R. v. Crosby, [1995] 2 S.C.R. 912

Wayne Scott Crosby Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Crosby

File No.: 24116.

Hearing and judgment: April 24, 1995.

Reasons delivered: June 22, 1995.

Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Iacobucci and Major JJ.

on appeal from the court of appeal for nova scotia

Criminal law ‑‑ Sexual assault ‑‑ Evidence ‑‑ Admissibility ‑‑ Statements making reference, some only incidentally, to previous sexual activity ‑‑‑ Counsel wishing to cross‑examine on inconsistent statements made to police and on preliminary hearing to test credibility ‑‑ Whether or not Criminal Code (s. 276) bar to admitting statements making reference to previous sexual activity applicable ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 276.

The appellant and a friend were both charged with sexually assaulting the complainant. They were tried separately. The appellant was convicted at trial and the conviction was upheld by the Court of Appeal. The appellant then appealed, as of right, on the basis that the trial judge had erred in excluding, pursuant to s. 276 of the Criminal Code, certain prior inconsistent statements made by the complainant. Credibility was a major issue: the complainant testified that both men had attacked her and forced her to engage in non‑consensual sexual acts and the appellant testified that she had consented throughout. The defence theory was that the complainant had fabricated the allegation of sexual assault against the appellant and the other accused after she was confronted by her parents about her sexual activity. The defence sought permission from the trial judge to lead evidence or cross‑examine the complainant on four different statements that were alleged to be inconsistent with earlier statements, all of which referred in some way to sexual activity other than that which formed the subject matter of the charge and thereby triggered s. 276 scrutiny. The trial judge allowed evidence to be led on one of the four statements, and excluded the other three. In the first excluded statement, the complainant indicated that she had visited the appellant on the day of the alleged sexual assault with the intention of having sexual intercourse with him. This statement was inconsistent with the complainant's testimony at trial and at the preliminary hearing. It was ruled inadmissible because it included an incidental police reference to an earlier sexual encounter between the complainant and the appellant. In the second excluded statement, the complainant described unwanted sexual touching by the other accused a few hours prior to the alleged sexual assault. There was minor inconsistency between this description and her description of these events at the preliminary hearing. Finally, in the third excluded statement, the complainant supposedly told the appellant and the other accused, after the alleged sexual assault, that she had engaged in group sex on prior occasions. The defence of honest but mistaken belief in consent was not raised and the constitutionality of s. 276 of the Code was not challenged. The only issue here was with regard to the proper application of this provision.

Held: The appeal should be allowed.

Per Lamer C.J. and La Forest, L'Heureux-Dubé and Gonthier JJ.: The trial judge erred in excluding the first statement. The material inconsistency between this statement and the complainant's later testimony raised questions as to the complainant's credibility. Excluding this statement denied defence counsel the opportunity to cross‑examine the complainant on this material inconsistency. Ordinarily, nothing would prevent such a cross‑examination. In this case, however, the material inconsistency was inextricably linked to a police reference to an earlier consensual sexual contact between the complainant and the appellant. The trial judge, in invoking s. 276, therefore excluded otherwise admissible evidence (the complainant's prior statement as to her original intention in going to appellant's house) by piggybacking it atop otherwise prima facie inadmissible evidence (the evidence of the unrelated sexual activity). It would be unfair for an accused person to be denied access to evidence which is otherwise admissible and relevant to that person's defence if the prejudice related to admitting that evidence is uniquely attributable to the authorities' conduct. Section 276 was never designed or intended to be employed to prevent cross‑examination in such a situation.

Section 276 cannot be interpreted so as to deprive a person of a fair defence. This does not mean, however, that the accused is entitled to the most beneficial procedures possible. Rather, judges must undertake a balancing exercise under s. 276 that is sensitive to many differing and potentially conflicting interests. In the present case, consideration of these factors favoured admission of the first excluded statement. Under the circumstances, the judge should have admitted the prior statement on the basis that it had significant probative value on the issue of credibility which was not substantially outweighed by the danger of prejudice to the proper administration of justice. In order to minimize any possible prejudice to the fairness of the trial, however, the admission of this evidence should be accompanied by a clear warning to the jury that the only significance of this evidence is in relation to the effect of the inconsistent statements on the complainant's credibility.

The evidence of sexual conduct unrelated to the subject matter of the charge was not relevant to the issue of "motive to fabricate" on the part of the complainant. This evidence was not shown to be probative of that defence.

