ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13-833
DATE: 20140620
BETWEEN:
Her Majesty The Queen
Mr. B. Linley, for the Respondent
Respondent
- and -
L.S.
Ms S Newbould, for the Applicant
Applicant
HEARD: June 20, 2014
REASONS FOR DECISION ON APPLICATION BY THE ACCUSED TO ADDUCE EVIDENCE OF PRIOR SEXUAL ACTIVITY
Introduction
[1] The accused person, L.S., stands charged with two counts of simple or common assault (section 266 CCC) and one count of sexual assault (section 271 CCC).
[2] It is the same complainant in each instance, E.K.
[3] The offences all allegedly occurred at the First Nation Territory of Saugeen, in the County of Bruce. The assaults allegedly occurred in May and June 2012. The sexual assault allegedly took place in May 2009.
[4] L.S. has elected to be tried in this Court, with a jury. The trial is expected to take place in September 2014.
[5] L.S. applies to the Court for an Order that he be permitted to adduce at trial “evidence of consent by the complainant to sex with this Applicant in similar circumstances to those complained of”.
[6] The Notice of Application makes it clear that L.S. “takes the position that any sexual activity with the complainant was consensual”.
[7] L.S.’s Application is supported by his Affidavit (one-half page in length), an Affidavit of a law clerk which attaches excerpts from the testimony of the complainant at the preliminary inquiry, a brief Factum and some case law including R. v. Darrach, 2000 SCC 46, R. v. A.R.C., [2002] O.J. No. 5364 (S.C.J. – Juriansz J., as His Honour then was) and R. v. Aziga, [2008] O.J. No. 4669 (S.C.J. – Lofchik J.).
[8] The Crown opposes the Application and also filed some jurisprudence.
[9] This Application was heard at Court in Walkerton on June 20, 2014. The public was excluded from the hearing. A publication ban is hereby issued.
The Law
[10] On 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) CCC.
[11] I shall take into account the factors listed in subsection 276(3) CCC.
[12] 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
[13] The Aziga, supra decision filed by the Defence is of little assistance to me in this case. That decision dealt with a situation where everyone agreed that the sexual activity in question was consensual. The case dealt with an accused who allegedly had unprotected sexual intercourse with women, without disclosing to them that he was HIV positive.
[14] In contrast, consent is a live issue in the case of L.S..
[15] Darrach, supra is a decision of the Supreme Court of Canada which is of general application in terms of understanding section 276 CCC and, specifically, the procedure to be followed when an Application is brought by the Defence to adduce evidence of a complainant’s prior sexual history.
[16] The decision in A.R.C., supra stands for the proposition that where the accused does not seek to adduce evidence of specific instances of sexual activity but merely that there was sexual activity generally during the time period in question, the prohibition in subsection 276(2) CCC may not apply. Essentially, no formal Application under section 276.1 CCC would have to be brought by the Defence. But the accused would still have to satisfy the Court that the evidence is relevant to an issue at trial and that its probative value exceeds any prejudicial effect (paragraphs 9 and 10).
[17] The Defence Application is dismissed, for these reasons.
[18] Although I accept the argument by Ms. Newbould that the proposed evidence may be relevant to the issues of consent and honest but mistaken belief in consent, I find that the accused has not proven, on balance, the following.
[19] First, having regard particularly to the rather brief, vague and generic Affidavit sworn by L.S., that the proposed evidence regarding consensual sexual relations between the accused and his common law spouse, the complainant, constitutes specific instance(s) of sexual activity. On that basis alone, the Application must be dismissed.
[20] Second, that the probative value of the proposed evidence outweighs its potential prejudicial effect.
[21] The probative value is limited to the possibility that the proposed evidence may lend credence in the eyes of the jury to the Defence argument that the alleged victim consented to the sexual activity underlying the section 271 CCC charge, or alternatively, that the accused honestly but mistakenly believed that she consented.
[22] The potential prejudicial effect of admitting the proposed evidence is clear and, in my view, substantial and likely unavoidable, even with a strong caution to the jury. “She consented because they had sex lots of times before and after”. That conclusion is the classic danger that the legislation is aimed at obviating. Or “even if she did not consent that time, he thought she did because they had sex lots of times before and after”. That conclusion is no more legally permissible than the former.
[23] Once a willing participant, always a willing participant, at least in the eyes of your common law spouse. No matter how the Defence massages the argument, that is the inevitable upshot of the proposed evidence. The potential prejudicial effect significantly outweighs its probative value. For that reason, the Application must be dismissed.
[24] Even if I ignore the fact that this is an Application under section 276.1 CCC and apply the reasoning in A.R.C., supra, I would still decline to grant the relief sought on the basis of the probative value versus prejudicial effect analysis.
Conclusion
[25] For the foregoing reasons, the Defence Application is dismissed.
[26] I thank both counsel for their helpful submissions and for the materials filed.
Conlan J.
Released: June 20, 2014
COURT FILE NO.: 13-833
DATE: 20140620
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty The Queen
Respondent
- and -
L.S.
Applicant
REASONS FOR DECISION
Conlan J.
Released: June 20, 2014