ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: Crim. (J) 1359/11
DATE: 2012-11-02

B E T W E E N:

HER MAJESTY THE QUEEN

T. Holmes, for the Crown

Respondent

• and -

T.S.

L. Szkambara, for the Accused

Applicant

HEARD: October 3, 4, 2010

DECISION ON APPLICATION

Justice R.D. Cornell

[ 1 ] This is an application by the accused under section 276(2) of the Criminal Code to permit the accused to adduce evidence that the complainant has engaged in sexual activity with someone other than the accused. On October 10, 2012, I indicated that the application was granted with reasons to follow. I now take this opportunity to provide those reasons.

Facts

[ 2 ] The accused faces a number of charges including sexual assault and two counts of attempted murder. The accused and the complainant were husband and wife. The marriage had deteriorated to the point where the complainant had indicated to the accused that she wanted to initiate a separation.

[ 3 ] In March of 2010, the complainant met B.C. for the first time. As time passed, they began to see more of one another with the result that they were spending a considerable amount of time together by July 2010. The accused’s evidence on the voir dire indicated that he had no reason to be concerned about his wife’s relationship with B.C. as he trusted her. This trust was called into question when he was advised by his bank that his Visa card had reached its limit. After attending at the bank to obtain a statement for the Visa, he learned for the first time that there were two charges on the Visa card for the Ports Hotel in Port Credit in connection with a room rental on August 18, 2010 as well as a key charge. It was at this point that the accused became suspicious that his wife was having an affair with B.C.

[ 4 ] At the time in question, B.C. was married to M.C. M.C. testified that their marriage had been deteriorating for some considerable time. As a result of a late night conversation on August 11, 2012, she and her husband decided to initiate a separation. As a result of this separation, it was also agreed that B.C. would return to the United States as he was a U.S. citizen.

[ 5 ] Although there were a number of reasons for the breakdown of M.C.’s marriage, she had indicated that the “straw that broke the camel’s back” occurred on August 9 or 10, 2010 when her husband “behaved in an aggressive and dominating manner” during their final sexual encounter prior to the separation. M.C. indicated that B.C. placed his hands around her neck as if to choke her and then squeezed gently. This continued for a considerable period of time. She received no injury or bruising as a result of this conduct, but she testified that it scared her as he had never done anything like this before.

[ 6 ] M.C. also testified that she was an acquaintance of the complainant. She confirmed the accused’s evidence that, during the late spring or early summer of 2010, B.C. and the complainant were spending increasing amounts of time together. On September 18, 2010, M.C. received an email from the complainant asking M.C. to call her as “There’s something you deserve to know”. In accordance with the request, M.C. called the complainant at which time she was advised that the complainant and B.C. were in love with one another, that they intended to marry and that she was hoping that M.C. would cooperate to expedite the divorce. She went on to say that she was involved in a sexual relationship with B.C. that had started sometime after August 12, 2010.

[ 7 ] There was also evidence that M.S. had flown to Chicago on August 21, 2010 to spend the weekend with B.C. at an airport hotel.

[ 8 ] A copy of the transcript of the preliminary inquiry was also filed with the application material. An affidavit was filed referencing a portion of the transcript which indicated that the complainant had rented a hotel room for B.C. and that she and B.C. spent time together in such hotel room on August 18, 2010, only a day or two prior to the alleged sexual assault by the accused. The accused denies that the sexual assault ever took place.

[ 9 ] The complainant received bruises to her arm, shoulder and inner thigh area which she alleges occurred at the time of the sexual assault. The accused wishes to be able to advance an alternate theory that the bruises occurred as a result of sexual relations which took place between the complainant and B.C.

Preliminary Issue

[ 10 ] Crown counsel raised a preliminary objection by saying that, in view of the fact that the complainant is not a compellable witness on the section 276 application, it would be improper to allow the accused to make use of the evidence that the complainant provided at the time of the preliminary inquiry. It was suggested that to permit use of the complainant’s evidence would be to defeat the purpose of the protection which is afforded to a complainant on a section 276 application and that it should not be open to the accused to do indirectly what he cannot do directly. In my view, there is no basis to this position.

[ 11 ] Section 276 imposes a statutory limitation on the accused’s ability to cross-examine the complainant. It was argued in a previous case that this limitation may affect an accused’s ability to make a full answer and defence and that the provision, therefore, contravenes the accused’s Charter and common law rights. The Supreme Court of Canada rejected this argument and found that section 276 is constitutionally valid: see R. v. Darrach, 2000 SCC 46 , 2000 S.C.C. 46, [2000] 2 S.C.R. 443, at para. 72 .

[ 12 ] Section 276.2(2) provides that the complainant is not a compellable witness at the hearing. However, it does not go so far as to say that the complainant is not a competent witness. There may be cases where a complainant chooses to testify during the voir dire portion of a section 276 application. The limitation, by necessary implication, does not preclude the use of other evidence which may have been provided by the complainant. In this case, this includes the utterances made to M.C., the statements provided to the police during the course of investigation and, in my opinion, the evidence which the complainant gave at the time of the preliminary inquiry.

[ 13 ] The evidence given at the preliminary inquiry by the complainant was under oath where the complainant had the protection of section 276. Unless an application is successfully brought at that stage of the proceedings, the complainant cannot be asked about sexual activity with someone other than the accused. In this case, no such application was brought at the preliminary hearing. There is no rational reason which would preclude the use of the complainant’s evidence at the preliminary hearing in this case because no questions were asked of the complainant about her sexual history.

[ 14 ] For this reason, the safeguard created by section 276 does not come into consideration so as to prevent the complainant’s preliminary evidence from being used.

