ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 14-74

DATE: 2015/07/17

INFORMATION CONTAINED HEREIN REGARDING THE IDENTITY OF THE COMPLAINANT AND/OR ACCUSED IS PROHIBITED FROM PUBLICATION BY ANY METHOD BY ORDER DATED THE 22ND DAY OF NOVEMBER, 2013 PURSUANT TO SECTION 486.4 and 486.5 OF THE CRIMINAL CODE OF CANADA.

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

D. L.
Applicant

Elaine Evans, counsel for the Crown

Tilton Donihee, counsel for the Applicant

HEARD: July 6, 2015

RULING – SECTION 276 APPLICATION

Lacelle, j.

Overview

[1] The Applicant is charged pursuant to ss. 271 and 266 of the Criminal Code in relation to events alleged to have occurred on November 6, 2013. The complainant in the case is S.M.

[2] The allegations are that the Applicant attended at the complainant’s group home and approached her outside the residence. He said he had been watching her sleep and demanded and yelled that she turn around, bend over and face her walker. The complainant complied and turned around and faced her walker. It is alleged that the Applicant pushed the complainant onto her walker, placing her neck right against it, which meant that the walker was then choking her. The Applicant then forced oral sex. The Applicant is alleged to have been sniffing glue as he placed his penis inside the complainant’s mouth and told her to “get it wet”. Following this, he moved behind the complainant, pulled her pyjamas down, and penetrated her in an aggressive manor until he ejaculated. During this time, he was also sniffing glue. After he ejaculated, the Applicant told the complainant to pull her pyjamas on and to go inside the group home with him. The Applicant went to the washroom to wash up, and the complainant went to her room where she stayed until the Applicant was gone. The complainant later advised a staff member about the incident, and various authorities responded.

[3] The complainant agreed at the preliminary hearing that at the time of the alleged offences she knew the Applicant, and that he had visited at her cousin’s apartment while she was present. She confirmed that she had lived with her cousin for a period of about three months. During that time, the Applicant lived in the apartment above her cousin.

[4] The Applicant seeks leave of this court pursuant to s. 276 of the Criminal Code to adduce evidence of prior sexual activity between the Applicant and the complainant. In accordance with s. 276.1 of the Criminal Code and R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, the Applicant has filed an Application which includes his Affidavit setting out the particulars of the evidence he seeks to adduce. In it, he describes specific occasions prior to the date of the alleged offences when he and the complainant engaged in consensual sex. He alleges there were at least five distinct occasions when this consensual sexual activity occurred.

The positions of the parties

The Applicant’s position

[5] The Applicant argues that he ought to be able to cross-examine the complainant and otherwise lead evidence about the extrinsic sexual activity set out in his Affidavit. He says his application does not offend the dictates of s. 276(1), as the evidence is not being adduced to advance the “twin myth” reasoning prohibited by that subsection. That is, he is not seeking to adduce the evidence to establish that the complainant is more likely to have consented to the sexual activity on this occasion, or that she is less worthy of belief by reason of her alleged previous sexual activity with the Applicant.

[6] The Applicant confirms that his defence at trial will be consent. He confirms that he is not arguing that the evidence of prior sexual activity is relevant to the issue of consent, or a pattern of behaviour that might be relevant to advancing a defence of mistaken belief in consent. He says the evidence is relevant to the issue of the credibility of the complainant.

[7] More particularly, the Applicant says this evidence is relevant to the complainant’s credibility because during questioning at the preliminary hearing, she denied having seen the Applicant at an apartment she lived at, and testified that he had never been there. She also denied having visited him at his apartment when he lived in the apartment above her cousin. The Applicant says they were together in both locations, and engaged in sexual activity in each location. He says he should be able question the complainant and lead evidence about these occasions with a view to establishing an inconsistency in her account, and thus impugn her credibility.

The Respondent Crown’s position

[8] The Crown takes the position that the Application filed by the Applicant is insufficient to warrant a hearing under s. 276.2, as it fails to demonstrate the relevance of the proposed evidence to an issue at trial. Alternatively, the Crown argues that the Application should fail because the Applicant has not met his burden in proving that the proposed evidence is not barred by s. 276(1) or meets the criteria in s. 276(2) and (3). More specifically, the Crown argues that the proposed evidence relates to a collateral issue at trial, and that its prejudicial effect outweighs its probative value.

The governing principles

[9] The procedure set out in s.276 requires a two-stage determination by the trial judge. At the first stage (s.276(1)) the trial judge must consider the evidence and determine whether the evidence is capable of being admitted. There is a categorical prohibition against admission where the proposed evidence is intended to support an inference that by reason of the sexual nature of the activity, that the complainant is more likely to have consented or is less worthy of belief (the “twin myths”).

[10] If the proposed evidence is found to be “capable of being admissible under subsection 276(2)”, then its admissibility is to be further considered following a hearing conducted in accordance with the dictates of s. 276.2. This second stage of the process requires an in camera hearing to determine whether the proposed 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.

[11] At the second stage the trial judge must consider the factors set out in s. 276(3).

