COURT FILE NO.: CR-099-00MO
DATE: 20120503
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
R.K.M.
Applicant
Jodi Wyte, for the Crown
Michael J. Pretsell, for the Applicant
HEARD: In Picton on April 26, 2012
Ruling on section 276 application
MADAM JUSTICE J. A. BLISHEN
Introduction
[1] The accused, R.K.M., is charged with sexual offences under Section 271, 151(a), 152 and 153(a) of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (“Criminal Code”) against three complainants, all of whom were his foster children.
[2] He entered pleas of not guilty on all charges and dates have been set for a trial with a jury to commence on May 14, 2012.
[3] Counsel for R.K.M. filed an application pursuant to s. 276 of the Criminal Code for an order permitting cross-examination of one of the complainants, AK-N, as to sexual abuse perpetrated upon her by her mother’s partner, R.M..
[4] Being satisfied that the criteria under s. 276.1(4) were met, a hearing under s. 276(2) was held before me on April 26, 2012 to determine whether to permit cross-examination of AK-N on the previous sexual abuse and whether the evidence was admissible pursuant to the criteria listed in s. 276(2) and (3).
Positions of the Parties
[5] Defence counsel filed a factum and relied on:
excerpts from the Crown disclosure and CAS files disclosed pursuant to an order made under s. 278 of the Criminal Code;
the statement of AK-N; and
the preliminary hearing transcript of AK-N.
[6] At the hearing, defence counsel specified that he was requesting an order for cross-examination of AK-N only to adduce evidence as to:
the fact she was sexually abused by her mother’s boyfriend, R.M.;
the timing and nature of court appearances involving AK-N on charges relating to the sexual abuse; and
a resulting application made to the Criminal Injuries Compensation Board (“CICB”) and the monetary award received.
[7] Defence counsel agreed that no questions would be asked as to the nature of the sexual abuse by R.M. nor as to any specifics, details or circumstances surrounding the abuse.
[8] It was argued the sexual abuse of AK-N by R.M. is relevant and has significant probative value, not outweighed by the danger of prejudice and should be permitted for the following reasons:
in order to explain emails exchanged between AK-N and the accused, R.K.M., after AK-N left the R.K.M. foster home; specifically, a comment made by her to R.K.M. in an email that “I came out of 9 years of hell and walked into another 5 years of abuse, but a different kind.” It is argued that, in order for the jury to understand the “9 years of hell”, they would need to be aware of the prior sexual abuse by R.M., and the timing of that abuse;
in order for the jury to understand one of AK-N’s explanations as to why she did not complain regarding the alleged sexual abuse by R.K.M.. AK-N stated she didn’t complain as this was her life now and she was used to it;
to explore AK-N’s credibility regarding the relationship with her foster mother, D.M.. AK-N’s first disclosure of the sexual abuse by R.M. was to the accused’s wife, D.M.. AK-N requested that D.M. take her to court and be her support person when she was testifying on charges against R.M., yet AK-N also stated she distrusted D.M.. It is argued reference to the previous sexual abuse and resulting charges is necessary in explaining the alleged inconsistency in AK-N’s statements and behaviour towards D.M.. The appropriateness of D.M.’s actions after AK-N’s disclosure of sexual abuse is also arguably relevant.
as to why the accused would sexually abuse a young girl who is at the same time complaining to his wife of sexual assaults by her mother’s boyfriend.
the application to the CICB and subsequent monetary award which is arguable relevant to a possible motive to fabricate.
[9] At the hearing, Crown counsel indicated:
She will ask the questions regarding the CICB application and award when examining AK-N in Chief, as she agreed they were relevant and probative; and
She did not take issue with defence counsel cross-examining AK-N regarding the sexual abuse by R.M. for the limited purposes proposed.
[10] Despite the consent of Crown counsel, pursuant to s. 276.2(3), a determination must be made on the merits of the application and reasons must be provided.
Analysis
[11] Pursuant to s. 276(1), the introduction of evidence as to other sexual activity of a complainant, by cross-examination or otherwise, is not admissible to support an inference that, by reason of the sexual nature of the activity, the complainant is:
a) more likely to have consented to the sexual activity forming the subject matter of the charge; or
b) less worthy of belief.
