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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

ONTARIO COURT OF JUSTICE

DATE: 2019-12-20

COURT FILE NO.: Brampton 3111 998 17 12930

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

J.W.

Before: Justice G.P. Renwick

Heard on: 20 December 2019

Reasons for Judgment released on: 20 December 2019

Counsel

K. Slate — counsel for the Crown

M. LeBlanc — counsel for the defendant J.W.

A. Chaisson — counsel for the complainant L.D.

RULING ON VOIR DIRE TO ADMIT OTHER SEXUAL ACTIVITY EVIDENCE

RENWICK J.:

INTRODUCTION

[1] The Defendant seeks to introduce evidence of non-consensual prior sexual activity with the complainant, his aunt. The Defendant claims that the complainant had sexually assaulted him over a two to three-year period when he was a youth and he requires the introduction of this history to explain the nature of his relationship with his aunt, his behaviour during the alleged incident, and his mental state at the time of the alleged sexual assault.

[2] The Defendant has brought an Application in writing and he has testified during the voir dire respecting the limited use he wishes to make of other sexual activity ("OSA") evidence:

• to provide context to the nature of the relationship between the parties;
• to explain his narrative of what precipitated the alleged sexual assault; and
• to assist in assessing his credibility.

[3] As with admissibility questions in general, the specific purposes advanced for the introduction of evidence, and any applicable countervailing considerations, must govern the analysis.

[4] The Criminal Code includes a rigorous regime to introduce OSA evidence in ss. 276(2) and (3). In order to pass the scrutiny of s. 276, the proposed evidence must be of specific instances of sexual activity, it must not relate to the twin-myths referenced in s. 276(1), it must be relevant to an issue at trial, and the probative value of prospective OSA evidence must substantially outweigh any prejudice caused by its admission. Prejudice in this context relates to the heightened privacy interests of complainants of sexual assault and the danger that OSA evidence will infect the trial with tainted, outdated, myth-based reasoning, or otherwise distort the court's fact-finding function.

DISCUSSION

[5] In considering the issues involved, I can do no better in stating the law in this area than to quote Justice Doherty in R. v. L.S., 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)).

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

[7] Relevance is also important because, as Justice Doherty notes, this is not a special rule of evidence. All potential evidence must be considered with regard to the specific issues under examination in any criminal trial. This is known as materiality.

[8] 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.

[9] 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 at trial. The particulars are the bricks that pave the path of relevance.

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

[11] In the Application before me, the particularization of the OSA is found at paragraphs 5 and 8 of the Defendant's affidavit and his viva voce evidence heard during this hearing. Paragraphs 5 and 8 of the Defendant's Application read:

My Aunt [L.D.] molested me on numerous occasions, beginning in the summer of 2014 when I was only 16 years old. She molested me multiple times, approximately 12, over the course of the following two and a half years. The last time I was molested by my Aunt [L.] was in January of 2017 when I was 18 years old.

The molestation consisted of my Aunt [L.] grabbing me around my waist. She would put her hands under my pants and underwear and grope my buttocks and genital areas. The molestation never went beyond her touching me with her hands but it was something that I did not want to happen and it made me very uncomfortable.

[12] There are no particulars respecting times, dates, durations, locations within the home, and no individual or specific descriptions of the allegedly repeated, non-consensual sexual activity.

[13] I have heard the viva voce evidence of the Defendant during this hearing. I am satisfied that the OSA evidence is sufficiently particularized for the following reasons:

i. The Defendant was a young person during the alleged timeframe. It is somewhat artificial and unrealistic to expect great particularity and precision in allegations of this nature, from a witness about events said to have occurred when they were a child;

ii. Neither counsel for the complainant nor the prosecutor sought further particulars from the Defendant while he was cross-examined;

iii. There is sufficient particularity to the time period, the location, the parties involved, and the nature of the sexual activity alleged to put the complainant on notice of the cross-examination she may undergo, if the Application succeeds;

iv. The Application contains sufficient details to perform the necessary qualitative assessment of the value of the OSA evidence to determine its relevance, cogency, materiality, and prejudice respecting the issues involved in this trial; and

v. In their written materials, the prosecutor and complainant Respondents have conceded that the Application contains sufficient particularity to move to the next step of the analysis.

