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:

ORDER RESTRICTING PUBLICATION — SEXUAL OFFENCES

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

MANDATORY ORDER ON APPLICATION

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;

(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 subsections 486.4(1) to (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

Date: 2024 10 17 Court File No.: 22-11404982

BETWEEN:

HIS MAJESTY THE KING

— AND —

M.C.

Before: Justice J.R. Lalande Heard on: October 16th 2024 Reasons for Judgment released on: October 17th 2024

Counsel: Ms. C. Hébert....................................................................................... counsel for the Crown Mr. P. Giancaterino............................................................... counsel for the accused M.C.

Overview

[1] This is an application by the Crown to admit evidence of what it characterizes as prior sexual activity under the authority of Seaboyer.

[2] Unfortunately, the application was filed on the morning of trial without prior notice. I came to learn that the day before trial the Crown had reconsidered its previous position that the incident it wishes to tender as part of this application formed part of the same transaction as the alleged sexual assault. The parties are now ad idem in their view that it does not form part of the same transaction and requires an application. Despite the lack of notice, defence counsel reviewed the Crown’s materials and was able to respond to the application after a short break.

[3] I dismissed the application at the conclusion of the hearing and provided only very brief comments to draw the parties’ attention to the issues that led me to my conclusion. This allowed the trial to commence without delaying things further. At the time, I promised to explain my reasons more thoroughly in due course. These are my supplemental reasons for dismissing the application.

Facts

The Allegation

[4] M.C. is charged with sexually assaulting the complainant, E.B. The relevant details of the allegation involve the complainant waking up in the morning hours of August 15th 2022. She had been sleeping beside the accused on a mattress. The mattress was on the floor of a bedroom near a bed. On the bed, the accused’s friend was sleeping.

[5] According to the Crown’s theory, the complainant woke up to notice the accused pulling her pants and underwear down from behind her. The accused is alleged to have then engaged in non-consensual vaginal intercourse with the complainant.

[6] The anticipated evidence is that the complainant did not react when she woke up and felt her pants and underwear being removed. According to the Crown’s application, she remained motionless, silent and pretending to sleep. She later told police that she was “in shock”, felt the need to disassociate, and “did not think she could tell the accused ‘no’”.

The Prior Sexual Activity

[7] The Crown seeks to adduce evidence of an incident that occurred either the day before or within several days of the allegation before the Court. The incident involves the accused pulling on the complainant’s pants one morning while she was sleeping. She woke up but pretended to be asleep and remained motionless. The accused apparently stopped trying to pull her pants off because she was wearing a belt that was on tightly and preventing him from getting her pants off.

[8] The evidence as set out in the application appears to reflect steps taken by the accused towards engaging in sexual activity with the complainant while she was asleep and unable to consent.

The Law

[9] The evidence is presumptively inadmissible. As its proponent, the Crown must justify the admission of the evidence according to the two criteria set out in Seaboyer, [1991] 2 SCR 577 at paras 41-43, 101. First, it must establish that the evidence is not being led to support either of the twin myths or other discriminatory inferences. Second, the Crown must show that the probative value exceeds the prejudicial effect. [1]

Positions of the Parties

[10] The Crown seeks to admit the evidence which it characterizes as prior sexual activity for several purposes according to its written materials. In submissions it became clear that chief purposes were (1) as part of the essential narrative; and (2) to explain the complainant’s actions in remaining motionless during the alleged assault. Ancillary purposes identified in the written materials and submissions included that it would allow the complainant to “tell her full story”, to allow the Crown to cross-examine the accused on this activity and to rely on it in final submissions.

[11] Ms. Hébert also argues that this type of evidence is essential to the determinations of credibility and identifies its probative value is giving insight into the complainant’s mind and reaction at the time of the allegation.

[12] The Crown argues that the potential prejudice of this evidence is significantly reduced given that it is a judge-alone trial and emphasizes that the incident it wishes to tender does not constitute a sexual assault and is not part of the behaviour alleged at trial.

[13] Defence opposes the admission of the evidence, characterizing its probative value as marginal. Mr. Giancaterino also argues that its prejudicial effect is significant as it may unduly complicate the trial process and divert attention from the true issues.

Application

[14] As to the first step in the analysis, it is common ground that this application does not concern evidence which engages the twin myths or other discriminatory reasoning. This issue in this application turns instead on the second step of the Seaboyer test, namely whether its probative value outweighs its prejudicial effect.

[15] As to the second step of the test, I conclude that the probative value of this incident for narrative purposes or to explain the complainant’s state of mind is marginal for the following reasons.

