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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: 2019-09-09

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: September 9, 2019

Reasons for Decision released on: September 9, 2019

Counsel:

• Meaghan Cunningham and Jason Neubaeur — counsel for the Crown
• Lawrence Greenspon and Eric Granger — counsel for the accused

Decision

DOODY J.:

Background and Issue

[1] On Friday September 6, 2019, in the second day of cross-examination, Crown counsel asked the defendant the following questions and the defendant gave the following answers:

Q. You testified that you made the decision in late 2013 that the marriage was over.

A. Yes. In the winter of 2013.

Q. And yet after that you continued to have children.

A. Yes.

Q. Which wouldn't be something that would put into effect your desire to divorce her, right?

A. I am sorry.

Q. Well it is inconsistent with your desire to divorce her.

A. Sex is a – we used to – sorry I am not trying to be non-responsive and correct me if the context is wrong we used to joke in prison that the first question we would be asked when we got out would be what did you learn in Afghanistan and we joked it would be that prison sex is drastically underrated. Umm, we still had a sex life while we were there.

Q. Why did you have more children in captivity.

A. I mean, there was a number of reasons and it differed for both of us. I could list a couple of the factors.

Q. Why did you want to have more children in captivity.

A. I always wanted to have a large family and we were engaging in sex and there is … pregnancy occurs. And I had I don't want to say I don't remember … I agreed that I would not divorce Caitlin while she was pregnant if she was pregnant when we got out and so then it became very important to her and I recognized that she saw it as a nine month extension – that she had another nine months before she could ...

[2] After this evidence was given, I raised the issue of why this evidence had not been the subject of an application by Crown counsel to lead evidence of sexual activity of the complainant on an occasion other than those which are the subject of the charges.

[3] Crown counsel submitted that he was not asking about sexual activity, but about the defendant's desire to have more children. As I said when the issue was raised, the questions asked by Crown counsel invited answers about sexual activity. I ordered that this evidence, and any further evidence about this subject, be dealt with in a voir dire on the following Monday, September 9.

The Applicable Law

[4] I have dealt with this issue before. On July 12, 2019, I released my ruling, reported at 2019 ONCJ 516, allowing into evidence one exhibit and 6 portions of the evidence of the complainant led by the Crown. That evidence involved sexual activity of the complainant and the defendant other than the sexual activity which is the basis of some of the charges. After that evidence was led, 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)

[5] As a result of the direction by the Supreme Court in Barton and Goldfinch, I decided then 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.

[6] I ruled in July that the evidence in issue in that application was admissible. In the course of my reasons, I wrote the following about the legal 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. McLachlin J. wrote for the majority of the Court:

7. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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 someone else. These are archaic sexist concepts that have no place in our criminal justice system.

9. 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, supra, [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 S.C.R. 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).

[7] My understanding of the law remains as I set it out in that decision.

[8] Paragraphs 96 and 97 of the decision of Moldaver J. in Goldfinch summarize my obligation on this issue, replacing his reference to the defence case with the Crown case and s. 276 with s. 276(1) and the principles set out in Seaboyer. While he was writing for himself and Rowe J., I do not discern any difference between him and the majority on this point. Furthermore, in light of the decisions in Barton and Goldfinch, it is clear that this applies equally to Crown-led evidence, with necessary modifications to reflect the difference in the party leading the evidence. He wrote:

96 Furthermore, the requirement that the evidence be "integral" to the accused's ability to make full answer and defence means that even if the evidence can be linked to specific facts or issues relating to the accused's defence, admission is not guaranteed. There may be cases in which the evidence, while relevant to specific facts or issues relating to the accused's defence, bears only marginally on it. In such cases, the trial judge may, in his or her discretion, exclude the evidence on the basis that countervailing considerations, such as the need to protect the privacy rights and dignity of the complainant, outweigh the tenuous connection the evidence has to the accused's ability to make full answer and defence.

