SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CR-12-10000645-0000

DATE: 20131028

WARNING

A non-publication order in this proceeding has been issued pursuant to subsection 486.4(1) of the Criminal Code.

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Demos Zachariou and Robin Petersen

BEFORE: M.A. Code J.

COUNSEL: Erin McNamara, for the Crown

Craig Bottomley, for Demos Zachariou

Robert Nuttall, for Robin Petersen

HEARD: October 11, 2013

ENDORSEMENT

A. INTRODUCTION

[1] The accused Demos Zachariou and Robin Petersen were charged with one count of sexual assault. The complainant is A.F. and the sexual assault is alleged to have taken place on May 22, 2011.

[2] The two accused elected trial by judge and jury and the trial commenced on October 7, 2013. There were no pre-trial motions. The Crown’s first witness was A.F. Towards the end of her examination-in-chief, the Crown asked her questions, eliciting certain responses, which led counsel for Zachariou to seek to cross-examine A.F. about a prior incident that had a sexual aspect to it. Counsel for Petersen joined in the application. I instructed counsel to finish their cross-examination of A.F., without addressing the prior incident, and to bring a s. 276 Criminal Code mid-trial motion seeking leave to cross-examine in relation to the prior incident. Both counsel completed their cross-examination of A.F., subject to a right to re-open if the s. 276 motion was successful.

[3] The Crown called its entire case in three days and the s. 276 motion was argued on October 11, 2013. I reserved judgment for a few hours and then dismissed the motion in brief oral reasons. I reserved the right to deliver more thorough reasons at the end of the trial.

[4] The following week, the two accused testified for the defence. The jury returned verdicts of guilty against both accused on October 18, 2013. They are presently awaiting sentencing.

[5] These are my reasons, more thoroughly developed, for dismissing the mid-trial s. 276 motion.

B. FACTS

[6] The Crown’s case, in brief summary, was that A.F. went out on the Saturday night of the May 2011 long weekend with a group of friends. She drank a substantial amount of alcohol during the afternoon and evening and she consumed some psilocybin mushrooms. She has a long term boyfriend but he was away from home, working in the north as a pilot. She was intent on “partying” and was clearly enjoying herself, drinking and dancing and socializing with friends at various venues in Toronto.

[7] Sometime after midnight, the group of friends went to a club known as Vogue. A.F.’s girlfriend, L.J., had a casual sexual relationship with Mr. Zachariou who was at Vogue with two of his friends, including Mr. Petersen. The plan was that the two groups would meet up at Vogue and continue “partying” together. At around 2:00 a.m., A.F., L.J., Mr. Zachariou, Mr. Petersen and another friend named Mike all went back to A.F.’s apartment and continued to drink and talk and socialize for about two more hours. Mike left at some point, leaving the other four at A.F.’s apartment. A.F. had never met Mr. Petersen, prior to this evening, and she had only met Mr. Zachariou on one prior occasion.

[8] Mr. Zachariou and L.J. went into the bedroom at the apartment and had consensual sex. An argument broke out between them and L.J. eventually left and went home at about 4:00 a.m. According to A.F., she and Mr. Petersen sat on the living room couch and talked and “flirted” and he kissed her. She briefly reciprocated but then she stopped him and told him that she had a boyfriend. They laughed and continued talking and listening to music until A.F. eventually “passed out” or fell asleep on her living room couch. She had been drinking and socializing with friends for about fourteen hours, since 2:00 p.m. on the previous afternoon. When she awoke, according to A.F.’s account, her arm was being held down by Mr. Zachariou and he was standing by her head and he was masturbating. Her dress was pulled up around her neck and Mr. Petersen was holding her legs down and digitally penetrating her vagina. She resisted and said “no”, without success. The incident ended fairly quickly as Mr. Zachariou ejaculated on her face and Mr. Petersen ejaculated on the floor. The two men then left the apartment.

[9] As noted above, Mr. Zachariou and Mr. Petersen both testified. Their account, in summary, was that there were a series of consensual sexual encounters throughout the evening. While Mr. Zachariou and L.J. were having consensual sex in the bedroom, Mr. Petersen and A.F. sat on the couch in the living room and talked until they eventually shared a kiss. Mr. Petersen agreed that A.F. stopped him, at a certain point, and told him that she had a boyfriend. He also agreed that, after an awkward moment, they went on to talk and listen to music for awhile. However, Mr. Petersen’s account was that A.F. did not “pass out” or fall asleep. Rather, they resumed kissing and, this time, they passionately embraced and A.F. began to perform oral sex on him. He proceeded to manually stimulate her vagina. They both had orgasms.

