WARNING

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

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.

Offence

278.95 (2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.

☒ An order has been made under s. 278.5(1) allowing these reasons to be published, broadcast or transmitted.

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Court Information

Ontario Court of Justice

Date: April 16, 2020

Court File No.: Ottawa 19-DV4654

Between:

Her Majesty the Queen

— and —

L.B.

Before: Justice Jacqueline V. Loignon

Decision released on: April 16, 2020

Counsel

L. Tansey — counsel for the Crown

E. Farrell — counsel for the Crown

M. Rowe — counsel for the defendant

Decision

LOIGNON J.:

Introduction

[1] Mr. L.B. is charged with having sexually assaulted his then girlfriend A.H. on October 13 and 15, 2018. He applies, pursuant to section 278.93, to adduce evidence of other sexual activity and, pursuant to section 278.92, to use records of communications between himself and the complainant, that are not of a sexual nature, during his trial.

[2] The application under section 278.92 ultimately proceeded on consent and the order permitting use of the records was made. These reasons are in relation to the application under section 278.93.

[3] In terms of the procedural requirements set out in section 278.93(2), all are in agreement that these have been met in that the application: was made in writing; set out detailed particulars of the evidence; set out the relevance to an issue at trial; and was provided to the Crown and Clerk of the Court. The issue to be decided at this juncture is whether the evidence sought to be adduced is capable of being admissible under s. 276(2) such that the Court ought to hold a hearing under s. 278.94.

Context to the Application

[4] According to the Crown materials, at the time of the allegations, the complainant and Applicant were in a romantic relationship and lived together. The first count of sexual assault involves the Applicant trying to digitally penetrate the complainant's anus while she slept. According to the complainant, she turned away from the Applicant, clenched her buttocks and ultimately slept on her back to avoid him. This happened on three further occasions where twice more she rolled away from him. On the last occasion, A.H. screamed at the Applicant to stop and pushed him away.

[5] In terms of the second count of sexual assault, the complainant alleges that the accused slapped her across the face causing her glasses to break and her to cry. She fled to the bathroom as a result. While she was in the bathroom taking a shower, the Applicant grabbed her nipple causing her pain. She screamed at him and told him to stop.

[6] In the Applicant's materials, he states that it was not unusual for either himself or A.H. to wake the other up by sexual touching or to start sexual relations while the other was still asleep. Given this last piece of information, it would seem that the Applicant is not disputing that A.H. was asleep at the time of the alleged touching on October 13, 2018.

[7] The Applicant also states in his materials that it was not unusual for him to pinch A.H.'s nipples hard, which did not hurt her. The fact of the touching is therefore not in dispute.

Evidence Proposed to be Adduced

[8] The evidence of prior sexual activity the Applicant seeks to rely upon consists of (1) the existence of a prior sexual relationship (2) sexual acts particular to he and A.H. such as digital penetration of the anus (3) forceful pinching of the nipples (4) waking the other partner up by touching of a sexual nature or in other words, beginning sexual relations while the other was asleep. I will collectively refer to items 2-4 as the proposed evidence of sexual acts.

Relevance to an Issue at Trial / Positions of the Parties

[9] According to the Applicant, the evidence proposed is relevant to consent, honest but mistaken belief in consent, and credibility.

[10] The Applicant seeks to adduce the evidence above in order to provide context to the relationship to further a defence of honest but mistaken belief in consent. The argument is that the Applicant does not wish to suggest that because consent was provided in the past it was provided again, but to contextualize the prior sexual relationship. In particular, the Applicant relies on their sexual history whereby one or the other would wake up their partner by performing sex acts, or that he would forcefully pinch the complainant's nipples, all of which was consensual. According to the Notice of Application:

The specific form of sexual activity to which the complainant objected was practised consensually by the accused and complainant prior to the incident date, which is relevant to the issue of consent or mistaken belief in consent, as the circumstances during the alleged incident could have caused the accused to believe that the complainant was consenting to the relations on the incident date.

[11] Though the Notice of Application refers to consent, the factum and argument focused on honest but mistaken belief in consent.

[12] The Crown argues that the application ought to be dismissed at this preliminary stage because the evidence is not capable of being admitted at trial. More specifically, the Crown argues that the application is an attempt to indeed argue that past consent inevitably means present consent. Moreover, the Crown argues that the evidence is incapable of being admitted because the complainant was asleep, and, given there is no such thing as implied or ongoing consent, the defence of honest but mistaken belief in communicated consent does not arise.

Relevant Criminal Code Sections

278.93 (1) Application may be made to the judge, provincial court judge or justice by or on behalf of the accused for a hearing under section 278.94 to determine whether evidence is admissible under subsection 276(2) or 278.92(2).

(2) An application referred to in subsection (1) must be made in writing, setting out detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial, and a copy of the application must be given to the prosecutor and to the clerk of the court.

(3) The judge, provincial court judge or justice shall consider the application with the jury and the public excluded.