[9] Crown counsel submitted that while evidence of other sexual activity led by the defence was presumptively inadmissible because of the provisions of s. 276(2), Crown-led evidence is not subject to such a presumption. I do not accept that submission.

[10] At subparagraph 4 of paragraph 101 of Seaboyer, McLachlin J. held:

Before evidence of consensual sexual conduct on the part of a victim is received, it must be established on a voir dire (which may be held in camera) by affidavit or the testimony of the accused or third parties, that the proposed use of the evidence of other sexual conduct is legitimate.

[11] This is one of the principles set out in Seaboyer which was held in Barton and Goldfinch to be applicable to Crown-led evidence.

[12] The Supreme Court returned to the issue in Darrach, where the defendant submitted that this requirement, codified in the Criminal Code provisions which had replaced what had been struck down in Seaboyer, were unconstitutional. Gonthier J., writing for the Court, explained why the presumptive inadmissibility of evidence of other sexual activity was part of the common law rules of evidence. He wrote at paras. 45 and 46:

45 Section 276 and the procedure it mandates are consistent with the law of evidence. Sections 276(1) and 276(2) are rules to determine relevance and admissibility. They were articulated in Seaboyer as common law rules and are now codified in the Criminal Code. Evidence of prior sexual activity is of limited admissibility: it is admissible for some purposes but not others. This is because it is of limited relevance. In particular, as the Court put it in Seaboyer, "[t]here is no logical or practical link between a woman's sexual reputation and whether she is a truthful witness" or whether she is more likely to have consented to an alleged assault (at p. 612).

46 It is a basic rule of evidence that the party seeking to introduce evidence must be prepared to satisfy the court that it is relevant and admissible. Lamer C.J. described the burden of proof on a voir dire to introduce evidence (in that case prior inconsistent statements) as being "on the balance of probabilities, the normal burden resting upon a party seeking to admit evidence" in R. v. B. (K.G.), [1993] 1 S.C.R. 740, at p. 800 (emphasis added). Prior sexual activity is, like hearsay, character evidence and similar fact evidence, restricted in its admissibility. If the defence seeks to adduce such evidence, it must establish that it supports at least some relevant inference. Parliament has specified criteria for admissibility in s. 276(2) to guide the discretion of trial judges in this area.

[13] Barton and Goldfinch have now clarified that this presumptive inadmissibility at common law applies to evidence elicited by the Crown.

Analysis

(a) Prior Evidence of the Ages of the Complainant's Children

[14] Crown counsel submitted that because the issue of the complainant having more children had already been admitted as part of the complainant's evidence without objection, it was appropriate that the issue be revisited in cross-examination.

[15] The evidence referred to was adduced during examination in chief of the complainant. She gave the following evidence on March 27:

Q. Okay. I understand that you conceived and gave birth to some of your children while in …

A. Yes.

Q. …captivity? Okay.

[16] This evidence should have been the subject of a voir dire. I note that it was very limited in scope. The question did not ask the complainant to explain why or how she became pregnant while in captivity. The voir dire might well have been very short and simple.

[17] Crown counsel asked me to rule on the admissibility of this evidence. She submitted that it was relevant to explain the ages of the children, to give context to the actions of the defendant alleged in the charges. It is alleged that in some of those incidents, the complainant's young children were present. In order to establish their ages, which is relevant to the context of the allegations, it was necessary to prove that they had been conceived and born in captivity.

[18] I have no difficulty in concluding that that evidence was properly admitted.

[19] It was relevant. One of the children alleged to have been involved in one of the incidents must have been conceived in captivity. The age of that child is relevant. And it was necessary to know their ages to explain some of the things that the defendant and the complainant are said to have done.

[20] The prejudicial effect, considering the matters set out in Seaboyer, as codified in s. 276(3), was slight. It is an invasion of the privacy of the complainant to prove by necessary implication of the dates of her children's birth that she had intercourse while being held captive. That would be obvious to anyone who knew the children's ages and the dates that the family was held captive. The interference with her privacy rights is minimal. It is not being introduced to support one of the "twin myths" and there is no possibility, in my view, that it could be used for that. Nor did it raise the possibility that creating a side issue – with the answering evidence it provokes – would unduly distract the court from the main issues, or make it likely that proof and counter proof would consume an undue amount of time, two of the potential prejudicial effects described by Professor McCormick in his text cited with approval by McLachlin J. in Seaboyer.

