WARNING

The court hearing this matter directs that the following notices 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 any of subsections 486.4(1) to (3) or subsection 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.

Offence

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

Ontario Court of Justice

Citation: R. v. S.B., 2022 ONCJ 601 Date: 2022-05-13 Court File No.: London 20-7549

Between: Her Majesty the Queen (Respondent) — and — S.B. (Applicant)

Before: Justice M. B. Carnegie Heard on: January 11, February 22, 2022 Reasons for Judgment released on: May 13, 2022

Counsel: A. Mason, counsel for the Respondent, the Crown P. Nielson, counsel for the Applicant, S.B. C. Conron, counsel for complainant, N.M.

Section 278.94 Ruling #2

CARNEGIE J.:

[1] The Applicant is charged with sexual assault and common assault, contrary to ss. 271 and 266 of the Criminal Code of Canada. His trial is now scheduled to commence on May 18, 2022. The Applicant has brought two s. 278 applications – the first, a ss. 276, 278.1 and 278.92 application resolved by my ruling of February 12, 2021, and the second, a further s. 276 application which necessitated the argument of the first trial dates, before me now. On February 8, 2022, I ruled upon its first stage pursuant to s. 278.93 allowing for this second stage hearing pursuant to s. 278.94.

[2] Here, the Applicant seeks the admission of the following:

(1) Leave to cross-examine the complainant respecting an alleged post-offence sexual encounter on or about July 14, 2012;

(2) A divorce application between the complainant and Applicant, dated September 4, 2012; a final order of the Superior Court of Justice, dated April 8, 2013 and a Final Order from the Superior Court of Justice, dated November 25, 2019; and

(3) A text message sent from D.M. (the complainant’s spouse) to the Applicant on May 22, 2020, and an associated email from D.M. to the Alberta Law Society, dated October 21, 2020.

[3] Further to my ruling February 8, 2022, all that remains before me for consideration at this second stage is the Applicant’s request for leave to cross-examine the complainant respecting alleged post-offence sexual activity from July 14, 2012. Subject to relevance or other evidentiary considerations arising, items 2 and 3 above have been ruled admissible at trial.

[4] For the following reasons, I decline the Applicant’s request to adduce this sexual activity pursuant to ss. 276(2) and 278.94. It can do no more than raise irrelevant issues into this trial.

Factual Background

[5] The Applicant is charged with both a sexual and common assault allegation stemming from alleged incidents on or between March 25th and 31st, 2012 and in 2009, respectively. Specific to the alleged s. 271 offence before me, the complainant alleges that the Applicant attended her residence and, while restraining her, forcibly and without her consent had sexual intercourse. The Applicant and complainant were married between June 2004 and September 2011. On May 23rd, 2020, the complainant contacted the London Police Service and reported these incidents leading to the Applicant’s arrest on May 24, 2020.

[6] At the heart of the Applicant’s admissibility arguments is a desire to outline, from his perspective, a familial context between he and the complainant in and around the timeframe of the alleged sexual assault and, subsequently, events leading up to its report. From September 2011 through to late 2013, the Applicant and complainant were living separate and apart but co-parenting in an allegedly productive fashion until the complainant moved outside of Ontario.

[7] Here, the Applicant seeks to cross-examine the complainant respecting an alleged consensual sexual encounter between himself and the complainant on July 14, 2012 – months after the alleged sexual assault before this court. As part of this application, the Applicant denies that the alleged sexual assault, or any such activity, occurred in the material time alleged by the complainant. Instead, he wishes to adduce this purported sexual encounter as relevant evidence impacting upon the complainant’s credibility. In essence, it is argued that this event demonstrates that the parties carried on as if nothing had occurred between March 25th – 31st, 2012 because, in fact, nothing had occurred.

[8] The Applicant testified during this application, the Crown and counsel for the complainant seeking to cross-examine him on his filed affidavit. He confirmed that during their separation period before her departure from Ontario, they were engaged with a standard co-parenting arrangement and, from his perspective, were trying to make that work for the kids. After the complainant started dating her present husband in the second half of 2013 the relationship became more strained.

