COURT FILE NO.: CRIMJ(P) 856/11

DATE: 20130603

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen

Gregory Hendry, for the Crown

Defendant

• and -

George Clarke

Cynthia Fromstein, for the Applicant

Applicant

HEARD: May 30, 2013

REASONS FOR JUDGMENT

Skarica J.

OVERVIEW

[1] The complainant, Christopher Orticello (“Orticello”) and the applicant/accused, George Anthony Clarke (“Clarke”) are both gay men. They commenced a sexual relationship in early 2005 which continued until 2007 or early 2008. At the time that they met in 2005, Orticello was HIV negative but Clarke was aware that he (Clarke) was HIV positive. Clarke did not disclose to Orticello that he was HIV positive but continued to have consensual unprotected sex with Orticello from 2005 until at least 2007. Orticello tested HIV negative in February 2006; Orticello tested HIV positive in July 2006.

[2] Orticello testified at the preliminary hearing that he asked about Clarke’s HIV status and was told by Clarke that he was HIV negative. Orticello testified that he would definitely not have agreed to consent to unprotected sex with Clarke had he known that Clarke was HIV positive.

[3] However, after Orticello learned in July of 2006 that both he and Clarke were HIV positive, Orticello continued to have unprotected anal intercourse with Clarke.

[4] Following a break up with Clarke in 2007, Orticello made criminal allegations to the police. Clarke is charged that he did, during a ten month period ending on or about July 26, 2006, in committing a sexual assault on Orticello, endanger the life of Orticello thereby committing an aggravated sexual assault.

THE FACTS

[5] Clarke wishes to introduce prior inconsistent statements of the complainant with respect to sexual activity that does not form the subject matter of the charge.

[6] Further, Clarke wishes to introduce evidence of a pattern of behaviour on the part of the complainant with respect to his sexual practices which shows a willingness to expose himself to the risk of HIV transmission by engaging in unprotected sex with multiple persons whose HIV status was unknown to Orticello during the time frame surrounding the period charged in the indictment.

[7] The prior inconsistent statements can be summarized as follows:

1. The complainant stated in a statement to the police that he did not engage in intercourse with men other than the accused during the course of their relationship. This assertion is contradicted by other statements where the complainant stated that he had engaged in intercourse with “Jamie” during the relevant indictment time frame and another statement wherein Orticello could not recall whether he had engaged in sex with other men without checking the registry to see if he had been to the Steamworks bathhouse which in reality was a type of brothel;

2. The complainant testified at the preliminary hearing that Clarke insisted on being the insertive partner with a few exceptions including a threesome at the bathhouse and that Orticello had no preference historically as to position and that in his experience, there is no preference by men as to their sexual role in anal intercourse. This is contradicted by a DVD recorded statement where Orticello indicates that it had historically always been his preference to be the insertive partner;

3. The complainant asserted that he had always been careful in his sexual practices and prior to his relationship with Clarke had only engaged in intercourse with long term partners whom he both knew and trusted. This is contradicted by the medical records that indicate his participation in unprotected sex with a new partner in 2004 and the evidence that he engaged in intercourse with others during his relationship with the accused. Further, Orticello testified at the preliminary hearing (see Dec. 23, 2010, p. 36, 37) that he never had any sexually transmitted disease (STD) before he met Clarke and further that he had never had genital herpes. Counsel advise that the medical records show that in 2004 (before the Clarke relationship commenced) Orticello was being treated for genital herpes.

[8] In support of the pattern of sexual behaviour that the defence seeks to rely upon, the defence proposes to call the following evidence:

1. Evidence that the complainant attended his doctor after experiencing penile discharge after engaging in unprotected intercourse with a new sexual partner in 2004 and contracted an STD and was cautioned by his doctor to wear a condom;

2. Evidence from the complainant’s statements to the investigating officer (I.O.) that he had engaged, during the course of his relationship with Clarke (2005 – 2008), and the period of the indictment, in unprotected casual sex with virtual strangers at the gay bathhouses in Toronto and was aware that Clarke was having unprotected anal sex with virtual strangers whose HIV status was unknown;

3. Evidence from the complainant’s statements to the I.O. that Orticello had engaged in threesomes with the accused wherein the accused would have unprotected anal intercourse with men whose HIV status had never been discussed or ascertained and that thereafter the complainant would have unprotected sexual intercourse with Clarke;

4. Evidence of the history of condom use between the complainant and his male sexual partners between May 2004 and July 26, 2006.

[9] The defence seeks to elicit evidence that the complainant had consensual sex with Clarke after Orticello was aware that both Clarke and he were HIV positive. The Crown does not dispute the admissibility of this evidence. However, the Crown objects to the introduction of the evidence outlined in paragraphs 7 and 8 above.