[10] After L.J. left the apartment, the two men stayed briefly with A.F. and then they left as well, according to their accounts. However, Mr. Zachariou returned to the apartment to retrieve a watch he had left behind, while Mr. Petersen waited outside. Upon re-entering the living room, Mr. Zachariou and A.F. shared a kiss while she sat on the couch. A.F. then undid Mr. Zachariou’s pants and began performing oral sex on him. After a few minutes, Mr. Petersen returned to the apartment to see what was delaying Mr. Zachariou. Upon seeing A.F. felating Mr. Zachariou, Mr. Petersen sat down on the couch beside her. She glanced at him and he began to stroke her thighs. She was moving her hips and moaning, apparently enjoying Mr. Petersen’s touching, and so he inserted his fingers in her vagina. Mr. Zachariou then ejaculated on A.F.’s chest. Mr. Petersen helped to clean up the ejaculate, the two men told her it was late and that they had to leave, and she agreed. They parted company on amicable terms.

[11] At some point later in the week, after her boyfriend returned to Toronto, A.F. reported the matter to the police and the two accused were charged. There is some circumstantial evidence in the case, which I need not review in any detail. In particular, A.F. had bruises on her right arm which she attributed to Mr. Zachariou holding her down while he masturbated. The defence position was that A.F.’s boyfriend must have caused the bruises, when he became upset after learning about the events of the prior weekend. In addition, the police found a sample of male sperm on the arm of the couch in a position that would arguably have been close to where A.F. said that Mr. Zachariou had ejaculated on her face.

[12] It can be seen that the central issue in the case was whether A.F. consented to the admitted sexual activity engaged in by the two men. Her account was that she was “passed out” or asleep and therefore, as a matter of law, was incapable of consenting. The two accused testified that she was never asleep and that she actively initiated and participated in all the sexual acts.

[13] The brief questioning at the end of A.F.’s examination in chief, which led to the mid-trial s. 276 motion, was as follows:

Q. Now, I’m just going to go back to the moment where Mr. Petersen kissed you in the living room. You told him that ‘I had a boyfriend’, is that right?

A. Yes.

Q. What did that have to do with anything that was going on?

A. Well, ‘cause he was kissing me, and I have a boyfriend, I don’t want that to happen either, I was saying no.

Q. What, if any, sexual interest did you have in Mr. Petersen …

A. Absolutely none.

Q. … that night?

Q. What, if any, sexual interest did you have in Mr. Zachariou that night?

A. None.

Q. At that time, what would your views have been about participating in a three-way sex scene with them?

A. I wouldn’t have.

Q. Why not?

A. Because I don’t have any interest in that.

Q. In three-ways in particular, or with them?

A. Just in particular. [Emphasis added].

There was a pause, before A.F. gave the final answer, and she answered somewhat faintly.

[14] The prior incident, on which the defence sought to cross-examine A.F., was set out in an affidavit from Mr. Zachariou that was filed on the s. 276 motion. It related to the one prior occasion on which Mr. Zachariou and A.F. had met. The evidence which I allowed at trial about this one prior meeting, from A.F., L.J., and Mr. Zachariou, was that the prior meeting was in the winter of 2011, probably in February or March, a few months before the events of May 22, 2011. Mr. Zachariou is a musician and L.J. had taken a group of her girlfriends to a restaurant to see him play. After he performed, Mr. Zachariou went out to a bar with L.J. and A.F. While talking with A.F., he suggested that they should get together and he asked her for her phone number. She gave it to him but when he later texted her she did not respond. They did not see each other again until the events of May 22, 2011.

[15] The further alleged aspect of this one prior meeting, on which I denied leave to cross-examine A.F., was set out as follows in Mr. Zachariou’s affidavit:

A.F., L.J. and I arrived at this new bar … and each ordered a drink. It was here that A.F. starting talking about “threesomes” and asked L.J. if she had ever had one. L.J. said she had not and that she would never engage in one. LJ. appeared to me to be uncomfortable. A.F. continued to talk about threesomes prompting L.J. to ask if A.F. had ever engaged in a threesome, to which she responded that she had had three. Shortly thereafter, A.F. suggested L.J. and I go back to her place. L.J. excused herself to go to the bathroom and I asked A.F. for her telephone number, which she provided. A.F. first obtained my number when I texted her a week later. She did not respond to that text.

