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

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

☒ These reasons may be published, broadcast or transmitted.

Ontario Court of Justice

Date: 2021 03 05 Central West Region Court File No.: 998 20 SD0891

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

C.C.

Before: Justice J. De Filippis Heard on: February 22 & March 3, 2021 Reasons for Ruling released on: March 5, 2021

Counsel: Mr. I. Horic............................................................................................ counsel for the Crown Ms. E. Mullins-Burton................................................................................. for the defendant Ms. E. Dixon.............................................................................................. for the complainant

De Filippis, J.:

Introduction

[1] The defendant is charged with sexual assault. This is an application by the Defence to cross-examine the complainant about other sexual activity between them. The application is governed by section 276 of the Criminal Code.

[2] The procedure set out in s. 276 requires a two-stage determination. Section 276(2) requires that the evidence;

(a) is not being adduced for the purpose of supporting an inference that the complainant is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or is less worthy of belief;

(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.

[3] If the threshold conditions are met, I must consider the factors in section 276(3) before ultimately determining admissibility:

(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.

[4] Section 278.93 provides that the public (and jury, if applicable) be excluded from the hearing of the application. If the judge rules that the evidence is admissible, section 278.94 requires that reasons be provided with specific reference to the criterial in section 276(3).

[5] I understand the allegations to be as follows: The defendant and complainant had known each other for four years and had recently begun an intimate relationship. On the day in question, the defendant was at the complainant’s home along with a group of her friends. The complainant was on the phone with W.R. and left the living room and went into the washroom. While she was standing at the bathroom sink on the phone, the defendant entered the bathroom and forced her to bend over. She told the accused to let her go. The complainant was able to force herself up and stand upright. The defendant grabbed her by the hair and began kissing her neck. He pulled her pants down just below her hips. The complainant attempted to walk out of the bathroom but was grabbed by the back of her shirt. At this point she held out her phone and said 'here [W.R.] wants to talk to you.' The defendant took the phone and she left the washroom.

[6] I understand the Defence to be as follows: The defendant denies that he forced the complainant to bend over, pulled her hair and grabbed her shirt. He admits pulling her pants down to her hips but stopped as soon as he understood that the complainant wished him to do so. The defendant also claims that he took reasonable steps to confirm consent, and that “aspects of those reasonable steps can only be understood through the pattern of verbal and non-verbal communication which had developed during the course of [his] prior relationship with [the complainant].” In the alternative, the defendant asserts an honest but mistaken belief in consent.

Six Items of Proposed Evidence

[7] The defendant proposes to adduce the following evidence at his trial:

1. That he and the complainant were in a monogamous sexual relationship prior to the date of the allegations;

2. That he and the complainant had consensual sexual contact on three specific instances, namely sexual intercourse on two occasions and fellatio on one occasion;

3. That he and the complainant would routinely cuddle, kiss, and engage in sexual touching that did not involve intercourse which they did specifically, on the day before and the day of the incident which is the subject matter of the charge;

4. That he and the complainant had engaged in foreplay in the past and when the complainant indicated that she wanted to stop the contact he responded immediately and stopped;

5. That he and the complainant showered together in the washroom and had a history of being in the washroom together while the other used the washroom in some way;

6. That the complainant disclosed to him that she was sexually assaulted since she was a child and into her teen years and that she had been sexually assaulted by several of her past boyfriends, the last being as recently as the summer of 2019, and so that he should be alert and ready to respond immediately to abrupt changes in her sexual interest or desire.

General Principles

[8] Evidence of an intimate relationship between the complainant and a defendant is evidence that falls within the ambit of s. 276. Relevance requires the defendant to specify the relationship between the evidence sought to be adduced to a material issue at trial. Without such an anchor to a fact in issue, the only “relevance” arising from sexual relationship evidence is founded on impermissible reasoning.

[9] The Supreme Court of Canada has addressed s. 276 in several cases. The following principles emerge from R. v. Darrach, 2000 SCC 46 and R. v. Goldfinch, 2019 SCC 38:

• Relevance is the key which unlocks the evidentiary bar, allowing a judge to consider the s. 276(3) factors and to decide whether to admit the evidence. Bare assertions that such evidence will be relevant to context, narrative or credibility cannot satisfy s. 276;

• Consent is determined subjectively from the complainant’s perspective. Consent must be given for each instance of sexual activity. Evidence of other sexual activity will rarely be relevant to support a denial that sexual activity took place or to establish consent;

• The admission of other sexual activity is often used to substantiate the defendant’s claim to an honest but mistaken belief that the complainant consented to the sexual activity in question. This is a mistake of fact defence. An honest but mistaken belief in communicated consent cannot be based on a mistake of law about what constitutes consent. It realistically arises when the complainant and defendant generally agree on the facts, but the interpretation of those facts leads to a different state of mind for each of the parties.