[10] The accused seeks leave under s. 276 of the Criminal Code to cross-examine the complainant on certain aspects of his sexual conduct as summarized above.

THE LAW

[11] The complainant testified that he consented to the sexual activity with Clarke. However, Orticello testified that he would not have consented to sexual intercourse had he known about Clarke’s HIV status and accordingly was sexually assaulted due to his consent being vitiated by fraud. Regarding cases of this nature, the recent case of R. v. Mabior, [2012] SCC 47, outlines the Crown’s burden of proof, as follows, at paragraphs 12 and 104:

12 This Court considered "fraud" under s. 265(3)(c) 14 years ago in Cuerrier. The majority test in Cuerrier may be stated in different ways, but boils down to two elements: (1) a dishonest act (either falsehoods or failure to disclose HIV status); and (2) deprivation (denying the complainant knowledge which would have caused her to refuse sexual relations that exposed her to a significant risk of serious bodily harm).

104 To summarize, to obtain a conviction under ss. 265(3)(c) and 273, the Crown must show that the complainant's consent to sexual intercourse was vitiated by the accused's fraud as to his HIV status. Failure to disclose (the dishonest act) amounts to fraud where the complainant would not have consented had he or she known the accused was HIV-positive, and where sexual contact poses a significant risk of or causes actual serious bodily harm (deprivation). A significant risk of serious bodily harm is established by a realistic possibility of transmission of HIV. On the evidence before us, a realistic possibility of transmission is negated by evidence that the accused's viral load was low at the time of intercourse and that condom protection was used. However, the general proposition that a low viral load combined with condom use negates a realistic possibility of transmission of HIV does not preclude the common law from adapting to future advances in treatment and to circumstances where risk factors other than those considered in the present case are at play.

[12] Mabior confirms, on this aspect of proof, the Supreme Court of Canada’s judgment in R. v. Cuerrier, [1998] 2 S.C.R. 371 where the court held at paragraphs 124-130:

124 In my view, it should now be taken that for the accused to conceal or fail to disclose that he is HIV-positive can constitute fraud which may vitiate consent to sexual intercourse.

D. Will There Be a Valid Consent in the Absence of Disclosure?

125 Persons knowing that they are HIV-positive who engage in sexual intercourse without advising their partner of the disease may be found to fulfil the traditional requirements for fraud namely dishonesty and deprivation. That fraud may vitiate a partner's consent to engage in sexual intercourse.

126 The first requirement of fraud is proof of dishonesty. In light of the provisions of s. 265, the dishonest action or behaviour must be related to the obtaining of consent to engage in sexual intercourse, in this case unprotected intercourse. The actions of the accused must be assessed objectively to determine whether a reasonable person would find them to be dishonest. The dishonest act consists of either deliberate deceit respecting HIV status or non-disclosure of that status. It cannot be forgotten that the act of intercourse is usually far more than the mere manifestation of the drive to reproduce. It can be the culminating demonstration of love, admiration and respect. It is the most intimate of physical relations and what actions and reactions led to mutual consent to undertake it will in retrospect be complex. It would be pointless to speculate whether consent would more readily follow deliberate falsehoods than failure to disclose. The possible consequence of engaging in unprotected intercourse with an HIV-positive partner is death. In these circumstances there can be no basis for distinguishing between lies and a deliberate failure to disclose.

127 Without disclosure of HIV status there cannot be a true consent. The consent cannot simply be to have sexual intercourse. Rather it must be consent to have intercourse with a partner who is HIV-positive. True consent cannot be given if there has not been a disclosure by the accused of his HIV-positive status. A consent that is not based upon knowledge of the significant relevant factors is not a valid consent. The extent of the duty to disclose will increase with the risks attendant upon the act of intercourse. To put it in the context of fraud the greater the risk of deprivation the higher the duty of disclosure. The failure to disclose HIV-positive status can lead to a devastating illness with fatal consequences. In those circumstances, there exists a positive duty to disclose. The nature and extent of the duty to disclose, if any, will always have to be considered in the context of the particular facts presented.

128 The second requirement of fraud is that the dishonesty result in deprivation, which may consist of actual harm or simply a risk of harm. Yet it cannot be any trivial harm or risk of harm that will satisfy this requirement in sexual assault cases where the activity would have been consensual if the consent had not been obtained by fraud. For example, the risk of minor scratches or of catching cold would not suffice to establish deprivation. What then should be required? In my view, the Crown will have to establish that the dishonest act (either falsehoods or failure to disclose) had the effect of exposing the person consenting to a significant risk of serious bodily harm. The risk of contracting AIDS as a result of engaging in unprotected intercourse would clearly meet that test. In this case the complainants were exposed to a significant risk of serious harm to their health. Indeed their very survival was placed in jeopardy. It is difficult to imagine a more significant risk or a more grievous bodily harm. As Holland, supra, at p. 283, wrote:

The consequences of transmission are grave: at the moment there is no "cure", a person infected with HIV is considered to be infected for life. The most pessimistic view is that without a cure all people infected with the virus will eventually develop AIDS and die prematurely.

