ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R. v. D.D., 2015 ONSC 3340
COURT FILE NO.: CrimJ(P) 305/14
DATE: 2015 05 26
BETWEEN:
HER MAJESTY THE QUEEN
Christina Sibian, for the Crown
- and -
D.D.
Misha Feldmann, for the Defence
HEARD: May 25, 2015
RULING
PRIOR SEXUAL HISTORY
FAIRBURN J
Overview
[1] D.D. stands charged on a five count indictment: two counts of sexual assault; two counts of uttering a death threat; and one count of assault. D.D. has elected to be tried by a judge and jury.
[2] On the first day of trial, prior to jury selection, D.D. brought a s. 276 application seeking the admission of two incidents of prior sexual contact between he and the complainant. I dismissed the application with written reasons to follow later in the day. These are my reasons.
The Application
[3] The alleged facts relevant to this motion are as follows. They are taken from the Crown’s factum.
[4] The complainant and D.D. were involved in a relationship. They met in December 2012 and he moved into her home in February 2013. She had asked him to move out of the residence by May 2013.
[5] The complainant alleges that in the early morning of April 29, 2013, the accused entered her bedroom and had non-consensual anal and vaginal sex with her. Then, on May 1, 2013, during the day, the complainant alleges that the accused entered her bedroom and attempted to have anal sex with her but was unable to do so. She alleges that she was still bleeding from the previous incident and implored him not to penetrate her anus. She alleges that he had vaginal intercourse with her instead.
[6] At the preliminary inquiry, the complainant testified and was cross-examined for some time. The following exchange occurred:
Q. Okay. So, you indicated to us that at that point, you believed that he was going to attempt anal sex, you were not comfortable with that, is that right?
A. No, I never done those things before. I told him don’t do that to me. [emphasis added]
[7] D.D. takes the position that this is not true. The defence say that the complainant has previously engaged in two acts of anal intercourse with the accused. The defence take the position that by giving this evidence at the preliminary inquiry, the complainant has placed the “character” of their relationship in issue and her denial of previous acts of anal intercourse goes to the heart of her credibility. The best summary of the defence position is found at paragraphs 16 and 17 of their factum:
In the case at bar, the complainant alleges that, before the alleged assaults, she did not engage in anal intercourse with the applicant or anyone else.
The Applicant disputes this fact and advises that they had, on previous occasions engaged in anal intercourse. This difference is central to the narrative of events and it is necessary for the Applicant to be able to contest this evidence to make full answer and defence.
[8] Based on this articulation of relevance, which was amplified upon and supplemented in the defence Notice of Application, the Crown consented to an application being heard under s. 276.2 of the Criminal Code to determine the admissibility of the prior sexual activity, in accordance under s. 276(2). Based on the Crown consent, and having regard to the preliminary inquiry evidence and the articulated potential relevance, I granted the defence the opportunity to proceed.
The Evidence of D.D. on the Section 276 .2 Voir Dire
[9] D.D. testified on the voir dire. He says that the first act of anal intercourse was at the beginning of April 2013. He remembers this because it was right after April Fool’s Day. He had bought some cocaine and eighteen cans of beer. He testified that he and the complainant smoked marijuana, snorted cocaine, drank alcohol, and had sexual intercourse, including anal intercourse.
[10] D.D. testified that the complainant asked for anal intercourse. He testified that she asked him to “lick her bum”, but he desisted as he is a carrier of Hepatitis C and this particular activity could cause easy transmission of the disease. She then asked him to spit in her anus. The accused testified that the complainant had told him that she and her former partner used to engage in this type of activity. In the end, they used lubricant and he placed his penis in her anus. He could not keep it in there for long, though, seeing as he has a large penis and it was uncomfortable for him. When he took his penis out, there was “poo” on the condom. As a result, he placed another condom on and then finished with vaginal intercourse. He ejaculated three times that evening.
[11] As for the alleged second event involving sexual activity, it was around April 15th. D.D. testified that these sexual acts occurred during a similar evening of consuming drugs and alcohol. According to D.D., they were having vaginal sex and then the complainant asked him to “put it in [her] ass”. He testified that he followed her direction. He also pulled the complainant’s hair at her request. A better form of lubricant was used on this occasion and so he was able to keep his penis in the complainant’s anus for a longer period of time. He believes that he ejaculated four times that evening.
