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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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.

Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2024 03 28 COURT FILE No.: Brampton 998 223 31104489

BETWEEN:

HIS MAJESTY THE KING

— AND —

F.W.

Before: Justice G.P. Renwick Heard on: 26 March 2024 Reasons for Judgment released on: 28 March 2024

Counsel: N. Naresh.................................................................................... counsel for the prosecution N. Gregson....................................................... counsel for the Defendant/Applicant F.W. D. Cristovao.................................................................... counsel for the Complainant M.M.

RULING ON STAGE TWO OF A S. 276 APPLICATION [1]

RENWICK J.:

INTRODUCTION

[1] The Applicant faces one count of sexual assault in relation to an incident that is said to have taken place on 12 March 2022 involving the complainant, M.M.

[2] The prosecutor has proceeded by indictment and the Applicant has requested a trial in this court. The three-day trial is set to begin before me on 08 April 2024.

[3] The parties agree that the requirements for a stage one hearing [2] are met and have brought this Application before me for a stage two hearing, pursuant to s. 278.94.

[4] The parties have resolved some of what the Applicant seeks. [3] The following requests are contained in the written Application:

An Order permitting cross-examination of the Complainant on her extrinsic sexual activity pursuant to section 276 of the Code; specifically the sexual activity of the Complainant that resulted in DNA from at least 5 individuals being found on the Complainant; and

An Order permitting the (cross) examination of Crown witness S.R. in respect of his sexual activity with the complainant. [4]

[5] The Applicant submits that the proposed other sexual activity (“OSA”) evidence is relevant in the following three ways:

i. The evidence is relevant to explain the DNA evidence (multiple DNA profiles found on/within the complainant) to be introduced by the prosecution;

ii. The evidence is relevant to the issue of the complainant’s capacity to consent, which will be contested during this trial; and

iii. The evidence will reveal a material inconsistency with a portion of the complainant’s statement to police (that she did not engage in any sexual activity on the day of the alleged offence).

[6] The prosecutor and the complainant agree that the limited probative value of the OSA evidence is entirely eclipsed by the prejudice to be caused by its introduction during the trial. The prejudice would arise from:

i. The introduction of evidence without any probative value; asking the complainant about OSA (to explain the presence of multiple sources of DNA on her body) does nothing to advance the inquiry into the allegation at bar;

ii. The likelihood of mythic reasoning; if the complainant engaged in sexual activity with others, she is less worthy of belief about the allegation at bar;

iii. The unwarranted trespass upon the complainant’s dignity and privacy interests; and

iv. The potential harm to the administration of justice (an unfair trial or the chilling effect this result may have upon prospective complainants of unlawful sexual activity).

THE EVIDENCE

[7] The Applicant did not testify on the Application. Instead, the following materials were filed:

i. A transcript of the complainant’s statement to police;

ii. A transcript of statements made by S.R. to police;

iii. DNA reports indicating that deposits of DNA were found on the complainant’s private bodily areas (both breasts, external genitalia, vagina, mouth, and anus) and the Applicant could not be excluded to varying degrees as a potential contributor to DNA mixtures found on the complainant and on and within a condom retrieved by police; and

iv. The Applicant’s affidavit which outlines that although he did not know the complainant prior to the night in question they engaged in consensual fellatio while the complainant was fully capable of consenting.

[8] In consideration of my role on an evidentiary hearing, I have assessed the value of this evidence in terms of whether it has been established on a balance of probabilities that the OSA evidence is relevant to a triable issue and it has significant probative value.

DISCUSSION

[9] The centrality of a complainant’s credibility in proving a sexual offence does not provide unrestricted license to introduce sexual activity evidence beyond the scope of the offence charged. The s. 276 regime is predicated upon focused materiality inquiries in order to balance competing interests in an equitable way.

[10] The animating rationale of the statutory regime governing the introduction of OSA evidence is the protection of the integrity of the trial process from outdated, myth-based reasoning which adds little to forensic fact-finding, distracts the trier of fact, and exacts too dear a price upon the dignity and privacy interests of sexual assault complainants. Only where the probative value of OSA evidence is significant and it is not substantially outweighed by the danger of prejudice to the proper administration of justice, will the evidence become admissible in proceedings.

[11] The entire statutory scheme for OSA evidence is predicated upon filtering out unnecessary conjecture by demanding a qualitative analysis of the value of the proposed evidence when measured against the inherent dangers of confusion of the issues, embarrassment, character assassination, unwarranted privacy violations, or intimidation of a complainant witness.