The trial judge did not err in excluding the second excluded statement. The purported inconsistency relating to the complainant's description of unwanted sexual touching by the other accused did not relate in any way to the activity forming the subject matter of the charge. Moreover, this inconsistency was so minor and so ancillary as to fail to be capable of undermining the complainant's credibility in any meaningful way. The impugned evidence did not have significant probative value of any issue that was relevant at trial, as required by s. 276(2) of the Code.

The third statement was also properly excluded. The defence maintained that it was indicative of the complainant's state of mind after the sexual activity and therefore probative of the fact that she had actually consented. The appellant, however, had ample opportunity to testify as to the complainant's conduct after the alleged assault. Introduction of this alleged statement, which the complainant denied making, did not add significantly to the relevant issue sought to be advanced by the defence at trial and, even if it did, its probative value was, under the circumstances, substantially outweighed by the danger of prejudice to the accused.

This was not an appropriate case to apply the curative provision of the Criminal Code (s. 686(1)(b)(iii)).

Per Sopinka, Iacobucci and Major JJ.: The complainant's statement about previous experience with group sex (the third statement) should be admitted. The decision to exclude this evidence precluded not only cross-examination on the statement but also the evidence of the accused with respect to it. Although consent cannot be given ex post facto, a statement made ex post facto that there was consent or from which this can be inferred is highly relevant. This proposed evidence, if accepted by the jury, was capable of supporting the interpretation advanced by counsel for the accused. A reference by the complainant immediately after group sex (allegedly non-consensual) to a previous experience with consensual group sex strongly implies that the complainant is equating the two episodes and that they were both consensual.

Cases Cited

Referred to: R. v. Dickson (1993), 81 C.C.C. (3d) 224 (Y.T.C.A), aff'd [1994] 1 S.C.R. 153; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Lyons, [1987] 2 S.C.R. 309; State v. Jalo, 557 P.2d 1359 (1976).

Statutes and Regulations Cited

Criminal Code, R.S.C., 1985, c. C‑46, ss. 276 [am. c. 19 (3rd Supp.), s. 12; rep. & sub. S.C. 1992, c. 38, s. 2], 686(1)(b)(iii).

APPEAL from a judgment of the Nova Scotia Court of Appeal (1994), 130 N.S.R. (2d) 61, 367 A.P.R. 61, 88 C.C.C. (3d) 353, dismissing the accused's appeal from his conviction by Macdonald J. sitting with jury on a charge of sexual assault. Appeal allowed.

Philip J. Star, for the appellant.

Kenneth W. F. Fiske, Q.C., for the respondent.

L'Heureux-Dubé J.

The judgment of Lamer C.J. and La Forest, L'Heureux-Dubé and Gonthier JJ. was delivered by

[1] L'Heureux-Dubé J. -- On November 4, 1991, the accused, Scott Crosby, and his friend, John Rines, allegedly sexually assaulted the complainant, L.R. Crosby appeals, as of right, to this Court on the basis that the trial judge erred in excluding, pursuant to s. 276 of the Criminal Code, R.S.C., 1985, c. C-46, certain prior inconsistent statements made by the complainant. This Court allowed the accused's appeal from the bench, with reasons to follow.

[2] It should be noted at the outset that this case does not involve any challenge to the constitutionality of s. 276 of the Code. The only issue is with regard to the proper application of this provision, which reads as follows:

276. (1) In proceedings in respect of an offence under section 151, 152, 153, 155 or 159, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant

(a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or

(b)is less worthy of belief.

(2) In proceedings in respect of an offence referred to in subsection (1), no evidence shall be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 276.1 and 276.2, that the evidence

(a)is of specific instances of sexual activity;

(b)is relevant to an issue at trial; and

(c) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account

(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. [Emphasis added.]

I. Facts and Judgments

[3] The facts and judgments relevant to this appeal may be briefly summarized. Crosby and Rines were tried separately. At Crosby's trial, which is the subject matter of this appeal, the complainant testified that she had been attacked by both men and forced to engage in non-consensual sexual acts with both. By contrast, Crosby testified that the complainant had consented throughout. The defence theory was that the complainant had fabricated the allegation of sexual assault against Crosby and Rines after she was confronted by her parents about her sexual activities. This theory was supported by the fact that the complainant only reported the sexual assault to police after her brother heard rumours of her sexual activities with Crosby and reported them to her parents, who then confronted her about them. The defence submitted that the complainant made up the story that she had been sexually assaulted because she was too embarrassed and ashamed to admit that she consented to sexual activities with two men. The defence did not raise at trial the defence of honest but mistaken belief in consent.

