Warning and Non-Publication Order
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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
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.
☒ An order has been made under s. 278.95(1)(c) allowing these reasons to be published, broadcast or transmitted.
Ontario Court of Justice
DATE: 2025-02-10
COURT FILE No.: Toronto
File Number: 4817 998 22 70007909
Between:
His Majesty the King
— AND —
Cleis Neveau
Before Justice Seth Weinstein
Heard on January 24, 2025
Ruling on Application to Admit Evidence of Other Sexual Activity – Stage 2
February 10, 2025
Counsel:
Stephanie Abrahams — counsel for the Crown
Megan Schwartzentruber — counsel for Cleis Neveau
Ashley Dresser — counsel for the Complainant
Reasons of Weinstein J.
[1] The Applicant is charged with two counts of sexual assault and one count of failure to comply with a probation contrary to sections 271 and 733.1 of the Criminal Code.
[2] The complainant alleges that the Applicant touched her breast without her consent and later engaged in non-consensual oral sex and sexual intercourse. The Applicant does not dispute that he engaged in sexual intercourse and other sexual activity with the complainant. He claims, however, that it was all consensual.
[3] On December 20, 2024, the defence brought an application to introduce the following evidence of other sexual activity of the complainant:
That on the date of the alleged incident, the complainant told the Applicant that she was not interested in having sex because she was dealing with a sexually transmitted infection (“STI”).
That in the hours before the alleged sexual assault, the complainant asked the Applicant’s girlfriend, C.E., to engage in a threesome with the Applicant; and
That the day before the alleged sexual assault, the complainant asked C.E. and the Applicant to attend with her at a “topless party.”
[4] It is the position of the defence that this evidence is relevant to impeach the complainant’s evidence and to establish a motive to fabricate the allegations against the Applicant.
[5] I granted the Stage one application, in part. Given its proximity to the alleged sexual assault, I found that the evidence relating to the STI fell outside the 276 regime as it was not evidence of “other sexual activity”: See R. v. Reimer, 2024 ONCA 519 at para. 45. Further, the evidence of the threesome proposal was relevant to the complainant’s credibility as it could reveal inconsistencies in her statements to police. However, I was not satisfied that the evidence of the topless party was capable of being admissible at trial and dismissed that aspect of the application.
[6] At the Stage-two hearing, the parties agreed that the defence should be permitted to lead evidence with respect to whether the complainant had propositioned C.E. and the Applicant to engage in a threesome. However, they disagreed about the scope of what the complainant can be asked about this incident. In addition to asking whether she made the proposal, the Applicant wants to suggest that the complainant had a sexual interest in C.E. It is submitted that this sexual interest provided the complainant a motive to fabricate when C.E. later confronted her about whether she had sex with the Applicant.
[7] It is the position of the Crown that there is no nexus between having a sexual interest and motive to fabricate. Moreover, recent fabrication can be alleged without resorting to any evidence of the complainant’s sexual interest in C.E. The Crown submits that the Applicant should only be permitted to ask questions about the complainant’s sexual interest in C.E. if the complainant first agrees that she had propositioned the threesome. However, if she denies it happening, any further questions will unduly interfere with the complainant’s privacy and dignity.
[8] Counsel for the complainant argues that the defence has failed to establish that the complainant had a sexual interest in C.E. Accordingly, the proposed evidence should be circumscribed to the sexual proposition made to the Applicant and C.E.
[9] I agree that the evidence of the threesome proposition is admissible to establish a potential prior inconsistent on a material issue and that this evidence has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. The sole issue that I must therefore determine is whether the defence should be permitted to ask any questions about the complainant’s sexual interest in C.E.
Factual Background
[10] I will only review the salient facts that are necessary for me to decide this narrow issue.
The Alleged Offence
[11] The sexual assaults are alleged to have taken place at the complainant’s home on the night of August 10, 2022, and into the early morning of August 11, 2022.
