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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.

PETERBOROUGH COURT FILE NO.: CR-11-0820

DATE: 20130205

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

JORY MONAHAN

Accused/Applicant

P. Thompson, for the Crown

D. O’Neill, for the Accused/Applicant

HEARD: October 15, 16 and 18, 2012

THIS RULING IS SUBJECT TO A PUBLICATION BAN PURSUANT TO S.486.4

OF THE CRIMINAL CODE OF CANADA

APPLICATION TO ADMIT EVIDENCE OF OTHER SEXUAL

ACTIVITY – S.276 C.C.

REASONS FOR RULING

McISAAC J.

[1] Having considered this matter for a period of time, on November 27, 2012 I dismissed this application with an indication that formal reasons would be filed in due course. These are those reasons.

BACKGROUND

[2] The applicant is charged with a single count of sexual assault that is alleged to have occurred on […], 2011 at the residence of his girlfriend who was a close friend to the complainant. Mr. Monahan wishes to lead evidence of a “threesome” that took place some two or three years before the present incident and which involved himself, his same girlfriend and this complainant. The complainant admits that this “threesome” did, in fact, take place but that it was a “one-off” occurrence that she now regrets. It is agreed between the parties that this “threesome” which I will refer to as the “past incident” and the present incident are the only times that they have engaged in sexual activity.

POSITIONS OF THE PARTIES

(i) Present Incident

[3] According to the complainant, […], 2011 was her 22nd birthday and she had been invited over to a girlfriend’s place to celebrate. She had been drinking alcohol liberally even before her arrival there. She continued to drink excessively into the evening and became sick after midnight when she “passed out” on her girlfriend’s bed. The applicant had not been at the party.

[4] The next thing she recalls was awaking on the bed and the applicant was having sexual intercourse with her while their respective girlfriend was either sleeping or passed out beside them on this bed. The complainant maintains that she did not consent to this sexual activity.

[5] According to the applicant, he did not come over to his girlfriend’s apartment on this evening until later when he found the complainant asleep in his girlfriend’s bed. He carried her from the bedroom and put her on the couch in the living room. After having sex with his girlfriend, he decided to go to sleep on this same couch and move the complainant back to the bed with his girlfriend. When he went to wake her up, she “came onto” him by biting his neck in a sexual way, wrapping her legs around him and pulling his penis out of his underwear. Although he was not really interested in having sex with the complainant, he eventually succumbed to her persistence and they engaged in sexual intercourse on the couch for a period of approximately ten minutes. He then decided to stop and the complainant got up, walked towards the bedroom and got into the bed beside the applicant’s sleeping girlfriend. When he went to kiss his girlfriend goodnight, the complainant seduced him once again and they engaged in another episode of consensual intercourse. This ended when his girlfriend woke up, “freaked out” and began to punch him in the head and back. He eventually got dressed and left the apartment.

(ii) Past Incident

[6] The complainant agrees that some three years before the present incident she, along with the applicant and the applicant’s girlfriend as of […], 2011, participated in a “threesome”, that is, an episode of joint and several consensual sexual activity. She insists that all three of them were “really different people back then …” and that it was “a mistake in [her] life” that she would not repeat “again, ever”.

[7] The applicant insists that this past incident was something that was operating on his memory during both episodes of sexual activity with the complainant on the present occasion. Both incidents were initiated by the complainant who was the sexual aggressor and took place in the presence or proximity of his girlfriend.

LEGAL PRINCIPLES

[8] Section 276(2) of the Criminal Code requires that the following conditions be determined to permit evidence of “other sexual activity” to go before the jury:

(a) it involves a specific instance of sexual activity;

(b) it must be relevant to an issue at trial; and

(c) it must have significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

[9] Section 276(3) goes on to catalogue a non-exclusive list of factors that the court must consider in this assessment. These include, from the applicant’s perspective, the right to make full answer and defence and, from the complainant’s perspective, society’s interest in encouraging the reporting of sexual assault, the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury and potential prejudice to the complainant’s personal dignity and right of privacy.

THE PRINCIPLES APPLIED

[10] Although the applicant has persuaded me that the proposed evidence relates to a specific instance of sexual activity, he has failed to satisfy me that it is relevant to any issue that will burden the jury selected for this trial. In addition, it fails the balancing test mandated by s.276(2)(c) C.C.

[11] The applicant suggests that there is an “air of reality” to the defence of honest but mistaken belief as to consent. Despite the able submissions of Mr. O’Neill to the contrary, based on the positions of the parties herein, the only viable defence to be put to the jury will be one of consent. On one side of the piece, we have the complainant saying that she was totally incapacitated from the ingestion of alcohol, passed out and physically incapable of consenting to sexual activity when the applicant initiated his sexual advances upon her. On the other side, we have the applicant saying that she was the sexual aggressor and he reluctantly succumbed to her advances. The differences between these two positions could not be more stark. In my view, they leave no room for the alternate defence of mistaken belief: see R. v. Harris (1997) 1997 6317 (ON CA), 118 C.C.C. (3d) 498 (Ont.C.A.) at para. 35.

[12] If I am wrong in my assessment of the positions of the parties and that there is room to “cobble” a fact situation that would allow for the alternate defence to have some life, I have not been persuaded that the balancing mandated by s.276(2)(c) C.C. favours admission. There is no hint of a “threesome” in the circumstances of what transpired on the evening of […], 2011 except in the fertile mind of the applicant who does not get to fly the defence of mistaken belief as a desperate flag of convenience. The two incidents take place with a separation of something in the nature of three years. Most importantly, there is no suggestion of any sexual communion between the parties of any nature, conventional or otherwise, in the interim. See R. v. Harris, supra, at para. 34.

[13] On the other side of the scale, permitting the applicant to lead evidence of this other incident in such dubious circumstances would, in my view, tend to discourage other complainants from reporting sexual offences, tend to invite the jury to discount this complainant’s version of the events because of this “lifestyle” choice and involves a unnecessary incursion into her personal dignity and right of privacy. In the absence of any significant probative value on the alternative defence compared to the profound prejudice to the fact-finding process if this evidence was permitted to be heard by the jury, I am far from satisfied that the applicant has met his burden.

CONCLUSION

[14] For all these reasons, the application herein is dismissed.

McISAAC J.

Released: February 5, 2013