[12] This section was enacted following the decision by the Supreme Court of Canada in R. v. Seaboyer, [1991] 2. S.C.R. 577 and sets out the purposes for which the evidence is not admissible: i.e. to support the discredited “twin myths” that, due to the other sexual activity, the complainant is more likely to have consented and/or is less worthy of belief.
[13] Counsel’s request to cross-examine AK-N on the prior sexual abuse would not engage either of the “twin myths.” That is not disputed. Given the age of AK-N at the time of the alleged sexual offences by R.M., consent is not an issue. One of the purposes outlined by defence counsel for cross-examination on the previous sexual abuse is to form part of the narrative to put AK-N’s email comments to the accused and her statement as to why she didn’t complain in context for the jury. This in no way falls within either of the prohibited inferences. Finally, although one of the purposes for the requested evidence is to undermine AK-N’s credibility, this is with respect to alleged inconsistent statements regarding her foster mother and to support an alleged motive to fabricate, not to support an inference that AK-N is less credible due to the prior sexual abuse by R.M..
[14] The next step is to ask whether the proposed evidence is admissible given the considerations outlined in s. 276(2) and (3).
[15] I find:
the evidence is of sexual abuse by AK-N’s mother’s boyfriend, R.M., for which he was criminally charged and found guilty (s. 276(2)(a)); and
as previously noted, the evidence is relevant to the complainant’s credibility and possible motive to fabricate (s. 276(2)(b)).
[16] In deciding whether the evidence has “significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice” (s. 276 (2)(c)), the factors under s. 276(3) must be considered.
[17] In R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, the Supreme Court of Canada approved the Ontario Court of Appeal’s definition of “significant probative value” and the finding that “the evidence is not to be so trifling as to be incapable, in the context of all the evidence, of raising a reasonable doubt”. (para. 39). The Court indicates that the accused does not have to demonstrate strong and compelling reasons for admission. Furthermore, the use of the word “substantially” raises the standard of exclusion once the evidence has been shown to have “significant probative value”. (para. 40)
[18] With respect to the factors outlined in s. 276(3), I am satisfied that, having determined the evidence relevant, the probative value of the limited evidence of AK-N as to: the fact she was previously sexually abused by R.M.; the timing of the abuse, charges and court appearances; and the fact there was an application to the CICB and a monetary award, is significant and is not outweighed by the danger of prejudice to the proper administration of justice.
[19] Any concern that the evidence will lead to a discriminatory belief or bias or arouse sentiments of prejudice, sympathy or hostility in the jury during the fact finding process, is minimal given the narrow scope of the cross-examination and the limited purposes proposed. Defence counsel can and will be strictly limited to the parameters outlined and the jury can be carefully instructed in that regard.
[20] A focused cross-examination of AK-N as to the previous sexual abuse is necessary to provide a context for the jury regarding some of her statements; as to her credibility regarding her relationship with her foster mother; and as to a possible motive to fabricate. AK-N’s credibility will be a significant issue for the jury and the right of the accused to make full answer and defence by limited cross-examination of the complainant on previous sexual abuse, is in the interests of justice and, in this case, is not outweighed by AK-N’s personal interests or a society’s interests, particularly given the very narrow parameters of the cross-examination.
[21] Therefore, having considered the factors in s. 276(2) and (3), in the interests of justice and to assist the jury in arriving at a just determination, I will permit defence counsel to cross-examine AK-N on the three specific areas requested:
the fact she was assaulted by her mother’s boyfriend, R.M.,
the timing and nature of court appearances involving AK-N on charges relating to sexual abuse by R.M., and
the resulting application made to the CICB and the monetary award received,
for the limited purposes previously outlined. Defence counsel will not be permitted to ask any questions regarding the specifics, details or circumstances surrounding the sexual abuse by R.M..
Madam Justice J.A. Blishen
Released: May 3, 2012
COURT FILE NO.: CR-099-00MO
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
R.K.M.
Applicant
Ruling on section 276 application
Madam Justice J.A. Blishen
Released: May 3, 2012