[12] The complainant alleges that she spent the evening with the Applicant and others at an event at Allen Gardens. At the end of the night, she invited the Applicant and another woman back to her apartment.
[13] The first count of sexual assault relates to an event that allegedly occurred while the complainant and Applicant were smoking on the balcony. It is alleged that the Applicant suddenly reached over, pulled down her bra and grabbed her left breast. The complainant claims that she told the Applicant to stop and that he complied and went back into the apartment.
[14] The complainant told the police that she later found the Applicant in her bed. The complainant alleges that she asked the Applicant to leave but he refused. She alleges that the Applicant started to touch her breast and clitoris area and then proceeded to get on top of her. The complainant claims that she tried pushing him off but was unable to do so. She stated that she continued to tell the Applicant that she did not want to have sex but that the Applicant ignored her and proceeded to have sexual intercourse. The complainant said that she was then forced to perform oral sex on the Applicant until he ejaculated into her mouth.
[15] The complainant told police that several days after the alleged event, C.E. confronted her about having sex with the Applicant. The complainant told C.E. that she did not consent to the sexual activity. It was only after speaking with C.E. that the complainant called the police. When asked why she did not report the sexual assault right away, the complainant stated, “I didn’t remember actually until the conversation” and that while talking with [C.E.], “it like all came back.”
Evidence of Other Sexual Activity
[16] The Applicant did not testify at the Stage 2 hearing and did not provide an affidavit. Instead, he relies on an affidavit from C.E.
[17] C.E. states in her affidavit that she has been in a relationship with the Applicant since June 2022 and became friends with the complainant sometime in the summer of 2022.
[18] On August 10, 2022, C.E. was at an event with the Applicant and a group of friends. The complainant was at the same event and joined the group. According to C.E., the complainant was flirting with her and at one point asked whether she would be interested in engaging in a threesome with her and the Applicant. C.E. did not accept.
[19] C.E. stated that the Applicant eventually told her that he engaged in sexual intercourse with the complainant. C.E. then confronted the complainant and asked her if anything had happened between her and the Applicant. The complainant told her that they had sexual intercourse but that it was not consensual.
Relevant Legal Principles
[20] The centrality of a complainant’s credibility in proving a sexual offence does not necessarily permit the defence to introduce sexual activity evidence beyond the scope of the offence charged. The admissibility of any evidence of prior sexual activity is governed by section 276 of the Criminal Code.
[21] Section 276 is designed to protect the integrity of the trial process from outdated, myth-based reasoning which undermines the dignity and privacy interests of sexual assault complainants. Only where the probative value of the other sexual activity evidence is significant and not substantially outweighed by the danger of prejudice to the proper administration of justice will the evidence be admissible.
[22] Section 276 sets out strict criteria before evidence of other sexual activity is admissible. At the stage-2 hearing the court must determine whether the proposed evidence meets the criteria for admissibility under s. 276(2) to (4). In determining whether the proposed evidence is admissible, section 276(3) lists the criteria to be considered:
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.
[23] The Supreme Court explained the importance of the trial judge’s gate-keeping function when considering applications to introduce evidence of prior sexual conduct in R. v. T.W.W., 2024 SCC 19, at paras 27-28:
In order to be potentially admissible, the relevance and probative value of the evidence in each case must go beyond a general ability to undermine the complainant’s credibility … it must respond to a specific issue at trial that could not be addressed or resolved in the absence of that evidence.
Trial judges must guard against improperly widening the scope of when other sexual activity evidence should be admitted given that, as Karakatsanis J. noted in Goldfinch, “credibility is an issue that pervades most trials” (para. 56)… Too broad an approach to credibility … would cast open the doors of admissibility, overturning Parliament’s specific intention and this Court’s longstanding jurisprudence that evidence of other sexual activity will be admitted only in cases where it is sufficiently specific and essential to the interests of justice. Given the specific thresholds set by Parliament and their underlying objectives, something more is required to show that admission is justified.
