WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4 of the Criminal Code:

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

BARRIE COURT FILE NO.: CR-11-193

DATE: 20130124

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

JOMO BLAKE

Applicant

M. Levasseur, for the Crown

A. Flisfeder, for the Applicant

D. Butt, for the Complainant

HEARD: January 15, 2013

PUBLICATION OF THIS RULING IS BANNED PURSUANT TO S.486.4

OF THE CRIMINAL CODE OF CANADA

IN CAMERA HEARING

RULING ON THE APPLICANT’S S.276 APPLICATION

DiTOMASO J.

THE APPLICATION

[1] The Applicant Jomo Blake stands charged with the offences of sexual assault and sexual interference involving the complainant T.H.

[2] Mr. Blake seeks an order to cross-examine T.H. in relation to prior sexual activity pursuant to s.276.1 and 276.2 of the Criminal Code. He seeks to admit evidence in relation to prior sexual assault allegations made by T.H. that were investigated by the Barrie Police Service in 2008 involving persons other than Mr. Blake.

[3] Mr. Blake submits that the purpose of this evidence is relevant to prove a pattern of false allegations or motive to fabricate by T.H. and is unrelated to the forbidden twin myths set out as s. 276(1).

[4] The Crown’s position supported by counsel for the complainant is that the evidence which Mr. Blake wishes to have admitted is not relevant to an issue at trial. Rather, it is fraught with danger of prejudice to both T.H. and the proper administration of justice. The evidence of past sexual conduct of T.H. should not be admitted.

BACKGROUND

[5] On the morning of May 19, 2010 T.H. attended the Barrie Police Service in the company of her mother. Police obtained a videotaped statement from T.H. In that interview, she alleged that a family friend, Mr. Blake, had attempted to kiss her and fondle her breasts, sometime during 2008 when T.H. was between 13 and 14 years of age. She reported this to her mother who did not involve police at the time but instead spoke directly to Mr. Blake.

[6] The families had a falling out and did not see much of each other until November 2009, when the families resumed their friendship. Shortly thereafter, T.H. alleges that over time Mr. Blake began touching her in a sexual manner, grabbing her buttocks, legs and breasts, ultimately culminating in sexual intercourse. T.H. alleges that she had sexual intercourse with Mr. Blake a number of times and that he would give her money, rides around town and let her use his computer in exchange for her silence. She alleges that he also blackmailed her to keep quiet by threatening to tell her mother that she was downtown hanging out with people that she was not supposed to be with.

[7] T.H. alleges that the final act of sexual intercourse between herself and Mr. Blake occurred either during the week-end before May 19, 2010 or the week-end before that. At the time, she was 15 years of age.

[8] T.H. made passing reference to prior sexual assault allegations in her videotaped statement of May 19, 2010. However, she did not provide details as to those allegations nor was she asked to do so.

[9] Limited information pertaining to the prior sexual assault allegations had been disclosed by way of General and Supplementary Occurrence Report dated July 1, 2008 and by way of cross-examination of T.H. during the Preliminary Hearing of this matter.

POSITIONS OF THE PARTIES

Position of the Applicant Jomo Blake

[10] Mr. Blake submits that the evidence sought is to undermine T.H.’s credibility “to support a pattern of false allegations made by the complainant and a motive to fabricate not that she is less credible because of this other alleged sexual activity”. It is submitted that the evidence sought is not barred by s.276(1). T.H. in the past made allegations of having been sexually assaulted by her biological father and brother. Further, it is submitted, that in both cases the allegations did not lead to any charges after having been investigated.

[11] T.H. alleges sexual assault by Mr. Blake from approximately November 2009 to May 2010 but she never complained to anyone about this. She ran away to Owen Sound and did not want to return home when her mother came to get her. It was only then that T.H. alleged that she had been sexually assaulted by Mr. Blake.

[12] T.H. and her mother also allege a prior improper touching approximately two years prior but no complaint was reported and the complainant states that her mother told her to forget about it.

[13] Mr. Blake submits that T.H. voluntarily went to his home repeatedly after she alleged that she was sexually assaulted and wanted to live there.

[14] Mr. Blake submits that cross-examination should be allowed to establish that prior allegations of sexual abuse involving others was unfounded. The allegations against him by T.H. were fabricated and accordingly, Mr. Blake should be permitted to cross-examine T.H. as to her credibility.

Position of the Crown and Complainant T.H.

[15] The Crown’s position that Mr. Blake not be permitted to cross-examine T.H. is supported by counsel for T.H. The Crown submits that the evidence Mr. Blake wishes to have admitted is not relevant to an issue at trial and is fraught with danger of prejudice to both T.H. and the proper administration of justice. Further, there is no evidentiary record to support the cross-examination of T.H. on her credibility or motive to fabricate. Mr. Blake advances only bald assertions that T.H. has falsely complained before. There is no basis to support the mere assertion that T.H. made prior false allegations. There is no evidence that she has recanted any prior allegations of sexual abuse involving others. There is no evidence to support a pattern of false prior allegations or motive to fabricate and, in any event, such prior allegations would not be relevant to the issues involving Mr. Blake at this trial.