[9] On July 14, 2012, he claims that the complainant had invited him to her residence, a condo he had purchased for her and the children which she rented back from him. After “flirtatious” electronic messages were sent to him (which he no longer has), he arrived and the two had consensual sexual intercourse. He agreed that they were not in any ongoing intimate relationship at that time nor had they been actively working on rekindling their relationship prior to that. From his perspective, the romantic relationship had ended after separation and there was never any formal reconciliation before or after this event. In his affidavit, the Applicant noted that later that week, on July 21, 2012, during his daughter’s birthday party he invited the complainant over in the presence of his immediate family. Based upon her conduct at this party, which included being “very flirtatious”, rubbing his arm, commenting about how good he looked in his shirt and “acting as though we were still all living in the same house as a family”, he was asked by his family members afterwards whether they were intending to reconcile. This said, the Applicant agreed that at this time the complainant was dating a person named Chris (not her future husband) and that she was actively seeking a divorce from him.

[10] Beyond the specifics of the alleged July 14, 2012 event, the Applicant was cross-examined respecting the peripheries of statements made in his affidavit respecting the parenting issues which may have presented over this period of time. While technically cross-examinable respecting the affidavit’s content, I restricted the scope of this cross-examination finds it unhelpful to the resolution of the s. 276 issue before me. This application is not a collateral forum for a global credibility challenge of the Applicant.

[11] In this form of application, pursuant to s. 278.94(2), the complainant is not a compellable witness. Unsurprisingly, she did not provide evidence but, instead, appeared through counsel offering submissions.

Positions of the Parties

[12] The Applicant contends that the admissibility of this evidence will assist in laying a context or narrative from which the entirety of his defence can best be consumed as well as effectively addressing the issue of the complainant’s credibility. He suggests that this evidence forms one piece in a larger puzzle which will reveal the improper motive behind this allegation. To be clear, the defence intends to deny, unequivocally, that this alleged event occurred. There will be no consent or honest but mistake belief in communicated consent defence. The July 2012 event outlines that they were conducting themselves in such a fashion that belies that anything untoward had previously occurred, because it had not. Its inclusion is, therefore, “fundamental to the coherence of the defence narrative.”[^1] The Applicant, however, is not interested in the details which make up this encounter. That would not serve his simple purpose. He is content to only raise the fact of this specific encounter to the complainant and invites me to place whatever perimeters or restrictions I deem appropriate upon how this issue is addressed at trial. Counsel reiterated, repetitively during submissions, that if this event under these restrictions is prohibited under s. 276, then he fails to understand what otherwise would be admissible.

[13] The Crown contends that the Applicant has failed to establish the conditions precedent for the admission of this evidence at trial, as outlined in s. 276(2). First, the evidence can only be probative of prohibitive reasoning barred by s. 276(1): that by its admission, it is more likely that the complainant consented to the sexual activity that forms the subject-matter of the charge; or that she is less worthy of belief. Given the restricted scope of the defence to be advanced, it can only be used to suggest the complainant is less worthy of belief, which the Crown contends is myth-based reasoning. By this application, the defence is effectively bringing a backdoor credibility challenge plainly prohibited by s. 276(1)(b). Second, the Crown queries what other relevant issue at trial can effectively be addressed by this evidence – since the credibility attack is embedded within myth-based concerns. Third, the Crown rightly concedes that this identified event sufficiently satisfies the “specific instance of sexual activity” threshold, as opposed to some generalized activity. But, fourth, the Crown suggests that the evidence does not otherwise reach the “significant probative value” threshold that is not “substantially outweighed by the danger of prejudice to the proper administration of justice.” In essence, the Crown contends that all that can be derived from adducing evidence of an alleged July 14, 2012 consensual sexual encounter is to suggest that the complainant was less worthy of belief respecting the charged offence.

Legal Framework and Analysis

[14] When charged with a sexual offence, an applicant may only seek the admission of “sexual activity” on the part of the complainant, other than that which forms the subject matter of the charge, with leave of the court. The process is governed by s. 276 and its process is outlined by ss. 278.93 and 278.94. Here, at the second stage of the inquiry, the defendant seeks to cross-examine the complainant respecting “sexual activity” between them other than that respecting the allegations before this court. Pursuant to s. 278.94, I must assess whether the evidence, or any part of it, is admissible under s. 276(2). Factors that I must consider in my admissibility analysis are listed in s. 276(3).

