ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-70000546-0000
DATE: 20130410
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DONATUS NKEMKA
Defendant
Ms. Langdon, for the Crown
Mr. Cunningham, for the Defendant
HEARD: April 3, 2013
Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to section 486.4 of the Criminal Code of Canada.
SPIES J.
RULING ON DEFENCE APPLICATION PURSUANT TO
SECTION 276 OF THE CRIMINAL CODE
[1] The Crown alleges that the complainant was sexually assaulted by Mr. Nkemka when she was a passenger in the taxi cab he was driving in the early morning hours of November 7th between 1:15 a.m. and 2 a.m. The complainant was very intoxicated and had passed out on the back seat of the cab. It is alleged that she awoke to find the cab parked with two the defendant’s fingers inside her vagina. The next day the complainant underwent a medical examination that revealed three tears immediately outside and inside her vagina and redness in the cervix. DNA analysis on a sample cut from the crotch area of the leggings the complainant was wearing at the time detected a minor amount of DNA from at least three male individuals on the inside of the crotch area and upper leg area of the leggings.
[2] Mr. Cunningham brought an application pursuant to section 276 of the Criminal Code to cross-examine the complainant about other possible causes of her injuries that might raise a doubt as to whether the alleged assault was the cause of the injuries and hence whether the assault occurred at all or if it did, that it may have been perpetrated by other men at the party the complainant was at earlier on the night in question.
[3] On April 3, 2013, I granted part of Mr. Cunningham’s application and denied part of the relief sought. I gave very brief reasons on the record and advised counsel I would provide further reasons. These are my further reasons for these rulings, provided in accordance with section 276.2(3) of the Criminal Code.
[4] At the opening of the trial Mr. Cunningham provided the court and Ms. Langdon with a factum and book of authorities in support of his application. No written notice of application was provided.
[5] Ms. Langdon complained that the statutory requirements for conducting a hearing as set out in section 276.1(2) of the Criminal Code had not been met. She did not raise the fact that a written notice of application had not been provided but did rely on the fact that it was unclear what detailed particulars of specific instances of sexual activity the defendant sought to introduce and that she did not receive seven days notice of the application. Ms. Langdon took the position that the application was clearly defective and that on that basis, I should dismiss it, relying on the decision of our Court of Appeal, R. v. P.S. 2007 ONCA 299, [2007] O.J. No. 1476 at para. 17.
[6] Ms. Langdon was well within her rights to ask that I dismiss the application on the basis that it did not comply with section 276.1(2), particularly with respect to notice. However, before the application was argued I had an opportunity to review the two facta and books of authorities. I came to the preliminary conclusion that the evidence sought to be adduced was capable of being admissible under section 276(2) of the Code. In R. v. Seaboyer, 1991 76 (SCC), [1991] 2 S.C.R. 577, the court held that evidence of specific instances of sexual conduct tending to prove that a person other than the accused caused the physical consequences of a sexual assault alleged by the prosecution are admissible. In my view, in these circumstances the precondition requiring disclosure by the defence of specific incidents of prior sexual activity cannot be interpreted in a way that requires the Defence to give particulars of something Mr. Nkemka would have no way of knowing; he would have no information about specific incidents or prior sexual activity in this case unless given an opportunity to question the Complainant. Mr. Cunningham had an obligation however to propose ways to limit his questioning to what would be relevant in terms of what he was hoping to prove.
[7] Ms. Langdon very fairly did not dispute the possible relevance of this evidence. Her primary concern appeared to be that the complainant ought not to be taken by surprise and that the court should not permit unrestrained cross-examination.
[8] I was reluctant to dismiss the application on the basis it was defective, without dealing with it on the merits, if possible. By the same token, it was necessary to proceed in a fashion that did not prejudice Ms. Langdon. Clearly, the purpose of the requirements set out in section 276.1(2) is to ensure that the Crown can properly prepare for such an application with the complainant’s input, see R. v. Darrach, 2000 SCC 46, [2000] S.C.J. No. 46 at para. 55. It is important that the Complainant not be taken by surprise.
[9] Rather than ask counsel to make their submissions, time was spent determining whether or not the application could be dealt with at the opening of trial, before any witnesses were called, given the lack of certain information. I had only the DNA report which raised questions as to the detection of semen and more importantly had no evidence as to how fresh the injuries observed were. The complainant was to be the first witness. To avoid the prospect of the complainant having to return later in the trial for further cross-examination, after evidence was heard with respect to the DNA sampling and evidence from the sexual assault nurse was called, counsel agreed to jointly try to obtain the missing information solely for the purpose of the application. Through the cooperation of counsel, sufficient information was obtained that permitted the court to make a determination of the application. Counsel were satisfied that formal argument was not required given the lengthy discussions that had occurred with the court.
[10] The complainant was examined by a sexual assault nurse on November 7 at 11 p.m. The information counsel obtained from the nurse was that given the age of the complainant healing of the genital area would be fast and in the circumstances of this case the appearance of the injuries was consistent with an injury that occurred less than 48 hours before the examination.
[11] The information from Ms. Bowie who prepared the forensic report with respect to the DNA analysis was more difficult to deal with in the absence of her giving evidence. This was not due to the fault of counsel but rather the more difficult scientific nature of this evidence. Although semen had not been detected in the sampling, according to Ms. Bowie if the leggings had been laundered she might not detect semen and yet she still might detect DNA that would include semen cells that she could not identify. I also was advised that in her opinion DNA could be stable in dry form for many years so that she could not determine the timeframe of when the DNA was deposited on the leggings nor could she determine the source. The source of the DNA could have been male perspiration, urine, semen or other bodily fluids.