[4] In a voir dire before the commencement of the trial, the defence sought permission from the trial judge to lead evidence or cross-examine the complainant on four different statements, all of which referred in some way to sexual activity other than that which formed the subject matter of the charge, and which thereby triggered s. 276 scrutiny. The trial judge allowed evidence to be led on one of the four statements, and excluded the other three. Crosby was convicted of sexual assault.

[5] Crosby appealed to the Nova Scotia Court of Appeal on the basis that the trial judge erred in excluding the evidence of the other three statements. The majority of that court upheld his conviction ((1994), 130 N.S.R. (2d) 61). Hallett J.A., dissenting, would have ordered a new trial on the basis that two of the three excluded statements regarding unrelated sexual conduct were relevant because they tended to prove a motive to fabricate. Crosby appeals as of right to this Court.

II. Analysis

(i) The First Statement

[6] In her original statement to police, the complainant admitted to having engaged in consensual sexual intercourse with Crosby on November 1, 1991, three days before the alleged assault. She also admitted that when she visited Crosby on November 4, she did so with the intention of having sexual intercourse with him again:

Q: Had you had sex with Scott before? A: The Friday night before I did. Q: Is that the reason you went there on Monday? A: Yup. Q: Why did you change your mind? A: Because I didn't feel right with John there and I didn't want to have sex with him. [Emphasis added.]

By contrast, at the preliminary hearing, the complainant testified that she did not visit Crosby on November 4, 1991 with the intention of having sex with him:

Q: O.K. were you hoping to have sex with Scott again that night? A: No.

There was an apparent inconsistency between these two statements.

[7] Ordinarily, nothing would prevent defence counsel from cross-examining the complainant on an inconsistency which related to her intentions in going to the accused's house on the day of the alleged assault. Material inconsistencies are relevant to the complainant's credibility. Unfortunately for the accused in this case, however, the material inconsistency was inextricably linked in the police questioning to a reference to the earlier, consensual sexual contact between the complainant and the accused. Defence counsel (and apparently the trial judge) thought that it was necessary to place into evidence the actual excerpts from the interview between the complainant and the police.

[8] This created a dilemma. If the actual questions and answers were placed before the jury, then the jury would also have been alerted to the prior sexual activity between the complainant and Crosby on November 1. Relying upon s. 276 of the Code, the trial judge therefore prohibited defence counsel from cross-examining the complainant on this entire portion of her original statement made to police. When the complainant was cross-examined at trial, the following exchange occurred between defence counsel and the complainant:

Q: Now when you went to Mr. Crosby's home on November 7th, did you want to have sex with Mr. Crosby? A: November 7th? Q: Or sorry, November 4th, the day this happened with you and Rines... A: No. Q: You didn't? A: No.

As a result of the s. 276 ruling, counsel for the appellant was precluded from pursuing this inconsistency between the complainant's trial testimony and her original statement to the police.

[9] With respect, the trial judge erred in excluding this statement, and therefore in preventing defence counsel from cross-examining the complainant on this material inconsistency in her statements.

[10] Where the defence of honest but mistaken belief is not realistically advanced by the accused at trial, then evidence of prior, unrelated sexual activity between the complainant and the accused will seldom be relevant to an issue at trial. See R. v. Dickson (1993), 81 C.C.C. (3d) 224 (Y.T.C.A), aff'd [1994] 1 S.C.R. 153. However, although the defence of honest but mistaken belief in consent was not realistically at issue in the present case, the circumstances were nonetheless somewhat exceptional. In particular, it appears from the transcripts that the only reason the unrelated sexual activity of November 1 was at all implicated was because it was directly referred to by police while posing a question which did, indeed, bear on the sexual activity which formed the subject matter of the charge. The effect of the trial judge's invocation of s. 276 in this case was therefore to exclude otherwise admissible evidence (the complainant's prior statement as to her original intention in going to Crosby's house) by piggybacking it atop otherwise prima facie inadmissible evidence (the evidence of the unrelated sexual activity). In my view, it would be unfair for an accused person to be denied access to evidence which is otherwise admissible and relevant to his defence if the prejudice related to admitting that evidence is uniquely attributable to the authorities' conduct. I do not believe that s. 276 was ever designed or intended to be employed to prevent cross-examination in a situation such as this.

[11] The following remarks by McLachlin J. in R. v. Seaboyer, [1991] 2 S.C.R. 577, at pp. 620-21, are highly pertinent to the interpretation and application of the present version of s. 276 of the Code, which that case inspired:

Accepting that the rejection of relevant evidence may sometimes be justified for policy reasons, the fact remains that [former] s. 276 may operate to exclude evidence where the very policy which imbues the section--finding the truth and arriving at the correct verdict--suggests the evidence should be received. Given the primacy in our system of justice of the principle that the innocent should not be convicted, the right to present one's case should not be curtailed in the absence of an assurance that the curtailment is clearly justified by even stronger contrary considerations. What is required is a law which protects the fundamental right to a fair trial while avoiding the illegitimate inferences from other sexual conduct that the complainant is more likely to have consented to the act or less likely to be telling the truth. [Emphasis added.]

