R v WH, 2015 ONSC 3087

COURT FILE NO.: 15828/14

DATE: 20150513

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Regina v WH

BEFORE: E.M. Morgan J.

COUNSEL: John Flaherty, for the Crown

Earl Glasner, for the Defendant

HEARD: May 13, 2015

Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4 of the Criminal Code of Canada.

ENDORSEMENT – aPPLICATION UNDER S. 276.1 OF THE CRIMINAL CODE

[1] The accused is in the middle of being tried before me as judge alone for, inter alia, sexual assault and failure to disclose his HIV positive status to the Complainant.

[2] The defense has brought an application under s. 276 of the Criminal Code. Counsel wishes to cross examine Mr. B as well as the Complainant on the prior sexual relations between them – specifically, on the question of whether the Complainant required Mr. B to wear a condom on the previous occasion that they had sex. The evidence is not completely clear on when that occasion took place, but it was some days or perhaps weeks before the incident that is the subject matter of this case. The incident that is the subject matter of this case has been described by Mr. B as a “threesome” between himself, the Complainant, and the accused.

[3] Mr. Glasner has submitted that he be able to question Mr. B and the Complainant not on whether they had consensual sex – he concedes that that would be caught squarely by the prohibition in s. 276; rather, he submits that he should be able to question them in a way that goes to the issue of fraud vitiating consent. That would entail questions regarding the Complainant’s tolerance for risk. Did she accept the risk on a previous occasion of having unprotected sex with a first-time partner or virtual stranger?

[4] Mr. Flaherty, in response, says that this is precisely what s. 276 prohibits. That is, the section prohibits questioning a complainant in a sexual assault case about her prior sexual conduct for the purpose of drawing the inference that if she acted a certain way on a previous occasion she must have acted that way on this occasion. Mr. Flaherty submits that the fact that the issue here is consent to unprotected sex rather than the more commonplace question of consent to sex is a distinction without a difference. Both are prohibited by s. 276.

[5] As my colleague Spies J. said in R v Ralph, 2014 ONSC 1072 said, at para 11, citing R v Darrach (1998), 1998 CanLII 1648 (ON CA), 122 CCC (3d) 225, at para 35, “The rationale for subsection 276(1) is to protect against prohibited inferences, namely the ‘twin myths’ that a sexually promiscuous woman is less worthy of belief, and that a sexually permissive woman is more likely to have consented to the sexual activity that forms the basis of the allegation because of her sexual history. Putting it like this highlights how close the defense’s proposed line of questioning is to the prohibited line of questioning. If we substitute the phrase “risk-taking” for “promiscuous”, we get to precisely the point the defense hopes to make: that a sexually risk-taking woman is more likely to have consented to the (high risk) sexual activity that forms the basis of the allegation because of her sexual history.

[6] Mr. Flaherty points out that defense counsel is permitted to question the Complainant on the very sexual conduct at issue here. He can put to her, for example, that she had ample opportunity to inquire about the accused’s HIV status and did not do so, and depending on the answer he gets he can then argue that the accused’s failure to disclose did not vitiate the consent that she otherwise gave (assuming, that is, that she did give her consent, which is still to be established). Mr. Flaherty goes on to say that the only thing that defense counsel cannot do is to bolster this argument by showing that the Complainant has done a similar thing on a previous occasion with Mr. B. That is to make the impermissible inference that if she did it before she likely did it again.

[7] I agree with Mr. Flaherty on this point. Defense counsel is not to embark on a line of questioning regarding the Complainant’s sexual conduct on previous occasions, whether that questioning be aimed at the issue of consent or the issue of risk taking. Both are barred by s. 276. Similar policy reasons apply to each, not the least of which is that pointed out by Skarica J. in R v GAC, 2013 ONSC 3232, at para 40, to the effect that persons who contract HIV due to nondisclosure by their sexual partners would be reluctant to complain if that exposed them to cross-examination on their past sexual risk-taking.

[8] That said, defense counsel can cross-examine on a prior inconsistent statement by the Complainant, or on the Complainant’s prior sexual conduct if that conduct is raised in the testimony of the Complainant herself. Accordingly, if the Complainant said anything at the preliminary inquiry or in a statement to the police that contradicts what she says here, that prior inconsistency is a valid line of questioning even if she described in it her prior sexual conduct with Mr B. Likewise, if she were to volunteer that she has never before agreed to unprotected sex with Mr. B or with a first-time partner, or something along those lines, she could be cross-examined on her own statement about her previous sexual risk-taking conduct.

[9] As the court pointed out in R v Boone, 2012 ONSC 441, at para 42, in a case such as this that raises not only consent but whether fraud vitiated consent, the credibility of all witnesses will be important. However, the Complainant’s credibility with respect to prior sexual conduct can only be tested if she raises it. That is the clear instruction of s. 276(1) In the absence of a prior inconsistent statement or a voluntary statement raising the issue, however, the defense is not to probe the Complainant’s previous sexual behaviour. Otherwise, the prejudice of the line of questioning proposed by the defense would be very high, and in order to be considered probative one would have to adopt one or both of the “twin myths”, and so the probative value would be exceedingly low.

[10] I would take the opportunity to observe that the “twin myths” are not only prohibited under the Criminal Code as a matter of social policy; they are prohibited as a matter of legal reasoning. That is to say, the “twin myths” are indeed myths – i.e. they are a false logic. Whether or not the Complainant agreed to have unprotected sex with Mr. B on one occasion does not tell us whether she is likely to have had unprotected sex with the accused and Mr. B on the next occasion; likewise, if she had unprotected sex with Mr. B on a previous occasion, it would not make her assertion that she did not consent to unprotected sex with the accused and Mr. B on this occasion any less worthy of belief.

[11] The same logic that applies to the cross-examination of the Complainant also applies to the cross-examination of Mr. B. Counsel for the defense must operate under the same principles with respect to Mr. B’s prior sexual relationship with the Complainant. Otherwise, the impermissible information about whether the Complainant was on prior occasions prone to sexually risky behaviour such as having unprotected sex with a first-time partner will be introduced at trial through another means.

[12] The application to elicit evidence of the Complainant’s sexually risky conduct with Mr. B on previous occasions is hereby denied. In the absence of a prior inconsistent statement or a voluntary raising of the issue as described in paragraph 8 above, such evidence is prohibited under s. 276 of the Criminal Code.

Morgan J.

Date: May 13, 2015