[15] Evidence of a complainant’s other sexual activity is presumptively inadmissible.[^2] As expressed by our Supreme Court in R v Barton,

This section gives effect to the holding in Seaboyer that the "twin myths", identified in paras. (a) and (b) respectively, "are simply not relevant at trial" and "can severely distort the trial process" (Darrach, at para. 33). It is "an expression of the fundamental rule that to be admissible, evidence must be relevant to a fact in issue" (L.S., at para. 45), and it confirms that the twin myths simply "have no place in a rational and just system of law" (Seaboyer, at p. 630). These myths are "prohibited not only as a matter of social policy but also as a matter of 'false logic'" (R. v. Boone, 2016 ONCA 227, 347 O.A.C. 250, at para. 37, citing R. v. W.H., 2015 ONSC 3087, at para. 10; see also Seaboyer, at p. 605).[^3]

[16] In application, s. 276 was designed to create an “evidentiary filter” which can separate evidence of other sexual activity that is “germane to an accused’s ability to make full answer and defence”, from that which merely prejudices a proper trial.[^4] As the Supreme Court summarized in R v Goldfinch, “[t]aken as a whole, s. 276 seeks to protect the privacy of complainants, encourage the reporting of sexual offences and exclude evidence which fuels propensity reasoning.”[^5]

[17] Of course, s. 276 does not bar all uses of other sexual activity evidence. This evidence can be admitted to support other, legitimate inferences if established as part of an application before the court. For example, if evidence of sexual activity is proffered for its non-sexual features, such as to show a pattern of conduct or a prior inconsistent state, it may be permitted.[^6] However, as noted by our Supreme Court in Darrach, “[e]vidence of prior sexual activity will rarely be relevant to support a denial that sexual activity took place or to establish consent.”[^7] Such evidence is most often used to substantiate claims of an honest but mistaken belief in communicated consent – here, irrelevant.

[18] Applying the statutory factors outlined in s. 276(3) is a balancing act. As Goldfinch explained:

…Balancing the s. 276(3) factors ultimately depends on the nature of the evidence being adduced and the factual matrix of the case. It will depend, in part, on how important the evidence is to the accused's right to make full answer and defence. For example, the relative value of sexual history evidence will be significantly reduced if the accused can advance a particular theory without referring to that history. In contrast, where that evidence directly implicates the accused's ability to raise a reasonable doubt, the evidence is obviously fundamental to full answer and defence (Mills, at paras. 71 and 94).[^8]

[19] To its credit, the Crown raised a possible authority for the Applicant’s admissibility purpose by citing our Court of Appeal’s decision in R v LS. It distinguishes its application to this evidentiary narrative and questions its continuing authority post the Supreme Court’s more recent R v ARJD[^9] ruling. Nevertheless, the LS decision bears careful scrutiny.

[20] In LS, the court allowed evidence of an ongoing post-offence sexual relationship between the complainant and the defendant to be adduced where, as here, the defence was that the incident in question never happened. The court noted that this “relationship evidence” could support the proposition that “the parties carried on as if nothing had happened because nothing had in fact happened.”[^10] It explained,

I do not suggest that evidence that E.K. and the appellant continued a relationship that included consensual sexual intercourse after the alleged assault demonstrated that the assault did not occur. Different people will react differently to the same event. However, to acknowledge that evidence that the relationship continued as before was far from determinative of whether the assault occurred, is not the same as holding that the evidence is irrelevant. 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: see R. v. A. (No. 2), [2001] 2 W.L.R. 1546, at para. 31 (H.C.). This evidence was relevant.[^11]

This evidence was therefore relevant to assessing the credibility of the complainant’s allegation that the encounter occurred, not to whether the complainant consented to alleged sexual activity.

[21] As noted, the Applicant asserts that this purported encounter is relevant not through its detail, but merely based upon its occurrence. It is somehow incongruous that the so described consensual encounter occurred on July 14th, 2020, mere months after the alleged sexual assault. Since the Applicant denies that the alleged sexual assault ever occurred, the fact of the July 14th event is in keeping with nothing having occurred in March, because – it will be argued – nothing did occur. Therefore, it is relevant to the complainant’s credibility not because she is “unchaste” or “less worthy of belief” but, because it purports to represent some evidence refuting her viability of her offence narrative.