(b) The Evidence in Issue

[21] The admissibility of that evidence does not, contrary to the submissions of Crown counsel, make the evidence in issue, which I have quoted at the beginning of these reasons, more easily admitted. The Supreme Court has made it clear that a decision to admit some evidence of prior sexual activity does not automatically open the door to unlimited other evidence about that or related sexual activity. At paragraphs 139 to 145 of his reasons in Goldfinch, Moldaver J. illustrates the problems that such an approach has and the danger it creates of straying beyond the original ruling. For the reasons he explains, it is essential that the parameters of any such ruling be strictly established before the evidence is led and carefully followed. A door which has been cracked does not automatically swing open at the whim of counsel.

[22] Crown counsel submits that the evidence in issue can be divided into two parts. The first part, everything the defendant said before his evidence about Ms. Coleman's desire to get pregnant was responsive to the question and admissible, but the portion thereafter was non-responsive and inadmissible. In the portion Crown counsel submits is inadmissible, the defendant said:

I agreed that I would not divorce Caitlin while she was pregnant if she was pregnant when we got out and so then it became very important to her and I recognized that she saw it as a nine month extension – that she had another nine months before she could ...

[23] Crown counsel said the portion before that excerpt is admissible because it is relevant to his credibility and his state of mind generally in 2013 and thereafter. When asked how this evidence is relevant to his credibility, Ms. Cunningham submitted that it puts the Crown in a difficult position to forecast where the evidence would lead but if the defendant had already decided that the relationship was over it was unlikely he would want to have more children. She submitted that this may well give rise to submissions that his account of his desire to leave the marriage is not credible. She submitted that it was not credible that a man would want to have children with someone with whom he did not want to have a lifetime relationship.

[24] In my view, this is a submission that the defendant's evidence is relevant to his general credibility, rather than his credibility on one of the facts in issue with respect to an element of the offences with which he is charged.

[25] The submission has as its basis the proposition that a man would not want to have children with someone he did not want to spend the rest of his life with. That proposition, to be relevant, must apply to the circumstances of this case. The defendant and the complainant were captives, for five years, held in close confinement. They were not free to choose other partners. The proposition is to a great extent reliant on the assumption that people do not have sex with those they do not want to spend the rest of their lives with; that people who decide to divorce do not have sex; or that people do not have consensual sex with those of whom they are not enamoured. I am not satisfied that any of those assumptions are necessarily true in any circumstances, let alone in the circumstances in which the defendant and the complainant found themselves.

[26] Crown counsel submitted that while it may not be apparent now exactly how the evidence about the alleged contradiction between the defendant's evidence that he had decided to divorce Ms. Coleman and the fact that he had had children with the complainant thereafter is relevant, that relevance may become apparent at a later point. She submitted that at this stage, counsel was simply exploring the defendant's reasons to want to have children with this person he did not like.

[27] In my view, that does not meet the standard that must be established to have this evidence admitted. As Moldaver J. held at para. 99 of Goldfinch, it is imperative "everyone must get crystal clear – and remain crystal clear – about why the evidence is being admitted." (emphasis in original)

[28] In my view, the evidence at issue – both the part the Crown seeks to admit and the part the Crown submits is inadmissible – is of minimal, if any, probative value. The contradiction between the defendant's evidence that he had decided to get a divorce and his decision to engage in sexual activity knowing it could result in the complainant becoming pregnant is not obvious or compelling. It is tenuous.

