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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

The order which has been made does not relate to Caitlin Coleman, who is a complainant. It relates to another complainant.

Court Information

Ontario Court of Justice

Date: 2019-07-12

Court File No.: Ottawa 18-RD 19579

Between:

Her Majesty the Queen

— AND —

Joshua Ainslie Boyle

Before: Justice P.K. Doody

Barton voir dire heard on: July 3, 2019

Reasons for Decision released on: July 12, 2019

Counsel:

• Meaghan Cunningham — counsel for the Crown
• Lawrence Greenspon, Eric Granger, & Ninetta Caparelli — counsel for the accused
• Ian Carter — counsel for the complainant

Decision

DOODY J.:

Background

[1] This is my decision following a voir dire to determine the admissibility of one exhibit and 6 portions of the evidence of the complainant led by the Crown. This evidence involves sexual activity of the complainant and the defendant other than the sexual activity which is the basis of some of the charges. No objection was taken to this evidence when it was led. Since then, the Supreme Court of Canada released its decisions in R. v. Barton, 2019 SCC 33, and R. v. Goldfinch, 2019 SCC 38. Those decisions make clear that before any evidence of prior sexual activity is led by the Crown, there must be a voir dire to determine whether it is admissible, considering the principles set out in R. v. Seaboyer, [1991] 2 S.C.R. 577, and s. 276(1) of the Criminal Code. (Barton, para. 80; Goldfinch, para. 75)

[2] As a result, I decided that a voir dire should be held to determine whether I should take the evidence in issue into consideration when the trial concludes. I advised the parties that if I concluded that it was not admissible, I would disabuse myself of that evidence.

[3] I granted leave to the complainant to appear by counsel and make submissions. I gave oral reasons for that decision on July 2, 2019.

[4] Crown counsel and defence counsel were in agreement that the evidence in question should be admitted. Counsel for the complainant restricted his submissions to the issue of prejudice to the complainant's privacy rights. He did not oppose the admission of the exhibit and the evidence related to it, because, as he put it, his client had decided to forego any privacy interest in the exhibit when she provided it to the police.

[5] At the conclusion of submissions on the voir dire I told the parties that the evidence in issue would be admitted. I promised reasons as soon as possible. These are those reasons.

The Law – The Principles to Apply

[6] The principles established in Seaboyer are not all applicable to Crown-led evidence. The specific examples of admissible evidence set out in para. 101 of that decision are, as the context required, examples of evidence which may assist the defence. But the principles established in subparagraphs 1 and 2 of para. 101 are applicable. McLachlan J. wrote for the majority of the Court:

1. On a trial for a sexual offence, evidence that the complainant has engaged in consensual sexual conduct on other occasions (including past sexual conduct with the accused) is not admissible solely to support the inference that the complainant is by reason of such conduct:

(a) more likely to have consented to the sexual conduct at issue in the trial;

(b) less worthy of belief as a witness.

2. Evidence of consensual sexual conduct on the part of the complainant may be admissible for purposes other than an inference relating to the consent or credibility of the complainant where it possesses probative value on an issue in the trial and where that probative value is not substantially outweighed by the danger of unfair prejudice flowing from the evidence.

[7] All evidence is subject to consideration of whether its probative value is exceeded by its potential for prejudice. McLachlin J. explicitly recognized this when she cited Professor McCormick's text on evidence at para. 40 of Seaboyer. As Professor McCormick wrote in that excerpt, relevance is not always enough to achieve admissibility. Evidence should be excluded if its potential prejudice exceeds its probative value.

[8] Prejudice includes the potential to unduly arouse emotions of prejudice, hostility or sympathy. That is less important in a judge alone trial than in a jury trial. Prejudice also includes the potential that the evidence may create a side issue that will unduly distract from the main issues, or that the evidence may consume an undue amount of trial time.

