ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-DV6293
DATE: 2014/11/19
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
J.A.B.
Applicant
Tim Wightman, for the Crown
J. Michael Spratt, for the Applicant
HEARD: November 13, 2014 (at Ottawa)
DECISION ON S. 276 APPLICATION
KANE J.
[1] Mr. B. is charged with three counts of sexual assault of the complainant on January 5, 2012, contrary to ss. 271 (1) and 271 (1) (a) of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (the “Code”).
[2] At the time, the accused and the complainant were married, living together and caring for their young son and two older children of the complainant.
[3] The allegations are that the accused assaulted the complainant in a sexual manner on three occasions on January 5, 2012, including using force to have sexual intercourse with her against her will.
[4] In this application, Mr. B. requests an order granting a hearing pursuant to s. 276.2 of the Code to determine whether evidence of prior sexual activity between the Applicant and complainant is admissible under s. 276(2) of the Code, and for an order permitting cross-examination of the complainant at trial to adduce this evidence.
[5] The complainant testified at the Preliminary Inquiry that she wanted to record what the accused had done to her on January 5, 2012, so she attended a community health clinic later that day and met with a nurse practitioner.
[6] The complainant told the nurse the accused had assaulted her and forced sexual intercourse against her will. The nurse recorded observing bruising to the complainant’s buttocks, thigh and forearm.
[7] The complainant met with police on January 7, 2012, and reported being sexually assaulted on January 5, 2012.
[8] In her interview with police on January 8, 2012, the complainant stated that in the past, she and the accused had on occasion been intimate together, including the consensual use of physical force against one another.
[9] In argument, defence counsel indicated the defence at trial will be that the accused and the complainant did not have sexual relations on January 5, 2012 and that the bruising noted January 5, 2012 occurred from an earlier intimate exchange between the parties. Counsel advised that the defence is therefore not whether the complainant consented to sexual relations with the accused.
[10] The specific relief requested is the right at trial to cross-examine the complainant on the following three points, namely:
(1) Whether the complainant and the accused had physically aggressive sexual relations with one another, prior to January 5, 2012;
(2) Whether those prior physically aggressive sexual activities involved grabbing and slapping; and
(3) Whether the bruising observed on January 5, 2012 was caused by prior physically aggressive sexual relations with the accused.
[11] The Crown does not object to the permission sought, provided it is limited to the above three points.
DISPOSITION AND REASONS
[12] The application is granted to the extent that defence counsel may cross-examine the complainant as to sexual activity between herself and the accused prior to January 5, 2012, but limited to the above three points.
[13] This was a married, cohabiting male and female.
[14] There is no risk of prejudice to the administration of justice or the dignity and privacy of the complainant regarding the fact that she and her husband, prior to January 5, 2012, had sexual relations together, including the consensual use of some force. There is no risk of discrimination or bias in relation thereto. There is no risk of igniting prejudice, hostility or sympathy in the jury by evidence of such joint sexual intimacy.
[15] The use of physical force towards another may result in bruising of that other person. In her statement to police, the complainant stated that their prior sexual relations together occasionally included the consensual use of robust physical force.
[16] Bruising of the complainant apparent on January 5, 2012, may possibly have been caused by the consensual use of force during sexual activity between this couple prior to January 5, 2012, and therefore is relevant and significantly probative as to whether the offences charged on January 5, 2012, based on bruising then apparent, were committed.
[17] Prohibiting questioning on these three points may materially impair the accused’s right to make full answer and defence.
Kane J.
Released: November 19, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
J.A.B.
Applicant
DECISION ON S. 276 APPLICATION
Kane J.
Released: November 19, 2014