129 To have intercourse with a person who is HIV-positive will always present risks. Absolutely safe sex may be impossible. Yet the careful use of condoms might be found to so reduce the risk of harm that it could no longer be considered significant so that there might not be either deprivation or risk of deprivation. To repeat, in circumstances such as those presented in this case, there must be a significant risk of serious bodily harm before the section can be satisfied. In the absence of those criteria, the duty to disclose will not arise.

130 In situations such as that presented in this case it must be emphasized that the Crown will still be required to prove beyond a reasonable doubt that the complainant would have refused to engage in unprotected sex with the accused if she had been advised that he was HIV-positive. As unlikely as that may appear it remains a real possibility. In the words of other decisions it remains a live issue.

[13] Accordingly, the cases clearly establish, in order to prove sexual assault beyond a reasonable doubt, the Crown must prove all of the following three elements:

1. A dishonest act (either falsehoods or failure to disclose);

2. The dishonest act amounts to fraud where the complainant would not have consented had he or she known the accused was HIV positive;

3. Deprivation in the sense that the dishonest act denied the complainant knowledge which would have caused him or her to refuse sexual relations that exposed him/her to a significant risk of serious harm.

[14] The admissibility of the evidence sought to be introduced by the defence is governed by s. 276 of the Criminal Code which in essence is a codification of the Supreme Court of Canada’s judgment in R. v. Seaboyer, [1991] 2 S.C.R. 577. Section 276 indicates as follows:

276. (1) In proceedings in respect of an offence under section 151, 152, 153, 153.1, 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.

[15] The purpose of section 276 is to exclude evidence that seeks to exploit what is known as the twin myths, i.e. that a complainant is more likely to have consented to sexual activity or is less worthy of belief by reason of his/her prior sexual conduct. As explained by Gonthier J. in R. v. Darrach, [2000] 2 S.C.R. 443, at paragraphs 32-34:

Section 276(1) -- The Exclusionary Rule

32 The accused objects to the exclusionary rule itself in s. 276(1) on the grounds that it is a "blanket exclusion" that prevents him from adducing evidence necessary to make full answer and defence, as guaranteed by ss. 7 and 11(d) of the Charter. He is mistaken in his characterization of the rule. Far from being a "blanket exclusion", s. 276(1) only prohibits the use of evidence of past sexual activity when it is offered to support two specific, illegitimate inferences. These are known as the "twin myths", namely that a complainant is more likely to have consented or that she is less worthy of belief "by reason of the sexual nature of [the] activity" she once engaged in.

33 This section gives effect to McLachlin J.'s finding in Seaboyer that the "twin myths" are simply not relevant at trial. They are not probative of consent or credibility and can severely distort the trial process. Section 276(1) also clarifies Seaboyer in several respects. Section 276 applies to all sexual activity, whether with the accused or with someone else. It also applies to non-consensual as well as consensual sexual activity, as this Court found implicitly in R. v. Crosby, [1995] 2 S.C.R. 912, at para. 17. Although the Seaboyer guidelines referred to "consensual sexual conduct" (pp. 634-35), Parliament enacted the new version of s. 276 without the word "consensual". Evidence of non-consensual sexual acts can equally defeat the purposes of s. 276 by distorting the trial process when it is used to evoke stereotypes such as that women who have been assaulted must have deserved it and that they are unreliable witnesses, as well as by deterring people from reporting assault by humiliating them in court. The admissibility of evidence of non-consensual sexual activity is determined by the procedures in s. 276. Section 276 also settles any ambiguity about whether the "twin myths" are limited to inferences about "unchaste" women in particular; they are not (as discussed by C. Boyle and M. MacCrimmon, "The Constitutionality of Bill C-49: Analyzing Sexual Assault As If Equality Really Mattered" (1999), 41 Crim. L.Q. 198, at pp. 231-32).

34 The Criminal Code excludes all discriminatory generalizations about a complainant's disposition to consent or about her credibility based on the sexual nature of her past sexual activity on the grounds that these are improper lines of reasoning. This was the import of the Court's findings in Seaboyer about how sexist beliefs about women distort the trial process. The text of the exclusionary rule in s. 276(1) diverges very little from the guidelines in Seaboyer. The mere fact that the wording differs between the Court's guidelines and Parliament's enactment is itself immaterial. In Mills, supra, the Court affirmed that "[t]o insist on slavish conformity" by Parliament to judicial pronouncements "would belie the mutual respect that underpins the relationship" between the two institutions (para. 55). In this case, the legislation follows the Court's suggestions very closely.

