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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 victim of the right to make an application for the order; and

(b) on application made by the victim, 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.

This hearing is governed by section 278.95 of the Criminal Code:

Publication prohibited

278.95 (1) A person shall not publish in any document, or broadcast or transmit in any way, any of the following:

(a) the contents of an application made under subsection 278.93;

(b) any evidence taken, the information given and the representations made at an application under section 278.93 or at a hearing under section 278.94;

(c) the decision of a judge or justice under subsection 278.93(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 subsection 278.94(4), 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.

☒ An order has been made allowing these reasons to be published, broadcast or transmitted.

Court Information

Date: November 28, 2019

Ontario Court of Justice

R. v. J.M.

Counsel:

• E. Guimond, counsel for the prosecutor
• L. Scardicchio and E. Balapoulos, counsel for the Defendant/Applicant

ENDORSEMENT ON s. 276 APPLICATION – Stage One

INTRODUCTION

[1] The Applicant is seeking to ask the complainant questions about an incident when she was at school around the time of March 2017. Apparently, there were rumours going around the school that the complainant's cousin had tied her up with chains and raped her. [1]

[2] In the written Application, the Applicant seeks to:

…adduce evidence at the applicant's trial that the complainant has made allegations of criminal sexual offences against a W.M., a youth, in their elementary school…in March 2017, wherein the allegations were investigated by the school administration and admitted by the complainant to be fabricated.

[3] In oral submissions, counsel for the Defendant Applicant suggests that questions could be asked of a general nature of the complainant about her role in the rumours, which would not invoke s. 276.

[4] The Respondent disagrees. Section 276 has been amended to include s. 276(4), which reads:

For the purpose of this section, "sexual activity" includes any communications made for a sexual purpose or whose content is of a sexual nature.

[5] It is the Respondent's position that neither questions about the rumours that the complainant was raped or general questions about that incident could be asked unless the Applicant complies with the statutory regime to adduce other sexual activity ("OSA") evidence.

[6] No evidence was led on the stage one Application, however, it appears that all parties were content to rely upon the viva voce evidence of the complainant's aunt, who testified before me on the third-party records Application, earlier today.

THRESHOLD QUESTION

[7] During the submissions, I asked counsel what types of questions would be asked of the complainant if the Application were successful. Counsel candidly admitted that consideration had yet to be given to this. Counsel submitted that the questions would be about the complainant's involvement in the rumours.

[8] I agree with the Respondent that the rumours and the complainant's potential involvement in that incident are inextricably linked to the point where it is untenable to suggest that she could be cross-examined about the rumours without the application of s. 276. Asking about the "rumours" incident would be inviting the complainant to explain her understanding of the genesis of the rumours. As the rumours involve communications about a sexual assault upon the complainant, it is artificial to suggest that the complainant could be asked about her role in the incident without invoking the OSA regime.

[9] At the very least, counsel for the Applicant did not articulate questions that could be asked of the complainant that would not trigger s. 276 concerns.

ANALYSIS

[10] The Respondent takes no issue that the Application was in writing. Moreover, it would seem that the proposed cross-examination would be limited to a particular incident of communications of a sexual nature (the alleged "rape" of the complainant by her cousin). What remains under s. 278.93(4) is to determine whether it is in the interests of justice and the evidence sought to be adduced is capable of being admissible under subsection 276(2).

[11] Counsel has suggested that the rumours incident may reveal that the complainant has a propensity to fabricate stories of a sexual nature, and/or to implicate her family members in specious allegations.

[12] By virtue of the reference to the prohibited inferences found in s. 276(1), s. 276(2) specifically prohibits evidence that would support an inference that the complainant is less worthy of belief because of the OSA evidence. Counsel for the Applicant did not articulate the route to admissibility beyond the suggestion that the proposed cross-examination may demonstrate a propensity on the complainant's part toward fabricating stories of a sexual nature. It is difficult to imagine that the OSA evidence sought to be adduced (the cross-examination of the complainant about her involvement in rumours that she was raped) is being led for any purpose besides the suggestion that she is less worthy of belief as a result of her involvement in this past incident.

[13] However, in the event that I am incorrect on my analysis under s. 276(2)(a), I am prepared to consider the requirements of the other subsections. The complainant's credibility and reliability are an issue. If it could be demonstrated that the complainant had falsely accused her cousin of "rape" in the past, and she went to some lengths to promote the rumours, the evidence could be admissible to undermine the complainant's credibility.

[14] There appears to be no issue that the evidence sought to be adduced concerns a specific incident of "sexual activity" as that phrase is now understood.

[15] Section 276(2)(d) also requires that the evidence should have significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

[16] I find that the evidence sought to be adduced is not significantly probative not to be substantially outweighed by the danger of prejudice to the proper administration of justice in this case. There are several reasons for this finding:

i. The fact that the complainant may have had a role in school yard rumours is only slightly probative of her general capacity for truthfulness; it does little to help the trier of fact assess her credibility at trial, because it is completely one thing to be engaged in rumours of a sexual nature and another to provide information that legally implicates someone of sexual assault; moreover, from what is known at this point, when confronted about the rumours the complainant admitted it was a "joke;"

ii. The rumour incident could engage the collateral fact rule; for instance, if the complainant disputes any involvement in the incident, the Defendant would be hard-pressed to rebut that evidence with positive evidence because it is a collateral fact; and

iii. The evidence of the rumour incident is second-hand and incomplete; there is little known with any certainty what role if any the complainant had in that incident; there is a significant prejudice that this incident will eclipse the allegations at bar by distracting the litigants, the witness, and the court where the probative value is only likely to be slight; I count in this assessment the prejudice to the complainant's privacy interests and dignity to undergo cross-examination on matters of a sexual nature based on second-hand information and conjecture; obviously this factor would prevail to the opposite conclusion if the evidence established that the complainant had made an allegation of sexual assault to the police that she had later recanted as untrue.

CONCLUSION

[17] In all of the circumstances, I am not satisfied that the Applicant has demonstrated to the modest standard required (capability of admissibility) that the evidence could have significant probative value which is not substantially outweighed by its prejudicial effect.

[18] In the result, the Application to adduce evidence of the rumour incident or any prior communications of a sexual nature during the cross-examination of the complainant is dismissed.

Justice G. Paul Renwick

Footnote

[1] As I indicated at the start of the Application, nothing in my endorsement relating to the third-party records Application should be misconstrued to suggest that I had already determined the merits of this Application. If the wording of my endorsement suggests otherwise, it is regrettable and unfortunate.