A NON-PUBLICATION AND NON-BROADCAST ORDER IN THIS PROCEEDING HAS BEEN ISSUED UNDER SUBSECTION 486.4 OF THE CRIMINAL CODE

NEWMARKET COURT FILE NO.: 12-06941G

DATE: 20140320

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

S.R.

Applicant

B. McCallion, for the Crown, Respondent

F. Davoudi, for the Applicant

HEARD: March 3 and 4, 2014

RULING

MULLIGAN J.:

[1] The applicant, S.R. brought a pre-trial application for leave to cross-examine the complainant with respect to allegations of previous sexual activity with him and previous sexual activity with other individuals. At the conclusion of the hearing, I ruled that S.R. could cross-examine the complainant with respect to previous sexual activity with him, if any, but not with respect to her previous sexual activity with other individuals, if any. I indicated that my reasons would follow. These are those reasons.

[2] S.R. is charged on a three-count indictment. He is charged with committing a sexual assault on the complainant between the 1st day of August 2012 and the 19th day of August, 2012. He is further charged with unlawful confinement and criminal harassment with respect to the same individual.

[3] In furtherance of his application, S.R. filed an affidavit and was cross-examined by the Crown with respect to that affidavit. S.R.’s affidavit and the cross-examination sets out certain allegations with respect to his relationship with the complainant which can be summarized as follows.

[4] In June of 2012, the accused and the complainant met briefly at a bar through a mutual friend. S.R. was renting the main floor of a bungalow and after meeting at the bar, the complainant contacted him to sublet one bedroom in his bungalow. Arrangements were made and she moved in around July 1, 2012. The relationship turned toxic about six weeks later and she moved out toward the end of August.

[5] The applicant maintains that they had consensual sex while they resided together. He denies the allegations by the complainant that they engaged in non-sexual activity.

[6] The allegation of sexual assault relate to occurrences that took place around August 15, 2012. Those incidences were not subject to cross-examination. Rather the affidavit and the cross-examination brought out S.R.’s version of the facts; they had sexual relations on a regular and continuous basis from the time she moved in on July 1, 2012 until she moved out six weeks later. He deposed that although she had her own room with her own bed, she slept in his bed and they had about 150 hours of sexual activity over the days and weeks that followed, until she moved out.

[7] S.R. and the complainant exchanged numerous text messages during this period of time. On consent, the text messages were filed as an exhibit and this exhibit extended to about fifty-six pages of text messages between the parties. It is clear that the relationship turned toxic and by August 10, S.R. was negotiating a termination of her sublease. He offered to give her half her rent back if she would leave by the end of the month. Her text messages seemed to accept this offer. S.R.’s position was that he ultimately kicked her out of his rented accommodation.

[8] It is not necessary to explore the reasons for the termination of their relationship on this application. However, it is worth noting that numerous text messages from S.R. to the complainant made reference to sexual activity between them. For example on August 10, 2012, he texted “you lied last night when Paul called you while I was kissing your chest and tits”. On August 15, 2012, after offering to return half of her rent to her, he said, “I’m not in this for games. You’re right I’m not ready to be just fuck buddies. I’m ready for a serious relationship and you’re not. The sex was good.” Her reply was “okay I go tomorrow, give me half rent back”. In addition to other references he texted on August 17, “…you go T, a sweet body and sex is good and all, but best wishes to you…”

[9] Although the complainant responded to numerous texts, she did not deny the suggestions of sexual conduct between them in any of her text responses.

[10] Although the complainant has not yet given her evidence, Crown and defence have had the benefit of reviewing her statements to the police and her evidence at the preliminary inquiry. It is suggested that her evidence at trial will be that on one occasion he tied her up and masturbated on her toes. Also, it is expected that on another occasion, she woke up after a deep sleep and felt symptoms akin to having been violated while sleeping or passed out. Her further evidence is expected to be that they did not engage in any consensual sexual activity, that she found the applicant repulsive.

[11] With respect to sexual activity with other individuals, S.R. makes the following statement in paragraph 11 of his affidavit:

I’ve also received information from J.F., who knows [the complainant] that she used to engage in unusual sexual activities with one of her previous partners F.L.. My information is that F.L., with the consent of [the complainant], used to tie her to the bed and engage in sexual activities with her”.

[12] On cross-examination S.R. indicated that he met J.F. at the Lindsay jail. They had a conversation which led to the information S.R. provided in the above referenced paragraph of his affidavit.

Section 276 of the Criminal Code

[13] Unless leave is given by the court, cross-examination of a complainant with respect to previous sexual activity with the accused or with any other person is prohibited. Such questioning is not admissible because it can support an inference that:

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 worth of belief.

[14] Section 276 (3) provides a non-exhaustive list of factors that the court can consider when determining if an exception should be made to allow such cross-examination. Clearly those factors indicate the need for the court to balance the right of the accused to make full answer in defence with the potential prejudice to the complainant’s personal dignity and right of privacy.

Analysis

[15] The Supreme Court of Canada reviewed this issue extensively in R. v. Seaboyer, 1991 76 (SCC), [1991] 2 S.C.R., 577. At p.635, McLachlin J. summarized the applicable principles and provided examples of admissible evidence. As she stated:

By way of illustration only, and not by way of limitation, the following are examples of admissible evidence:

(B) Evidence of sexual conduct tending to prove bias or motive to fabricate on the part of the complainant;

(E) Evidence tending to rebut proof introduced by the prosecution regarding the complainant’s sexual conduct.