(4) If the judge, provincial court judge or justice is satisfied that the application was made in accordance with subsection (2), that a copy of the application was given to the prosecutor and to the clerk of the court at least seven days previously, or any shorter interval that the judge, provincial court judge or justice may allow in the interests of justice and that the evidence sought to be adduced is capable of being admissible under subsection 276(2), the judge, provincial court judge or justice shall grant the application and hold a hearing under section 278.94 to determine whether the evidence is admissible under subsection 276(2) or 278.92(2).

276 (1) In proceedings in respect of a sexual offence evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant

(a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or

(b) is less worthy of belief.

(2) In proceedings in respect of an offence referred to in subsection (1), evidence shall not be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94, that the evidence

(a) is not being adduced for the purpose of supporting an inference described in subsection (1);

(b) is relevant to an issue at trial; and

(c) is of specific instances of sexual activity; and

(d) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

Law

[13] Much case law has been written on the proper application of section 276. As noted in R. v. John, 2019 ONSC 3602 at para 19, it is important not to conflate the first and second stages of the 276 process. At this juncture, stage one, I am not considering whether the evidence of prior sexual activity is admissible, but only whether it is "capable" of being admissible. This has been described as a low threshold. That having been said, the most recent decisions of the Supreme Court of Canada confirm the importance of the trial judge's gatekeeping function in ensuring that the truth-seeking function of the trial is not distorted by prejudicial or irrelevant evidence. (R. v. Goldfinch, 2019 SCC 38; R. v. Barton, 2019 SCC 33; R. v. John supra at para 13).

[14] Section 276(1) and (2) operate in tandem to exclude irrelevant evidence, as well as evidence that is more prejudicial than probative. (R. v. Goldfinch at para 40) With respect to "relationship evidence", as stated by Justice Karakatsanis in Goldfinch, this is clearly captured by s. 276(1). The myth engaged by relationship evidence is that having consented in the past, a complainant is more likely to have consented to the activity forming the allegations. Relationship evidence which serves to support this myth is barred. More specifically:

Today, an accused may no longer argue that consent was implied by a relationship: contemporaneous, affirmatively communicated consent must be given for each and every sexual act (R. v. Ewanchuk, [1999] 1 S.C.R. 330; R. v. A. (J.), 2011 SCC 28, [2011] 2 S.C.R. 440 at paras. 34 and 47; R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346 at para. 27; R. v. Barton, 2019 SCC 33 at paras. 90-94). Today, not only does no mean no, but only yes means yes. Nothing less than positive affirmation is required.

[15] There are no exceptions or special rules to the law of sexual assault carved out for those in a relationship. The rationale for this is clear:

The criminal law cannot treat such relationships as falling outside the law of sexual assault without resurrecting some form of presumption of consent from marriage or other ongoing relationship, thus making people in such a relationship sexually touchable, irrespective of their wishes, until they actively withdraw consent. (C. Boyle, "Sexual Assault as Foreplay: Does Ewanchuk Apply to Spouses?" (2004), 20 CR (6th) 359)

[16] The second twin myth, or that a person having engaged in sexual behaviour is less worthy of belief, is also engaged by relationship evidence. Though social mores towards sexual activity has changed over the years, "complainants continue to be treated as less deserving of belief based on their previous sexual conduct." (Goldfinch at para 45). The net result is that relationship evidence is fraught with difficulties and must be approached with caution. As more eloquently put by Justice Karakatsanis in Goldfinch:

Even "relatively benign" relationship evidence must be scrutinized and handled with care. If the accused cannot point to a relevant use of the evidence other than the twin myths, mere assurances that evidence will not be used for those purposes are insufficient. This case highlights the dangers of accepting such assurances.

[17] Even where the defence of honest but mistaken belief in communicated consent is raised, the proposed use of evidence of prior sexual activity cannot rest on past consent. This is twin-myth reasoning. As stated in Goldfinch:

[…] an honest but mistaken belief cannot simply rest upon evidence that a person consented at "some point" in the past: that would be twin-myth reasoning. By definition, the defence must rely upon evidence of how the complainant previously communicated consent so that the accused can adequately support a belief that consent was expressed.

[18] Communication of consent may be through words or conduct. The focus of the inquiry raised by this defence is: "(1) the complainant's communicative behaviour and (2) the totality of the admissible and relevant evidence explaining how the accused perceived that behaviour to communicate consent. Everything else is ancillary". (R. v. Barton, 2019 SCC 33 at para 91, citing R. v. Park, [1995] 2 S.C.R. 836 at para 44)

[19] What will not constitute consent are: silence, passivity or ambiguous conduct. "It is also a mistake of law to infer that 'the complainant's' consent was implied by the circumstances, or by the relationship between the accused and the complainant". (Barton at para 98 citing R. v. A. (J.), 2011 SCC 28). There is furthermore no such thing as "broad advance consent" or "consent to future sexual activity of an undefined scope". (Barton para 99)

[20] And finally, with respect to the need for a conscious state of mind, McLaughlin, J. stated in R. v. A. (J.) supra at para 66:

The definition of consent for sexual assault requires the complainant to provide actual active consent throughout every phase of the sexual activity. It is not possible for an unconscious person to satisfy this requirement, even if she expresses her consent in advance. Any sexual activity with an individual who is incapable of consciously evaluating whether she is consenting is therefore not consensual within the meaning of the Criminal Code.