[29] Consequently, the part of the evidence the Crown submits is inadmissible does not need to be treated differently in the admissibility analysis. In my view, however, all of the defendant's evidence was responsive to the questions put by Crown counsel in cross-examination. That is so even assuming that the last question – when Crown counsel asked "why did you want to have more children" with an emphasis on the word "you" indicated that he was asking about only the defendant's and not Ms. Coleman's reasons. The answer could be taken to be the defendant saying that he understood and was acting in accordance with Ms. Coleman's wishes.

[30] Even if that is not so, the answer was responsive when the entire context of the cross-examination is considered. The answer the defendant gave was multi-part. He said that they enjoyed sex, that they were engaging in sex and procreation occurs, that he always wanted to have a large family, and that Ms. Coleman wanted to get pregnant so as to put off a divorce after they were released. It is not possible or fair to attempt to excise a portion of the evidence.

[31] I now turn to the competing analysis of the prejudicial effect of the admission of this evidence. I accept that it is not being tendered to support one of the twin myths. As Karakatsanis J. noted for the majority of the Supreme Court at paragraph 68 of R.V., however, inquiries into any individual's sexual history are highly intrusive, and the length of the relevant time period and the degree of detail to be adduced impact the potential prejudice to the complainant. The evidence in issue covers a period of some 4 years. It involves what the evidence suggests is eager and continuous engagement by the complainant in sexual activity with the defendant over that period. As Karakatsanis J. wrote, "caution must be exercised where the proposed inquiry captures a broad range of sexual activity and is limited only by a specified timeframe."

[32] Furthermore, there is, in my view, a reasonable possibility of this issue extending the trial. This proof could well be met with counter proof. The defendant's evidence is that he and the complainant enjoyed sex in captivity. This may well spark a response from the complainant. That would lead this trial down a path that, in my view, would be of little value.

[33] In all of the circumstances, I conclude that this evidence is not admissible. I will disregard it.

(c) Examination-in-Chief Evidence of the Defendant About the Complainant's Wish to Become Pregnant

[34] During the course of submissions on this issue, I raised with counsel the fact that the defendant had testified in examination in chief, twice, that the complainant wanted to get pregnant so as to put off a divorce. No objection was made when the evidence was led. Crown counsel took the position that this evidence was in relation to sexual activity other than that alleged in the charges before the court, a s. 276 application should have been brought before it was admitted, and that it should be disregarded now unless a s. 276 application was brought. Defence counsel agreed with that position, and advised that if I ruled that the evidence in issue on this application was inadmissible, they would not be bringing a s. 276 application and would ask that that evidence be disregarded by me. Crown counsel agreed with this approach. As a result of my decision that the evidence in issue is not admissible, I will disregard this evidence.

Procedural Issues

[35] I would like to comment on the issue of how this matter arose, and how, in my view, it could have been more appropriately dealt with.

[36] The Supreme Court of Canada has made it clear that it is ultimately up to trial judges to ensure that evidence of sexual activity other than that which is the subject matter of the charges is not admitted unless it complies with s. 276 (for defence evidence) or the principles set out in Seaboyer (for Crown evidence). Karakatsanis J. wrote for 4 judges at para. 75 of Goldfinch that trial judges are the "ultimate evidentiary gatekeepers" to ensure that evidence which does not meet these criteria is not admissible. Moldaver J., writing for himself and Rowe J. in the same case at para. 97, noted:

when applying this regime, trial judges must take a careful, rigorous approach -- one that recognizes and protects against the risks that accompany sexual activity evidence. The statutory requirements set out in s. 276(2) are designed to ensure that any admissible sexual activity evidence is limited in scope and that its legitimate purpose is identified and weighed against countervailing considerations. A careful application of these requirements is essential to the integrity of the trial process.

[37] Karakatsanis J. also noted at para. 75 of that decision that proper management of evidence which falls within the scope of the s. 276 regime requires vigilance from all trial participants. That includes counsel. Counsel are duty bound, in my view, to assist the court to ensure that all evidence of other sexual activity of the complainant is appropriately scrutinized before it is admitted.

