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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Court Information

Ontario Court of Justice

Date: 2020-11-04

Court File No.: Toronto, College Park 19-75001742

Between:

Her Majesty the Queen

— and —

P.H.

Before: Justice J. W. Bovard

Heard on: September 24, 2020

Brief oral ruling released on: October 30, 2020

Full written reasons released on: November 4, 2020

Counsel

Ms. Moore — counsel for the Crown

Mr. R. MacDonald — counsel for the defendant P.H.

Decision

Bovard J.:

Introduction

[1] P.H. is charged with two counts of sexual assault. The defence brings an application for directions regarding the timing of a s. 276 application to question the complainant regarding previous sexual activity with P.H. The defence asks that he be allowed to bring the s. 276 application during the trial, after the complainant testifies.

[2] The Crown asks that the court direct that the s. 276 application be brought before the trial starts.

[3] For the reasons given below, I direct that the defence bring its s. 276 application before the trial starts.

Background

[4] The complainant and P.H. were involved in an intimate relationship. P.H. is charged with sexually assaulting her on November 2 and 9, 2018.

[5] The defence intends to bring a s. 276 application for an order that he be allowed to question the complainant about sexual activity that she had with P.H. on November 4 and 9, 2018 "that may not form part of the sexual activity that is the subject of the charges".

[6] The defence will also ask for an order that he be allowed to question the complainant about electronic correspondence of a sexual nature that she had with P.H. in November 2018.

[7] The Crown concedes that these communications are not "records" as defined by s. 278.1 Criminal Code.

The Evidence

[8] P.H. filed an affidavit in support of his application. It states the following:

[9] His first sexual "interaction" with the complainant was on November 4, 2018. They also had a sexual "interaction" on November 9, 2018.

[10] Although the complainant told the police in her statement that it was not consensual, it was consensual. They exchanged numerous text messages of a "flirtatious and romantic nature, freely discussing past and future intimate experiences" (para. 8).

[11] P.H. said that the messages provide context to their relationship. Moreover, the messages contradict the complainant's version of events in her statement to the police in which she said that she did not want to see him again or "come to (sic) anywhere near your address …" (para. 11).

[12] The text messages increased after their first sexual encounter. They wrote about how they would like to have more "intimate experiences". The complainant gave these text messages to the police by taking screen shots of them. There are 786 screen shots. The relevant ones are 595 – 662. They are dated between November 5, 2018 and November 8, 2018. They were translated by a Farsi translator. They are an exhibit to his affidavit.

[13] The text messages are timid exchanges of a romantic and sexual nature. P.H. says that they are discussing their sexual activity on November 4, 2018 and their desire for continued sexual activity. He said that the messages "informed my state of mind during" the November 9, 2018 incident (para. 14).

[14] P.H. states that the text messages contradict the complainant's statement to the police that she told him that she had no desire to see him again, that she did not see him as a boyfriend or lover, that she was dating another person, and that there was nothing like love in their relationship.

[15] Aside from the text messages, P.H. averred that in "late October 2018" they went to a Halloween party and he kissed her. She seemed to like it because she smiled. Later that evening, they held hands and he embraced her. This contradicts her statement to the police that she "endured the kiss because she didn't want to be overly 'strict'" (para. 24).

[16] P.H. also mentioned a trip to Ikea with her during which he kissed and her and they hugged briefly. This signaled to him that their relationship "was no longer platonic". He claims that this contradicts her statement to the police that "she did not think of him as a boyfriend; she was dating someone else that there was noting like love in our relationship" (para. 25).

[17] Another incident that P.H. says contradicts the complainant's statement to the police occurred after their sexual encounter on November 4, 2018. He said that they had a 20-minute shower together during which he washed her body, including her genitals. She washed his upper body. After this, they sat in the bathtub for 30 minutes and continued "our playful and flirtatious discussions". He caressed and embraced her. She laid on him so that they were both facing the same direction (para. 26).

[18] He recounted that a few hours before the incident on November 9, 2018, they were in a bar, "freely engaging in physical and intimate experiences". Then, they decided to go to his apartment for "further intimate experiences". P.H. maintains that this contradicts her statement to the police that she kissed him to bring him out of a bad mood, and that he begged her to come home with him, promising that nothing would happen (para. 27).