When L.J. returned, I headed to the washroom. By the time I made my way there, I saw A.F. in the one-room woman’s bathroom washing her hands by the open door. They made eye contact, I walked towards her and they kissed. This was a passionate, prolonged, mutual kiss.

When the kiss ended, A.F. said, ‘let’s go’ and we headed back to the table where L.J. was seated. When we arrived, A.F. again invited L.J. and I to her apartment. L.J. again demurred. We left the club, got into a cab and A.F. started to cry. When L.J. asked what was wrong, A.F. said, “You have Demos to go home with and I don’t have anyone …” L.J. still did not want to go over and instead we went to the Pizzaiola at Bloor and Bathurst.

At the end of the night, A.F. went home alone.

[16] L.J. was not called as a witness on the s. 276 motion but her testimony about these prior events, at the preliminary inquiry, was provided to me. In summary, she did not recall what was discussed in the conversations with A.F. and Mr. Zachariou at the bar on this prior occasion. She did recall that A.F. was in tears, at the end of the evening, and she gave this latter evidence at trial.

C. LAW

[17] Section 276 of the Criminal Code provides as follows:

276. (1) …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 … 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 … 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 … considers relevant.

[18] A preliminary issue on the s. 276 motion, raised by Mr. Bottomley, was whether the alleged kiss in the washroom and the discussion about “threesomes” amounted to “sexual activity”, within the meaning of s. 276. Mr. Bottomley undertook not to elicit A.F.’s alleged admission to having engaged in three prior “threesomes”. He conceded that this admission would amount to evidence of prior “sexual activity” and would not be admissible. However, he submitted that the kiss and the discussion of “threesomes” was not “sexual activity”, unless it was open to the construction that A.F. was issuing an invitation to the others to engage in a “threesome”. On behalf of the Crown, Ms. McNamara submitted that soliciting “sexual activity” is “sexual activity”, within the meaning of s. 276. She relied on R. v. Drakes (1998), 1998 14968 (BC CA), 122 C.C.C. (3d) 498 (B.C.C.A.) and submitted that the kiss and the discussion at the bar involved a form of solicitation.

[19] In R. v. Drakes, supra at para. 16, the trial judge prevented cross-examination of the complainant on a conviction for soliciting for the purpose of prostitution. It was argued, both at trial and on appeal, that a conviction for soliciting was not “sexual activity”, within the meaning of s. 276. The trial judge, Spencer J. disagreed. On appeal, Lambert J.A. gave the judgment of the Court and stated:

Mr. Justice Spencer considered that communicating for the purposes of prostitution constitutes “sexual activity” on the part of the communicator. I agree. It is an activity which takes place for a sexual purpose. “Sexual activity” is not limited to overtly sexual acts. [Emphasis added].

[20] In a somewhat different but related context, McIntyre J. made a similar point concerning the meaning of “sexual assault”, in R. v. Chase (1987), 1987 23 (SCC), 37 C.C.C. (3d) 97 at 103 (S.C.C.), speaking for a unanimous Court:

The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual. If the motive of the accused is sexual gratification, to the extent that this may appear from the evidence, it may be a factor in determining whether the conduct is sexual.

The decision in Chase stands for the proposition that the “sexual” aspect of the offence need not involve touching of primarily sexual parts of the body, such as genitalia.

[21] Mr. Zachariou described the kiss with A.F. as “passionate” and “prolonged”. Furthermore, the repeated discussion of “threesomes” by A.F., in the context of inviting L.J. and Mr. Zachariou back to her apartment and in the context of her tearful statement to L.J., “you have Demos to go home with and I don’t have anyone”, is reasonably open to the construction that A.F. was inviting or soliciting the other two to engage in a “threesome”. Indeed, this is the probative value of the entire incident, according to the defence, as they submit it contradicts A.F.’s answer to the Crown’s question in chief concerning her views about “threesomes”. I am satisfied, in the above circumstances, that the prior incident constitutes “sexual activity” within the meaning of s. 276, based on the principles set out in Drakes and Chase.