[16] Accordingly, section 276 (1) makes presumptively inadmissible any of the complainant’s sexual activity that supports an inference that, by reason of that sexual 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.

[17] Section 276 (2) authorizes, after what is now referred to as a Seaboyer application, that the judge, after hearing the application, can only authorize evidence to be admitted to trial if it meets the following criteria:

1. The evidence must be of specific instances of sexual activity;

2. The evidence must be relevant to an issue at trial; and

3. Has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

[18] Section 276 (3) outlines the factors that a judge must consider in determining the admissibility of the evidence of sexual activity that does not form the subject matter of the charge.

[19] The Ontario Court of Appeal in R. v. M.T. 2012 ONCA 511, [2012] O.J. No. 3418 makes the following general observations regarding section 276, at paragraphs 29-43:

The Governing Principles

29 Section 276 of the Criminal Code creates a statutory rule of admissibility. Enacted in negative terms, the section, like other admissibility rules, is exclusionary; it precludes the admission of certain evidence. The exclusionary effect of the rule only becomes engaged when three requirements have been met. For discussion purposes, these requirements, which are cumulative, may be characterized as:

i. offence charged;

ii. subject-matter; and

iii. purpose.

The exclusionary rule prohibits the person charged from introducing certain evidence (subject-matter) for a specific use (purpose) in proceedings for a listed crime (offence).

30 The "offence" requirement is satisfied where the proceedings in which evidence is tendered relate to a listed offence. Among the listed offences are the crimes charged here: sexual assault, sexual interference, and invitation to sexual touching.

31 The "subject-matter" requirement, which appears in both sections 276(1) and (2), is best expressed in the language of subsection (2):

Evidence ... 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.

If the subject-matter of the proposed evidence falls outside the statutory language, the exclusionary terms of the provision do not apply. On the other hand, satisfaction of the subject-matter requirement, on its own, will not necessitate exclusion; the "purpose" requirement must also be satisfied.

32 The "purpose" requirement is crucial to the operation of this exclusionary rule, just as it is with the common law hearsay rule. To engage the exclusionary rule of s. 276, the proposed evidence must be offered to support either of two prohibited inferences grounded on the sexual nature of the activity:

i. that the complainant is more likely to have consented to the conduct charged; or

ii. that the complainant is less worthy of belief.

Where the purpose underlying the introduction of the evidence of extrinsic sexual activity is neither of those prohibited by s. 276(1), this exclusionary rule is not engaged.

33 Section 276(2) provides an exception to the exclusionary rule. To gain entry under this exception, evidence of the complainant's extrinsic sexual activity must:

i. be of specific instances of sexual activity;

ii. be relevant to an issue at trial; and

iii. have significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

To determine whether the evidence should be admitted under this exception, the presiding judge must follow the procedure described in ss. 276.1 and 276.2 and consider the factors listed in s. 276(3).

34 The admissibility rules of s. 276 apply only where the evidence proposed for admission is of extrinsic sexual activity on the part of the complainant. A previous allegation of assault, without more, would fall outside the section: R. v. Gervais (1990), 58 C.C.C. (3d) 141 (Que. C.A.), at p. 154. Questions that focus on the fact, rather than the details, of an allegation of sexual assault are not prohibited by the section: R. v. M. (A.G.) (1993), 26 C.R. (4th) 379 (Que. C.A.), at p. 393.

35 To be receivable in a criminal trial each piece of evidence must satisfy three requirements:

• relevance

• materiality

• admissibility

These requirements are cumulative. Evidence that comes up short on any requirement is excluded from consideration by the trier of fact.

36 Relevance is a matter of everyday experience and common sense, not an inherent characteristic of any item of evidence. Relevance exists as the relationship between an item of evidence proposed for reception and the proposition of fact the party tendering the evidence seeks to establish by its introduction. We assess the relevance of individual items of evidence in the context of the case in which the evidence is offered and the positions of counsel. An item of evidence is relevant if it makes the fact it seeks to establish slightly more or less probable than that fact would be without that evidence, through the application of everyday experience and common sense: R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d), 16, at paras. 204-205.

37 Materiality is a legal concept. Evidence is material if it is offered to prove or disprove a fact in issue. What is in issue is a function of the allegations contained in the indictment and the applicable substantive and procedural law: Luciano, at para. 207.

38 Admissibility is also a legal concept. Its rules, which are negative and exclusionary, are grounded in policy considerations that we regard as sufficiently important to justify the exclusion of evidence that is both relevant and material. Admissibility rules are not unforgiving. They cede ground, occasionally admitting evidence by exception: Luciano, at para. 209.