[12] The accused testified that these were the only two times he had anal intercourse with the complainant.
The Legal Principles
[13] Section 276(1) of the Criminal Code precludes the admission of evidence that the complainant has engaged in prior sexual activity with anyone, including the accused, to 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 worthy of belief.
[14] Section 276 is a legislative scheme designed to address and eradicate what are often referred to as “twin myths”, those myths being that: (1) a person who has engaged in sexual activity on a prior occasion is more likely to consent to sexual activity on other occasions; and (2) prior sexual activity on the part of a complainant makes it more likely he or she is a “liar”: R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577 at pp. 604, 630 [Seaboyer]. As noted in Seaboyer, although these myths may still find their way into the thinking of some, they “have no place in a rational and just system of law”: Seaboyer, at p. 630. See also: R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595, at para. 168 [Osolin]; R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, at paras. 32-35 [Darrach].
[15] There is a prohibition on leading evidence or prior sexual activity that falls outside of the sexual activity that forms the subject-matter of the charge, except where the evidence: (a) relates to “specific instances of sexual activity”; (b) is “relevant to an issue at trial”; and (c) has “significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice”. Pursuant to s. 276(3), there are numerous factors that “shall” be considered in determining whether the proposed evidence is admissible. The provision reads as follows:
Factors that judge must consider
(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account
(a) the interests of justice, including the right of the accused to make a full answer and defence;
(b) society’s interest in encouraging the reporting of sexual assault offences;
(c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;
(d) the need to remove from the fact-finding process any discriminatory belief or bias;
(e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;
(f) the potential prejudice to the complainant’s personal dignity and right of privacy;
(g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and
(h) any other factor that the judge, provincial court judge or justice considers relevant.
Applying the Legal Principles In This Case
[16] A party seeking to have evidence admitted must satisfy the court that it is “relevant and admissible”: Darrach, at para. 46. D.D. argues that the two prior acts of anal intercourse are relevant and admissible because of the complainant’s position at the preliminary inquiry that she was not comfortable because she had never had anal intercourse before. The applicant says that he should be able to rebut this suggestion and, if necessary and so advised, lead evidence that contradicts the assertion that the complainant was “not comfortable” because she had “never done those things before”.
[17] It seems to me that the answer to this application falls to whether the Crown is going to elicit evidence from the complainant suggesting that she had not done these things before. During the application, I made inquiries of the Crown and, in the end, she confirmed that if the defence is precluded from cross-examining on the point, then Crown Counsel is not intending to elicit this evidence from the complainant. Of course, this becomes a touch circular because the defence would have nothing to contradict if the Crown does not lead the evidence. While the defence may still want to lead the evidence, its relevance, as currently articulated, drops away if the Crown does not elicit from the complainant the fact that she has never had anal intercourse before. To adopt an expression used by the applicant in his factum, if the Crown does not elicit the evidence, then “[t]his difference” will no longer be “central to the narrative of events and necessary for the Applicant to be able to contest this evidence to make full answer and defence”.
[18] If the evidence is not elicited, the interests of justice demand that the accused be precluded from cross-examining the complainant, and leading any evidence as to the complainant’s prior sexual conduct. Full answer and defence will not be adversely impacted. To allow the prior sexual history to be adduced in this situation will be of no ascertainable relevance and only encourage discriminatory beliefs and bias. Having heard the evidence, it could easily “arouse sentiments of prejudice, sympathy or hostility in the jury” and the complainant’s dignity and privacy would be at risk for no ascertainable reason.
[19] With that said, if the Crown elicits evidence from the complainant that is similar in kind and quality to what was testified to at the preliminary inquiry, and if requested, I am open to revisiting this ruling. As in R. v. Harris (1997), 1997 CanLII 6317 (ON CA), 102 O.A.C. 374, at paras. 37-38, dealing with an issue like this, trial judges should refrain from making final rulings until they are required to do so. If the evidentiary landscape unfolds in a way inconsistent with this ruling, I invite counsel to re-address this issue with me. Otherwise, the defence are precluded from getting into the prior sexual conduct of the complainant.
FAIRBURN J
Released: May 26, 2015
CITATION: R. v. D.D., 2015 ONSC 3340
COURT FILE NO.: CrimJ(P) 305/14
DATE: 2015 05 26
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
D.D.
RULING
FAIRBURN J
Released: May 26, 2015