Section 276 cannot be interpreted so as to deprive a person of a fair defence. This is not its purpose. This does not mean, of course, that the accused is entitled to the most beneficial procedures possible: R. v. Lyons, [1987] 2 S.C.R. 309, at p. 362. Rather, it is evident from the majority's remarks in Seaboyer and from the criteria enumerated in s. 276(3) that judges must undertake a balancing exercise under s. 276 that is sensitive to many differing, and potentially conflicting, interests.

[12] In the present case, however, consideration of those factors favoured admission of the complainant's earlier statement. The versions told by the complainant and the accused were diametrically opposed in every material respect, and credibility was consequently the central issue at trial. An inconsistency on a material and pertinent issue is highly relevant in such circumstances. The interests of justice, including the right of the accused to make full answer and defence, therefore militated in favour of admitting the evidence (s. 276(3)(a)). So, too, did the fact that there was a reasonable prospect that the evidence would have assisted the jury in arriving at a just determination in the case (s. 276(3)(c)).

[13] Moreover, under the circumstances, I do not believe that, if the jury had been apprised of the November 1 incident, this would have unduly aroused in them sentiments of prejudice or hostility toward the complainant (s. 276(3)(e)), nor unduly injected into the fact-finding process any discriminatory belief or bias which could not reasonably be mitigated by a cautionary instruction to the jury (s. 276(3)(d)). It is equally significant that, on the scale of potential prejudices to the complainant's personal dignity and right of privacy (s. 276(3)(f)), admission of this particular instance of prior sexual activity was far less prejudicial than could be contemplated in many other circumstances. Finally, the "other factors" mentioned in s. 276(3)(h) require consideration of the fact that it would be unfair for the Crown, by virtue of conduct over which the accused had no control, to render inadmissible certain evidence that would otherwise have been admissible and relevant to the defence of the accused.

[14] As such, under the circumstances, the judge should have admitted the prior statement on the basis that it had significant probative value on the issue of credibility which was not substantially outweighed by the danger of prejudice to the proper administration of justice. In order to minimize any possible prejudice to the fairness of the trial, however, the admission of this evidence should, of course, be accompanied by a clear warning to the jury that the only significance of this evidence is in relation to the effect of the inconsistent statements on the complainant's credibility. The jury must not infer from the unrelated sexual act that the complainant was therefore more likely to have consented to the sexual activity that forms the subject matter of the charge, or that she is therefore less worthy of belief.

[15] This being said, I must respectfully disagree with Hallett J.A. that the evidence of sexual conduct unrelated to the subject matter of this charge was relevant to the issue of "motive to fabricate". Although "motive to fabricate" was, indeed, the defence's theory, I do not see how evidence about the nature and frequency of sex, either with the accused or with other persons, would advance the "motive to fabricate" defence except in the most unusual of circumstances. By way of illustration only, I would note that such circumstances might arise in the context of a poisoned or acrimonious relationship. See, e.g., State v. Jalo, 557 P.2d 1359 (Oregon Ct. App., 1976).

[16] I do not see, however, how the evidence of unrelated sexual activity related to "motive to fabricate" in the present case. The manner in which it is sought to be used in this case simply suggests to the jury that the complainant is "loose" and therefore less worthy of belief. This is one of the very stereotypes that s. 276 is intended to address. In Seaboyer, supra, at p. 690, I addressed the "Female under Surveillance" myth in the following terms:

Many also argue that the provision does not allow evidence going to show motive to fabricate or bias. Clearly, most such alleged motives or bias will not be grounded in the complainant's past sexual history. Moreover, much of this evidence depends for its relevance on certain stereotypical visions of women; that they lie about sexual assault, and that women who allege sexual assault often do so in order to get back in the good graces of those who may have her sexual conduct under scrutiny.

Thus, although the defence's fabrication theory may, in light of the other evidence, have had a factual basis, the appellant did not show how the evidence of the unrelated sexual acts was, itself, in any way probative of that defence. In fact, if the evidence had been used in that manner under these circumstances, it would have visited a very substantial prejudice both upon the complainant and upon the administration of justice. It quite properly did not form the basis of the trial judge's decision with respect to any of the contested statements.

