SUPERIOR COURT OF JUSTICE
Court File No.: CRIMJ(P) 137/13
Date: 2013 11 06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
A. M. Morris, for the Respondent
Respondent
- and -
CHRISTOPHER MARTIN
E. Brown, for the Applicant
Applicant
HEARD: November 5, 2013
RULING RE ADMISSIBILITY OF PRIOR SEXUAL ACTIVITY OF COMPLAINANT
HILL J.
Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding by the Honourable Justice S. Casey Hill directing that the identity of the complainant and any information that could disclose such identity, shall not be published in any document or broadcast or transmitted in any way
INTRODUCTION
[1] The applicant stands charged with sexual assault and common assault.
[2] The Court allowed a defence application to admit specific prior sexual activity of the complainant, A.H., with reasons to follow. These are the reasons.
FACTUAL BACKGROUND OF ALLEGATION
[3] By October 18, 2012, the Applicant and A.H. had been in a dating relationship for about a month and a half. For a period as long as ten days, commencing about September 11th, the Applicant resided in the basement apartment where A.H. lived with her mother and aunt. The complainant and the Applicant slept together in her bedroom.
[4] Once the Applicant moved out, he rented a basement apartment in a townhouse in Brampton. On October 17th, from mid-afternoon onward, A.H. was with the Applicant ending the day watching TV in his apartment. A.H. planned to spend the night.
[5] On the complainant’s evidence, once the TV was turned off, she and the Applicant retired to bed. She was fully dressed. The Applicant was wearing boxer shorts. The Applicant wanted sexual intercourse. While making it clear that she did not, she offered oral sex. The Applicant rejected the offer and persisted for a number of minutes in his requests for sexual intercourse.
[6] According to A.H., because she was in her menstrual period, she did not want sexual intercourse in these circumstances. In her in-chief testimony at the preliminary inquiry, A.H. stated “that’s kind of gross”. In cross-examination, she stated, “I kept telling him no, no, no … [b]ecause I was on my period”. In her in-chief evidence in this trial, A.H. stated that she told the Applicant she did not want sexual intercourse because it was a “certain time of the month”. According to A.H., the Applicant remarked that he didn’t mind if it was that time of the month. She again said no – “It’s pretty gross”.
[7] On A.H.’s evidence, the Applicant forcibly held her down and, after pulling her pants down, removed her tampon. He then, despite her verbal protestations and physical struggles, raped her.
POSITION OF THE PARTIES
[8] On behalf of the Applicant, Mr. Brown submitted that the Applicant’s defence is that the complainant consented to sexual intercourse.
[9] The defence sought to cross-examine the complainant at trial, and to introduce evidence through the testimony of the Applicant, respecting two alleged incidents of sexual intercourse between them on occasions prior to October 18, 2012. The Notice of Application and the October 22, 2013 Affidavit of the Applicant in the s. 276.1 application record identify these transactions:
(1) On a date in the last half of September 2012, while residing with A.H. in the residence she shared with her mother and aunt, he joined A.H. in the shower at her invitation. Although A.H. was menstruating, they had consensual sexual intercourse.
(2) When the complainant stayed at the Applicant’s residence on the night of October 15/16, 2012, although A.H. informed him that she was menstruating, they had consensual sexual intercourse.
[10] Mr. Brown submitted that given that the complainant has predominantly founded her assertion of lack of consent on the basis that she would not have voluntary sexual intercourse while on her menstrual period, that specific fact stands to be rebutted by evidence to the contrary. It was argued that while this evidence of prior sexual activity does not serve to make it more likely that A.H. consented to sexual intercourse on October 18, 2012, it does serve to reduce the probability that A.H.’s menstrual period stood as a reason for non-consent.
[11] It was submitted on behalf of the Applicant that while the evidence in question may incidentally make the complainant’s evidence less worthy of belief, the interests of full answer and defence required admission of the evidence.
[12] On behalf of the Crown, Mr. Morris emphasized the need for case-by-case balancing having special regard to the factors enumerated in s. 276(3) of the Code.
[13] Crown counsel submitted that the application material inadequately established the required connection between the alleged prior sexual activity and the Applicant’s defence at trial.
[14] In the alternative, having regard to the nature of the proffered evidence, it is said that it does not have significant probative value and, in any event, its probative value is substantially outweighed by the danger to the proper administration of justice. Careful consideration of the factors in s. 276(3) in the circumstances of this case favours the court exercising its discretion not to admit the evidence.