[16] First, it is not required for any narrative purpose. Specifically, my understanding of the allegations as the trial judge does not require me to consider the prior incident or risk being left with an incomplete or misleading picture. The incident in question is discrete in nature and does not serve to fill any gap in the events essential to my comprehension of evidence. Rather, the Crown’s argument, in my view, is an example of the narrative pitfall explained by the Court of Appeal in Borel, 2021 ONCA 16 at para 48:

… "narrative" is too often used by counsel, supported by trial judges, as a vehicle for the admission of evidence that is otherwise inadmissible and prejudicial. The practice of using this route to admit prejudicial evidence must stop … Trial judges must be alert to the potential for such misuse and be on guard to bar this door. [2]

[17] Second, I do not find that there is significant value to the evidence for the proposed purpose of understanding the complainant’s state of mind and her reaction to the alleged sexual assault. This is because, on the evidence before me, there does not appear to be any need to explain the complainant’s state of mind as she reacted to the alleged sexual assault by remaining silent and motionless. As pointed out by defence, if it were to challenge the nature of the complainant’s reaction, this on its own would likely be impermissible as it would engage faulty myth-based reasoning that victims are expected to react in a stereotypical way to be believed. A Court relying on this reasoning would be in error (Fischer, 2024 ONCA 344 at paras 7-8). Moreover, Courts have held that a complainant freezing and remaining silent or motionless during a sexual assault constitutes a reaction that is not unusual according to common understanding and acquired judicial experience (E.B., 2021 ONCA 875 at paras 32, 52). Despite this, if the Crown remains steadfast that it ought to explain the complainant’s reaction, it already has significant evidence available to it to do so. As indicated in its materials, the Crown’s anticipated evidence was that the complainant was in shock, felt a need to disassociate and did not think she could say ‘no’. As a result, I conclude that, on the record before me, the probative value of the proposed evidence in understanding the complainant’s state of mind or her reaction to the alleged sexual assault is minimal.

[18] Third, I do not rely on the ancillary purposes set out by the Crown in submissions and their materials: that the complainant wishes to “tell her full story”; that the Crown wishes to cross-examine the accused on the incident; or, that the Crown seeks to rely on the incident in submissions. Respectfully, these are not appropriate legal bases to admit the evidence in question.

[19] As for the prejudicial effect of the evidence, I agree with the Crown that there is a diminished risk of moral prejudice in a judge-alone trial and moreso where the proposed evidence appears less serious than the conduct at issue in the trial. Having said that, I am mindful that prejudice is to be evaluated on a continuum (Bent, 2016 ONCA 651 at para 46) and in a judge-alone trial, moral prejudice is not simply “reduced to zero” (Lamoureux, 2023 ONSC 5384 at para 23) due to the absence of a jury. Here, the proposed evidence suggests that the accused was attempting to sexually assault the complainant as she slept and the incident occurred close-in-time to the allegation before me. This is extremely serious conduct, and it carries at least some risk of moral prejudice.

[20] I also accept defence counsel’s submission that there is some reasoning prejudice resulting from the proposed evidence. Specifically, the proposed evidence will have the effect of diverting the trial’s focus from the alleged sexual assault (Bent, 2016 ONCA 651 at para 46, 74). Tangible examples of the distracting nature of this evidence were provided in submissions, including that defence may have to bring a last-minute s.276 application to respond to the proposed evidence (Barton, 2019 SCC 33 at para 79; R.V., 2019 SCC 41 at paras 7, 8, 42 and 45), which would derail the scheduled trial time. As well, if M.C. denies that he engaged in the conduct alleged as part of this application, the Court would be required to make factual determinations on that matter to determine if the anticipated value of the evidence has been proven.

[21] On balance, I conclude that the marginal value I attribute to the evidence proposed by the Crown does not outweigh the potential cost, both in terms of the risk of moral prejudice and of the distraction that it poses to the trial, to justify its admission.

[22] The Crown’s application is dismissed.

Released: October 17, 2024 Signed: Justice J.R. Lalande

[1] Counsel for the Crown and defence both indicated in submissions that the proposed evidence constitutes uncharged and extrinsic misconduct. I agree. As discreditable conduct, this evidence is also presumptively inadmissible. I have dealt with this application under the common law regime for prior sexual history as it was filed. However, if it were litigated as discreditable conduct, I observe that there is considerable overlap in the analysis, as the Crown would be tasked with identifying its relevance to an issue at trial and justifying its admission by demonstrating that its probative value outweighs its prejudicial effect (R. v. Lamoureux, 2023 ONSC 5384 at para 14). As well, no similar fact application was filed.

[2] See also ZWC, 2021 ONCA 116 at para 122.