SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 12-SA5072
DATE: 2014-03-10

RE: R. v. A.C.

BEFORE: Honourable Justice Timothy Ray

COUNSEL:
Caroline Thibault, Counsel, for the Crown
Michael Johnston and Kim Hyslop, Counsel, for the Defendant

HEARD: February 19, 2014

ENDORSEMENT

[1] The defendant brings three pretrial applications: severance of a count concerning the defendant’s ex-wife and complainant; a s. 276 order to permit him to cross-examine her on her sexual history with him; and an order for production of third party records from the Children’s Aid Society.

[2] The defendant and his wife met in 1996 or 1997. She had three daughters. They moved in together in 1998, and later had a child of their own. In 2012, the police were called to an altercation that had occurred between the defendant and N., his wife’s eldest child. Following their investigation the defendant was charged with eight counts of assault against the children, sexual assault against one of the children, and sexual assault against the defendant’s wife. The eleven counts cover various periods of the relationship from approximately 1998 through to 2012.

[3] The defendant seeks an order severing the count concerning sexual assault against his wife, R.; a s. 276 order permitting questioning of R. at trial concerning sexual incidents with the defendant predating 2001 – the date in the count; and production of third party records from the CAS.

Severance

[4] The defendant seeks severance of count #3 on the ground that count #3 is distinct and separate from the other counts, which only involve the children, and the nature of the evidence might unnecessarily prejudice the defendant. Two of the counts involve sexual assault and sexual touching against L., one of the children. R.’s evidence will be that from 2001 through January 2011, she engaged in anal intercourse with the defendant four or five times per year against her will. It was non-consensual. The sexual assault and touching counts involving L. do not involve intercourse and do not involve consent, but the defendant is concerned about reasoning prejudice. The defendant contends that severance would not prolong the total time required for trial and that, while R. may well give evidence in both trials, her evidence would be separate and distinct since the sexual issues concerning her would not require repetition during the trial of the balance of the counts. The defendant is concerned that the jury, in dealing with the consent issue in count #3, might consider moral turpitude in connection with other counts.

[5] The Crown’s position is that any potential prejudice is easily outweighed by the need for a trier to hear R.’s evidence concerning the oppressive and intimidating atmosphere that prevailed in the home throughout, and that evidence is important for all of the counts. A similar fact or bad character application by the Crown is not anticipated. The Crown contends that the defendant has not met the onus to show that prejudice is the only live factor.

[6] On an application for a severance a trial judge is required to consider the various factors and determine if, on a balance of probabilities, he or she is persuaded that severance of one or more counts is necessary to avoid prejudice to the defendant as against the public interest and the presumption that all counts should be heard together in one trial.[^1] For the reasons that follow, the application for a severance is dismissed.

[7] The prejudice to the defendant in this case is the risk that a jury might use reasoning prejudice when hearing the evidence of a sexual assault and touching against L., one of the children, as well as sexual assault against R. While not minimizing the risk, I am satisfied that any reasoning prejudice could be adequately dealt with by appropriate jury instructions. I note that even if the severance were granted, a jury would hear evidence about sexual assault and touching on L. in any event. I am not persuaded that the defendant is likely to give evidence on count #3 but not the others as he suggested in submissions. There is nothing to indicate the weight of the evidence concerning the children will be less persuasive such that the defendant would be unlikely to give evidence on those counts, but would concerning the other counts. The defendant cannot and should not be held to an undertaking on this question. So a subjective and objective assessment must take place now.

[8] The legal and factual nexus between the counts is a relevant factor. The time periods overlap. Count #3 covers the period of ten years commencing in 2001, whereas the count involving L. covers the period starting 2004. Consent or mistaken belief as to consent is relevant to count #3 since the sexual conduct is admitted, whereas the occurrence of the sexual incidents and assaults involving the children is the issue regarding the other counts. However all of the counts involve family members and all are alleged to have taken place in the family home. The family dynamic in the household as being abusive would likely be common evidence. The majority of this evidence would likely come from R.

[9] Insofar as multiplicity of proceedings, the only person who would testify twice would be R., and the commonality of her evidence would be the atmosphere and overall relations amongst the family, and between the defendant and the other family members. The total length of the trial would not be unduly affected as a result, and 11(b) would not likely be engaged. Although there would be delay in arranging a trial solely on count #3, it would not likely be of concern.

[10] The other factors considered in R. v. Last are not relevant in this case. For example, inconsistent verdicts is not a relevant issue.

[11] The balancing of the various factors suggests that the only live factor in this case is the danger of reasoning prejudice, and I am satisfied that an appropriate jury instruction would prevent prejudice to the defendant. On the other side of the balance is the presumption that all counts should be tried together in one trial. It is more efficient if R. were to give her evidence once, and that would include her evidence of the atmosphere and dynamics in the household throughout the period covered in the counts. Severance can impair not only efficiency but the truth seeking function of the trial.[^2]

[12] I am satisfied that defendant has failed to meet the burden on him to show the balance is tipped in favour of a severance.

