ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 7349/12

DATE: 2013-09-17

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DENNIS JAMES BEILHARTZ

Defendant

L. Mehkeri, for the Crown

E. McCooeye, for the Defendant

HEARD: September 5, 2013

decision on application by accused pursuant to s. 276.2 of the criminal code of canada

JUSTICE E. GAREAU

[1] The accused, Dennis James Beilhartz, is charged with the following offence as set out in the indictment dated November 19, 2012:

“Dennis James Beilhartz stands charged that he on or about the 2nd day of January, 2012 at the City of Sault Ste. Marie, in the said Region, did commit a sexual assault on T.R., contrary to s. 271 of the Criminal Code of Canada.”

[2] The accused has pled not guilty to the aforementioned charge.

[3] The accused has brought an application under s. 276.2 of the Criminal Code of Canada. In his application, the accused seeks an order permitting the cross-examination of the complainant with regard to her sexual activity with the accused prior to the date of the alleged offence, January 2, 2012.

[4] The court received submissions from counsel for the accused and counsel for the crown on September 5, 2013 with respect to this application. The court reserved its decision.

[5] The accused has elected trial by a judge sitting with a jury, with jury selection to take place on September 30, 2013 and the trial scheduled to commence on October 7, 2013.

[6] Counsel for the accused indicated in his argument that there is no dispute that an act of intercourse took place between the accused and the complainant. The defence raised is that the sexual conduct was consensual or that the accused had an honest belief that there was consent to the sexual activity.

[7] In his argument and factum, the accused’s counsel sets out the four instances of prior sexual activity between the complainant and the accused which he wishes to examine the complainant about. There are, namely:

(a) that the complainant made a statement to the accused that she was raped by her ex-husband;

(b) that the complainant and the accused would cuddle and hold each other;

(c) that in November, 2009 the complainant grabbed the accused’s hand and put it to her breast; and,

(d) that the complainant sent a nude photo of herself to the accused in January, 2011.

[8] The particulars of the aforementioned incidents of sexual activity between the complainant and the accused are set out with particularity in the affidavit of Dennis Beilhartz sworn on July 31, 2013, which was filed with the court in support of the application.

[9] In paragraph 6 of that affidavit, the accused states:

“I had known the acquaintance about three years when I confessed that I had a sexual fantasy about her. The complainant replied, “I am unsure how I feel about that, as my ex-husband raped me.” I was shocked by that statement, as that fact was unknown to me. Thereafter, I spoke with the complainant’s husband, who was not upset, and who would make jokes about the fantasy.”

[10] In paragraph 8 of that affidavit, the accused states:

“In the six years I have known the complainant, it was common for us to cuddle and hold one another. When my futon was in my living room, I would often be sitting on it and the complainant would lay her legs across me, or otherwise be touching me.”

[11] In paragraph 9 of that affidavit, the accused states:

“In November 2009, I was driving the complainant home from Timmins. Only two of us were in the vehicle. I was driving, and because I worked the same day along with driving to Timmins the same day, and now back to Sault Ste. Marie, I was tired. The complainant looked at me, said “you’re tired eh”, grabbed one of my hands, and put it on her breast. From conversations we had in the past, the complainant was aware that breasts made me sexually aroused. I did remove my h and, the complainant asked me “did you like how that felt” and I answered yes. When we stopped at Tim Horton’s, the complainant got within 2 inches of me, and said “do you want to do it again”. I hesitated, the complainant backed away, and we continued on our way. From that interaction, I have always felt that the complainant would be interested in a sexual encounter with me. When she decided to spend the night at my home, for the first time ever, on the evening of the alleged offence, that incident came to mind, and formed part of my belief that the complainant was consenting to a sexual encounter.”

[12] In paragraph 10 of that affidavit, the accused states:

“In January, 2011, the complainant did send me a revealing picture of herself. I had not asked for it, and the picture was unaccompanied by text. She was obviously nude in the picture but positioned in such a way that neither her genitalia or breasts were visibly clear.”

[13] The position taken by the accused on the application is that the acts of cuddling and holding, and the sending of the picture by the complainant to the accused are not excluded by the provisions of s. 276 of the Criminal Code because these acts do not constitute “sexual activity” which are the words used in s. 276. Furthermore, the accused takes the position that all of the aforementioned events, including the statements made by the complainant as to being raped by her ex-husband and her invitations to the accused to touch her breasts are part of the narrative and the history of the relationship between the complainant and the accused and provide the context for the accused’s honest belief that there was consent to the sexual activity he engaged in with the complainant.