Potential Relevance

[14] There is no suggestion in the Application that the complainant was a willing participant to having her hair pulled by the Defendant. The issue is whether this apparently non-consensual touching amounted to a sexual assault on the basis of the Defendant's actions in the boiler room and the kitchen.

[15] From the outset, it is obvious that the first twin-myth – that the complainant is more likely to have consented to the sexual touching on the basis of history – is not engaged in this case.

[16] The complainant Respondent suggests that the second twin-myth is engaged at para. 19 of its factum:

Respectfully, absent an explanation how the evidence sought is relevant to the case at bar, there is a real danger that the evidence sought will suggest the Complainant is less worth of belief because she is a child sexual assaulter. This is the second of the prohibited "Twin Myths" which Parliament has specifically prohibited through s. 276.

[17] With respect, I disagree that the second twin-myth is necessarily engaged, for two distinct reasons.

[18] First, there is an articulation of relevance that goes beyond its utility to assess the complainant's credibility. The proposed evidence is said to advance an understanding of the prior history between the parties to put into context the Defendant's behaviour and intent. If accepted, this makes the OSA evidence relevant (subject to the balancing of probity versus prejudice) without relying on prohibited reasoning.

[19] Second, the prohibition against adducing evidence which raises the second twin-myth – that the complainant is less worthy of belief on the basis of her prior sexual history – is aimed at protecting complainants from cross-examinations which suggest that chastity determines credibility.

[20] As I understand the prohibition, it is not a blanket prohibition that would include prior non-consensual sexual activity that was allegedly perpetrated by the complainant. Bad character evidence has always been relevant and admissible to discredit prosecution witnesses. And while OSA is never, in and of itself, evidence of bad character, the fact that the complainant may have molested the Defendant as a child on multiple occasions before the alleged sexual assault at bar may well serve to undermine her credibility if the Defendant's evidence about their history is believed. This interpretation of a reasonable limit to s. 276(1)(b) seems consonant with the interests of justice which do not align with protecting perpetrators of sexual assault at the expense of complainants.

[21] Relevance must be carefully delineated, according to our highest court:

…Arguments for relevance must be scrutinized to ensure "context" is not simply a disguised myth;

…it is critical that the relevance of the sexual nature of the relationship to an issue at trial be identified with precision; and

…General arguments that the sexual nature of a relationship is relevant to context, narrative or credibility will not suffice to bring the evidence within the purview of s. 276(2).

[22] Here, the Defendant admits that his behaviour – fondling himself and exposing his genitals to his aunt in the boiler room – is unusual and potentially menacing conduct, but for an understanding of his alleged, historic sexual abuse by the complainant.

[23] The Defendant testified that he does not think it is normal to have sex with family members, he has not done anything like this with other family members, and he has no interest in a sexual relationship with his aunt, "not at all." I accept this evidence, for the purposes of this Application, as truthful. It was not challenged in cross-examination or rebutted by any other evidence.

[24] I agree with the submission that standing alone, the Defendant's unusual behaviour in the boiler room is difficult to understand. Counsel for the Defendant submits that the OSA evidence partly explains this behaviour as a mechanism to open a dialogue with the complainant and to understand the Defendant's use of the phrase, "give me lip."

[25] Counsel for the complainant Respondent submits that the Defendant can testify about his anger with his aunt, and his attempt to open a dialogue without introducing the OSA evidence.

[26] This is unrealistic. The behaviour alleged, asking his aunt to accompany him to the basement, fondling and exposing his erect penis, and using the phrase, "give me lip" is so unusual, it is highly unlikely that a trier of fact could find that this was not intended to sexually proposition or threaten the complainant, without an explanation for why the Defendant used this approach.

[27] I am satisfied that there is a real risk that the Defendant's evidence will be misunderstood or outright rejected without the introduction of the OSA evidence in this case. I am also satisfied that the OSA evidence is capable of supporting the Defendant's proposed defence, without forming any opinion about the likelihood of success of this defence.