[38] Moldaver J. wrote at para. 143 that trial judges should determine the admissibility of Crown-led prior sexual activity evidence through a voir dire prior to trial. He made it clear that this was so whether the Crown-led evidence of prior sexual activity arose in the Crown case or during cross-examination of the defendant. He wrote at para. 145:

145 I would add that, as the AGO [Attorney-General of Ontario] points out, vetting sexual activity evidence advanced by either Crown or defence before trial will have the salutary effect of focusing all parties on the legitimate use of such evidence. This approach will also "establish the parameters of any sexual relationship evidence that the Crown seeks to adduce" and trigger defence counsel to bring a separate application under s. 276(2) if they wish to elicit evidence going beyond the scope of that proposed by the Crown (I.F., at para. 14).

[39] Karakatsanis J. wrote of this in R.V. as well. At paragraphs 79 to 82, she wrote:

79 Where, as in this case, the accused's s. 276 application relates to Crown-led evidence, it would be prudent to consider both the Crown's proposed use of the evidence and any challenges proposed by the accused at the same time. A view of how both sides intend to use the evidence would allow trial judges to more accurately assess the impact of admitting such evidence and appropriately tailor the ways in which it may be adduced. Further, the Crown's decision to adduce evidence, or even to call a particular witness, is a matter of prosecutorial discretion: Darrach, at para. 69. If the manner in which the evidence may be challenged is clear from the outset, the Crown can make an informed decision about whether the interests of justice are served by adducing the evidence in the first place.

How the Crown intended to adduce this evidence -- and whether discussion of her activity on September 2nd, well beyond the conception timeframe, was necessary -- should have been evaluated in advance and considered alongside R.V.'s s. 276 application.

[40] A s. 276 application is supposed to be brought as a pre-trial application. Considering the Crown-led evidence of other sexual activity at the same time as a s. 276 application would require a pre-trial application.

[41] In my view, this matter should have been raised as soon as Crown counsel decided that he wished to ask the defendant in cross-examination questions that would elicit evidence about other sexual activity of the complainant. Ideally, that would have happened before trial, for the reasons set out by Moldaver J. at para. 145 of Goldfinch and Karakatsanis J. at paragraphs 79 to 82 of R.V. In the event that the necessity to ask such questions became clear to Crown counsel after the trial began, the issue should be raised by the Crown and determined as soon as possible.

[42] It significantly assists the admissibility analysis to know exactly what the proposed evidence is and how it is relevant.

[43] The importance of a detailed analysis was made clear by the Supreme Court in its subsequent decision in R. v. R.V., 2019 SCC 41. At para. 73, Karakatsanis J. wrote for the majority:

73 First, where targeted cross-examination of the complainant is permitted, trial judges must strike a delicate balance between giving counsel sufficient latitude to conduct effective cross-examination and minimizing any negative impacts on the complainant and the trial process. Proposed questions should be canvassed in advance and may be re-assessed based on the answers received. In certain cases, it may even be appropriate to approve specific wording: see, e.g., Nkemka, at para. 18; R. v. Akumu, 2017 BCSC 533, at paras. 26-31 and 35-54.

[44] I see no reason why the same principles would not apply when the evidence in question is elicited by Crown cross-examination of the defendant rather than defence cross-examination of the complainant.

[45] These things cannot be done fairly and effectively without putting in writing the exact evidence proposed to be adduced and providing it to the opposing party and the court before submissions are made. The act of putting it in writing forces the party seeking its admission to focus their mind and enunciate these things exactly. That in turn focuses the attention of their opponent and the court on these issues. It also provides notice to the opposing party and the judge so they can consider them and approach the argument adequately prepared.

[46] For all these reasons, it is my view that when the Crown wishes to elicit evidence of other sexual activity of the complainant, by cross-examination of the defendant or otherwise, it should do so by way of a notice of application served before trial in accordance with the court's rules of procedure. If that cannot be done, counsel ought to serve a notice of application setting out the proposed evidence and its relevance to an issue at trial as soon as she or he decides to seek its admission.

Released: September 9, 2019

Signed: Justice P.K. Doody