[16] In R. v. Harris, 1997 6317 (ON CA), [1997] O.J. No. 3560, the Ontario Court of Appeal allowed the cross-examination of a complainant who indicated that their previous relationship was a platonic one. As the Court stated at para. 42:

By testifying as she did, the complainant placed the nature of her relationship with the appellant in issue. Accordingly, in order to be able to make full answer in defence, the appellant was entitled to lead evidence designed to rebut the complainant’s testimony.

[17] Moldaver J.A., speaking for the Court, found that such evidence fell within the exception in Seaboyer. As the Court stated at para. 50:

Accordingly, I am satisfied that once the complainant testified in chief, the proposed evidence became relevant and highly probative of the issue of credibility. The probative value of the evidence did not depend upon resort to the now debunked myths suggesting some connection between prior sexual 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. A sharp warning from the trial judge that the evidence of the Tuesday night incident could only be used to assess the complainant’s credibility in relation to the specific events forming the subject-matter of the charge and not to draw the general inferences that she was more likely to have consented, or that she was less worthy of belief, would have overcome any possible prejudice resulting from its admission.

[18] In R. v. ARC, [2002] O.J. No. 5364 (ONSC), Juriansz J. reviewed an application to cross-examine a complainant about intimate sexual activity with the applicant between the two alleged events which formed the subject to the indictment. The court permitted the cross-examination and found that the evidence was relevant and probative.

[19] In R. v. T.J., [1994] O.J. No. 4167, McRae J. allowed such questioning and stated at para. 16:

In the circumstances of this case, the admission of such evidence does not offend the principle behind the legislation as it was articulated in Seaboyer, against the perception of the so-called “twin myths”. To withhold this evidence from the jury would violate the accused’s right to a fair trial and his right to make full answer and defence, both guaranteed by the Charter.

[20] In R. v. Reilly, 1992 7448 (ON CA), [1992] O.J. No. 4072, the Ontario Court of Appeal provided the following guidance at para. 10, “We agree with counsel for the Crown that this cross-examination was on a collateral matter in that it was essentially an attack on the general character of the complainant.” The Court of Appeal made reference to Reilly in R. v. Hoohing, [2007] ONCA 577. At para. 23 the Court said, “After considering the Reilly case, the trial judge applied the correct test in exercising his discretion by weighing the probative value against the prejudicial effect of the proposed line of inquiry.”

[21] The Crown’s position is that questioning the complainant about previous sexual activity with the applicant or with other individuals does nothing but foster the “twin myths”. It leads to the inference that the complainant is more likely to have consented to sexual activity with the applicant and is less worthy of belief. In other words, such questioning would be an attack on the complainant’s general credibility.

[22] Counsel for the defence acknowledged that attacks on general credibility are not permitted pursuant to s. 276 of the Criminal Code. However, the defence submits that the facts here suggest that specific questioning about sexual activity between the complainant and the applicant is relevant and necessary in light of the text messages which will be introduced as an exhibit at trial. Without a full cross-examination of the complainant with respect to his version of events of sexual activity during the several weeks that they resided together, the jury will get the mistaken and wrong impression from the e-mails. The texts from the applicant suggest sexual activity. The jury may wrongly conclude that in the text message the applicant is referring to the specific non-consensual sexual activities that the complainant will testify about, and the jury could find these text messages were an admission on his part of non-consensual sexual activity.

[23] With respect to sexual activity with another individual, the Crown again repeats that such testimony does nothing but further the “twin myths”. The defence acknowledges that the evidence from S.R. is tenuous, but if allowed, the question may elicit information from the complainant that she previously agreed to unusual or kinky sex with another individual.

Conclusion Regarding Sexual Activity with Others

[24] In my view, questioning about sexual activity with other individuals does nothing more than foster the “twin myths”. Further, even if the complainant agreed that such sexual activity took place with another individual, it is not relevant to the proceedings before the court and does nothing other than violate her personal dignity and right of privacy.

Conclusion Regarding Sexual Activity with the Applicant

[25] It is suggested that the proposed evidence of the complainant will be that there was no prior consensual sexual activity with the complainant and that she was subject to two non-consensual sexual assaults by the applicant. The text messages sent to her by the applicant suggest that there was sexual activity between them. She responded to these text messages but did not deny the sexual activity. Were these references to an ongoing consensual sexual relationship as suggested by the applicant, or were they referring to the non-consensual sexual activity alleged by the complainant?

[26] In my view, the proposed evidence of the complainant raises specific issues about her credibility. Cross-examination is required to provide context for the numerous texts between them during the period in question.

Conclusion

[27] I am satisfied that the requirements of s. 276 have been met and leave is granted to cross-examine the complainant with respect to sexual activity with the applicant. I am satisfied that such cross-examination is relevant to her specific credibility and will provide context for the evidence regarding the text messages between them. As suggested in Harris, I am satisfied that a sharp warning to the jury as to the limited use of such evidence can overcome any possible prejudice resulting from this line of questioning.

MULLIGAN J.

Released: March 20, 2014