[12] I took from this that there was no detectable semen deposited on the leggings after they had been laundered which would mean no semen on the leggings in the time period immediately leading up to the assault. Mr. Cunningham however, understood Ms. Bowie to have said that a small amount of semen below the limit for testing might have been present. He pointed out in any event the evidence was still consistent with DNA of three men being on the inside of the complainant’s leggings, suggestive of sexual activity that could account for her injuries.
[13] Ms. Langdon and the officer in charge asked the complainant about the leggings and further disclosure was provided. I was advised that the complainant owned two pair of leggings that were exactly the same, she was not sure which pair she was wearing, she had purchased one pair she guessed two months before the alleged assault and the other pair a little later. She had laundered both pairs. She was not sure if she was wearing freshly laundered leggings at that time of the assault or whether or not they had been worn previously.
[14] Through the continued cooperation of counsel they were able to agree on a series of questions directed at whether or not the complainant engaged in other specific instances of sexual activity in the hours leading up to the alleged assault, namely the Friday night when she was at a house party, consistent with the evidence that her injuries occurred within 48 hours of her examination.
[15] I reviewed the questions agreed upon by counsel and considered the factors set out in section 276(3). I had no difficulty in concluding that the proposed questions had significant probative value that was not substantially outweighed by the danger of prejudice to the proper administration of justice. There was no dispute that Mr. Cunningham’s proposed cross-examination of the complainant would not engage the “twin myths” and the prohibited reasoning precluded by section 276. Furthermore, as this is a judge alone trial, there was no concern that this evidence would be used improperly, that this evidence would lead to any discriminatory belief or bias, nor that it would arouse sentiments of prejudice, sympathy or hostility in the fact-finding process that I would not be able to disregard.
[16] As such I advised Mr. Cunningham that he would be permitted to ask the questions of the complainant that had been agreed upon. The Crown was able to review the area of questioning with the complainant so that there would be no surprise to her.
[17] The area of questioning that remained contentious was that Mr. Cunningham wanted to explore why the complainant had DNA from three men on her leggings. His theory was that she was so intoxicated at the party that she may have been assaulted or engaged in sexual activity that could have caused the injuries reported and yet not remember it. He understood that the complainant was in a relationship with a boyfriend whom she was living with and wanted to explore whether or not that relationship had been monogamous. This meant he would need to ask the complainant about sexual activity that she had engaged in on occasions when she had been wearing the leggings for the period of time when she owned them hoping to exclude the possibility of other men depositing DNA apart from her boyfriend. Ms. Langdon objected to this line of questioning.
[18] At this point the complainant had been waiting most of the day to testify and so I deliberated for a short period of time and advised counsel that I would not permit the contested line of questioning. However, since the injuries were inflicted within a 48 hour period, I advised Mr. Cunningham that if he wished, he would be permitted to ask the complainant whether or not she could explain why the DNA from three males was found on the inside of her leggings. I approved of the following question: “Did anything happen in the 48 hour period before the you were examined by the nurse (i.e. at the party on Friday night) that you can point to that might explain the presence of DNA from three males on the inside crotch area of your tights?” The reason I permitted this question, is that the complainant might have an explanation for the presence of DNA. For example, she may have removed the tights during the course of the party and they were used as a blindfold during a drinking game. It seemed to me that although the answer might not assist the defence, this question was relevant and consistent with the other questions that I was permitting counsel to ask.
[19] I have already set out my reasoning as to why I was of the view that the first line of questioning was probative and admissible. With respect to this other line of questioning that I did not permit, I concluded that any probative value was outweighed by the prejudice to the complainant. To invade her privacy by asking about her sexual activity for a two month or so period prior to the alleged assault was a serious invasion of her privacy in my view. The critical piece of information that I considered was that Ms. Bowie had advised counsel that in her opinion there were many ways for DNA to be transferred onto these leggings which could include the complainant sitting in a car seat or the leggings being laundered in shared facilities. In light of this information, I considered two possibilities arising out of further questioning of the complainant if I permitted it:
The complainant would deny having sexual activity with anyone other than her boyfriend. This would be the most advantageous answer to the defence. However, given that other sources such as a car seat could have contributed the DNA in question, it would not mean that the complainant engaged in sexual activity at the party that she either was not admitting to or could not remember. The probative value therefore would not be significant.
The complainant might admit to having sexual activity with other men during the period while she owned these leggings but not at the party. That would actually hurt the defence position as it would then make the chances of sexual activity during the party even less likely as the source of the DNA.
[20] For these reasons I concluded that any probative value of this line of inquiry was outweighed by the serious prejudice to the complainant and decided that Mr. Cunningham would not permitted to ask the second line of questions of the complainant. I advised counsel that once I heard from the sexual assault nurse and if Ms. Bowie was called (I understood the Crown did not intend to call her) that Mr. Cunningham could renew his application if he believed the evidence to be different than anticipated by counsel.
SPIES J.
DATE: April 10, 2013
COURT FILE NO.: 12-70000546-0000
DATE: 20130410
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
DONATUS NKEMKA
Defendant
ruling on defence application pursuant to section 276 of the criminal code
SPIES J.
Released: April 10, 2013