) of the Criminal Code states that:

In proceedings in respect of an offence under section … 271 … 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.

[33] Section 276(2) states that in proceedings in respect of section 271:

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.

The Application Procedure

[34] Section 276.1 sets out the procedure to be followed in making an application "for a hearing under section 276.2 to determine whether evidence is admissible under subsection 276(2)".[11]

[35] After considering the defence's application and the factors in section 276.2 I was satisfied that the defence's application merited a hearing under section 276.2 "to determine whether the evidence is admissible under subsection 276(2)". Therefore, I conducted a hearing.

[36] Now, I must decide whether the evidence that the defence wants to adduce about the complainant's prior sexual history with Mr. Provo and others is admissible pursuant to section 276(2), and whether I should allow the defence to cross-examine the complainant regarding her prior sexual history with Mr. Provo and others.

[37] Section 276(3) sets out the following factors that I must consider in deciding whether the evidence is admissible pursuant to section 276(2):

(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.

Disposition

[38] The following are the reasons for my determination of the application.

[39] I will begin with the proscription in section 276 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."

(a) Is more likely to have consented to the sexual activity that forms the subject-matter of the charge

[40] The defence in the case at bar is that the complainant consented to having sexual intercourse with Mr. Provo in exchange for crack cocaine and or money. The defence wants the court to allow evidence of the complainant's prior sexual activity with Mr. Provo "not to suggest a likelihood of consent due to promiscuity. Instead it puts the relationship in its appropriate context so that the trier of fact can properly assess the likelihood of the defence of consent, or mistaken belief in consent".[12]

[41] The defence argues that Mr. Provo and the complainant's relationship was based on an agreement that she would give him sex if he gave her crack cocaine and or money to buy crack cocaine. Therefore, evidence of this arrangement is required in order for the court to understand their relationship.

[42] I find the defence's application, factum and its submissions in court are not in sync with regard to what order the defence wants the court to make.

[43] In the application, the defence asks that the court allow it to adduce evidence of previous sexual acts between the complainant and Mr. Provo as well as with other parties. But there is no mention of wanting to adduce evidence regarding the complainant consenting to having sex with Mr. Provo "only to obtain crack cocaine from him" as is requested in in Part V, paragraph 25 b) of the defence factum.

[44] In addition, in paragraph 23 of its factum, the defence states that to "understand the subjective viewpoint of Robert PROVO and his defence, … the Applicant must be allowed to question [the complainant] about …" Mr. Provo meeting with the complainant, giving her money for crack cocaine and taking her to her drug dealer to purchase it, or just giving her the money so that she could buy it herself.

[45] In its submissions before the court the defence does request this.[13]

[46] Furthermore, the factum states that the defence wants the court to allow it to ask questions about the complainant having sex with Mr. Provo while consuming crack cocaine and about their agreement to exchange sex for "access to smoking crack cocaine".

[47] In addition, although the application refers to evidence of prior sexual contact with third parties, with one exception there is no section in the defence's factum that addresses this issue.

[48] The exception is where the factum refers to the report by the complainant of a prior sexual assault by another man, which resulted in the conviction of that man. This is not mentioned in the application. However, in Part V of the factum, the defence asks that the court permit it to cross-examine the complainant regarding this incident.

[49] In Part V of the factum the defence also requests permission to cross-examine the complainant regarding "sexual contact with Harold […], in December 2015". This is not specified in the application.

[50] In its submissions before the court, the defence stated that it wanted to adduce evidence "that Mr. Provo and [the complainant] consented to have sex. She consented to have sex with Mr. Provo in order to obtain crack cocaine and that was the premise and nature of their relationship".[14] This is not mentioned in the application.

[51] I mention these discrepancies because when the defence application, supporting materials and submissions in court are compared, they are confusing: in certain parts things are asked for that are not asked for in other parts. Consequently, it is difficult for the court to figure out what the defence wants.

[52] This is important because the Criminal Code requires specificity in these applications. The reason for specificity is so that the court is clear on what exactly the evidence is that the defence wants to adduce. Without this clarity, it is difficult for the court to know exactly on what to rule or what to order if it makes orders.

[53] A problem that could arise is that the Crown may object that the court made an order that the defence did not request in the application. This in turn can easily lead to confusion during the trial as to what exactly the court ordered.

[54] I could try to surmise what the defence wants, but I may get it wrong. It is the defence's responsibility to be clear and consistent in its application and supporting materials in order to avoid these difficulties.

[55] Having said that, I will proceed to determine the application as I understand it.

The Twin Myths – Section 276(1)(a), (b) Criminal Code

(a) Is more likely to have consented to the sexual activity that forms the subject-matter of the charge [because of having engaged in sexual activity with the accused or with any other person]

[56] As stated above, the defence is that the complainant consented to the sexual activity in question. It seeks to adduce evidence that prior to the date of the alleged assault the complainant willingly engaged in sexual relations with Mr. Provo in exchange for crack cocaine or for money. The sexual activity on the day in question was just part of the same pattern.

[57] The defence argues that it is not the act of engaging in prior sexual relations with Mr. Provo (promiscuity) that indicates that she consented to the sexual activity in question; rather, it is the nature of the relationship (sex for money or crack cocaine) that indicates that she consented to the sexual activity in question.

[58] In R. v. Strickland[15] the court made the following observations regarding the relevance of prior sexual activity between an accused and a complainant:

This evidence is logically relevant on the issue of consent. One commonly accepted definition of relevance is this: does the evidence render the desired inference more probable that (sic) it would be without the evidence? 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 (para. 23).