[9] As Seaboyer made clear, prejudice also includes prejudice to the complainant's right of personal dignity and privacy. Those principles underlay the Supreme Court's enunciation of the rule that evidence of prior sexual activity may be admissible for purposes other than one of the twin myths where the evidence has probative value and where that probative value is not substantially outweighed by the danger of unfair prejudice.

[10] As the Supreme Court of Canada held at para. 20 of R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, s. 276 effectively codifies the principles set out in Seaboyer.

[11] We have been directed by the majority of the Supreme Court of Canada at para. 80 of Barton and para. 75 of Goldfinch to pay heed to those principles when deciding whether to admit Crown-led evidence of prior sexual activity.

[12] Section 276(1) repeats the prohibition against admitting the evidence to support either of the twin myths: that a complainant is more likely to have either consented to the sexual activity forming the basis of the charges or more likely to lie about it if she had previously engaged in sexual activity, whether with the accused or someone else. These are archaic sexist concepts that have no place in our criminal justice system.

[13] The other principles to consider in a s. 276 application are set out in s. 276(3). That subsection reads:

(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] I must apply those principles, appropriately modified because I am considering Crown-led evidence, in determining whether to admit the evidence in issue.

[15] Counsel for the complainant submitted that the focus of my consideration on this application, to determine the admissibility of evidence led by the Crown, should be on the privacy rights of the complainant, not the fair trial rights of the defendant. I do not accept that submission.

[16] The Supreme Court has directed trial judges to apply the principles enunciated in Seaboyer. In my view, those principles, which have their basis in the residual discretion of a trial judge to decline to admit evidence when its probative value is exceeded by its potential for prejudice, and have been codified in s. 276, strike a balance among the public interest in having relevant evidence admitted and considered in criminal trials, the defendant's right to a fair trial and to make full answer and defence, and the complainant's rights and interests. I am required to consider all three when determining whether the evidence should be admitted.

[17] This was recognized by the Supreme Court of Canada in Darrach at para. 25 where Gonthier J. wrote:

In Seaboyer, the Court found that the principles of fundamental justice include the three purposes of s. 276 identified above: protecting the integrity of the trial by excluding evidence that is misleading, protecting the rights of the accused, as well as encouraging the reporting of sexual violence and protecting the "security and privacy of the witnesses" (p. 606). This was affirmed in Mills, [1999] 3 S.C.R. 668 at para. 72. The Court crafted its guidelines in Seaboyer in accordance with these principles …

[18] The only effective difference between the principles underlying s. 276 and those enunciated in Seaboyer are that the enunciation of the test set out in subparagraph 2 of para. 101 of Seaboyer does not use the word "significant" to modify "probative value". That word does appear in s. 276(2)(d), which directs the court to disallow evidence of other sexual activity unless it has "significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice."

[19] In the context of a defence application to admit evidence of prior sexual activity, the phrase "significant probative value" has been held to mean that the evidence must have more than "trifling relevance" and is capable, in the context of all of the evidence, of leaving the fact finder with a reasonable doubt. This serves to exclude evidence that, even though not used to support the two inferences forbidden by s. 276(1), would still endanger the "proper administration of justice". The requirement that the significant probative value is not "substantially" outweighed by the danger of prejudice to the proper administration of justice serves to protect the accused by raising the standard for the judge to exclude evidence once the accused has shown it to have significant probative value. (R. v. L.S., 2017 ONCA 685 at para. 89; R. v. Darrach, 2000 SCC 46 at paras. 39-41)

[20] This test is not directly applicable to evidence adduced by the Crown. Furthermore, s. 276(2)(d), with its use of the extra "significant", does not apply by its own terms to Crown-led evidence.