The Law

[19] In s. 278.93 (1), the Criminal Code allows the defence to make an application for a hearing under s. 278.94 "to determine whether evidence is admissible under subsection 276 (2) …"

[20] Section 278.93 (4) directs that if the application satisfies the formal prerequisites regarding form and content, and if the court decides that the "evidence sought to be adduced is capable of being admissible under subsection 276 (2)", the court "shall grant the application and hold a hearing under section 278.94 to determine whether the evidence is admissible under subsection 276 (2) …"

The Timing of the Hearing Under Subsection 276 (2)

Position of the Defence

[21] The trial date for this matter is in February 2021. The defence argues that if the s. 276 application is heard before the trial, the complainant will know which of the text messages the defence is relying on to contradict her. Consequently, she will be able to tailor her evidence to counter the defence cross-examination based on the text messages. This will unduly impair P.H.'s ability to make full answer and defence. Therefore, it will lead to an unfair trial.

[22] The defence cites R. v. A.M. to support his argument.

[23] A.M. is a ruling by Christie J. regarding the timing of a s.276/278 application. The defence asked the court to allow it to bring the application during the trial, after the complainant testified in examination-in-chief, because it was the only way to "properly balance the complainant's privacy rights and his right to a fair trial". In the case at bar, the complainant's privacy rights are not an issue because she voluntarily gave the text messages to the police. But ensuring a fair trial is an issue.

[24] In A.M., the Crown argued that the application must be brought before the trial starts because it would not have an impact on the accused, but "the complainant's rights and trial efficiencies would be significantly impacted if the application is permitted mid-trial".

[25] Christie J. canvased in detail the purposes and objectives of the legislative scheme regarding the admission into evidence of the sexual activity of complainants in sexual assault cases. Justice Christie concluded that "it is not the timing of these applications, but rather the requirement for the application itself that achieves these purposes and objectives" (para. 42).

[26] Justice Christie held further that there is nothing about the purposes or objectives of the legislation that require the application to be brought before the trial. The purposes and objectives of the legislation "can still be met by a mid-trial application in this case" (para. 44). (emphasis added)

[27] The court was careful to state later in paragraph 102, that it was not suggesting that every application of this nature must be brought mid-trial. But, conversely, it certainly should not be taken for granted that the default position is for these applications to be heard pre-trial.

[28] Justice Christie considered the right of an accused to cross-examine the complainant. She held that "Cross-examination is all the more crucial to the accused's ability to make full answer and defence when credibility is the central issue in the trial". She cited R. v. Anandmalik and other appellate jurisprudence to support this position.

[29] In paragraph 60, Justice Christie held that "requiring pre-trial disclosure of the defence's cross examination material, versus allowing for mid-trial disclosure of the material, unnecessarily infringes the applicant's rights set out above because of the danger that it will render the cross-examination ineffective".

[30] The rights to which she was referring are the presumption of innocence, the right to a fair trial, the right to make full answer and defence, to cross-examine, to adduce evidence and the right against self-incrimination.

[31] She stated that "A witness with full advance notice of impeachment material is in a position to tailor their evidence to fit the disclosure". This can be "fatal to a fair trial".

[32] It is in "everyone's best interests" that the complainant not have this opportunity. The "Use of prior inconsistent statements to impeach a witness is a well-established means of testing the credibility and reliability of witnesses" (para. 110).

[33] Other courts have held similarly regarding a witness having advance knowledge of the evidence on which they will be cross-examined. Breen J. observed in R. v. A.R.S., which was a constitutional challenge to the legislation, that:

The defence further contends that disclosure to a complainant, in advance of trial, compromises the fairness of the trial. A complainant, equipped with advance knowledge of the defence brief and strategy, is positioned to adjust their testimony to avoid contradiction, thereby rendering cross-examination ineffective.

The logic of this proposition is beyond dispute. As Doherty J.A. observed in R. v. White:

As a matter of common sense, there may be considerable force to the suggestion that a person who gets full advance notice of the other side's evidence and testifies last is in a position to tailor his or her evidence to fit the disclosure.

The integrity of a witness and the credibility of their testimony are brought into question when they gain access to relevant information prior to testifying. This concern is entrenched in our criminal law and informs investigative practices, trial procedure and evidentiary rules. The tainting of witnesses, by any means, undermines the truth seeking function of the trial.

[34] A.R.S. held further that, "a statutory provision that compels disclosure of impeachment material to a complainant, in advance of cross-examination, compromises the fairness of the trial contrary to s.7 of the Charter" (para.78). (emphasis in original)

[35] A.M. held that before the evidence is put to the complainant she will "be aware of the detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial … requiring the applicant to disclose these details prematurely would amount to an unwarranted violation of s. 7 and 11 (d) of the Charter" (para. 65).