[12] Justice Doherty considers the significant probative value assessment in R. v. L.S., 2017 ONCA 685, at para. 90:

Evidence of “significant probative value” is evidence that has more than “trifling relevance” and is capable in the context of all of the evidence of leaving the jury with a reasonable doubt. [5] [citation omitted]

[13] Based on the evidence produced on the Application there are several issues that are likely to arise during this trial:

i. Did the complainant have sexual activity with the Applicant;

ii. Did the complainant consent to sexual activity with the Applicant; and

iii. Did the complainant have the capacity to consent to sexual activity with the Applicant.

OSA in Respect of the DNA of Other People

[14] The Applicant submits that the proposed OSA evidence is relevant to the complainant’s capacity to consent, her memory (which may also assist to determine the complainant’s capacity to consent), and whether she is confusing the Applicant with another sexual partner or partners.

[15] Though it was not argued, I have considered that the complainant may have had sexual activity with a number of people at the nightclub and/or the parking lot proximate in time to the allegation before the court. This might explain the DNA results (multiple sources of DNA were found on different private areas of the complainant’s body).

[16] In most cases, there could be no viable argument that OSA prior to the alleged assault would be relevant to the issue of consent, memory, or complainant credibility. This case appears different.

[17] On the evidence before the court, there are serious concerns respecting the complainant’s ability to consent to sexual activity on the night in question. I find that there may well be significant probative value to asking the complainant whether she had sexual activity with anyone at the nightclub or in the parking lot that night. This question may unearth evidence critical to determining her capacity to consent to sexual activity.

[18] The complainant told the police that she did not remember having sex with anyone that night. The testing of this evidence is also critical to the Applicant’s defence and a just determination of the trial, thereby engaging subs. 276(3)a) and c).

[19] In terms of protecting the complainant’s dignity and privacy, cross-examination in respect of OSA will almost always undermine these important interests. I have considered that this proposed cross-examination may go even further. I find that it may actually harm the complainant’s emotional well-being to ask her about the presence of multiple sources of DNA on her body (it is unknown whether she is already aware of the DNA results).

[20] If the complainant were asked to explain the multiple sources of DNA found on her body, as the Applicant seeks, I am satisfied that the potential prejudice to the complainant’s interests would be substantial. This would undoubtedly overshadow any probative value, which I assess as slight.

[21] Taking into account the totality of interests served by all of the subsections within s. 276(3), I will only grant cross-examination of the complainant in respect of the multiple sources of DNA found on her body in the following way:

The complainant may only be asked if she had any sexual activity with anyone during the period after she arrived at the nightclub on 12 March 2022 until the time that the police arrived to investigate.

[22] If the answer to this question is “yes,” the Applicant will have obtained evidence to assist in making full answer and defence (this evidence may be used by the Applicant during the proposed questioning of the DNA expert and during closing submissions in respect of DNA transfer). The Applicant will also have some evidence with which to advance the theory of the complainant’s capacity to consent.

[23] I disagree with the Applicant that there is any relevance to asking the complainant to explain the presence of multiple sources of DNA on her private parts. This question is potentially highly inflammatory and unlikely to provide any probative evidence.

[24] I am also satisfied that it matters not if the complainant had sexual activity before arriving at the nightclub for two reasons:

i. There is no suggestion that the complainant knew the Applicant or Mr. R. before arriving at the nightclub; thus, there is no reason to suspect that the Applicant’s DNA was left on the complainant’s body prior to her arrival at the nightclub; asking about prior sexual activity will only invoke the impermissible inferences found within s. 276(1); and

ii. There is no suggestion that the complainant was intoxicated to any degree or otherwise in a state where her capacity to consent would be in issue before her arrival at the nightclub.

[25] There can be no credible argument beyond myth-based reasoning that there is any relevance to sexual activity of the complainant in the hours or days before she arrived at the nightclub. Any questions of the complainant about OSA before her arrival at the nightclub is of doubtful relevance, minimal probative value, and highly prejudicial to the complainant’s interests or the administration of justice.