39 Section 276 is an admissibility rule. Like other admissibility rules, it excludes evidence that meets the foundational requirements of relevance and materiality. Its application is superfluous where evidence that would otherwise be subject to its exclusionary effect is irrelevant or immaterial.

40 The admissibility rule in s. 276(1) does not exclude all evidence of extrinsic sexual activity of a complainant. What is prohibited is the use of evidence of extrinsic sexual activity to support either or both of the specific, illegitimate inferences described in the section: R. v. Darrach, [2000] 2 S.C.R. 443, at para. 32.

41 Evidence of extrinsic sexual activity of the complainant is rarely relevant to support a denial that the sexual activity charged took place: Darrach, at para. 58. The fact that others may have sexually assaulted a complainant is irrelevant to charges of sexual assault against another and to the defences that other person may raise: R. v. B. (A.R.) (1998), 41 O.R. (3d) 361 (C.A.), at p. 365, aff'd [1994] 1 S.C.R. 153.

42 Section 276(1) excludes evidence that the complainant "engaged in sexual activity" with another person at another time and place if it is tendered for either purpose proscribed by the subsection. The exclusionary rule in s. 276(2) rejects all evidence of other sexual activity unless the evidence satisfies each of the requirements of the inclusionary exception.

43 The exceptional admission of evidence of other sexual activity under s. 276(2) requires satisfaction of the three conditions precedent listed in the subsection. One of those requirements, s. 276(2)(c), involves a balancing of probative value and prejudicial effect. But the balance is calibrated differently than we see in the general exclusionary discretion or the more circumscribed discretion to exclude otherwise admissible defence evidence. The addition of the terms "significant", as descriptive of the probative value, and "substantially", as the extent to which significant probative value must predominate over "prejudice to the proper administration of justice", appears to require a more nuanced or qualitative assessment of the competing interests. These interests are incommensurables. Probative value has to do with the capacity of the evidence to establish the fact of which it is offered in proof. Prejudicial effect relates to trial fairness.

PRIOR INCONSISTENT STATEMENTS

[20] Gonthier J., in R v. Darrach, supra, indicated that section 276 allows for the admissibility of prior sexual activity where it is inextricably linked to an inconsistent statement that is relevant to the complainant’s credibility. Gonthier J. held, at paragraphs 35-37:

35 The phrase "by reason of the sexual nature of that activity" in s. 276 is a clarification by Parliament that it is inferences from the sexual nature of the activity, as opposed to inferences from other potentially relevant features of the activity, that are prohibited. If evidence of sexual activity is proffered for its non-sexual features, such as to show a pattern of conduct or a prior inconsistent statement, it may be permitted. The phrase "by reason of the sexual nature of that activity" has the same effect as the qualification "solely to support the inference" in Seaboyer in that it limits the exclusion of evidence to that used to invoke the "twin myths" (p. 635).

36 This Court has already had occasion to admit evidence of prior sexual activity under the current version of s. 276. In Crosby, supra, such evidence was admissible because it was inextricably linked to a prior inconsistent statement that was relevant to the complainant's credibility (at para. 14). This case itself demonstrates that s. 276 does not function in practice as a blanket exclusion, as alleged by the accused. On the contrary, s. 276 controls the admissibility of evidence of sexual activity by providing judges with criteria and procedures to help them exercise their discretion to admit it. I explain below why the procedure to assess relevance is constitutional. Suffice it here to say that it is this procedure that makes the Seaboyer guidelines and the current version of s. 276 constitutional where the earlier version of s. 276 was not.

37 An accused has never had a right to adduce irrelevant evidence. Nor does he have the right to adduce misleading evidence to support illegitimate inferences: "the accused is not permitted to distort the truth-seeking function of the trial process" (Mills, supra, at para. 74). Because s. 276(1) is an evidentiary rule that only excludes material that is not relevant, it cannot infringe the accused's right to make full answer and defence. Section 276(2) is more complicated, and I turn to it now.

[21] In R. v. Crosby, [1995] 2 S.C.R. 912, the Supreme Court of Canada outlined some of the considerations relevant to determining whether to allow inconsistent statements that are inextricably woven into evidence relating to other sexual activity, at paragraphs 7-14:

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.

[22] Crosby emphasizes that section 276 (2)(c) requires that the proposed evidence have “significant” probative value. Gonthier J. in R. v. Darrach, supra, discusses the impact of this requirement, at paragraphs 38-43:

Section 276(2)(c) -- "Significant Probative Value"

38 If evidence is not barred by s. 276(1) because it is tendered to support a permitted inference, the judge must still weigh its probative value against its prejudicial effect to determine its admissibility. This essentially mirrors the common law guidelines in Seaboyer which contained this balancing test (at p. 635). The accused takes issue with the fact that s. 276(2)(c) specifically requires that the evidence have "significant probative value". The word "significant" was added by Parliament but it does not render the provision unconstitutional by raising the threshold for the admissibility of evidence to the point that it is unfair to the accused.