[21] In my view, the analysis should first consider whether the evidence led by the Crown has probative value. This is done by applying the normal test of relevance. To be relevant, evidence does not have to establish or refute a fact in issue. Evidence is relevant where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would be in the absence of the evidence. (R. v. White, 2011 SCC 433; R. v. L.S., 2017 ONCA 685 at para. 89)

[22] In making this determination, it is important to keep in mind the limitations on "human experience" and "common sense" in determining, among other things, the way in which sexual assault victims will act and react to the circumstances in which they find themselves. (R. v. Cepic, 2019 ONCA 541) Furthermore, evidence which is only relevant to one of the "twin myths" can never be admissible.

[23] Relevance must be determined on the basis of the wording of the charges and the evidence which has been heard to date. In making my determination of relevance, I am not making any determination of the credibility or reliability of the evidence I cite in determining the admissibility of the evidence in issue. That determination must await the end of the trial.

[24] The second stage of the analysis is to determine whether the probative value of the evidence sought to be adduced is not substantially outweighed by the danger of unfair prejudice flowing from the evidence. In making this determination, I propose to consider the factors set out in s. 276(3).

Analysis

[25] There are six portions of the complainant's evidence at issue, and one exhibit (Exhibit 12). Three of the portions of her testimony relate to the exhibit.

[26] I note at the outset that none of this evidence would be admissible to support either of the "twin myths". That is not the reason it was introduced by the Crown. Nor will I allow it to be used in that fashion.

[27] The complainant did not make submissions opposing any of the evidence in issue. The only evidence her counsel referred to in his submissions was Exhibit 12, discussed below. He advised the court that the complainant did not oppose its admission into evidence.

(a) Exhibit 12 – the "list" and related portions of the direct evidence of the complainant

[28] The complainant testified that this document was prepared by the defendant. It contains a list of rules for her to follow. One of the rules states "You must plan interesting sex minimum twice a week". The complainant testified at page 85, lines 9 to 13 of the transcript of her evidence of April 3, 2019 that the defendant told her "that he wanted things to be very, he wanted me to spend a lot of my time coming up with things to keep him interested in sexual relations with us."

[29] The list also stated "You must ask for chastising every time you think you have failed." It included a chart with rows delineating weeks, with a column for what the complainant's weight should be at the start of each week. One of the columns is headed "Spent". Under that column is written "/14". The final column is headed "Chastise".

[30] The complainant testified that "spent" meant "ejaculated". It was her evidence that if she did not bring the defendant to ejaculation 14 times during a week, she would be chastised. Chastisement was physical punishment. The complainant testified that this made her feel very frustrated and angry. This evidence is found at pages 87-88 of the transcript of April 3, 2019.

[31] This evidence is relevant to the assault with a weapon charge. The complainant testified that the defendant told her that she needed to be "chastised" because, despite trying, she had failed to bring him to ejaculation 14 times in the previous week. He told her that she could choose the object with which she would be spanked. She said she chose a broomstick.

[32] This evidence is found at page 87, line 20 to page 88, line 20 and page 99, line 12 to page 100, line 100 of the April 3 transcript.

[33] This evidence is not being introduced for one of the twin myths. It is relevant. It goes to the defendant's motive. It is relevant to an assessment of whether she was consenting to the assault with a broomstick. It is relevant to the charge of criminal harassment because it tends to show his dominance and control over her daily activities, and the consequences that would flow from her failure to satisfy his demands.

[34] While it does interfere with the complainant's right to privacy, that interference is justified by the interests of justice. Furthermore, the complainant provided the list to the police and does not oppose its introduction into evidence. The accused does not submit that this evidence prejudices his right to a fair trial or to make full answer and defence. In my view, it does not do so.

[35] The evidence of the list and related testimony of the complainant is admissible.

(b) Evidence from page 35 of April 3 transcript – "my expectation based on past times that were similar"

[36] The complainant testified about the alleged incident of November 27, 2017, the basis of counts 10, 11, and 12 (assault, sexual assault with a weapon – a rope, and unlawful confinement). She said:

He finished, and based on past times that were similar was that he would then untie me and we would be kind of done for the night and go to bed. But he didn't untie me, so I asked him to untie me. But he said that he couldn't trust me, so he wasn't going to untie me.