Cross-examination of S.R. regarding Sexual Activity with the Complainant

[26] Mr. R. told the police that he had sexual intercourse and oral sex with the complainant after she had been with the Applicant. The Applicant told police that he had oral sex with the complainant. Both men told police that their interactions with the complainant were entirely consensual. When the complainant was interviewed by the police, she had very little recollection of the events in question. Thus, I find that it would be artificial to prohibit testimony respecting the sexual activity of Mr. R. from the Applicant’s trial. Both men apparently had sexual activity with the complainant in the Applicant’s car, seemingly one after the other. Without the entire context, the court could be deprived of information that goes to the heart of the Applicant’s defence.

[27] The evidence of Mr. R. may prove critical to determine the issue of the complainant’s capacity to consent. This is vital to the Applicant’s defence and clearly engages s. 276(3)a). This favours admissibility of this OSA evidence.

[28] The court must consider society’s interest in encouraging the reporting of sexual assault offences. [6] Subsection 276(3)b) usually militates against sexual assault complainants having to testify about unrelated sexual activity. However, in this situation, the police investigation did not originate with a complaint from an alleged victim. A member of the public called the police to investigate a naked woman running around a parking garage and a condominium complex. The public interest in the reporting of sexual assault offences may better be served in this case by permitting the entire context of the alleged sexual assault to be tested in court. I find that this factor does not tip the scales against permitting the proposed examination.

[29] I am satisfied that there is a reasonable prospect that the OSA evidence concerning Mr. R. will assist the court to come to a just determination in this case.

[30] The court must always guard against mythic or other improper reasoning. However, sub-section 276(3)(d) is not clearly engaged if Mr. R. is questioned about any sexual activity with the complainant. Inferences respecting capacity to consent are permissible and possibly flow from this proposed evidence.

[31] I have carefully considered the complainant’s personal dignity and privacy interests. Although generally, s. 276(3)g) favours exclusion, I am satisfied that this factor does not require exclusion of this OSA evidence for the following reasons:

i. The complainant is likely to testify that she does not know Mr. R. and she has never met him; one possible inference that follows is that she did not consent to sexual activity with him; and

ii. The scope of the intended cross-examination is limited to asking Mr. R. about sexual activity with the complainant; the Applicant does not seek to ask the complainant if she had sexual activity with Mr. R. It is not expected that this examination will have any significant affect upon the complainant’s privacy interests in these circumstances.

[32] Given the potential for the OSA evidence to provide an innocent explanation for the presence of the Applicant’s DNA on the complainant’s body, there is significant probative value to permitting questions to be asked of Mr. R. concerning sexual activity between him and the complainant.

[33] After a careful balancing of all of the relevant factors, I am satisfied that the following proposed OSA evidence is potentially admissible in the following ways:

i. The complainant may be asked if she had sexual activity with anyone after arriving at the nightclub and before being found by the police;

ii. Mr. R. may testify about sexual activity involving the complainant; and

iii. The Applicant may testify about sexual activity involving the complainant.

CONCLUSION

[34] When I balance all of the factors enumerated in s. 276(3) of the Code, and in light of the heightened privacy interests of this particular complainant (found nude and in a vulnerable cognitive state), I am satisfied that the Applicant has met its onus to show on a balance of probabilities that the proposed evidence is relevant, material to issues that will arise during the trial, and the significant potential probative value of this evidence Is not likely to be substantially outweighed by any prejudice to the various interests at stake if the evidence is adduced in compliance with these reasons.

[35] For these reasons, the Application is granted to this extent:

i. The Applicant may cross-examine the complainant to ask if she had sexual activity with anyone while at the nightclub or in the vicinity; [7] and

ii. Mr. R. may be examined about any sexual activity he observed involving the complainant; and

iii. The Applicant may be examined about any sexual activity he observed involving the complainant.

Released: 28 March 2024 Justice G. Paul Renwick

Footnotes

[1] See s. 276(1)-(4) of the Criminal Code, R.S.C. 1985, c. C-46 (the “Code”).

[2] See s. 278.93(1)-(3) of the Code. Given the materials I have seen, this concession is reasonable.

[3] Counsel for the Complainant and the prosecutor have agreed to permit cross-examination of the proposed DNA expert in respect of the possibility of transference of DNA by sexual activity with multiple partners.

[4] The Applicant has resiled from his request in the Application to cross-examine David McKenna on sexual activity with the complainant.

[5] 2017 ONCA 685, [2017] O.J. No. 4586 (C.A.) at para. 90.

[6] See s. 276(3)(b) of the Code.

[7] To be clear, to the extent that this evidence contradicts statements made by the complainant to the police, she may be further cross-examined about any inconsistencies.