ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 829/12

DATE: 20140327

BETWEEN:

HER MAJESTY THE QUEEN

Mr. A. Shatto, for the Crown

• and -

D.T.D.

Mr. H. Thompson, for the Applicant

Defendant

HEARD: March 27, 2014

REASONS FOR DECISION ON APPLICATION BY THE ACCUSED

TO ADDUCE EVIDENCE OF PRIOR SEXUAL ACTIVITY

Conlan J.

Introduction

1The accused person, D.T.D., stands charged with five counts of sexual-related offences. He has elected to be tried in this Court, without a jury.

2In particular, D.T.D. is facing charges of sexual interference (s.151(a) Criminal Code of Canada (“CCC”), sexual assault (s.271 CCC) and invitation to sexual touching (s.152 CCC) regarding K.T., a girl under 16 years old, between September 2004 and March 2011. The other two charges are regarding a different child and are not relevant to these Reasons.

3K.T., now 18 years old but under 16 years during the offence period, is the daughter of a lady whom the accused started dating in September 2005.

4D.T.D. applies to the Court for an Order that the following evidence is admissible at trial: that K.T. was sexually assaulted by another man, D.P., in the spring of 2011; and that one or more boyfriends of the mother of K.T. sexually assaulted K.T. prior to September 2005.

5This Application was heard at Court in Walkerton on March 27, 2014. The public was excluded from the hearing. A publication ban was issued.

The Law

6On an Application to adduce evidence of prior sexual activity, the accused must demonstrate on balance that the evidence is of specific instances of sexual activity, is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice: subsection 276(2) of the CCC.

[7] I shall take into account the factors listed in subsection 276(3)
CCC.

[8] It is imperative to remember that evidence that the alleged victim has engaged in sexual activity, whether with the accused person or someone else, is not admissible to support an inference that the alleged victim is more likely to have consented to the sexual activity underlying the charge(s) against the accused. Further, the evidence is not admissible to support an inference that the alleged victim is less worthy of belief. Reference should be made to subsection 276(1)
CCC.

Analysis

9The Defence Application is granted, in part, for these reasons.

10I find that the accused has proven, on balance, the following.

11First, the proposed evidence regarding K.T. and D.P. constitutes a specific instance of sexual activity.

12Second, the proposed evidence is relevant to an issue at trial, namely, the reliability and credibility of the complainant. More particularly, there is a genuine concern that K.T. has confused the actions of D.T.D. with those of D.P. Further, there is a genuine concern that K.T. complains of sexual misconduct by D.T.D. yet was contemporaneously supported by the accused in being treated for the sexual assault by D.P.

13Third, the probative value of the proposed evidence is significant and not substantially outweighed by the danger of prejudice. The Defence has no intention of suggesting to K.T. or any witness at trial that the sexual activity between the alleged victim and D.P. was anything other than a non-consensual criminal act on the part of D.P. The Defence has no intention of arguing that K.T. has in any way fabricated the sexual assault committed against her by D.P. The Defence has no intention of suggesting at trial that K.T. has a pattern of engaging in sexual activity.

14Fourth and finally, the interests of justice require the granting of this Application, in part. The ruling is required to ensure that D.T.D.’s right to make full answer and defence is respected and to ensure that the case is justly determined. The ruling will do nothing to discourage the reporting of sexual assault offences or to fuel any discriminatory belief or bias. The ruling will not engender sentiments of prejudice, sympathy or hostility. The intrusion into K.T.’s right to privacy and her personal dignity and security will be minimal given the position advanced by the Defence in terms of how the proposed evidence will be adduced and used at trial.

15The Defence shall be permitted to adduce evidence at trial of K.T.’s prior sexual activity with D.P. in the spring of 2011.

16The remaining relief requested in the Application is dismissed. It is too broad and generic. I am not satisfied on balance that the proposed evidence at clause 2(b) on page 1 of the Notice of Application is of specific instances of sexual activity, as required by the legislation. It is not sufficient to point to alleged sexual activity between K.T. and unknown persons at unspecified times prior to September 2005.

Conclusion

17For the foregoing reasons, the Defence Application is granted in part. Evidence of K.T.’s prior sexual activity with D.P. in the spring of 2011 is admissible at trial.

18I thank both counsel for their helpful submissions.

Conlan J.