CITATION: R. v. J.T., 2015 ONSC 3866
OTTAWA COURT FILE NO.: 11-SA5077
DATE: 2015/06/16
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
J.T. Accused
W. Devenz, for the Crown
S. Friedman, for the Accused
HEARD: April 27, 28,and 29, 2015
S. 276 application To aDmit evidence of Other sexual activity
Kane J.
[1] The accused pursuant to s. 276(2) of the Code seeks leave to introduce evidence of sexual activity regarding the complainant AL other than the sexual activity that forms the subject matter of the charges against the accused.
POSITION OF THE PARTIES
[2] Leave is sought on the grounds that:
(a) the accused learned at the first trial of these charges in March of 2014, that the complainant AL had sexually assaulted her younger brother in 2009 or 2010. At the time of such assault, AL was 11 or 12 years old, her younger brother was 7 or 8 years of age.
(b) AL subsequently provided a statement to police and testified at the preliminary inquiry as to her allegations against the accused. In each case, AL said nothing about her sexual assault of her younger brother.
(c) The two prohibited inferences of s. 276(1) are not engaged as to this request to introduce evidence of AL’s sexual assault of her brother.
(d) The evidence of AL sexually assaulting her younger brother meets the requirements under s. 276(2)(c) as it:
(i) Consists of one instance of sexual activity;
(ii) Is relevant to an issue at trial, namely the credibility and reliability of AL as to her allegations against the accused;
(iii) has significant probative value, namely AL’s motive for fabricating her allegations against the accused;
(iv) The accused is entitled to cross-examine AL why she did not mention her abuse of her brother to police or during the preliminary inquiry; and
(v) The introduction of this evidence for the above purpose will not result in any prejudice to the proper administration of justice.
[3] The Crown opposes introduction of this evidence because:
(a) Such evidence has no probative value as to the charges against the accused. There is no evidence to support the defence’s speculative theory that AL fabricated her allegations against the accused. The time line contradicts such suggestion;
(b) The defence is seeking to introduce evidence of a collateral matter which is not relevant to the issues in this trial;
(c) The absence of any question to AL by police or at the preliminary inquiry about this unrelated issue of her conduct with her brother and the fact she did not unilaterally volunteer such information in meetings or a hearing about what the accused did to her, cannot impact and is therefore irrelevant to her credibility as to her allegations against the accused;
(d) The Crown submits that the evidence sought to be introduced:
(i) is not probative to an issue in this proceeding;
(ii) will not be of assistance to the jury in determining whether the accused sexually assaulted AL;
(iii) likely will cause sentiments of prejudice, sympathy or hostility given the nature of the actions against a 7 or 8 year old child;
(iv) would be seriously offensive to the dignity and privacy of a young complainant like AL regarding this one act when she was 12 years of age.
CHARGES
[4] The Applicant is charged under sections 271(1), 151 and 152 of the Criminal Code with:
(a) sexual touching and sexual assault of AL, between 2002 and 2010, and
(b) sexual assault, sexual touching and invitation to sexual touching of RL, between 2002 and 2010.
BACKGROUND
[5] AL and RL are sisters. RL is older by approximately 18 months. The accused is the stepfather of the two complainants.
[6] RL and AL have a younger brother, DL, who is approximately 4 years younger than AL. DL’s biological parents are the accused and the mother of the complainants. DL would have been approximately 7 or 8 years of age in 2010.
[7] The first trail of these charges resulted in a mistrial after proceeding 4 days, namely between March 3 to 6, 2014. At that time, RL and AL were 18 and 17 years old respectively.
[8] A new trial of these charges is scheduled for October, 2015.
TIMELINE
2002 to 2010
[9] The sexual assaults of AL by the accused allegedly occurred on numerous occasions between 2002 and 2010, during which period AL was 6 to 12 years old.
2009
[10] The single instance of AL sexually assaulting DL occurred in approximately 2009 when she was 12 and DL was 7 or 8 years of age.
2010
[11] The accused and the mother of the complainants separated in approximately November, 2010.
2011
[12] The accused was charged by police with 3 counts for sexually assaulting AL and RL on September 9, 2011.
[13] On September 23, 2011, AL, then approximately 14 years old, gave a recorded statement to police that she had been sexually abused by the accused on numerous occasions between 2002 and 2010. She was not asked about nor did she say anything about sexually assaulting DL in 2009.
2012
[14] The preliminary inquiry proceeded for four days in December, 2012
2013
[15] The accused was committed to stand trial at the preliminary inquiry on March 7, 2013.
[16] AL during the preliminary inquiry was not asked about nor said anything regarding her misconduct towards her brother.