[14] It is the position of the accused that such evidence is relevant and necessary in the determination of why the accused may have had an honest belief that the complainant was consenting to the sexual activity between them.

[15] The position taken by the crown on the application is that the evidence sought to be introduced is not relevant to an issue at trial. In addition, as set out in paragraph 3 of the crown’s factum:

“…the evidence engages many of the significant concerns and interests which Section 276 of the Criminal Code is meant to protect. Namely, adducing this evidence presents prejudice to both the complainant’s dignity and to the proper administration of justice.”

[16] The governing provision is s. 276 of the Criminal Code of Canada. Sections 276 (1), (2) and (3) read 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.

[17] Section 276(1) of the Criminal Code specifies that evidence of sexual activity other than the sexual activity at issue, is not admissible to support an inference that, by reason of the sexual nature of that activity, a complainant is more likely to have consented to the sexual activity that forms the subject matter of the charge, or that the complainant is less worthy of belief.

[18] Section 276(2) sets out the tests. The evidence must be specific instances of sexual activity relevant to an issue at trial and the significant probative value of the evidence must outweigh the danger of prejudice to the proper administration of justice. The factors for the court to consider in determining whether evidence is admissible under section (2) are set out in s.276(3) (a) to (h). The factors to consider attempt to balance society’s interest in encouraging the reporting of sexual assault against the accused’s right to make full answer and defence to the charge.

[19] These are not easy factors to balance in applying the legal test. The court must be vigilant in protecting the complainant against one of the twin myths, which is the protection that s. 276 of the Criminal Code of Canada is designed to afford, namely, that a woman is more likely to have consented and/or is less worthy of belief by reason alone of her prior sexual conduct and history.

[20] With respect to the evidence of the accused and the complainant cuddling and holding, the point raised by defence counsel as to whether this is in fact “sexual activity” as contemplated by s. 276 of the Criminal Code of Canada is well taken. In my view, the acts of holding and cuddling may be acts of intimacy but I am not convinced that they are the type of conduct falling into the category of “sexual activity” held to inadmissible to offer protection to a complainant against the myths that a complainant is more likely to have consented to the sexual activity that forms the subject matter of the charge or that the complainant is less worthy of belief.

[21] With respect to the incident alleged in which the complainant invited the accused to touch her breasts, defence counsel conceded that this was clearly sexual activity and falls within the protection of s. 276 and the considerations set out in s. 276 as to the admissibility of the evidence. The accused argues that the photograph sent by the complainant in which she was nude but her breasts and genitalia were not visible, was not “sexual activity” and that s. 276 has no application to the admissibility of this evidence. I disagree. In my view, there is a distinct danger that this is the type of evidence that may promote the twin myths, the belief that a person who would send a nude picture of themselves to another person is a person who is more likely to have consented to the sexual activity or is a person that is less worthy of belief. The admission of the evidence related to the nude photograph sent by the complainant to the accused must be scrutinized and considered by the application of s. 276 of the Criminal Code of Canada and the factors set out in that section.

[22] If this was simply a case about consent, I would not be inclined to admit the evidence sought to be introduced by the accused. In that regard, I have considered the comments of the Supreme Court of Canada in R. v. Darrach, 2000 SCC 46, [2000] S.C.J. No. 46. At paragraph 45 of that decision, the court makes the following observation:

45 “Section 276 and the procedure it mandates are consistent with the law of evidence. Sections 276(1) and 276(2) are rules to determine relevance and admissibility. They were articulated in Seaboyer as common law rules and are not codified in the Criminal Code. Evidence of prior sexual activity is of limited admissibility: it is admissible for some purposes but not others. This is because it is of limited relevance. In particular, as the Court put it in Seaboyer, “[t]here is no logical or practical link between a woman’s sexual reputation and whether she is a truthful witness” or whether she is more likely to have consented to an alleged assault (at p. 612).”

[23] However, this is a case about more than the consent of the complainant. The defence being advanced by the accused is that he had an honest mistaken belief that the complainant consented to the sexual activity. One of the essential elements that the crown must establish on a charge of sexual assault is that the accused knew that the complainant did not consent to the act. The accused, in this case, is taking the position that he had an honest mistaken belief that the complainant consented.