ANALYSIS

[16] The starting point is s.276(1) of the Criminal Code which provides:

… 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.

[17] In proceedings regarding offences contrary to s.271 of the Criminal Code, evidence of the complainant’s sexual activity that does not form the subject matter of the charge is inadmissible unless the evidence meets the criteria set out in s.276 of the Criminal Code, namely, it must be established that the proposed 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.[^1]

[18] Section 276.1(2) provides that an application referred to in subsection (1) must be made in writing and set out (a) detailed particulars of the evidence that the accused seeks to adduce, and (b) the relevance of that evidence to an issue at trial.

[19] It is the Applicant that bears the burden of establishing that the evidence is admissible under s.276(2) of the Criminal Code. The standard of proof is on a balance of probabilities. See R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443 at para. 46.

[20] Parliament has specified criteria for admissibility in s.276(2) to guide the discretion of trial judges in this area.

[21] The Crown submits that the evidence sought to be tendered is not relevant to an issue at trial. Further, any probative value is outweighed by the significant prejudice admission of such evidence would cause to the complainant and the administration of justice.

[22] I agree with the position of the Crown and complainant T.H. for the following reasons.

The Evidence is Not Specific

[23] Mr. Blake seeks an order to cross examine T.H. in relation of prior sexual activity. Although he seeks such an order, I find he has not provided any particulars of what evidence he seeks to adduce. On our record, there is no evidence in this application that satisfies the requirement for “detailed particulars as set out in s.276.1(2)(a)”.

[24] An examination of this record on this Application also does not satisfy s.276.1(2)(b) establishing the relevance of the evidence sought to an issue at trial.

[25] Mr. Blake’s position is that the evidence sought is relevant to prove a pattern of false allegations or a motive to fabricate and to challenge T.H.’s credibility unrelated to the forbidden twin myths. I do not agree.

[26] The evidence of prior sexual assault against T.H. is not relevant to support either of these two purposes.

The Evidence is Not Relevant to an Issue at Trial

[27] Regarding the alleged pattern of false allegations or motive to fabricate, Mr. Blake asserts that “the evidence sought as to undermine her credibility to support a pattern of false allegations made by the complainant and a motive to fabricate”. I find no motive to fabricate has been particularized in the application, nor are there any details as to how the evidence sought to be adduced is relevant to a motive to fabricate. There is no evidence of a pattern of false allegations made by T.H. as suggested by Mr. Blake. There is no evidence of any prior sexual complaints were unfounded or that T.H. recanted any prior complaints.

[28] All that we have is the bald statement or assertion that there was fabrication on the part of T.H. Such a bald statement or assertion that there is fabrication is not sufficient. It must be established that T.H. recanted or there were prior false allegations. See R. v. Riley (1992), 1992 7448 (ON CA), 11 O.R. (3d) 151 (C.A.); R. v. B.A.W. [1992] 3 S.C.R. (811) S.C.C. (rev’ing) [1991] O.J. No. 1549 (C.A.); R. v. A.R.B., 1998 14603 (ON CA), [1998] O.J. No. 3648 at para. 15, aff’d [2000] S.C.J. No. 30.

[29] I find Mr. Blake has not met his onus in establishing that the evidence sought to be adduced is relevant to an issue at trial. Rather, the evidence sought is irrelevant, collateral and confuses the ultimate issue that the jury must determine in this case namely, whether Mr. Blake is guilty or not guilty of the current offences.

Complainant’s Credibility

[30] Regarding T.H.’s credibility, Mr. Blake suggests that a review of her evidence on her examination-in-chief at the preliminary hearing shows inconsistencies, lack of memory and contradictions.

[31] No doubt, T.H.’s credibility will be a central issue at trial. However, that having been said, any suggestion that cross-examination of T.H. should be permitted on an issue of prior sexual conduct goes to her general credibility and, without more, falls squarely within the prohibitive lines of reasoning. General credibility of T.H. is not an issue relevant to trial in this context, and such questioning only serves to suggest that her prior sexual activity makes her more likely to have consented on this occasion, or less worthy of belief.

[32] Mr. Blake will still have the opportunity to make full answer and defence without subjecting to T.H. to cross-examination on any prior sexual activity. He still has the ability to test the credibility of T.H. at trial. He has been provided with substantial disclosure including the videotaped statement of T.H. as well as having had the opportunity to cross-examine her at the preliminary hearing. He will have the ability to effectively cross-examine all witnesses without invading T.H.’s privacy.

Prejudice Outweighs Any Probative Value

[33] I have also considered whether the evidence sought has significant probative value. It is not substantially outweighed by the danger of prejudice to the proper administration of justice.