ANALYSIS
[15] Section 276 of the Code is an exclusionary rule of evidence making prior sexual activity of a complainant inadmissible in a sexual assault prosecution: R. v. M.T. (2012), 2012 ONCA 511, 289 C.C.C. (3d) 115 (Ont. C.A.), at paras. 29, 39; R. v. Wylie, 2011 ONSC 6200, at para. 27.
[16] This statutory exclusionary rule is not, however, a “blanket prohibition” on evidence of a complainant’s sexual history but rather only precludes the admission of evidence offered in support of “two specific, illegitimate inferences”: R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, at paras. 15, 32, 45; M.T., at para. 40. These are the twin myths – evidence is not admissible to support an inference that, by reason of the sexual nature of the prior activity, the complainant.
(1) is more likely to have consented to the sexual activity that forms the subject-matter of the charge
(2) or that the complainant is less worthy of belief.
[17] The defence bears the burden of establishing that there exists a legitimate use for a complainant’s prior sexual history. This assessment must be tested on a case-by-case basis having regard to all of the circumstances bearing in mind that evidence “of prior sexual activity will rarely be relevant … to establish consent”: Darrach, at para. 58. In a particular case, the probative value of the specific instances(s) of prior sexual activity may be demonstrated to depend, not “upon resort to the now debunked myths suggesting some connection between that activity and a lack of veracity but in its ability to contradict specific evidence given by the complainant that was central to her version of the relevant events”: R. v. Harris (1997), 1997 6317 (ON CA), 118 C.C.C. (3d) 498 (Ont. C.A.), at para. 50.
[18] Quite apart from the implications of the complainant’s specific testimony in this case, in considering the issue of consent there exists the prospect that a trier of fact might be inclined to infer, based on extra-curial knowledge or experience, that a woman would be disinclined to participate in sexual intercourse while on her menstrual period. It is hardly uncommon in the criminal courts to hear accounts of women at risk of sexual abuse attempting to talk their way out of forced sexual relations by announcing that they are menstruating (and see for example, R. v. T.B. (2009), 2009 ONCA 177, 95 O.R. (3d) 21 (C.A.), at para. 7; R. v. Humaid (2006), 2006 12287 (ON CA), 208 C.C.C. (3d) 43 (Ont. C.A.), at para. 29). The prior sexual activity here, if accepted to have occurred, would serve to contradict the drawing of such an inference of inherent improbability based solely on what may be commonly held perceptions relating to human behaviour.
[19] That said, the admissibility issue here falls to be determined on the narrower basis of the complainant placing a particular premise for her non-consent in issue. Central to A.H.’s position that, on October 18, 2012, she did not consent to sexual intercourse with her boyfriend with whom she had a dating relationship was the assertion that she would not consensually engage in sexual intercourse for the sole reason that she would not do so during her menstrual period. The alleged prior instances of sexual activity are relevant as directly and essentially connected to the accused’s defence and therefore specific to the case without engaging general stereotypical inferences: see Don Stuart, “Twin Myth Hypotheses in Rape Shield Laws are Too Rigid and Darrach is Unclear” (2009), 64 C.R. (6th) 74, at pp. 75-6.
[20] The potential rebuttal impact of the evidence does not however found the inference that it was, on account of the prior sexual activity, more likely that the complainant would have consented to sexual intercourse on October 18th. The evidence, if accepted, may properly serve to contradict an assertion of non-consent premised on the complainant adhering to a practice of not having sexual relations while on her menstrual period. Beyond avoidance of illegitimate inferences, the evidence of alleged prior sexual activity, if accepted, would have significant probative value not substantially outweighed by the danger of prejudice to the proper administration of justice taking into account the factors described in s. 276(3).
CONCLUSION
[21] Order accordingly.
HILL J.
DATE: November 6, 2013
COURT FILE NO.: CRIMJ(P) 137/13
DATE: 2013 11 06
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HER MAJESTY THE QUEEN v. CHRISTOPHER MARTIN
BEFORE: HILL J.
COUNSEL: M. Morris, for the Respondent
E. Brown, for the Applicant
RULING RE ADMISSIBILITY OF PRIOR SEXUAL ACTIVITY OF COMPLAINANT
HILL J.
DATE: November 6, 2013