Court File and Parties

DATE: February 4, 2022 Information No: 19-Y40 ONTARIO COURT OF JUSTICE YOUTH CRIMINAL JUSTICE COURT

HER MAJESTY THE QUEEN v. T.N.

RULING ON S.276 APPLICATION

Remotely BEFORE THE HONOURABLE, MR. JUSTICE G.R. WAKEFIELD on February 4, 2022, at ORANGEVILLE, Ontario

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTIONS 110 AND 111 OF THE YOUTH CRIMINAL JUSTICE ACT

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT s. 486.4 CCC, BY ORDER OF JUSTICE R.H.K. SCHWARZL, DATED SEPTEMBER 6, 2019 AND FURTHER ORDER PURSUANT TO s. 486.5(1) CCC, BY ORDER OF JUSTICE G.R. WAKEFIELD, DATED JANUARY 27, 2022

APPEARANCES:

M. Occhiogrosso Counsel for the Provincial Crown S. Moss Counsel for T.N. A. Mavani Co-Counsel for T.N.

Ruling

WAKEFIELD, J. (Orally):

Mr. N., is facing charges of Sexual Assault and Forcible Confinement as a young person, arising out of an incident occurring April of 2019.

He has brought an application pursuant to section 276 of the Criminal Code, seeking authorization to question the complainant regarding alleged prior statements by her to the defendant and others, as to her intention to engage in sexual activity with the defendant.

The defendant swore an Affidavit in support of his application, stating that on at least two prior occasions the complainant requested to have sexual intercourse, as well as attesting to a mutual friend also confirming to the defendant that the complainant so desired.

In cross-examination, the defendant confirmed that the complainant had indeed solicited him as well as confirming what the mutual friend had advised him. He confirmed that he was not relying on those comments to infer consent by the complainant to the sexual activity alleged in the information. There is no evidentiary foundation of a scenario such as posited by Justice Moldaver in the Barton case, at paragraph 93, amounting to "prior negotiations, customs or practices between the parties" amounting to such occurring during the incident.

As such, I find there is no basis to permit cross-examination of the complainant regarding her alleged comments as they were not being relied upon for either evidence of consent or mistaken belief in consent, insofar as the cross-examination would be focused on the issue of consent.

I do note that in s. 276, sexual activity includes any communications, so a s. 276 application is required here. However, as those communications were not being relied upon for the defendant's state of mind, they, in my view, become irrelevant for that purpose. As I understand the defence position, the communications were not to be adduced for either of the twin myths, nor for the defendant's state of mind, and as such there is no need to review each of the factors in s. 276 for this usage of the communications.

The defendant also wished to adduce the communications to counter any suggestions by the Crown or belief by the Court, that it would be unfathomable for anyone as young as the complainant to just decide to have sex with another person in the spur of the moment. My understanding is that the Crown will not be asserting such expectation and in my discussions with counsel during submissions, confirmed that I would not be making any such assumption about anyone's ability to make a decision regarding their own sexual integrity, when so many program apps have been developed for exactly that purpose of meeting up for sex and utilized by many age groups.

As such, I find that these communications are not relevant to any need to disabuse the Court of a belief that young people are not capable of deciding to engage in sexual activity, and that I need, as such, not go through the s. 276 criteria for that purpose.

Finally, the defendant wished to use the communications in cross-examination for the purpose of contradicting her asserting that they were friends, with the inference that she lacked any interest in the defendant.

I find that I lack any evidentiary foundation for that purpose. The defendant was not able to provide anything in the complainant police statement, which amounts to a denial of having expressed any interest in the Defendant. The defence asserts that this was a sin of omission, and that the complainant should have volunteered that information to the investigating officer. In my view, this amounts at most to a submission that the absence of evidence is actual evidence of purposeful omission. I do not accept that assertion.

In my view, there is no evidentiary foundation on which to base a contradiction in the complainant's version to then assess the communications admissibility and use pursuant to the criteria set out in s. 276.

That does not preclude the defendant from bringing a new application should an evidentiary foundation arise from the trial testimony. For that reason, I find it would be contrary to the interests of the administration of justice in these proceedings, that I now express an opinion based on s. 276 factors, based on what I have found is a non-existent evidentiary foundation, which might give rise to apprehensions should I be required to assess the factors in any subsequent application.

In other words, it is my view that where I find there is not an evidentiary foundation with which to apply the criteria, it follows that there is not any admissible evidence for which the factors must be taken into account under s. 276, requiring an itemized review of each of those factors.

Additionally, this is matter which is now almost three years in the system despite the expectations of the Youth Criminal Justice Act, to have such matters proceed more efficiently. And with the next court date in this trial being this Tuesday. In my view, it is more important not to lose any further trial dates than for me to reserve this Ruling in order to prepare a more fulsome Ruling, which would not be available by this Tuesday, given my other upcoming time sensitive obligations.

As such, the defendant's application pursuant to s. 276 is hereby denied for those above reasons.

Certificate of Transcript

Form 2 Certificate of Transcript (Subsection 5(2)) Evidence Act

I, Barbara Thompson, certify that this document is a true and accurate excerpt transcript of the recording of, R. v. T.N., in the Ontario Court of Justice, Youth Court, 10 Louisa Street, Orangeville, Ontario, taken from Recording No: 0611 102 20220204 091312 Y 3 WAKEFIG, which has been certified in Form 1.

March 2, 2022 (Date) Digital Signature of Authorized Person Barbara Thompson, A.C.T. #6014683207 bttranscripts@gmail.com