[37] I have already ruled, in my decision on the s. 276 application issued April 17, 2019, that the defendant would be permitted to adduce prior evidence of sexual acts involving ropes. This is evidence of that. The Crown, while not conceding relevance, did not oppose its admission. The complainant made no submissions as to its admissibility. In my view, it is relevant on the same basis I found it to be in my s. 276 ruling.

[38] The Crown submitted that it raised no prejudice to the complainant's interests. In making the determination of this issue, I take into account that the complainant volunteered this evidence. It was not directly sought by the Crown. It came in answer to the general question "Can you take us through in as much detail as you can remember what happened after you were tied and on the bed?"

[39] I conclude that, as I held in my s. 276 ruling, the interference with the complainant's personal dignity and right of privacy is significantly outweighed by the importance of the proposed evidence to the defendant's right to a fair trial and to make full answer and defence. I will consider this evidence when I make my decision.

(c) Evidence from pages 41-42 of April 3 transcript – BDSM equipment

[40] The complainant gave the following evidence in examination in chief:

Q. You mentioned that the ropes were kept in a bag with other things. What kind of a bag was this?

A. It was Josh's bag of BDSM equipment.

Q. Of BDSM equipment?

A. Yes.

Q. And had items from that bag been part of sexual activities between you and Josh in the past?

A. At times. Yes.

[41] Crown counsel submitted that this evidence was relevant to explain where the rope said to have been used during the Nov. 27 incident came from, and that it was close at hand. She submitted that it was relevant to the complainant's credibility and the reliability of her narrative. The complainant's counsel made no submissions on the admissibility of this evidence.

[42] I accept that it is relevant for these purposes. It is also relevant for the reasons I allowed evidence of prior sexual activity involving ropes. For the same reasons I set out in that decision, I accept that the interference with the complainant's personal dignity and right of privacy is significantly outweighed by the importance of the proposed evidence to the defendant's right to a fair trial and to make full answer and defence. I will consider this evidence when I make my decision.

(d) Evidence from page 43 of April 3 transcript – "something he had said many times"

[43] The complainant gave the following evidence in examination in chief about the incident alleged to have occurred in the apartment to which she and the complainant moved after staying in a hotel:

Q. Tell us what you remember about this incident and how it started?

A. We were in, we were in our bedroom in the apartment and I think this, it was night time. The children were already asleep. And Josh came up to me and told me, you know, I think that, to my memory I think I was, I think I was dressed, but I might not have been dressed, but either way he wasn't, like, taking my clothes off or anything. He told me, though to, he at least told me to, you know, get down on the floor on, on all fours so he wouldn't have to see my face because he, you know, said he couldn't stand to see my face. I don't know that that's, was his specific wording at this time, but that had been expressed to me at times. To, so I had to be, like, face down.

Q. Okay. And let's just try and break that down a little bit. What part of what you just said do you not know if he said …

A. I don't …

Q. On this particular occasion?

A. I don't know, and on this particular occasion if he said I don't want to see your face. It's something he had said many, many times, and I knew when he told me, you know, get, you know, get down on your hands and knees, like, I knew why.

[44] The evidence I have italicized is of prior sexual activity of the complainant. Crown counsel submits that this evidence is relevant to understanding why the complainant acted as she testified she did on this occasion, whether he had told her to get on her hands and knees or not. I agree that it is relevant for that purpose. It is also relevant to the issues I set out in my decision on the s. 276 application.

[45] This evidence does intrude on the dignity and privacy of the complainant. I note, however, that it does not describe specific details of the other times referred to by the complainant. For the reasons I set out in my decision on the s. 276 application, and because of its relevance to the specific charge before the court, I am satisfied that that prejudice is outweighed by its importance to a fair trial and to the truth seeking function of this trial.

Released: July 12, 2019

Signed: Justice P.K. Doody