(ii) The Second Statement

[17] The defence sought to cross-examine the complainant on an inconsistent statement in relation to sexual touching (the extent of which is unclear) with Rines a few hours prior to the alleged sexual assault on November 4. The complainant had told police that Rines had made some unwanted sexual overtures to her while Crosby was away. In relating these events, she had originally told police that Rines had lain beside her while trying to feel her breasts. By contrast, at the preliminary hearing, she indicated that he had "sort of" lain down on top of her.

[18] The trial judge was correct in excluding the evidence of this inconsistency. The purported inconsistency did not relate in any way to the activity which formed the subject matter of the charge. Moreover, even when viewed together with the other inconsistencies in the complainant's testimony, it was so minor and so ancillary as to fail to be capable of undermining in any meaningful way her credibility. Furthermore, for the reasons outlined above, evidence of the unwanted sexual touching also did not relate in any way to a "motive to fabricate". The impugned evidence therefore did not have significant probative value of any issue that was relevant at trial, as required by s. 276(2) of the Code.

(iii) The Third Statement

[19] The defence sought to lead evidence that after the alleged sexual assault, the complainant supposedly told Crosby and Rines that she had engaged in group sex on prior occasions. The defence maintained that this statement was indicative of the complainant's state of mind after the sexual activity, and therefore probative of the fact that she had actually consented. The complainant denied at all times having said this. In my view, the trial judge was quite correct in refusing to permit the defence to lead any such evidence. The accused had ample opportunity to testify as to the complainant's conduct after the alleged assault. Introduction of this alleged statement did not add significantly to the relevant issue sought to be advanced by the defence at trial and, even if it did, its probative value was, under the circumstances, substantially outweighed by the danger of prejudice to the administration of justice.

III. Conclusion and Disposition

[20] The Crown advances no s. 686(1)(b)(iii) argument, and I must say that I do not think that this would be an appropriate case in which to invoke that curative proviso. Credibility was the key issue in the trial. Under the circumstances, I believe that there was a reasonable possibility that the verdict would have been different had the accused been permitted to cross-examine the complainant on this material inconsistency in her statements.

[21] Accordingly, the appeal is allowed and a new trial is ordered.

Sopinka J.

The reasons of Sopinka, Iacobucci and Major JJ. were delivered by

[22] Sopinka J. -- I agree with the reasons for judgment of Justice L'Heureux-Dubé with respect to the first and second statements and with the disposition proposed by her. I would, however, also admit the third statement. The following are the relevant passages from the record with respect to this statement:

Mr. Murphy [counsel for the accused] With respect to the statement that she made, that she had multiple partners, she made this statement while she was in the presence of the accused, I guess at the very time or during or after the sexual contact. If it is true that she made that statement, I believe that's for the jury to determine. Then it is certainly relevant with respect to actual consent, so if they had a sexual encounter and she stated and they asked her whether she had had sex with multiple partners before and she said, yes I had, then she's practically she's giving consent or indicating her consent.

Mr. Murphy Uh, after we finished having sex, or after the sex they had the conversation, they questioned her and she indicated she had done it, so we're not attempting to prove that it actually happened, simply the fact that she said it, I would submit, goes to consent. You wouldn't say that to someone who had just raped you, that yes, I've done this before with other guys. And we're not attempting to introduce it to prove she had, in fact, done it, just that she said it, 'cause the very fact that she said it, well that goes to her ^__ indicates that she consented on the night in question, if the jury believes the accused over the complainant.

[23] The ruling on the voir dire with respect to this statement was as follows:

The Court ... Any statement made by the complainant, in my view, after the incident cannot be considered to be consent. Even if it were true, that is, even if it were true that the complainant had made such a statement, such a statement cannot amount to a post facto consent. In my view this statement that is, with respect to having had multiple partners before November 4th, 1991 has no probative value. Even if the contents of the statement were true, and perhaps even especially so, it would have no probative value.

This ruling precluded not only cross-examination on the statement but also the evidence of the accused with respect to it.

[24] With respect, the trial judge misapprehended the relevance of the evidence. While it is true that consent cannot be given ex post facto, a statement made ex post facto that there was consent or from which this can be inferred is highly relevant. If the jury accepted the evidence proposed to be tendered, it was capable of supporting the interpretation advanced by counsel for the accused. A reference by the complainant immediately after group sex (allegedly non-consensual) to a previous experience with consensual group sex strongly implies that the complainant is equating the two episodes and that they were both consensual.

Appeal allowed.

Solicitors for the appellant: Chipman, Fraser, Pink & Nickerson, Yarmouth.

Solicitor for the respondent: The Attorney General of Nova Scotia, Halifax.