[17] The indictment is dated March 12, 2013.
[18] On September 23, 2013, DL, then approximately 10 years of age, reported being sexually assaulted by AL to school officials, police and his mother.
[19] Later that day, AL admitted her act of misconduct to a CAS representative. AL was removed from her home and placed in the custody of the CAS for 12 months. AL was not criminally charged for this act of conduct.
2014
[20] The original trial of these charges proceeded for 4 days between March 3 and 6, 2014, during which the defence first learned of AL’s sexual assault of DL. That trail was adjourned to a voir dire hearing on April 8, 2014.
[21] As reported in this court’s decision on the defence’s application for a stay of these proceedings, in the voir dire on April 8, 2014, the support worker Ms. L testified that while waiting to testify in the March, 2014 trial, AL told her that:
(a) the accused sexually assaulted her for years when she was younger. Her mother seemed to blame AL and called her names for not “closing her legs”;
(b) AL believes her mother must have known the accused was sexually abusing AL;
(c) AL sexually assaulted her brother once in 2010 when she was 12 years old. AL’s mother and RL are angry at AL for this conduct and told extended family members about it. AL is considered the black sheep in the family;
(d) Sexual conduct within AL’s family seemed to be accepted. Al now knows her previous perception of this as typical conduct was incorrect and that what was done to her, and by her to her brother, was wrong. AL is ashamed for her assault of her brother.
(e) The accused sexually assaulted RL as well.
[22] The first trial resulted in a mistrial at the request of the defence and unopposed by the Crown.
ANALYSIS
TWIN MYTHS - S. 276 (1)
[23] The defence submits:
(a) The first prohibited inference that AL is more likely to have consented, is inapplicable because her then age negates capacity to consent to the alleged sexual activity;
(b) The second prohibited inference is not engaged as the evidence of the sexual assault on the brother is relied on to:
(i) challenge the credibility of AL because she did not disclose this during the preliminary inquiry or during her police interview; and
(ii) raise the issue of her motive to fabricate the allegations against the accused as a way to excuse her misconduct against her brother.
[24] The defence submits that the second prohibited inference does not apply because although the evidence under review is intended to be used to challenge the credibility of the complainant, that challenge to credibility is not based on the performance of the sexual misconduct itself.
[25] This attempt to distinguish and thereby justify introduction of AL’s misconduct against another person is incorrect on the facts of this case.
[26] If evidence of sexual activity is proffered for its non-sexual features, such as to show a pattern of conduct or a prior inconsistent statement, it may be permitted: R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443 at para.35. (emphasis added)
[27] There is no evidence or submission that AL has ever denied her misconduct towards her brother.
[28] The only evidence is that while being questioned about her allegations that the accused had sexually abused her during 6 years; AL did not unilaterally disclose that at 12 years of age, she had once sexually assaulted her 7 or 8 year old brother.
[29] As the Supreme Court stated in Darrach:
(a) S. 276 (1) is an evidentiary rule that only excludes material that is not relevant;
(b) An accused has no right to adduce irrelevant evidence;
(c) An accused does not have the right to adduce misleading evidence to support illegitimate inferences and thereby distort the truth-seeking function of the trial process; at para 37.
[30] It would be misleading and a distraction of the jury’s duty in determining the guilt or innocence of the accused, to suggest that in determining the credibility of AL, it should consider or factor in that that she failed to voluntarily disclose one act of her sexual misconduct against another.
[31] The non-disclosure relied upon by the defence given no one prior to September 23, 2013, ever asked her about it, is not relevant evidence to AL’s credibility as to her allegations against the accused.
[32] The defence seeks to introduce to the jury inflammatory evidence of sexual misconduct by a complainant on an unrelated matter. This unrelated evidence constitutes prohibited evidence of the complainant’s sexual activity introduced to infer she is less credible.
[33] The request to introduce this evidence is accordingly denied under s. 276(1)(b).
ALTERNATE ANALYSIS
[34] Alternatively, the court denies introduction of this evidence based on the following analysis under s. 276 (2) and (3).
SPECIFIC INSTANCE OF SEXUAL ACTIVITY
[35] The evidence in question involves one instance of other sexual activity by the complainant.
RELEVANCY TO TRIAL ISSUE
[36] For the reasons previously stated, what the accused did or did not do repeatedly to AL and her credibility in alleging that misconduct, is not related to whether AL sexually assaulted her brother on one occasion. The latter has no relevance or probative value as a 12 year old to the former.