Analysis

[21] Based on the materials filed by counsel and the arguments advanced, the issues to be determined at trial will revolve around credibility and honest but mistaken belief in communicated consent. The stated purpose to adduce the evidence is to demonstrate the existence of a sexual relationship and that certain sexual acts were performed consensually in the past which may have caused the Applicant to believe that the complainant was consenting on the day in question.

[22] The framing of the stated purpose of the evidence is, in my view, exactly what Justice Karakatsanis was cautioning against: twin-myth reasoning cast as relationship evidence. The Applicant wishes to rely on A.H.'s prior consent to suggest she likely consented in this case, which in turn caused him to believe she was consenting.

[23] While the above comments apply to both allegations of sexual assault, there is a further issue in relation to the allegation of digital penetration, namely that the complainant was asleep. As above in R. v. A. (J.) each sexual act requires consent. As A.H. was asleep prior to the touching, she was "incapable of consenting within the meaning of s. 273.1(2)(b), because she lacked "a conscious operating mind, capable of granting, revoking or withholding consent to each and every sexual act". (R. v. A. (J.) at para 44) This makes the proposed evidence of prior sexual activity irrelevant to consent in so far as the actus reus of the offence is concerned.

[24] In so far as the mens rea is concerned, within the context of honest but mistaken belief in communicated consent, Justice Moldaver said in Barton supra:

"consent means that the complainant affirmatively communicated by words or conduct her agreement to engage in [the] sexual activity with the accused" (Ewanchuk at para 49). Hence, the focus at this stage shifts to the mental state of the accused, and the question becomes whether the accused honestly believed "the complainant effectively said 'yes' through her words and/or actions." (Ibid at para 47)

[25] As I have already noted, implied consent, advance consent and propensity to consent will not afford a defence. The reason for this is that a mistake based on any of these types of "consent" arises through a mistake of law, not fact. A mistake of law will never provide a defence. The proposed evidence, in so far as it purports to demonstrate prior consent or implied consent is irrelevant to the anticipated defence as these would constitute mistakes of law, not fact. As noted in R. v. Zachariou, 2013 ONSC 6694 at para 26: "where the mens rea issue of mistaken belief in consent is "not realistically advanced by the accused at trial, then evidence of prior, unrelated sexual activity between the complainant and the accused will seldom be relevant to an issue at trial." See: R. v. Crosby (1995), 98 C.C.C. (3d) 225 (S.C.C.) at 230." With respect to an argument that may go to a mistake of fact, as I have already noted, there is no evidence related to the fact or manner of communication of consent.

[26] In conclusion and recalling the language of s. 276(2), I must be satisfied that the proposed evidence:

(a) is not being adduced for the purpose of supporting the twin myths;

(b) is relevant to an issue at trial; and

(c) the probative value of the proposed evidence is significant enough to substantially outweigh the dangers of prejudice to the proper administration of justice.

[27] The proposed relationship evidence and evidence relating to other sexual acts is nothing more than propensity to consent. I make this determination because the proposed evidence does not address how consent was communicated: there is no description of the complainant's words or communicative behaviour. There is no evidence of A.H. affirmatively providing consent within the context of the prior sexual activity which would inform a defence of honest but mistaken belief in communicated consent with respect to these allegations. The proposed evidence suggests nothing more than propensity to consent or implied consent.

[28] The proposed evidence as to digital penetration is not relevant to consent as the complainant was asleep.

[29] The proposed evidence and argument presented do not show how credibility will be engaged. Though reliability is referenced in the materials, there is no clear articulation as to how the proposed evidence relates to reliability. Beyond generalities that credibility is always at issue in this type of prosecution, there is nothing more to understand how the proposed evidence will relate to credibility. This inevitably leads me to conclude that credibility is being used as a catchall. In these circumstances, this again suggests an argument based prohibited reasoning, specifically, that the complainant having engaged in certain sexual acts is less worthy of belief.

[30] It goes without saying that the proposed evidence is very personal creating the potential for prejudice to the complainant's personal dignity and right to privacy. The proposed evidence plays on stereotypical beliefs and assertions related to consent that have no place in the fact-finding process and is irrelevant to a just determination of this case. I find that the probative value of the proposed evidence is not significant enough to substantially outweigh the dangers of prejudice to the proper administration of justice.

[31] Overall, the proposed evidence, as articulated in the materials filed, engages the twin myths and prohibited reasoning which preclude it from admission. It stands to reason then that it is not capable of being admissible.

[32] The Application is dismissed.

Released: April 16, 2020

Signed: Justice Jacqueline V. Loignon