[ 15 ] The accused’s ability to cross-examine his accuser has already been limited by section 276. If an accused were to be prevented from using the complainant’s evidence at the preliminary inquiry, that would further curtail the accused’s ability to make full answer and defence, a situation which might well result in a miscarriage of justice. For these reasons, I am of the opinion that it is open to the accused to make use of the evidence given by the complainant at the time of the preliminary inquiry.

The Law

[ 16 ] Section 276(2) of the Criminal Code provides as follows:

(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.

[ 17 ] The factors which the judge must consider are set out in section 276(3) as follows:

(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.

[ 18 ] As previously mentioned, the constitutional validity of these provisions was upheld in Darrach . The court held that the section as drafted preserves the accused’s right to adduce relevant evidence that meets certain criteria and that, by so doing, allows the accused to make full answer and defence. The court also held that the requirement that the defence provide an affidavit with “detailed particulars” of the evidence it seeks to adduce does not violate the accused’s right to silence.

[ 19 ] The approach to be taken on a section 276 application was considered by the Saskatchewan Court of Appeal in R. v. Ecker, 1995 SKCA 53 , [1995] S.J. No. 53. Cameron J.A., for the majority, held that if the evidence filed in support of the application at the preliminary stage is “capable of being admissible”, then a hearing must be held with a view to determining and to what extent such evidence is admissible. See also R. v. J.S., 2011 ONSC 5367 , [2011] O.J. No. 6277, per Healey J. and R. v. LeBrocq, 2011 ONCA 405 , 87 C.R. (6 th ) 85.

[ 20 ] After considering the application material and hearing the submissions of counsel, I indicated in an oral decision that the evidence was capable of being admissible. Accordingly, a full hearing was held.

Analysis

[ 21 ] The theory of the defence is that the accused’s wife was having an affair with B.C. The evidence indicates that the complainant and B.C. spent time together in a hotel on August 18, 2010, a day or two prior to the alleged sexual assault.

[ 22 ] As part of its case, the Crown proposes to tender evidence showing that the victim received bruises to her arm and inner thighs during the course of the sexual assault. It is the theory of the defence that these bruises were received by the complainant while she was having sexual intercourse with B.C. at the hotel on August 18, 2010.

[ 23 ] The accused also wants to question the complainant about her sexual activity with B.C. in order to establish that she had a motive to file a false report about the sexual assault.

[ 24 ] The complainant had been asking the accused since May of 2010 to leave the family home as she wished to initiate a separation. The accused was apparently unwilling to do this. The evidence discloses that B.C.’s wife told him that the marriage was over and had asked him to return to the United States on August 18, 2010, the same day that the complainant and B.C. spent time together at the hotel. It is the theory of the defence that the complainant decided to make false allegations of sexual assault in the full knowledge that such charges would mean that the accused would be removed from the family home. It would provide the complainant with an advantage in the family court proceedings. It would mean that she would now be free to pursue her relationship with B.C.

[ 25 ] In support of his theory, the accused points to the fact that the complainant flew to Chicago on August 20, 2010 and admitted to spending the weekend with B.C. in a hotel.

[ 26 ] In determining whether prior sexual activity is admissible under section 276(2) , the factors to be considered are set out in subsection 276(3). Those factors include a balancing of the right of the accused to make full answer and defence and the complainant’s right of privacy. The Crown argues that the evidence does not provide sufficient specific instances of sexual activity and that the application is nothing more than a fishing expedition. I disagree.

[ 27 ] The evidence discloses that the complainant and B.C. were both involved in marriages that had essentially ended. There is no dispute that the complainant and B.C. were spending increasing amounts of time together during the course of the summer of 2012, including the hotel visit on August 18, 2012, a day or two prior to the alleged sexual assault and a hotel stay in Chicago on August 20 th and 21 st , a day or two after the alleged sexual assault. All of this will come out and be available for the jury to consider.

[ 28 ] The irony is that, if this application is not granted, neither party will be permitted to ask the applicant if she had sexual relations with B.C. at the hotel with the result that the jury may simply jump to the conclusion that sexual relations occurred using a “where there is smoke there is fire” analysis. There may well be an innocent explanation for the hotel visit, something that will not form part of the trial evidence unless the complainant had an opportunity to give such evidence.

[ 29 ] On the other hand, if the complainant was involved in a sexual relationship with B.C., then that evidence should be available to the jury to allow them to assess any explanations which are put forward for the bruising that the complainant received and to assess any possible motive the complainant may have had to fabricate the sexual assault allegations.

[ 30 ] In view of this, I am satisfied that the evidence which the defence seeks to adduce is of specific instances of sexual activity and is relevant to more than one issue that will be considered at the trial. There is no doubt in my mind that this evidence has significant probative value which is not substantially outweighed by the danger of prejudice to the proper administration of justice. Accordingly, the application brought on behalf of the accused pursuant to section 276 of the Criminal Code is granted. The accused shall be permitted to ask questions about the complainant’s sexual activity with B.C. including when such sexual activity began and any sexual activity which occurred at the hotel on August 18, 2010.

[ 31 ] In keeping with the previous agreement of the Crown, questions shall also be permitted about any sexual activity between the complainant and B.C. that occurred on September 11, 2010, the date of the alleged attempted murder of the complainant and B.C.

[ 32 ] As I indicated to counsel, I agreed to hear the application prior to the commencement of the trial with the caveat that if the trial evidence warrants a review of my initial determination, I reserve the right to revisit my earlier ruling.

Cornell J.

Released: November 2, 2012

COURT FILE NO.: Crim. (J) 1359/11
DATE: 2012-11-02

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent - and – T.S. Applicant REASONS FOR JUDGMENT Justice R.D. Cornell

Released: November 2, 2012