[24] In R. v. R.V., 2019 SCC 41, the Supreme Court described the limits section 276 places on the accused’s right to cross-examine the complainant. These limits are essential to protecting the complainant’s dignity, privacy, and equality interests: see para. 40. They are also vital to ensuring that cross-examination is not used to embark upon irrelevant, misleading, or humiliating questioning that does not advance the truth-seeking function of the trial but instead descends into forbidden myths and stereotypes.
[25] Evidence of other sexual activity will not pass the threshold test for admissibility where it has minor or trifling probative value. The evidence must have “significant probative value,” and that probative value must not be “substantially outweighed by the danger of prejudice to the proper administration of justice” from its admission. In R. v. L.S., 2017 ONCA 685, the Ontario Court of Appeal held that evidence which has “significant probative value” is evidence that has more than “trifling relevance” and is capable in the context of all the evidence of leaving the jury with a reasonable doubt: see para. 90; see also R. v. Darrach, 2000 SCC 46, at paras. 39-41.
Analysis
[26] The Crown and the complainant have agreed that evidence of the complainant propositioning C.E. and the Applicant is admissible to impeach the complainant on her statement to the police. The only additional issue to be determined is whether the defence can suggest that the complainant had a sexual interest in C.E. and that this sexual interest provided the complainant with a motive to fabricate the allegations when confronted by C.E.
[27] I am satisfied that evidence of the complainant propositioning the threesome is not being advanced for twin-myth reasoning. Rather, the evidence has significant probative value and in that it is relevant to impeach the complainant. I am also satisfied that evidence of the complainant’s sexual interest in C.E. is relevant to the complainant’s motive to fabricate. Finally, the probative value of the evidence is not substantially outweighed by the danger of prejudice to the proper administration of justice.
[28] The Applicant has provided, through C.E.’s unchallenged affidavit, an evidentiary foundation that the complainant and C.E. had a relationship relevant to whether there was a motive to fabricate. Not only is there evidence that C.E. and the complainant were friends, but it is also reasonable to infer from her request for a threesome that the complainant had a sexual interest in C.E.
[29] I appreciate that the defence can raise motive to fabricate without asking the complainant about whether she had a sexual interest in C.E. However, if the defence is precluded from asking whether the complainant had a sexual interest in C.E., they will be hamstrung in their attempt to demonstrate the strength of the complainant’s motive. The sexual nature of her interest in C.E. potentially heightens the value the complainant placed in the relationship, strengthening any potential motive to preserve a relationship when she is confronted by C.E.
[30] The potential use of this evidence sought by the Applicant is not outweighed by the prejudicial effect of this evidence. In a judge alone trial, the risk that admissible evidence will be improperly used is significantly diminished. The dangers of twin-myth reasoning with respect to the proposed use of the evidence is unlikely given the judge alone nature of the trial and the purposes for which the Applicant seeks to use the evidence.
[31] I appreciate that any questions of the complainant relating to the alleged threesome might have a negative effect on her dignity and right to privacy. However, in my view there is no additional prejudice to the complainant and her rights by virtue of counsel being permitted to ask questions about her sexual interest in C.E. It is simply an additional question about a subject that she is already going to be asked about in evidence. In my view, this additional question will have minimal additional impact on complainant. Nor will it have an impact on society’s interest in the reporting of sexual assaults.
[32] Finally, counsel has made it clear that she is not looking to ask any specific details of the complainant’s interest in C.E. or her sexual interests more broadly. She only seeks to cross-examine her to determine if she had a sexual interest in C.E. and whether this interest gave rise to a motive to fabricate. Any cross-examination will be confined to this issue. The questions should be limited to whether the complainant propositioned C.E. and the Applicant for a threesome, whether the complainant was sexually interested in C.E., and whether because of this interest, she fabricated her allegations against the Applicant.
February 10, 2025
Signed: Justice Seth Weinstein