[37] Absent any inquiry to AL before 2013, the fact that AL did not voluntarily disclose her single act of misconduct towards her brother while she was questioned by police in 2011 or at the preliminary inquiry in 2012 about her allegations of long term abuse by the accused , is not relevant.
AL’S ADMISSION OF MISCONDUCT, RIGHT TO MAKE FULLY ANSWER AND DEFENCE AND DETERMINATION OF GUILT OR INNOCENCE OF ACCUSED
[38] AL knows her misconduct was reported to police, the CAS, family and friends in 2013.
[39] When asked, AL admitted her act of misconduct to police, the CAS and her mother. She is aware that her sister and extended members of her family know about her act of misconduct and that she was removed from her home and spent 1 year in the custody of the CAS following that revelation.
[40] The chance that AL in the upcoming trial will now deny her misconduct against DL, thereby discrediting her testimony against the accused, is virtually non-existent.
[41] The defence submits however that AL’s misconduct against the brother was her motivation for making these allegations against her step-father.
[42] In argument, defence counsel submitted several times that AL only made her allegations against the accused, after her misconduct against her brother was revealed.
[43] The above chronology disproves the timing and causal relevancy of this evidence to a trial issue.
[44] AL made her allegations against the accused to police in 2011. That was 2 years before her misconduct was revealed by DL, not subsequently as argued by the defence.
[45] AL did not allege sexual assault against the accused 2 years before her brother’s disclosure in order to pre-empt or diminish future criticism of her on the chance that DL might someday decide to reveal what she had done to him.
[46] The two matters are unrelated as to perpetrator, victim, and the time of disclosure.
[47] If the two matters were linked in the mind of AL as submitted, it would have been more logical for AL to never allege abuse against her step-father for fear the resulting eruption within the family might trigger disclosure of her act of misconduct.
[48] The jury’s determination of these charges does not require consideration of AL’s single act of misconduct and will remain focussed on the relevant issue as to these charges absent this irrelevant evidence.
[49] The accused’s right to defend these charges as to his conduct is in no way impaired by his inability to cross-examine this complainant about a single act of her misconduct against someone else.
ENCOURAGEMENT OF REPORTING SEXUAL ABUSE
[50] Complainants of sexual abuse are to be encouraged to report, not discouraged by the court’s willingness to allow them to be subjected to humiliation, embarrassment and tactics to intimidate and discourage their willingness to testify.
[51] If the allegations such as those of AL and RL are true, why would any 16 or 18 year old pursue that wrong doing if they know that in addition to subjecting themselves to multiple occasions of rigorous public cross-examination suggesting they are not telling the truth, that will include revealing a serious but unrelated mistake they made at 12 years of age which will then be probed in detail before a group of strangers, many or some of whom are likely male, and cause even more embarrassment and stress?
[52] Introducing such unrelated sexual misconduct evidence will discourage complainants to report and to testify which is the likely motivation of this application.
RISK OF UNDUELY AROUSING SENTIMENTS OF PREJUDICE
[53] The defence submits there is no such risk as the jury will know this was the conduct of a 12 year old child.
[54] The jury however will also know that this was very serious misconduct against a defenseless 7 or 8 year old who they will unlikely see during this trial at his current age of 14 .
[55] The defence is incorrect in submitting there is no risk of this conduct arousing sentiments of prejudice or hostility against AL.
RISK OF DISCRIMINATORY BELIEF AND BIAS IN JURY DELIBERATION
[56] AL will be testifying at 18 years of age. There is risk, notwithstanding instructions by a judge, that the jury might become inflamed and therefore biased by the misconduct of this complainant against a 7 year old child.
JURY POTENTIAL PREJUDICE OF DIGNITY AND PRIVACY
[57] The defence acknowledges that forcing AL in cross-examination to discuss her misconduct will cause her embarrassment and discomfort but that is but one factor to consider.
[58] While this is but one factor, the defence is seeking to publicly expose an 18 year old as to her single act of misconduct as a 12 year old child against a 7 year old.
[59] On these facts, prejudice of dignity and privacy is a certainty, not a potential.
PROBATIVE VALUE VERSUS ADMINISTRATION OF JUSTICE
[60] This evidence has no probative value.
[61] A court’s permission to allow the cross-examination of a witness as to their single act of intimate wrongdoing at 12 years of age, without relevancy to a trial issue, would constitute improper administration of justice.
CONCLUSION
[62] For the above reasons, this application is dismissed.
Kane J.
Released: June 16, 2015
CITATION: R. v. T., 2015 ONSC 3866
OTTAWA COURT FILE NO.: 11-SA5077
DATE: 2015/06/16
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
J.T. Applicant
REASONS FOR decision
Kane J.
Released: June 16, 2015