• There must be evidence before the Court on the application setting out what the accused believed at the time of the alleged assault and how the complainant’s other sexual activity is relevant to that belief;

• Evidence of sexual relationships must be handled with care. Specifics about the frequency of sexual contact and ‘typical’ or ‘routine’ interactions between a couple is the kind of evidence that engages twin-myth reasoning as it tends to suggest that “because the complainant had ‘typically’ consented to” the sexual activity in question in the past she is “more likely to have done so on this ‘routine’ occasion.

[10] However, not all sexual activity that falls outside of the subject matter is inadmissible. Moldaver J. addressed this in R. v. Barton, 2019 SCC 33 at para. 93:

... in some cases, prior sexual activities may establish legitimate expectations about how consent is communicated between the parties, thereby shaping the accused's perception of communicated consent to the sexual activity in question at the time it occurred. American scholar Michelle Anderson puts it this way: "prior negotiations between the complainant and the defendant regarding the specific acts at issue or customs and practices about those acts should be admissible. These negotiations, customs, and practices between the parties reveal their legitimate expectations on the incident in question" (M. J. Anderson, "Time to Reform Rape Shield Laws: Kobe Bryant Case Highlights Holes in the Armour" (2004), 19:2 Crim. Just. 14, at p. 19, cited in Hill, Tanovich and Strezos, at §16:20.50.30). These "negotiations" would not, however, include an agreement involving broad advance consent to any and all manner of sexual activity.

Refining the Issues

[11] On my review of the material filed by the parties, I expressed the tentative view that cross-examination of the complainant with respect to items 1 and 5 is appropriate to provide context and explain why the defendant would enter a bathroom occupied by the complainant. With respect to item 1, I noted that it may not be relevant that the sexual relationship was monogamous. I also opined that item four is irrelevant; it does not follow that the defendant respected the complainant’s non-consent in the present case because he did so in the past. Finally, I suggested that the defendant’s affidavit lacked sufficient detail to justify cross-examination on the other grounds.

[12] Further argument on this motion could not proceed, as scheduled, because of difficulties in virtually linking the defendant from the detention centre to the courtroom. On the return date, the defendant filed a supplementary affidavit. It provides these additional details (at paragraphs 41 – 45):

• My touching of [the complainant] on February 21, 2021 and every time before that date was consensual. [The complainant’s] previous sexual assaults became relevant to our sexual relationship when she communicated to me that because of her previous sexual assaults that she may experience abrupt changes in her sexual mood or desire that could create a go-and-stop cycle sometimes several times in the same interaction. When she communicated this to me I understood it to mean that I would have to be very sensitive and maintain a heightened alert as an abrupt go-and-stop cycle would mean consent was fluctuating rapidly.

• Because of the likelihood for abrupt changes in mood, abrupt go-and-stop cycles, with fluctuating consent, we developed a particular pattern of conduct between us about how consent was communicated from her to me to ensure I responded to those sudden changes immediately.

• The pattern we developed included the following behaviours; she removes her own under wear, I do not. When I was initiating sexual contact with her, I begin my touch to other areas of her body first, namely, her arm, back, neck, shoulders. I would touch her in a very slow and methodical fashion of one body part at a time. I hold for some seconds on each body part, sometimes even holding for minutes, to wait for a gesture or word that she wants me to continue or to move to another body part. When making contact with her sexual organs, namely her buttocks, breasts or vagina, I wait for her to give me a direct gesture, such as guiding my hands to that part of her body, touching me with that part of her body, or exposing that part of her body to me, before I would touch those areas of her body.

• My previous sexual contact with [the complainant], specifically the two times of sexual intercourse and one time of fellatio, gave me experience with her consent gestures, namely that she removed her own clothing, exposed her sexual organs, rubbed her body or body parts on me, or leaned into my touch, before sexual intercourse.

• My previous contacts with foreplay and touching that did not lead to sexual intercourse gave me experience of her non-consent gestures. She would not take off her under wear or expose her body parts to me, she would move her body away from my touch, remove my hands from her body, or use the specific phrases, “I am not feeling it, or I am not feeling this”.

[13] All counsel also took the opportunity provided by the adjournment of the motion to respond to my tentative views. The Crown accepted my suggestion that cross-examination should be permitted with respect to items 1 and 5 and counsel for the complainant added that her client did not object to such questions. Moreover, notwithstanding the additional details in the supplementary affidavit, in oral argument, Defence counsel abandoned her request to cross-examine about items 2 and 3. Counsel asked to reserve her position with respect to item 4 as the evidence tendered may make the point moot.