39 It may be noted that the word "significant" is not found in the French text; the law speaks simply of "valeur probante". The rule of equal authenticity and the rule against unconstitutional interpretation require that the two versions be reconciled where possible. The interpretation of "significant" by the Ontario Court of Appeal satisfies this requirement: Morden A.C.J.O. found 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" (p. 16). At the same time, Morden A.C.J.O. agrees with R. v. Santocono (1996), 91 O.A.C. 26 (C.A.), at p. 29, where s. 276(2)(c) was interpreted to mean that "it was not necessary for the appellant to demonstrate 'strong and compelling' reasons for admission of the evidence". This standard is not a departure from the conventional rules of evidence. I agree with the Court of Appeal that the word "significant", on a textual level, is reasonably capable of being read in accordance with ss. 7 and 11(d) and the fair trial they protect.

40 The context of the word "significant" in the provision in which it occurs substantiates this interpretation. Section 276(2)(c) allows a judge to admit evidence of "significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice" (emphasis added). The adverb "substantially" serves to protect the accused by raising the standard for the judge to exclude evidence once the accused has shown it to have significant probative value. In a sense, both sides of the equation are heightened in this test, which serves to direct judges to the serious ramifications of the use of evidence of prior sexual activity for all parties in these cases.

41 In light of the purposes of s. 276, the use of the word "significant" is consistent with both the majority and the minority reasons in Seaboyer. Section 276 is designed to prevent the use of evidence of prior sexual activity for improper purposes. The requirement of "significant probative value" serves to exclude evidence of trifling relevance that, even though not used to support the two forbidden inferences, would still endanger the "proper administration of justice". The Court has recognized that there are inherent "damages and disadvantages presented by the admission of such evidence" (Seaboyer, supra, at p. 634). As Morden A.C.J.O. puts it, evidence of sexual activity must be significantly probative if it is to overcome its prejudicial effect. The Criminal Code codifies this reality.

42 By excluding misleading evidence while allowing the accused to adduce evidence that meets the criteria of s. 276(2), s. 276 enhances the fairness of trials of sexual offences. Section 11(d) guarantees a fair trial. Fairness under s. 11(d) is determined in the context of the trial process as a whole (R. v. Stoddart (1987), 37 C.C.C. (3d) 351 (Ont. C.A.), at pp. 365-66). As L'Heureux-Dubé J. wrote in Crosby, supra, at para. 11, "[s]ection 276 cannot be interpreted so as to deprive a person of a fair defence." At the same time, the accused's right to make full answer and defence, as was held in Mills, supra, at para. 75, is not "automatically breached where he or she is deprived of relevant information". Nor is it necessarily breached when the accused is not permitted to adduce relevant information that is not "significantly" probative, under a rule of evidence that protects the trial from the distorting effects of evidence of prior sexual activity.

43 When the trial judge determines the admissibility of evidence under s. 276(2), she is to take into account the multiple factors in s. 276(3), which include "the right of the accused to make a full answer and defence" in s. 276(3)(a). Section 276 is designed to exclude irrelevant information and only that relevant information that is more prejudicial to the administration of justice than it is probative. The accused's right to a fair trial is, of course, of fundamental concern to the administration of justice. In a similar situation in Mills, the Court preserved the right to make full answer and defence in the following commonsensical way, at para. 94:

It is clear that the right to full answer and defence is not engaged where the accused seeks information that will only serve to distort the truth-seeking purpose of a trial, and in such a situation, privacy and equality rights are paramount. On the other hand, where the information contained in a record directly bears on the right to make full answer and defence, privacy rights must yield to the need to avoid convicting the innocent.

Thus the threshold criteria that evidence be of "significant" probative value does not prevent an accused from making full answer and defence to the charges against him. Consequently his Charter rights under ss. 7 and 11(d) are not infringed by s. 276(2)(c).

[23] The alleged inconsistent statements made by the complainant are summarized in paragraph 7 of this judgment. Pursuant to section 276 (2) (a), the alleged inconsistent statements refer to specific instances of sexual activity and the first criteria is met.

[24] Section 276 (2)(b) requires the evidence to be relevant to an issue at trial. It is my understanding that the main Crown evidence is the complainant and both parties have conceded that credibility is one of the main issues, if not the central issue of this trial. Pursuant to the Court of Appeal’s comments, (in R. v. M.T. supra, at paragraph 36), regarding relevance, the introduction of inconsistent statements by a witness, (especially here where the statements relate to exclusivity of partners, preferences and prior STD’s – all of which are not trivial or non-material matters), regarding the complainant’s credibility, “seeks to establish slightly more or less probable than the fact would be without that evidence through the application of everyday experience and common sense”.