[22] Mr. Bottomley, on behalf of Mr. Zachariou, submitted that the prior incident related to two issues in the trial. First, he submitted that there was a possible defence of honest but mistaken belief in consent on which the prior incident had probative value. Second, he submitted that the prior incident rebutted the answers elicited by the Crown in-chief concerning A.F.’s loyalty to her boyfriend and her attitude towards “threesomes”. Mr. Nuttall, on behalf of Mr. Petersen, did not submit that any defence of honest but mistaken belief in consent was open to his client on the facts. However, he joined in Mr. Bottomley’s second point and submitted that the rebuttal value of the prior incident would impact on A.F.’s credibility.

[23] Addressing the first use of the proposed evidence, both counsel agreed that the two accused gave accounts of the events of May 22, 2011 that described A.F. as actively consenting to and initiating the sexual activity. There was no suggestion, on their own evidence, that they honestly but mistakenly believed she was consenting. Furthermore, A.F.’s account was that she was “passed out” or asleep when the two accused initiated the sexual activity. She was, therefore, “incapable of consenting to the activity”, within the meaning of s. 273.1(2)(b), because she lacked “a conscious, operating mind, capable of granting, revoking or withholding consent to each and every sexual act”. See: R. v. A. (J). (2011), 2011 SCC 28, 271 C.C.C. (3d) 1 at para. 44 (S.C.C.).

[24] Mr. Bottomley frankly acknowledged that he had not brought a s. 276 motion, prior to trial, because the basis in this case for a defence of mistaken belief in consent was so weak. He only brought the s. 276 motion, mid-trial, once the Crown had opened the door to the second rebuttal use of the evidence concerning the prior incident. The first use, relating to a possible defence of mistaken belief in consent, turned on the suggestion that A.F. consented to sex with Mr. Zachariou, but not to a “threesome” that included Mr. Petersen, and that Mr. Zachariou mistakenly believed she was consenting to a “threesome” because he remembered the prior incident.

[25] There was no “air of reality” to the suggested defence of mistaken belief in consent, on the facts of this case, and Mr. Bottomley did not press this part of his argument. A.F. never wavered from her testimony that she was “passed out” or asleep and the two accused never wavered from their testimony that she was never asleep, her eyes were open throughout, she glanced at Mr. Petersen when he sat down beside her and began to stroke her thighs, she continued to felate Mr. Zachariou after Mr. Petersen’s arrival, and she responded positively to Mr. Petersen when he continued to stimulate her. There was no basis, on any of this evidence, for a theory that A.F. consented to sex with Mr. Zachariou, but not to a “threesome” that included Mr. Petersen, and that Mr. Zachariou mistakenly believed she was consenting to a “threesome” because of his memory of the prior incident. Accordingly, I did not leave a defence of mistaken belief in consent to the jury in my final instructions. Neither defence counsel objected to the Charge to the jury, in this regard, and neither counsel submitted that a defence of mistake should have been left. See: R. v. Bulmer et al (1987), 1987 56 (SCC), 33 C.C.C. (3d) 385 (S.C.C.); R. v. Osolin (1993), 1993 54 (SCC), 86 C.C.C. (3d) 481 (S.C.C.); R. v. Esau (1997), 1997 312 (SCC), 116 C.C.C. (3d) 289 (S.C.C.).

[26] Accordingly, the only issue in the case was actual consent, which is part of the actus reus of sexual assault. See: R. v. Ewanchuk (1999), 1999 711 (SCC), 131 C.C.C. (3d) 481 at paras. 24-30 (S.C.C.). Both Mr. Bottomley and Mr. Nuttall realistically conceded that evidence concerning the prior incident was not relevant to this actus reus issue of actual consent. It has been held, in this regard, that evidence of prior sexual activity will “rarely be relevant … to establish consent” to sexual relations on the occasion in question. See: R. v. Darrach (2000), 2000 SCC 46, 148 C.C.C. (3d) 97 at para. 58 (S.C.C.). It has also been held that where the mens rea issue of mistaken belief in consent 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. Crosby (1995), 1995 107 (SCC), 98 C.C.C. (3d) 225 at 230 (S.C.C.)