[22] As I have already noted from Darrach, evidence of a sexual relationship between a complainant and the accused, either before or after an alleged offence, will only rarely be admitted under s. 276 scrutiny. Indeed, the Goldfinch court expanded upon this issue even further:

It goes without saying that the "relevant issue" cannot be one of the twin myths prohibited by s. 276(1). Neither will generic references to the credibility of the accused or the complainant suffice. Credibility is an issue that pervades most trials, and "[e]vidence of prior sexual activity will rarely be relevant to support a denial that sexual activity took place or to establish consent" (Darrach, at para. 58; see also Handy, at paras. 115-16). Arguments for relevance must be scrutinized to ensure "context" is not simply a disguised myth.

[23] As well, that court also makes plain in R v ARJD that a judge will err by assessing a complainant’s credibility “solely on the correspondence between her behaviour and the expected behaviour of the stereotypical victim of sexual assault.”[^12]

[24] As the Crown has noted, LS is factually distinguishable from this case in an important respect. As explored during the Applicant’s cross-examination, there was no ongoing sexual relationship between the Applicant and the complainant leading up to the alleged March 2012 event. They had been separated since September of 2011 without any reconciliation efforts or intimate history in the interim, until, according to the Applicant, the July 2012 event occurred. This was not a “continuing relationship” scenario as the LS court faced. Here, a distinctive intervening act is present – a marital separation.

[25] In LS, the defendant was not raising any specific other sexual activity to advance his defence. The alleged historical sexual assault occurred in the midst of an ongoing marriage, inclusive of consensual sexual relations before and after. The LS court enhanced to scope of “specificity” required by s. 276(2)(c) to include a more generalized inquiry for like circumstances. The defendant’s point was simple, evidence of consensual sexual activity before and after the alleged sexual assault was relevant to the veracity of complainant’s complainant. The fact of this ongoing sexual relationship was crucial to that court’s admissibility ruling:

Evidence that a consensual sexual relationship existed between E.K. and the appellant before the alleged assault and that it continued after the alleged assault had probative value that was more than trifling. A jury could reasonably, by considering and comparing the nature of the relationship between the two before and after the alleged assault, be assisted in deciding whether the assault described by E.K. had happened.[^13]

[26] Here, the Applicant is raising a specific instance of sexual activity. He is not simply asking me to consider his marital history and its sexual relationship implications. Had this alleged July 2012 event been coupled with an ongoing intimate relationship it could have meshed well with LS reasoning. However, the marital breakdown and resulting separation six months before the subject complaint is not an insignificant intervening event. Each s. 276 determination is, necessarily, fact specific. Given the significance of this factual disparity as well as the scope of the admissibility query requested between this case and LS, I find that the LS reasoning is of little assistance to my analysis.

[27] Given this finding, I need not engage in the Crown’s argument that the ARJD has effectively overruled LS. In ARJD, the failure or lack of evidence that the complainant avoided the defendant after alleged sexual offences was found irrelevant to the truth finding process as nothing more than stereotypical assumptions about the expected behaviour of a “true” victim of sexual assault. This reasoning, however, is not lost on me.

[28] I confess that I am struggling to distinguish the Applicant’s position from the prohibited line of reasoning set out in s. 276(1)(b) that the complainant is less worthy of belief respecting her March 2012 allegation because she allegedly consented to sexual activity with the Applicant months later. That is a bold proposition – regardless of how many other puzzle pieces the Applicant wants to put into play at his trial. There is a reason why s. 276 applications will rarely be successful when a denial is the presented defence.

[29] Here, there is clearly a risk that this evidence can only be used for a prohibitive purpose – that the complainant’s alleged agreement to post-offence consensual sexual activity makes her less worthy of belief respecting the subject matter of this s. 271 charge. It is a fine distinction to argue that this evidence is proffered only to challenge the veracity of the alleged event, as opposed to the credibility of the complainant because of her participation in the post-offence event. Here, I find it is a distinction without a difference.