Probity Versus Prejudice

[28] Other sexual activity evidence obviously involves different considerations in different contexts, some of which may tend to have more probative value than others, depending on the defence to be advanced. Evidence of OSA that occurred between the complainant and the Defendant may undermine a potential defence or explain the complainant's reaction to the alleged sexual activity at bar. For instance, if a complainant were to allege that the charge before the court was only one example of a pattern of sexual abuse, that evidence may well have significant probative value to undermine a defence of honest but mistaken belief in consent.

[29] Courts are expected to discern the potential probative value of OSA that arises between the parties as well as the probative value of OSA involving other partners of the complainant, in the context of a given trial. Moreover, courts must deal with an evaluation of probative value when the OSA involves consensual sexual activity as well as non-consensual sexual activity. Equally true, the balancing exercise is required for alleged non-consensual sexual activity perpetrated by the complainant.

[30] In my gatekeeper role, I must determine whether 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.

[31] I assess the OSA evidence in this case as significantly probative of the relationship between the parties and the Defendant's mindset during the alleged sexual assault of the complainant. This includes the value of this evidence in assessing the Defendant's credibility as a witness. If the OSA is prohibited from introduction in this trial, there is a significant risk that the Defendant cannot properly advance his defence, by obscuring his alleged motive, which may have an adverse effect upon my consideration of his credibility when explaining his confrontation of the complainant.

[32] The complainant's dignity and privacy interests are obviously engaged by the proposed introduction of the alleged OSA.

[33] The nature of the assessment I must perform:

…appears to require a more nuanced or qualitative assessment of the competing interests. These interests are incommensurables. Probative value has to do with the capacity of the evidence to establish the fact of which it is offered in proof. Prejudicial effect relates to trial fairness.

[34] I conclude that asking a complainant about alleged non-consensual sexual activity that does not involve the (re)victimization of the complainant is less prejudicial to her privacy interests than asking her about prior consensual sexual activity or prior non-consensual activity where she was victimized. I say this for several reasons:

i. all witnesses must be aware that they can be cross-examined about their character, including prior criminal record, and alleged bad acts;

ii. prohibitions on OSA evidence seek to protect complainants' dignity and privacy to encourage the reporting of sexual crimes by victims;

iii. a non-accused witness has a lowered expectation of privacy as a witness testifying in a criminal trial than they ordinarily expect in public life; and

iv. a witness who has allegedly committed criminal acts cannot expect the same degree of protection of their privacy concerning the alleged criminality as an otherwise blameless witness.

[35] In this case, given the slightly reduced expectation of privacy of the complainant and the heightened probity of the proposed OSA evidence, I am satisfied that the benefit of admitting the evidence is not substantially outweighed by its cost in terms of prejudice to the administration of justice, the privacy rights of this complainant, the goal of encouraging sexual assault complainants to report crimes, the invocation of mythic, stereotypical, or otherwise inappropriate reasoning, or the confusion of issues in this trial.

CONCLUSION

[36] I am granting the Defendant's Application to permit the cross-examination of L.D. on instances of other sexual activity between her and the Defendant between the years of 2014-2017. As well, the Defendant is permitted to testify, if he chooses to, during his trial, about the alleged sexual abuse he claims to have suffered at the hands of his aunt, the complainant, during this same time period.

Released: 20 December 2019

Justice G. Paul Renwick

Footnotes

[1] R. v. L.S., 2017 ONCA 685, [2017] O.J. No. 4586 (C.A).

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

[3] L.S., supra, at paras. 45, 46, 65, 74, 86, and 89.

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

[5] R. v. Goldfinch, 2019 SCC 38, [2019] S.C.J. No. 38 at para. 56.

[6] Goldfinch, supra, at para. 57.

[7] Goldfinch, supra, at para. 65.

[8] R. v. M.T., 2012 ONCA 511, [2012] O.J. No. 3418 (C.A.) at para. 43.