[36] Justice Christie observed that the Criminal Rules of the Ontario Court of Justice allow for s. 276 applications to be brought mid-trial.

Position of the Crown

[37] The Crown cited several cases to support her position that the s. 276 application should be brought before the trial. However, the only one that dealt with the timing of the application was R. v. M.S., decided by Chapman J.

[38] Chapman J. gave her ruling on September 25, 2019, before A.M. was decided. The ruling concerned whether text messages, photos and videos were records as set out in s. 278.1 and/or s. 276 (1) to (4) of the Criminal Code, and if so, whether the s. 276 application should be brought, "before or after the commencement of the complainant's cross-examination". Some of the photos were "potentially sexual in nature". Some of the material was posted on a variety of social media platforms. Justice Chapman held that the application should be brought prior to trial.

[39] In A.M., Justice Christie reviewed thoroughly Justice Chapman's decision and reasons. She came to the opposite conclusion.

Analysis

[40] After reading the jurisprudence that counsel gave me on the timing of the s. 276 application, I see that there are many good arguments both for bringing the application prior to trial, and for allowing the defence to bring it during the trial after the complainant testifies.

[41] Another thing that is evident from the jurisprudence is that the cases differ on the facts. The facts of a case can be a weighty factor in deciding the issue of when the defence should bring the s. 276 application. So can the purpose for which the defence wants to cross-examine the complainant on her prior sexual activity.

[42] The jurisprudence that counsel gave me leads me to conclude that it would be difficult to lay down one rule for every case.

[43] In the case at bar, the defence argument for bringing its s. 276 application after the complainant testifies is so that she will not be alerted regarding the material on which the defence wants to cross-examine her, and regarding what use the defence wants to make of the text messages.

[44] On pages 14,15 of the transcript of September 24, 2020, defence counsel submitted:

What's at issue here is that if the complainant has our application, in advance - so long in advance of trial, she's being presented with the exact list of which text messages we submit are relevant, and why they contradict aspects of her statement to the police. So, she would then be in a position to, essentially, change or shape her evidence before she even gets to the trial proper, so that she could account for why she said one way to the police that seems to be contradicted in these text messages. (emphasis added)

[45] Based on this submission, I infer that the other incidents that P.H. mentioned in paragraphs 15-18 of his affidavit do not concern the defence in its application regarding the timing of the s. 276 application. I find support for this inference in that defence counsel did not mention the other incidents in his submissions. He strictly referred to the text messages.

[46] The defence argues that the complainant's credibility is an issue and he wants to use the text messages to contradict her regarding her statement to the police in which she described a relationship with P.H. that is different than what the text messages reveal.

[47] However, the complainant already knows what this material is. She volunteered it to the police. She also knows what she told the police in her statement. It is not unreasonable to surmise then, that she understands how her statement to the police contrasts with her text messages.

[48] Further, it is not unreasonable to surmise that she will have already thought about how she will deal with any deviations when defence counsel cross-examines her about them. She does not need the "advance notice" of the potential discrepancies that a s.276 application brought before trial will give her, because she already knows about them.

[49] In the case at bar, by requiring that the defence bring its s. 276 application prior to trial, the complainant is not getting "full advance notice of the other side's evidence" as Justice Doherty warned in White, because she already knows about the text messages that the defence has.

[50] The defence argued that she does not know exactly which text messages he will use to try to contradict her. I find that in the circumstances of this case that is not a weighty factor because she already has them all, including the ones that the defence is planning to use. This enables her to turn her mind to any potential contradictions between them and her statement to the police prior to her cross-examination. Consequently, any advantage that she may gain from the defence being required to bring its s. 276 application prior to trial is quite minimal.

[51] Therefore, in the case at bar, I find that there is no tenable rationale for interrupting the trial mid-way to bring the s. 276 application. This would cause unnecessary delay and a disjointed trial. When a trial is interrupted to address such a major evidentiary motion it disrupts significantly the flow of the evidence and the momentum of the trial. This works against the smooth operation of the justice system, which is especially important in sexual assault cases.

[52] It may be that in another case, with different facts, it would be reasonable to bring the s. 276 application mid-trial after the complainant testified. But I am not persuaded that the case at bar is such a case.

[53] Therefore, I direct that the defence bring its s. 276 application prior to the trial pursuant to the rules of the court, the Criminal Code and to any consents that counsel enter into and the court approves.

[54] The next court date is November 13, 2020 for argument on "stage one" only.

Brief oral ruling released on October 30, 2020.

Full written reasons released on November 4, 2020.

Justice J. W. Bovard