[25] Section 276 (2)(c) requires that the evidence have “significant probative value” that is not substantially outweighed by the danger of prejudice to the administration of justice. As I have indicated, these inconsistent statements are on material matters and are not related to trifling details. When a witness gives inconsistent statements on material and important facts, these are matters that are highly relevant to the assessment of credibility. Dealing with prejudice to the administration of justice, there appears to be none. If anything, the administration of justice and its repute would suffer if witnesses are on record making inconsistent statements on material matters and rulings are made preventing defence counsel from exploring these material inconsistencies.

[26] Regarding the factors outlined in section 276 (3), I believe that the interests of justice require the defence to explore these inconsistencies by the complainant. To prevent this cross-examination would prevent the accused from making full answer and defence. There is an overwhelming reasonable prospect that the evidence will assist in the just determination of the case. The proposed cross-examination will not have any impact on preventing other complainants from reporting offences. Complainants are not required to volunteer details regarding other sexual activity but, if the authorities seek to pursue the matter, the complainant can either not respond or respond truthfully. In the words of the Supreme Court of Canada in R. v. Crosby, supra, “it would be unfair for an accused person to be deprived access to evidence which is otherwise admissible and relevant to the 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.” I think that these comments would also apply to the sworn testimony of the complainant at a preliminary hearing which is palpably untrue. Cross-examination on the inconsistencies would not arouse any sentiments of hostility or prejudice to the complainant and would not offend his personal dignity and would not deprive him of any personal security or the full protection of the law of the land.

[27] The Crown submits that the cross-examination should not be allowed as the cross-examination relates to collateral matters.

[28] No authorities were provided to me regarding this argument. In McWilliams, Canadian Criminal Evidence, fourth edition, at page 6-3, the editors refer to the traditional collateral fact rule as “an exclusionary rule prohibiting the introduction of contradictory evidence on collateral matters. On any such matter, the witness’s answer is final and immune from contradiction by further proof.” However the collateral fact rule is subject to recognized exceptions. The same authors, at page 6-24, indicate, “The “exceptions” approach, consistently recognized as an integral aspect of the rule, has been applied to either admit or exclude, as the case may be, evidence not otherwise related to essential issues of the case.” At page 6-27, the authors make reference to inconsistent statements as follows, “A further recognized exception is proof of a prior statement inconsistent with a witness’s present trial testimony, While often described as an “exception”, proof by contradictory evidence of the prior statement is likely limited to an utterance related to the transaction or matters in issue and while affecting credibility, is accordingly within the scope of the general exception in Krause and in Aalders. Where the witness adopts his or her former statement, the statement’s content becomes substantive evidence of its truth in the trial.”

[29] Accordingly, there is no prohibition against pursuing the cross-examination by application of the collateral evidence rule. The witness’s answers will either be final or, in the case of inconsistent statements, they can be used pursuant to the usual evidentiary rules.

[30] To conclude, the cross-examination regarding inconsistent statements, as outlined in paragraph 7 of this judgment is admissible and not barred by s. 276 of the Criminal Code.

PATTERN OF SEXUAL BEHAVIOUR

[31] Paragraph 8 of this judgment summarizes the evidence that the defence seeks to admit at this trial. The applicant/accused argues that this sexual pattern, which includes the complainant engaging in casual sex with unknown persons at the bathhouse and his medical record and statements that he was having unprotected sex with new partners, strangers or casual acquaintances is relevant to the credibility of the assertion that the complainant would not have engaged in sex with the accused had the complainant been advised of the accused’s positive HIV status.

[32] The accused relies on two decisions of the Ontario Superior Court of Justice where evidence of pattern of sexual behaviour was admitted on the issue of the credibility of the complainant as to whether the accused would not have engaged in unprotected sex if he had been told that the accused was HIV positive: R. v. Pottelberg, October 14, 2010, Ont. S.C.J and R. v. Boone [2012] O.J. No. 256 (Ont. S.C.J.).

[33] In R. v. Boone, supra, Justice Gordon held that evidence of the complainants’ willingness to engage in a pattern of casual sexual acts with each other and with strangers including group sex indicate a willingness to accept the risk of contracting HIV and was relevant to the issue of whether the complainants would have knowingly engaged with someone who was or could be HIV positive. Justice Gordon concludes at paragraphs 61 – 64:

Summary

61 Neither the gay lifestyle nor the sexual activity of the complainants are of interest in this trial. Rather, the focus is on risk associated with their conduct. The defence refers to this as a "non-sexual aspect". I agree. It is very specific.