[30] As noted in Goldfinch, contextual relationship evidence cannot support an inference of “an increased likelihood of consent” anymore than it can “dispel an inference of the unlikelihood of consent”.[^14] Both are examples of twin myth reasoning. Individual sexual acts are to be assessed contemporaneously – past or, as here, future sexual acts offer little expected probative assistance to relevant trial issues unless they are made patently clear by application. I simply cannot expect to derive any “expected human experience” from the post-offence sexual activity as presented here. To do so would be to engage in the very stereotypical reasoning that ARJD and previous cases have routinely cautioned against. As stated back in 2001 by the Supreme Court in R v Find,

…Traditional myths and stereotypes have long tainted the assessment of the conduct and veracity of complainants in sexual assault cases - the belief that women of "unchaste" character are more likely to have consented or are less worthy of belief; that passivity or even resistance may in fact constitute consent; and that some women invite sexual assault by reason of their dress or behaviour, to name only a few. Based on overwhelming evidence from relevant social science literature, this Court has been willing to accept the prevailing existence of such myths and stereotypes: see, for example, Seaboyer, supra; R. v. Osolin, [1993] 4 S.C.R. 595, at pp. 669-71; R. v. Ewanchuk, [1999] 1 S.C.R. 330, at paras. 94-97.

These myths and stereotypes about child and adult complainants are particularly invidious because they comprise part of the fabric of social "common sense" in which we are daily immersed. Their pervasiveness, and the subtlety of their operation, create the risk that victims of abuse will be blamed or unjustly discredited in the minds of both judges and jurors.[^15]

And more recently, our Court of Appeal in R v AB, cautioned against judges making credibility findings against complainants in sexual assault cases based upon stereotypical views about how victims should behave after they have been assaulted.[^16] Here, ignoring this reality runs a significant risk of corrupting the truth finding process, particularly when the defence is not even consent based.

[31] Having considered the purported relevance of this proposed evidence (and area of cross-examination) and against its prohibitive purpose implications, I also cannot conclude that it has any probative value, let alone any significant probative value, which can outweigh the substantial prejudicial effect on the administration of justice. There is a societal interest in ensuring that the reporting of sexual assault offences is not unduly proscribed by discriminatory fact-finding process or a disregard for a complainant’s personal dignity and right to privacy. Balancing these interests against a defendant’s right to make full answer and defence is never easy. But, even if I am wrong, even if somehow this evidence is relevant beyond a myth-based purpose, I find that it is, as suggested by counsel, but one piece of many for which the Applicant can, and otherwise will, raise his improper motive-based fabrication defence. The absence of this July 2012 event from his list of concerns will not prohibit him from advancing what the pre-trial applications have already revealed is a multi-faceted attack upon the complainant’s credibility.

Conclusion

[32] For these reasons, this application for to permit cross-examination and, otherwise, the inducement of other sexual activity evidence between the Applicant and the complainant is dismissed pursuant to s. 276(2). Its admission would violate the myth-based reasoning prohibition of s. 276(1) and there is simply no other relevant and sufficiently probative purpose that justifies its admission and no amount of editing or judicially imposed restrictions can remedy this deficiency.

Released: May 13, 2022

Signed: Justice M. B. Carnegie

[^1]: The defence, I presume, has used this language out of R v Goldfinch, 2019 SCC 38 at para 66, with intention. The Supreme Court, there, noted the rarity of circumstances where this “context” evidence could be admissible stressing its “fundamental” need, not “merely helpful context”. The Applicant has stressed that this is one of the rare “fundamental” circumstances justifying admission. [^2]: R v Goldfinch, 2019 SCC 38 at para 40 [^3]: R v Barton, 2019 SCC 33 at para 60 [^4]: R v LS, 2017 ONCA 685 at para 79 [^5]: Goldfinch, supra, at para 48 [^6]: R v Darrach, 2000 SCC 46, [2000] 2 SCR 443 at para 35, R v Crosby, [1995] 2 SCR 912 [^7]: Darrach, supra, at para 58-59 [^8]: Goldfinch, supra, at para 69 [^9]: R v ARJD, 2018 SCC 6 [^10]: LS, supra, at paras 88, 97 [^11]: LS, supra, at para 89 [^12]: R v ARJD, 2018 SCC 6 at para 2 [^13]: LS, supra, at para 91 [^14]: Goldfinch, supra, at paras 58-60 [^15]: R v Find, 2011 SCC 32 at paras 101, 103 [^16]: R v AB, 2019 ONCA 124 at para 17