[27] In these circumstances, the defence submitted that the evidence of the prior incident acquired its probative value because of the questions asked and the answers given, at the end of the complainant’s evidence-in-chief, concerning her loyalty to her boyfriend and her general attitude towards “threesomes”. It is well-established that evidence of prior sexual activity may become relevant, during the trial, because of issues raised by the Crown’s case in-chief and in order to rebut positions taken by the Crown. The s. 276 motion in this case depends entirely on this rebuttal use of evidence concerning the prior incident. See: R. v. Harris (1997), 1997 6317 (ON CA), 118 C.C.C. (3d) 498 (Ont. C.A.); R. v. Butts (2012), 2012 ONCA 24, 285 C.C.C. (3d) 569 (Ont. C.A.).

[28] Turning to the statutory criteria governing s. 276 motions, the admissibility of the proposed evidence depends on the three requirements set out in s. 276(2). Counsel agreed that they only intend to use the prior incident as further ammunition in their attack on A.F.’s credibility and not as evidence relevant directly to the issue of consent. In terms of the first and second criteria enacted in s. 276(2), I am satisfied that the evidence is of a “specific instance of sexual activity” and that the evidence is “relevant to an issue at trial”. The relevant issue is rebuttal of the complainant’s answers to the Crown’s questions, as set out above. Rebuttal of those answers, if it is achieved, could potentially have some impact on A.F.’s credibility. The proposed evidence is, therefore, relevant.

[29] Given the above findings, evidence of the prior incident satisfies two of the three statutory criteria for admissibility set out in s. 276(2). The only issue is the third criterion, namely, whether the evidence “has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.”

[30] I am satisfied that the evidence of the prior incident does not meet this third criterion for a number of reasons. In relation to its probative value, I note the following six points:

• The real issue in the case is consent or lack of consent to sexual relations with the accused on May 22, 2011. It is conceded that the prior incident has no relevance to this issue;

• The prior incident took place a number of months before the events of May 22, 2011, it involved different parties, and it involved different conduct. An alleged discussion and invitation concerning a “threesome” with a girlfriend and her boyfriend, followed by a kiss of the boyfriend, is quite different from the subsequent events described by the two accused. In their accounts of the May 22, 2011 incident, there was no prior discussion or invitation, the girlfriend L.J. had already left the apartment, and the “threesome” involved two men and a woman rather than two women and a man;

• It was conceded by counsel that the issue of A.F.’s loyalty to her boyfriend, or lack of loyalty, was not a significant issue in the case. That was because A.F. conceded in her testimony that she was “flirting” with Mr. Petersen, as they sat on the couch alone in the living room, and that she did “reciprocate” his kiss for some thirty seconds before she stopped him and told him about her boyfriend. Mr. Petersen gave virtually identical testimony about these events. Accordingly, the jury already knew that A.F. was loyal to her boyfriend, to some degree, but also that she was disloyal to him to some degree. These were essentially neutral and admitted facts in the case;

• The issue of A.F.’s general attitude towards “threesomes” arose from a single question posed by the Crown. A.F. was initially asked about her “sexual interest” in each of the accused, individually, and was then asked about any interest “in a three-way sex scene with them”. She responded negatively to all of these questions, none of which opened the door to questions about her attitude towards “threesomes” in general. The Crown then asked one further question which, in hindsight, she regrets. The Crown asked whether A.F. meant, by her prior answers, that she was not interested “in three-ways in particular, or with them”. The question was ambiguous and A.F. initially paused and then answered, somewhat faintly, “just in particular”. I am not convinced that A.F. understood the question, and I was not sure what the Crown meant. According to the Crown’s submissions, the question that she intended to ask was a clarification as to whether A.F. was opposed, in particular, to a “threesome” with the two accused or whether she was generally opposed to any kind of sex with these men. However, the way that the Crown actually framed the question, it was open to the construction that she was asking about A.F.’s interest or lack of interest in “three-ways” in general or just “three-ways” with these two men. In the end, this one question was ambiguous, the answer given by A.F. was not confident, and the Crown immediately left the subject and moved on;

• The Crown undertook that she would not be submitting to the jury, at the end of the case, that A.F.’s general attitude towards “threesomes” was somehow a relevant issue in the case. The Crown’s position was that A.F. was “passed out” or asleep at the relevant time, that she was incapable of consent, and that she would therefore never have turned her mind to whether she was interested in a “threesome”. The Crown was faithful to this position, in her closing address. None of the three counsel, or myself in the Charge to the jury, made any reference to A.F’s answer to this one question or to the issue of her interest or lack of interest in “threesomes”. All counsel agreed that I should not draw any attention to her answer, for example, by cautioning the jury about its irrelevance;