[14] Accordingly, the present motion concerns item 6 in the proposed evidence. In this regard, Defence counsel clarified that she does not propose to ask the complainant about details of her prior sexual activity, but simply to have her confirm (or not) that she had told the defendant that he needed to be aware that her past experiences impacted how she responded to sexual initiatives and communicated consent.

Position of the Parties with Respect to Item 6

[15] Defence counsel argues that evidence about item 6 is needed to establish an air of reality to the defendant’s claims about what happened; it informs his appreciation of how the complainant communicated consent by word and deed and how the he responded to her fluctuating moods. Counsel adds that, given the evidence expected from the defendant, the “Rule in Browne and Dunn” requires that put these matters to the complainant.

[16] The Crown submits that the proposed evidence is inadmissible because it leads to propensity reasoning. I take the Crown to mean that the theory postulated is irrelevant; that the defendant has been alert to the complainant’s “mood fluctuation” in the past does not mean he did so on the present occasion. The Crown adds that even the sanitized version of item 6, as clarified by the Defence, is highly prejudicial.

[17] Counsel for the complainant agrees with the Crown and also argues that the defendant’s affidavit relies on an understanding of broad or advanced consent, which is not a valid defence. Further, an accused seeking to advance the defence of honest but mistaken belief must be able to explain how and why the prior sexual history shaped his understanding of consent at the time of the allegations. Counsel also submits that the proposed evidence is inadmissible as it amounts to a prior consistent statement or oath helping.

Conclusions

[18] In my opinion, Defence counsel has justified the proposed evidence in item 6, as clarified by her in oral submissions. In this regard, I find R. v. D.B., 2020 ONCJ 579 to be instructive. In that case, the proposed cross-examination was based on the following affidavit by the applicant:

D.B.'s evidence is that on many occasions N.S. would have an episode related to her PTSD during their sexual activity and would withdraw her consent and want to be held. On some of these occasions, after some time N.S. would rock her hips back and forth, pressing her genitals or buttocks against him and as D.B. deposed, "...as we discussed, I relied on this as her way of telling me that she wanted to have sex. We would then go on to have sex. Sometimes we engaged in foreplay first, and other times we proceeded straight to intercourse. This became a standard pattern of communication for us. While we expressed our consent verbally on some occasions, we routinely relied on this non-verbal practice." Earlier, as this pattern began to develop, D.B. maintains he asked N.S., "are you okay with me initiating sex when I notice you making those movements?" to which she replied 'yes'.

[19] After citing paragraph 93 in Barton, as I have above, my colleague, Justice Calsavara, noted as follows:

By invoking this evidence of past sex and communication about it, the applicant is not saying he is assuming from N.S.’s body language that she consented, nor that because she changed her mind about agreeing to sex in the past that she did that on the occasion in question; rather, his point is that they relied on a pattern of a motion that singled consent and both agreed to this motion of N.S.’s body moving in a certain way to be an indicator of consent. They specifically discussed this and agreed upon relying on this movement. It follows—accepting the defence evidence at its highest—that D.B. believed N.S. consented this time because of the way she moved her body. He thought that was an indictor—an expression of her consent—based upon this pattern they developed.

[20] The proposed evidence in the present case is not being adduced to suggest the complainant is more likely to have consented or that she is less worthy of belief. It is offered to explain the defendant’s understanding of how the complainant communicated consent and how he responded to her (allegedly) fluctuating moods. As such, it is relevant to his assertion of an honest but mistaken belief in consent.

[21] The limited and general proposition the Defence will put to the complainant means that the factors set out in s. 276(3) are not a bar to admissibility. To repeat, the proposed evidence is to have the complainant confirm (or not) that she had told the defendant that he needed to be aware that her past experiences impacted how she responded to sexual initiatives and communicated consent. It cannot seriously be suggested that this will discourage reporting of sexual assaults, create discriminatory beliefs, unduly arouse sentiments of prejudice, sympathy or hostility, or offend the complainant’s personal dignity, security, or privacy. On the other hand, it allows the defendant to make full answer and defence and may reasonably assist me in arriving at a just verdict.

[22] The proposed evidence is of significant probative value. Given that Defence counsel does not seek, and has not been granted, the right to cross-examine about the details of any prior sexual activity, the prejudice is minimal and does not outweigh the probative value.

Result

[23] The Defence is permitted to cross-examine the complainant in these three areas:

• That the defendant and complainant were in a sexual relationship prior to the date of the allegations;

• That the defendant and the complainant showered together in the washroom and had a history of being in the washroom together while the other used the washroom in some way;

• That the complainant previously told the defendant that he needed to be aware that her past experiences impacted how she responded to sexual initiatives and communicated consent.

Released: March 5, 2021 Signed: Justice J. De Filippis