[34] In assessing whether the proposed evidence is admissible under s.276(2), the Court shall take into account:

(a) the interests of justice, including the right of the accused to make 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.[^2]

Probative Value

[35] The balance of prejudicial impact over probative value is different in the context of prior sexual history than the general exclusionary discretion. The addition of the terms “significant probative value” which must “substantially” outweigh the danger of prejudice requires a more nuanced or qualitative assessment of the competing interests. 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. See R. v. M.T., 2012 ONCA 511, [2012] O.J. No. 3418 (C.A.) at para. 43.

[36] Evidence of previous sexual assaults by other persons engages the rule against collateral facts and is subject to the general discretion of a trial judge to be excluded where its probative value is outweighed by its prejudicial impact. See R. v. A.R.B., supra at para. 16.

[37] I find that the proposed evidence does not meet the threshold of significant probative value. Evidence regarding the prior sexual complaints relate to entirely distinct events from the current allegations, and as such, are collateral. We are left with pure speculation instead of “significant probative value”. On the evidentiary record on this Application there is nothing to suggest any information that might come out regarding any such prior event which would support Mr. Blake’s assertions.

Prejudicial Effect

[38] As for prejudicial effect, I find the proposed evidence does indeed pose a danger of prejudice that substantially outweighs any probative value and accordingly, it should not be admitted. The proposed evidence alone cannot be said to disclose evidence of prior fabrication or a motive to fabricate.

[39] When considering prejudice, it is necessary to consider prejudice to the trial process in addition to the specific prejudice which might arise with respect to any party or witness to the proceeding. See R. v. A.R.B., supra, at para. 16.

[40] Given that Mr. Blake has not indicated detailed particulars of the evidence he seeks to adduce, there is no way of limiting the scope of cross-examination. Without being able to articulate a more finite scope for the evidence sought and cross-examination of H.T., there is too great a risk that her general credibility will be challenged on a collateral event. To do so would run afoul of the restricted use of such evidence under s.276 of the Criminal Code.

[41] There is further prejudice to T.H.’s right of privacy and personal dignity. She was 15 years old at the time of the allegations. The incident sought to be tendered as evidence by Mr. Blake is a non-related matter from 2008 when she was 13 years of age. She made a passing reference to the incident in her videotaped statement by way of explanation. No specific details as to the alleged sexual activity have been provided by T.H. The use of this incident as evidence in these proceedings invades T.H.’s privacy. There is potential prejudice to her personal dignity and right of privacy contrary to s.276(3) of the Criminal Code. Further, it compels T.H. to relive previous traumatic experiences before the jury that should otherwise be isolated from these proceedings.

[42] Admitting the proposed evidence could discourage the reporting of sexual offences by youthful complainants. Such complainants would be more reluctant to report such offences knowing that not only would they be subjected to cross-examination before the court but also cross-examination about unrelated events in violation of their privacy. I agree with the Crown that permitting Mr. Blake to adduce the evidence sought has the potential to mislead and confuse the jury. It would obfuscate the ultimate decision that the jury must make in this case, that is, to find Mr. Blake guilty or not guilty of the offences before the court.[^3]

[43] In balancing the factors outlined in s.276(3) and within the entire context of this case, the proposed evidence should not be admitted. To do so runs the risk of severely prejudicing T.H. and also the integrity of the justice system as a whole.

[44] A number of cases were cited by counsel for Mr. Blake in support of his position that cross-examination should be permitted. I find those cases are distinguishable from the case at bar. The cases cited by counsel for Mr. Blake contain allegations of prior sexual abuse which were strikingly similar. However, in our case, we were left with mere assertions and an evidentiary record which do not support the order sought by Mr. Blake.

DISPOSITION

[45] For the reasons above, I find that the proposed evidence as sought is not specific and not relevant to an issue at trial. There is no evidence of a pattern of false allegations made by T.H. as suggested by Mr. Blake. There is no articulation of the motive to fabricate nor are there any details as to how the evidence sought to be adduced is relevant to such a motive to fabricate. There is no evidence of any prior sexual complaints being unfounded. There is no evidence that T.H. recanted any prior complaints. The mere assertion of fabrication is not sufficient. The Applicant Mr. Blake has failed to meet his onus in establishing that the evidence sought to be adduced is relevant to an issue at trial. The evidence sought is collateral and confuses the ultimate issue that the jury must determine. On this ground, the Application fails.

[46] In respect of T.H’s credibility, cross-examination of T.H. on an issue of prior sexual conduct as it goes to her general credibility, without more, falls squarely within the prohibited lines of reasoning.

[47] Further, in determining whether the evidence is admissible under s.276(2), I have taken into account those factors set out in s.276(3). In so doing I have balanced the prejudicial impact against the probative value of the evidence sought. I have found that the proposed evidence does not meet the threshold of significant probative value. Rather, the proposed evidence poses a danger of prejudice that substantially outweighs any probative value, and as such, the proposed evidence should not be admitted.

[48] For these reasons, the Application is dismissed.

DiTOMASO J.

Released: January 24, 2013

[^1]: Criminal Code s.276(2)

[^2]: Criminal Code, supra at s.276(3)

[^3]: R. v. B.A.W. supra, at para. 3