[59] With regard to section 276(1)(a), the myth of prior consent equalling subsequent consent, the court found that,

While the past sexual relationship between the accused and the complainant would, in this way, be used to support an inference of an increased likelihood that the complainant consented to sex on the occasion in question, it does not do so in a way that offends s. 276… the Supreme Court of Canada[16] has made it clear that s. 276 is not a blanket prohibition against ever using the sexual history of the complainant on the issue of consent. Such evidence is inadmissible only where the defence seeks to use it in a way that invokes the "twin myths", i.e. that an unchaste woman is more likely to consent to sex, and is less worthy of belief. The words "by reason of the sexual nature of the activity" in s. 276 express Parliament's intention 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 (para. 24).

[60] Strickland held further that "a prior sexual relationship is not only relevant where it involves a repetitive pattern of behaviour. The existence of the relationship itself is relevant in and of itself, because it says something about the attitude of the complainant towards the accused which is a relevant circumstance when considering the evidence of both parties on the issue of consent" (para. 26).

[61] The court found that evidence of the past relationship "makes it at least somewhat more probable that a complainant would consent to having sex with a man with whom she had an existing sexual relationship, than if no such relationship existed at all" (para. 28).

[62] Based on the circumstances of the case at bar, and according to my interpretation of Strickland, I find that the evidence that the defence wants to adduce of prior sexual activity between Mr. Provo and the complainant, and on which it wants to cross-examine the complainant, does not invoke the myth that is addressed by section 276(1)(a).

Section 276(1)(b) – Less worthy of belief as a result of previous unchaste behaviour

[63] This is not an issue in the case at bar.

[64] Next, I will consider the factors listed in section 276(2).

Section 276(2)(a) – Specific instances of sexual activity

[65] I find that on one hand, the evidence that the defence wants to adduce is not of specific instances of sexual activity with Mr. Provo. It is general evidence of the sexual relations that the two have had since they met. In that sense the defence has not satisfied this condition with regard to the complainant's sexual relationship with Mr. Provo.

[66] On the other hand, if the evidence of their prior sexual relations is characterized as a series of sexual encounters, including sexual intercourse, in exchange for crack cocaine or money, then the evidence has sufficient specificity to satisfy this condition. This specificity does not have to include exact dates and locations.

[67] It is sufficient if it simply states that they met regularly during a specific period of time to have sex in exchange for crack cocaine or money. This evidence is necessary for the court to understand the context of their relationship and to understand why they were together on the night in question.

[68] I find support for this reasoning in the Ontario Court of Appeal's decision in R. v. L.S.[17], where Justice Doherty found that,

The phrase "specific instances" modifies the phrase "sexual activity". The degree of specificity required to meet s. 276(2)(a) depends to a large extent on the nature of the sexual activity that the accused seeks to adduce: see R. v. Aziga, [2008] O.J. No. 4669 (Ont. S.C.J.), at paras. 21-22. If an accused wants to lead evidence of a specific incident of sexual activity, the details must identify that specific incident. If, however, the accused seeks to adduce evidence of a general nature, describing the relationship between himself and the complainant, the specificity requirement speaks to factors relevant to identifying the relationship and its nature and not to details of specific sexual encounters. Insofar as relationship evidence is concerned, the required specifics would include reference to the parties to the relationship, the relevant time period, and the nature of the relationship. (Emphasis added)

[69] However, the evidence that the defence wants to adduce regarding "previous acts of sexual intimacy between the Complainant and third parties" or "prior acts of sexual intercourse between herself and third parties"[18] is too vague to satisfy the requirement of specificity in section 276(2)(a).

[70] With regard to the defence request in Part V of its factum that it be allowed to adduce evidence of having "previously reported a sexual assault against "Dwayne", in which he was convicted", the defence argues that this is relevant to the complainant's credibility because she told the police that she does not "normally claim sexual assault". The defence argues that this "discloses a live issue of the credibility of the complainant regarding her truthfulness about her sexual relationships".

[71] I do not agree with the defence submission. This is one instance. I do not think that it can be characterized as portraying the complainant as "normally" reporting sexual assault. Moreover, if anything, it provides proof that the complainant is a credible reporter of sexual assault. Contrary to what the defence maintained, this evidence would enhance her credibility.

Section 276(2)(b) – Relevant to an issue at trial

[72] The defence argues that since the complainant and Mr. Provo had an arrangement that she would give him sex, including sexual intercourse, in exchange for crack cocaine and or money, their prior sexual history is relevant to whether the complainant consented to the sexual intercourse in question.

[73] It is important here to consider the allegation against Mr. Provo. The allegation is that Mr. Provo persisted in having sexual intercourse with the complainant while it was hurting her and in spite of her telling him to stop. Sexual intercourse that involved pain to the complainant was not a part of their prior sexual relationship. I find that the sexual activity alleged in the charge is different from all of the other episodes of sexual intercourse between Mr. Provo and the complainant. Therefore, to this extent, I find that their prior sexual history is not relevant to whether she consented to painful sexual intercourse.

Section 276(2)(c) – Has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice

[74] In R. v. Darrach[19], the court 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".

[75] As a result of my finding that the alleged sexual activity in the charge against Mr. Provo is different from their regular activities of sexual intercourse, I find that aside from the exception mentioned above, evidence of their prior activities of sexual intercourse does not have significant probative value.

[76] As stated above[20], the exception is that the defence may adduce evidence of the complainant's prior arrangement with Mr. Provo to exchange sex, including sexual intercourse, for money or for crack cocaine.

[77] This is relevant and necessary in order to provide the context of their relationship and to explain why they were together on the night in question. I find that it has "significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice". But beyond this, the defence shall not adduce evidence or cross-examine the complainant regarding her and Mr. Provo's prior sexual encounters.

[78] In making these determinations I considered the factors set out in section 276(3) of the Criminal Code that I must take into account in deciding if the evidence is admissible under section 276(2).

[79] These factors are the following: