WARNING

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

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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.

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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.

129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(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

Ontario Court of Justice

Date: 2018-03-26

Court File No.: Brampton 3111 998 17 264

Between:

Her Majesty the Queen

— and —

K.G. and I.J.

Before: Justice G.P. Renwick

Heard on: 26 March 2018

Reasons for Judgment released on: 26 March 2018

Counsel

A. MacArthur — counsel for the Crown

T. Ounapuu — counsel for the defendant K.G.

D. Tutunijian — counsel for the defendant I.J.

RENWICK J.:

INTRODUCTION

[1] Both youth Applicants are charged with having committed a sexual assault upon another youth, N. The Applicants jointly seek to adduce other sexual activity ("OSA") evidence of the complainant, pursuant to s. 276(2) of the Criminal Code, R.S.C. 1985, c. C-46 ("Code"). The Applicants have made a written application seeking a hearing under s. 276.2.

[2] The prosecutor Respondent seeks a summary dismissal of the application for a failure to comply with the requirements of s. 276(2)(b), which mandates that the OSA evidence must be relevant to an issue at trial. Specifically, the Respondent asserts that the Applicants have not complied with the requirements of s. 276(2) by setting out:

(a) detailed particulars of the evidence that the accused seeks to adduce, and

(b) the relevance of that evidence to an issue at trial.

According to the Respondent, on the basis of the materials filed, the court is not in a position to determine that the evidence sought to be adduced is capable of being admissible under s. 276(2), and thus, the Application for a hearing must fail.

[3] The Applicants have jointly filed, within the appropriate time period, a written notice of application which includes a factum, authorities, and an affidavit of each Applicant.

[4] In respect of the particulars of the application they are found in the Applicants' Notice of Application at paragraph 1:

Evidence that within several months prior to the day of the alleged offence, the complainant engaged in numerous separate and consensual acts of intercourse with both Applicants.

The only other particulars are found in the Applicants' factum and their affidavits. The relevant portions are produced below.

[5] The Applicants' factum at paragraphs 2, 5, 6, and 7, read:

In order for the Applicants to make full answer and defence at their trial, they require the opportunity to address evidence of numerous prior incidents of non-sexual and sexual interactions with the complainant; and, makes [sic] application pursuant to Section 276.1 and 276.2 of The Criminal Code in this regard.

The evidence sought to be adduced is capable of admission under the exception to the rule that details of other sexual activity of the complainant cannot be used as evidence in a matter such as the case at bar.

The evidence has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

The evidence is of a specific nature of numerous interactions.

[6] Paragraphs 15, 16, and 18 of the affidavits of the Applicants are almost identical. They read:

THAT it was routine for us to engage in sexual acts, on consent, as part of this routine of attending her residence;

THAT I engaged in sexual acts with N at least __ times;

THAT I understood being invited to the residence, through [my co-defendant's] snapchat or mine, to mean that we would attend the residence, watch television, eat snacks, (some would) smoke marijuana, and have sex.

[7] Paragraph 4 of the Applicants' factum details the areas of purported relevance of the OSA evidence:

(a) It will be submitted on behalf of the Applicants that the evidence in question is relevant to the Applicants' honest mistaken belief in consent.

(b) It will be further submitted on behalf of the Applicants that the evidence in question is relevant and will be proffered for both its non-sexual and sexual features such as to show a pattern of conduct.

[8] During oral submissions, counsel for the Applicants did little to expand upon the written application. There were no particulars given and the statement of relevance was re-stated on behalf of K.G. as necessary to make full answer and defence, and for I.J., "based on what has happened before," "…there is a plan in place," "…the environment is set" [for what eventually took place].

DISCUSSION

[9] I have carefully considered the written materials and the oral submissions made on the issue of the preliminary determination, that is to say, whether or not the application fails to meet the requirements of s. 276.1(2) of the Code. For the reasons below, the application fails.

[10] I can do no better in terms of stating the law in this area than to quote Justice Doherty in R. v. L.S., 2017 ONCA 685, at paras. 44-46:

Evidence that a complainant engaged in sexual activity with the accused or anyone else, other than the sexual activity alleged in the charge (other sexual activity), is subject to the special evidentiary regime set out in the Criminal Code. Section 276(1) declares inadmissible evidence of other sexual activity offered to support either the inference that the complainant is more likely to have consented by reason of the sexual nature of the other activity, or the inference that the complainant is less worthy of belief by virtue of the sexual nature of the other activity.

Section 276(1) does not create a new rule of evidence. Rather, it is an expression of the fundamental rule that to be admissible, evidence must be relevant to a fact in issue. Section 276 identifies two illegitimate inferences from a complainant's sexual activity that have historically infected the criminal trial process. The section declares that neither inference provides a road to admissibility of evidence of other sexual activity: see R. v. Darrach, 2000 SCC 46, at paras. 32-34.

Section 276(2) provides that evidence of other sexual activity is inadmissible at the instance of the accused, regardless of the purpose for which it is tendered, unless the accused meets the three criteria set down in s. 276(2). The evidence of other sexual activity must be:

• evidence of specific instances of sexual activity (s. 276(2)(a));

• relevant to an issue at trial (s. 276(2)(b)); and

• have "significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice" (s. 276(2)(c)).

[11] In that case, the court reiterates the statutory pre-condition for the application to contain particulars of the OSA no less than 10 times.

[12] Relevance is also important because, as Justice Doherty notes, this is not a special rule of evidence. All evidence must be applied to the specific issues under examination in any criminal trial: see L.S., supra, at paras. 45, 46, 65, 74, 86, and 89. This is known as materiality.

[13] In L.S., the court defined what s. 276 requires in terms of relevance:

Evidence does not have to establish or refute a fact in issue to be relevant; it need only, as a matter of common sense and human experience, have some tendency to make the existence or non-existence of that material fact more or less likely. There is a big difference between evidence that is relevant and evidence that is determinative.

[14] As mentioned, the animating rationale of the statutory scheme governing the introduction of OSA evidence is the protection of the integrity of the trial process from outdated, myth-based reasoning which adds little to forensic fact-finding, distracts the trier, and exacts too dear a price in dignity and privacy from complainant witnesses. The mechanism to avoid these abuses is the requirement of a written, evidence-based application which includes a clear articulation of the particulars of the OSA evidence and its apparent relevance to the issues in a given trial. The particulars are the bricks that pave the path of relevance.

[15] In the application before me, beyond the bald mention of "acts of intercourse," "sexual acts," and "sex," there are no particulars: that is to say, no times, no dates, and no descriptions of alleged consensual sexual activity. There is no description of the prior relationship as between the parties to enable the court to find that the Applicants have complied with their statutory duty to file a proper application.

[16] Moreover, there is barely an articulation of relevance in this application. How does the OSA evidence factor into the Applicants' state of mind at the time of the alleged assaults and their obligation to take reasonable steps to ascertain they had consent, as required by s. 273.2(b) of the Code? Mysterious innuendo does little to attract the desired outcome of this application.

[17] In terms of a "pattern of conduct" I am equally confused. There is no predictive value to assessing consent through an historical lens. Obtaining consent is not like playing a game of chance, where a particular outcome becomes more likely with repetition or multiple attempts. Each successive sexual act requires a new license of consent. Again, without stating the potential relevance of the proposed evidence in any meaningful way, an alleged pattern of conduct is insignificant.

[18] I am also left to guess at how the OSA sought to be adduced has "significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice" as required by s. 276(2)(c) of the Code.

[19] At paragraphs 65 and 67, L.S. makes clear:

A finding of relevance and a balancing of probative value against prejudicial effect, both of which are prerequisites to admissibility under s. 276(2), can only be properly done if the nature of the proposed evidence is clearly articulated;

and

Section 276.1(2)(a) requires that the application for an evidentiary hearing provide "detailed particulars of the evidence that the accused seeks to adduce". Absent compliance with that provision, the judge cannot order an evidentiary hearing under s. 276.2.

The entire statutory scheme is predicated upon filtering out unwarranted conjecture by demanding applicants to state the anticipated connection between OSA and the issues that will drive the particular fact-finding analysis at bar.

[20] If, for instance, there were evidence that aggressive resistance and physical domination were part of a consensual sexual role-play that existed historically between the parties, then, there might be the connective tissue of relevance between the OSA and the honest but mistaken belief "defence." Were there other instances of alleged consensual sexual activity that involved forced intercourse of the complainant by one defendant and unwanted sexual groping by the other? Given a dearth of evidence and directed submissions, I am left to wonder what it is about the OSA evidence that relates to the proposed honest but mistaken belief that consent had been obtained.

CONCLUSION

[21] I agree with the Respondent. This application is incomplete such that I am unable to make the requisite determination under s. 276.1(4)(c) that the OSA evidence sought to be adduced is capable of being admissible.

[22] As a result of the lack of detail in the inventory of OSA evidence and the route to its relevance in this trial, the application for a hearing under s. 276.2 of the Code is dismissed.

Released: 26 March 2018

Justice G. Paul Renwick

Footnotes

[1] These charges were dismissed on 10 September 2018.

[2] The only differences were the number of times of prior alleged sexual activity, "six" times for I.J. and "eight" times for K.G., and the latter's affidavit included the words "some would" before "smoke marijuana."

[3] L.S., supra, at paras. 48, 54, 65-67, 71, 72, 74, 82, and 83.

[4] L.S., supra, at para. 89.

[5] L.S., supra, at para. 74.