• Even if the jury recalled this one answer by A.F. to the question about “three-ways in particular, or with them”, and even if the jury understood A.F.’s answer to indicate a general opposition to all “three-ways”, this evidence could not bolster her credibility in relation to the central issue of consent. Her evidence was that she was asleep or “passed out” and was, therefore, incapable in law of consenting, regardless of her general views about “threesomes”. I instructed the jury that the only issue in the case, in relation to the essential element of consent, was whether the Crown had proved that A.F. was “passed out” and if the jury had any reasonable doubt on this issue they were instructed to acquit both accused.

[31] For all these reasons, I was satisfied that the proposed evidence concerning the prior incident did not have “significant probative value” in this particular case, as required by s. 276(2)(c). At best, the proposed evidence related to A.F.’s credibility concerning one peripheral and ambiguous assertion that the Crown did not rely on and that did not relate to the central issue of consent and, in any event, the proposed evidence arguably did not rebut that one assertion because the two separate occasions were quite different. In these circumstances, the two cases of Harris and Butts, relied on by the defence, are easily distinguishable. In R. v. Harris, supra at para. 50, the Court held that the proposed rebuttal evidence was “highly probative of the issue of credibility” because of “its ability to contradict specific evidence given by the complainant that was central to her version of the relevant events”. In R. v. Butts, supra at paras. 21-24, the Court held that, without the proposed rebuttal evidence, the jury was left with “a misleading picture of crucial aspects of the incident” and with a “distorted narrative … at a time relevant to the charge”. The rebuttal evidence addressed “a central plank in the Crown’s theory” and had “significant probative value to the defence”. None of these descriptions of the proposed evidence could apply in the case at bar.

[32] On the other side of the scales, the minimal probative value of the proposed evidence was “substantially outweighed” by the typical forms of “prejudice to the proper administration of justice” that s. 276 is designed to protect against. If the proposed evidence was admitted, counsel agreed that I would have to give the jury a strong caution to the effect that the prior incident, if the jury found that it happened, has no relevance to the central issue of consent and that its only permissible use was to rebut A.F.’s evidence concerning her general attitude towards “threesomes” and, therefore, that it could have some limited impact on her credibility. This would not be an easy instruction for a layperson to understand and it would arguably not advance the interests referred to in s. 276(3)(c). More significantly, evidence of the prior incident is susceptible to stereotypical and discriminatory reasoning about “bad women”, such as a woman who would kiss a man who she had just met, in the washroom of a bar, and would then invite the man and his girlfriend home to engage in “three-way” sex. The inference or myth, that this kind of loose or immoral woman is more likely to consent to the kind of group sex alleged in this case, is precisely what s. 276(3)(d) and (e) are designed to prevent. In R. v. Seaboyer and Gayme (1991), 1991 76 (SCC), 66 C.C.C. (3d) 321 at 386 (S.C.C.), McLachlin J., as she then was, gave the majority judgment and referred to the myth that “unchaste women were more likely to consent”. She also referred to empirical studies suggesting that juries “penalize” complainants “who do not fit the stereotype of the ‘good woman’.” The jury would have to be strongly cautioned against this kind of stereotypical reasoning, based on myths about “bad women”, if the proposed evidence was to be admitted. Finally, if A.F. admitted the prior incident in cross-examination, the Crown would arguably be obliged to re-examine her on any relevant differences between the “threesomes” that she was interested in, as opposed to the particular “threesome” described by the two accused. In other words, the proposed evidence invited a broad inquiry into A.F.’s sexual history and sexual preferences that would do great harm to the values referred to in s. 276(3)(b), (f) and (g).

[33] For all these reasons, I was satisfied that the proposed evidence had slight probative value in this case and that it was substantially outweighed by real prejudice to the fact-finding process. Accordingly, I denied the s. 276 motion and excluded the evidence. As a result, neither A.F. nor L.J. was recalled for further cross-examination and re-examination.

[34] I wish to thank all three counsel for the quality of their submissions and materials, prepared on short notice in the midst of a difficult trial. They were of great assistance to me.

M.A. Code J.

Date: October 28, 2013