[24] In order to consider this defence, the jury will have to delve into the accused’s state of mind at the time of the incident. What did the accused believe and was there a reasonable basis for that belief? In this regard, the evidence of the nude photograph and the invitation by the complainant to touch her breast is, in my view, relevant to an issue at trial, and these two acts are specific instances of sexual activity meeting the tests set out in s. 276(2)(a) and (b) of the Criminal Code of Canada.

[25] In considering s. 276 of the Criminal Code of Canada, the court is guided by the observations of Justice Moldaver in the case of R. v. Harris, 1997 6317 (ON CA), 118 C.C.C. (3d) 498 (Ont. C.A.) where in applying the factors set out in s. 276(2)(a)(b) and (c) indicated at paragraph 34:

“There is nothing in that provision which would suggest that a single prior incident of consensual sexual activity can never be relevant to the issue of honest but mistaken belief in consent or that the prejudicial effect of such evidence will inevitably outweigh its probative value. Rather, where evidence of prior consensual sexual activity between the parties is being proffered to support the defence of honest but mistaken belief in consent, it must be tested on a case-by-case basis having regard to all of the circumstances, including, but not limited to:

• the viability of the defence itself;

• the nature and extent of the prior sexual activity as compared to the sexual activity forming the subject matter of the charge;

• the time frame separating the incidents; and

• the nature of the relationship between the parties.”

[26] In the case at bar, the complainant and the accused had an ongoing relationship; a friendship for an extended period of time, some 6 years. It was an ongoing relationship. There were no gaps or breaks in the relationship. Although the incident involving the invitation by the complainant took place in late 2009 and the nude picture was sent in January, 2011, I would be more concerned about these gaps in time from the alleged incident on January 2, 2012 if the relationship between the accused and the complainant was not continuous in time. If the friendship had broken off, say after the nude picture was sent, I would be concerned about the time frame separating the incidents and have concerns about the relevancy of this evidence to the issues at trial.

[27] The defence advanced by the accused of mistaken honest belief, is not one that should be dismissed outright or one that is fanciful and not worthy of consideration, as I understand the facts of this case. I have some difficulty with the nature of the prior sexual activity between the complainant and the accused, the touching of the breast and the sending of the nude picture, as compared with the alleged incident of sexual activity, but considering all of the factors set out in R. v. Harris, I am satisfied all three tests set out in s. 276(2)(a), (b) and (c) have been met for the admissibility of the evidence pertaining to the sending of the nude pictures, and the touching of the complainant’s breasts by the accused, in November, 2009. I am also satisfied that the admission of the evidence pertaining to the cuddling and holding between the accused and the complainant, although not technically falling under s. 276 of the Criminal Code of Canada, is relevant to the issues at trial and that the evidence has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

[28] I am also satisfied that the evidence of the touching of the breasts and the sending of the nude picture has probative value that outweighs the prejudicial value in admitting the evidence.

[29] In arriving at this decision, I am very mindful of the accused’s position that the evidence is necessary to enable him to make full answer and defence to the charge. A complete and full description of the relationship between the complainant and the accused and events between them that preceded the incident on January 2, 2012 is required to afford the accused the opportunity to advance the defence of mistaken honest belief in consent. Without the evidence sought to be introduced by the accused, he would be unduly hampered in his ability to make full answer and defence and his right to a fair trial would be jeopardized.

[30] For these reasons, the accused will be permitted to adduce evidence and cross-examine the complainant on three specific instances:

(a) the holding and cuddling between them;

(b) the incident alleged to have occurred in November, 2009 where the complainant placed the accused’s hand on one of her breasts;

(c) the incident alleged in January, 2011 when the complainant sent a nude photograph of herself to the accused.

[31] The accused shall not be permitted to enter into evidence or cross-examine the complainant about her alleged statement that her ex-husband had raped her. This is consistent with the decision that the court earlier rendered with respect to the crown’s application to admit statements made to Dr. Robert Saltstone, T.R. and M.R. into evidence.

Justice E. Gareau

Released: September 17, 2013

COURT FILE NO.: 7349/12

DATE: 2013-09-17

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

DENNIS JAMES BELIHARTZ

REASONS FOR decision

Justice E.Gareau

Released: September 17, 2013