62 Given the evidentiary burden of the prosecution on the essential elements of the charges, the evidence the defence seeks to introduce is highly relevant and probative. The pattern of sexual encounters with strangers, as previously discussed, addresses the issues in this case and specifically the credibility of the complainants.

63 The jury is entitled and, in my view, must hear this evidence so that a just verdict is rendered. As stated, an appropriate limiting instruction will focus the jury on the use of the evidence and, thereby, prevent the twin myths arising.

64 Prejudice to the administration of justice would occur if this evidence was excluded.

[34] With no disrespect to either of my colleagues, there appears, in both of these cases, the underlying assumption that because a person was prepared to accept the risk of casual sex with strangers without enquiries regarding HIV status, it follows that such a person’s credibility is suspect when that person says that he would not have engaged in such sexual practice if he had been told that the partner was HIV positive.

[35] In neither case was there any expert evidence adduced regarding assumptions of risk.

[36] Does it really follow that a person, who is prepared to accept some form of statistically unknown dangerous risk, is also a person who is prepared to consent to risk which is virtually certain to cause a life threatening disease? Is accepting an unknown risk (sex with a stranger with unknown sexual history) relevant to accepting a known risk that could end your life (knowledge that the person you are having sex with is HIV positive). Further, as the Crown submitted, the law is clear that the person who is HIV positive has a clear duty to inform his partner before engaging in high risk unprotected sex. There is no corresponding duty for the HIV negative person to enquire.

[37] Returning to section 276 (2)(a), I am satisfied that paragraph 8 refers to specific instances of sexual activity. Regarding section 276 (2)(b), this evidence may or not be relevant depending on how strong the inference is that someone who engages in risky behaviour is also more likely to consent to activity that is virtually certain to expose you to a life threatening disease. After all, why would the HIV positive person not disclose to people, who are engaged in risky sex, since they would be likely to consent anyway?

[38] Regarding section 276 (2)(c), does the evidence have significant probative value that is not substantially outweighed by prejudice to the administration of justice? Without some type of evidence (i.e. psychological studies of the relationship between quantified risky behaviours and extremely dangerous and potentially life threatening behaviours), how could anyone reliably assess how significant the probative value is and then weigh it against prejudicial dangers?

[39] Regarding section 276 (3) factors, is it in the interest of justice, including the right of the accused to make full answer and defence? The focus in these types of trial is the non-disclosure of the HIV positive status by the accused. The acceptance of risky behaviour of any complainant is not barred by law and can only be relevant to his credibility as to whether he would accept the ultimate risk of having sex with a known HIV positive person. The strength of the impact of accepting statistically unknown risky behaviour with strangers and then using that information to draw an inference regarding accepting a sure and certain very dangerous, potentially life threatening risk is guess work without further evidence.

[40] Society has an interest in reporting sexual assault and also in not having the spread of the HIV virus. Complainants who contract HIV due to non-disclosure of the HIV status of their partners would be most reluctant to complain if, on a regular basis, their past sexual activity in group sex and other risky behaviours was routinely introduced into evidence in a public trial. Given the problems that I have discussed, I am not satisfied that there is a reasonable prospect that the evidence will provide a just determination of the case. There is a risk of discriminatory bias in admitting this type of evidence that will arouse sentiments of prejudice and hostility in a jury (I note that the accused has re-elected trial by judge alone). The potential prejudice to the complainant’s personal dignity is high and the right to privacy and protection of the law would be weakened.

[41] Counsel referred me to the decision of R. v. J.H. [2012] O.J. No. 5351 (O.C.J.) In that case, Justice Green admitted the prior sexual activity of the complainant based on (1) causation and (2) acceptance of risk. Appendix “A” of that decision authorizes a virtual unlimited exploration of the complainant’s sexual past for at least two years. With deference to the learned justice, Appendix “A” is the very type of evidence that would deter many, if not most, complainants from ever complaining to the authorities. The cross-examination proposed in Appendix “A” is the very type of cross-examination that was common in the past and is the type of evidence that section 276 prohibits in the absence of compelling reasons as set out in R. v. Seaboyer, supra, and section 276.

[42] Accordingly, after considering all the factors in section 276 (2) and 276 (3), I find that the proposed evidence outlined in paragraph 8 of this judgment is not admissible at trial.

[43] Pursuant to section 276.2 (3), I order that only the evidence, outlined in paragraphs 7 and 9 of this judgment, is admissible on the issue of credibility of the complainant for the reasons set out in this judgment.

Skarica J.

Released: June 3, 2013

COURT FILE NO.: CRIMJ(P) 856/11

DATE: 20130603

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and –

GEORGE CLARKE

REASONS FOR JUDGMENT

Skarica J.

Released: June 3, 2013