Section 276 Order

[13] The defendant seeks an order under s. 276 to permit him to question R. concerning their sexual activities beginning in February 1998 (before the dates in the count: 2001), and a fuller description of their sexual activities which allegedly will include R. putting her finger in the defendant’s anus during sex, the acquisition and use of a ‘strap-on’ or ‘butt plug’ by them during sex, and that they frequently engaged in consensual oral and vaginal sex. He contends that R.’s consent is the issue, and that evidence is necessary to assess R.’s evidence.

[14] An order is necessary because s. 276 was brought into force in order to rebut the previous practice of permitting a complainant to be questioned at large on her previous sexual experience in order to show that the complainant was more likely to have consented than not to the sexual activity in question. In brief, it was to rebut the two myths which had no place in determining guilt or innocence in sexual assault cases: that unchaste women are more likely to consent to intercourse, and in any event are less worthy of belief.[^3] The defendant gave evidence on the application and was cross-examined by the Crown.

[15] For the reasons that follow, the defendant will be permitted to question R. concerning their sexual activities in general from February 1998, the nature of their sexual activities which might best be addressed in an agreed statement of fact, and the acquisition and use of a ‘strap-on’ or ‘butt-plug’ but only as it related to the defendant performing anal intercourse on R.

[16] There are two aspects to the issue. First is the temporal issue. The defendant’s position is that their non-vaginal sexual activities started in February 1998 not January 1, 2001 as noted in the count. The second issue concerns the scope of the sexual activities the defendant and R. engaged in. It is the scope of their activities that is in question, and specifically the defendant performing anal intercourse on R. without her consent. There is no allegation that R. did not consent to vaginal or oral sex with the defendant. The defendant’s evidence is that they had sex on a daily basis for at least 10 years plus additional sex on weekends. R.’s evidence will be that for the first two years she did not consent to anal intercourse but after that she ‘acquiesced’. She always found it dirty, demeaning, and suffered bruising and bleeding from time to time from its use. They both apparently will agree that anal intercourse occurred 4 or 5 times per year. The defendant’s evidence on the voir dire was that R. initiated anal sex by putting her finger in his anus during vaginal (and/or oral sex), and that this started in February 1998, very early in their relationship before they moved in together. His evidence was that R. enjoyed anal sex, never complained of being hurt or bleeding, and enjoyed the use of the ‘strap-on’; that she used it on him as well as he on her; and that they had gone to a sex shop together to purchase it.

[17] To restrict the evidence to the period of time in the indictment, and to limit the scope of inquiring whether or not there was consent to anal intercourse, is to unfairly prevent the defendant from advancing the theory of his case – being that anal intercourse was always an acceptable part of their sexual activity, and that R. willingly participated to the point of participating in the purchase of the ‘strap-on’. His defence amounts to ‘honest but mistaken belief that R. consented. The issue is one of credibility, not the propriety or otherwise of anal intercourse. On the other hand it would be improper to permit the evidence of R. putting her finger in his anus, or indeed any evidence of anal intercourse by her on the defendant. That would improperly permit an inference that what was good for the gander was good for the goose, a prohibited and illogical inference.

[18] I am satisfied that (subject to my comments above) permitting R. to be questioned and for the defendant to give evidence in general about their sexual relationship addresses the concerns behind s. 276. Any residual concern about those inferences can be dealt with in appropriate jury instructions. Society is far better informed now than 30 years ago concerning inferences to be drawn about prior sexual activity. In other words, the twin myths are not now as widely accepted. On the other hand, to refuse to permit the trier to hear evidence in general about their oral and vaginal sexual relationship would unfairly tend to portray an inaccurate or incomplete picture about their relationship.

[19] I would suggest an agreed statement of fact to the following effect: R. and the defendant were married for 16 years and experienced regular vaginal and oral intercourse. If this is not agreeable then further submissions would be appropriate in order to determine another way for my ruling to be given effect.

Third Party Records

[20] A third party record application was resolved for the most part with the assistance of counsel. I appointed Mr. Lewandowski to represent the interests of the complainants in dealing with their privacy interests in connection with the sought-after CAS records. He reviewed the CAS records and reported that he was satisfied no privacy interests of the complainants were being offended. Ms. Ingelking, counsel with the CAS, reviewed the records to delete third party information. It was agreed that I would then review the records for relevance, and then share my reasons as well as the redacted records with all counsel in order to permit further submissions, if necessary. To be clear, what was provided to me are records that neither offended the privacy interests of the complainants nor provided third party names or identification. The task is therefore for me to consider what part or parts of the records are relevant, and to share my reasons as well as the records with all counsel with a view to hearing further submissions if needed.

[21] The records received from the CAS counsel March 10, 2014 consist of three case notes of interviews in 2007 with R., the children and the defendant. The records fall within the period identified in the various counts, and address relationships between the members of the family. They appear to be relevant. Since all privacy and third party information has already been vetted, the records may be disclosed to the Crown and the defendant.

Honourable Justice Timothy Ray

Date: March 10, 2014

[^1]: R. v. Last, 2009 SCC 45, [2009] S.C.J. No. 45, paras. 17-18.

[^2]: Note 1.

[^3]: R. .v Seaboyer, 1991 76 (SCC), [1991] 2 S.C.R. 577, [1991] S.C.J. No. 62 at para 23.