[12] As explained by the Court of Appeal for Ontario in R. v. M.T., 2012 ONCA 511, [2012] O.J. No. 3418 (C.A.) and the court in Darrach at para. 36, while s. 276 creates an exclusionary rule, it “does not function in practice as a blanket exclusion” of all extrinsic sexual activity of a complainant. It expressly prohibits only the use of the evidence to support the illegitimate inferences described in the section. Evidence of extrinsic sexual activity may “gain entry” as admissible evidence at trial under the exception to the exclusionary rule set out in s. 276(2). This determination is made in consideration of the factors set out in s. 276(3): Darrach at para. 32, M.T. at paras. 33 and 40.

[13] Darrach confirms that evidence of sexual activity that is proffered for its non-sexual features may be permitted. For instance, evidence of sexual activity that shows a pattern of conduct or a prior inconsistent statement may be admitted. The case of R. v. Crosby, [1995] 2 S.C.R. 912 is an example of such a case. There, the evidence of extrinsic sexual activity was admissible because it was inextricably linked to a prior inconsistent statement that was relevant to the complainant’s credibility: Darrach at paras. 35‑36.

[14] The analysis of the evidence at issue should also consider whether it is properly within the scope of s. 276. A previous allegation of assault would fall outside the section, as would questions that focus on the fact, rather than the details, of an allegation of sexual assault: R. v. Gervais (1990), 58 C.C.C. (3d) 141 (Que. C.A.) at p. 154; R. v. M.(A.G.) (1993), 26 C.R. (4th) 379 (Que. C.A.) at paras 63‑65; M.T., supra at para 34. The admissibility of such evidence is analysed in accordance with the general principles of admissibility in a criminal trial, and not under the rubric of s. 276.

[15] The concept of “relevance” is central in the analysis. As explained by the Court of Appeal for Ontario, “an item of evidence is relevant if it makes the fact it seeks to establish slightly more or less probable than that fact would be without that evidence, through the application of everyday experience and common sense”: R. v. Luciano, 2011 ONCA 89 at paras 204‑205 and R. v. M.T., 2012 ONCA 511 at para. 36.

[16] Common defences in sexual offence cases include a denial that the assault occurred, a challenge based on the identity of the assailant, an assertion of consent, or a claim of an honest but mistaken belief in consent on the part of the accused. In considering the logical inferences available from evidence of extrinsic sexual activity to theses defences, the court in Darrach confirmed at paras. 58‑59 that evidence of prior sexual activity will rarely be relevant to support a denial that sexual activity took place or to establish consent. In practice, section 276 will most often be used in attempts to substantiate claims of an honest but mistaken belief in consent.

[17] If the proposed evidence is not barred under s. 276(1), and the evidence meets the criteria set out in each of s. 276(2)(a) (the evidence is of a specific instance of sexual activity) and s. 276(2)(b) (the evidence is relevant to an issue at trial), the judge must then weigh its probative value against its prejudicial effect to determine its admissibility. More particularly, s. 276(2)(c) requires that the court must consider whether the evidence has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. As noted in M.T. at para. 43,

the balance is calibrated differently than we see in the general exclusionary discretion or the more circumscribed discretion to exclude otherwise admissible defence evidence. The addition of the terms “significant”, as descriptive of the probative value, and “substantially”, as the extent to which significant probative value must predominate over “prejudice to the proper administration of justice”, appears to require a more nuanced or qualitative assessment of the competing interests. These interests are incommensurables. Probative value has to do with the capacity of the evidence to establish the fact of which it is offered in proof. Prejudicial effect relates to trial fairness.

[18] The court in Darrach provided further guidance at paras. 39‑41 as to what is meant by “significant” probative value. The interpretation of "significant” means that "the evidence is not to be so trifling as to be incapable, in the context of all the evidence, of raising a reasonable doubt” but "it [is] not necessary for the appellant to demonstrate 'strong and compelling' reasons for admission of the evidence". At the same time, the requirement of “significant probative value” serves to exclude evidence of trifling relevance that, even though not used to support the two forbidden inferences, would still endanger the “proper administration of justice”. The Supreme Court recognized in Darrach that there are inherent “damages and disadvantages presented by the admission of such evidence”. Consequently, evidence of sexual activity must be significantly probative if it is to overcome its prejudicial effect.

[19] The burden of proof on a s. 276 application is consistent with the basic rule of evidence that the party seeking to introduce evidence must be prepared to satisfy the court, on the balance of probabilities, that it is relevant and admissible. As indicated by the court in Darrach at para.46, “prior sexual activity is, like hearsay, character evidence and similar fact evidence, restricted in its admissibility. If the defence seeks to adduce such evidence, it must establish that it supports at least some relevant inference”.

The hearing under s. 276.2

[20] During the hearing of the Application, the court declined the Crown’s request to dismiss the Application prior to proceeding to a hearing under s. 276.2. In doing so, the court was mindful of the direction given in R. v. Ecker (1995), 96 C.C.C. (3d) 161 (Sask. C.A.) at paras. 60‑67 and affirmed in R. v. LeBrocq, 2011 ONCA 405 at para. 8 that “it is preferable for courts to take a cautious approach to establishing the limits of the first stage of the s. 276.1 enquiry, and to leave such doubts as may exist regarding the admissibility of the proposed evidence to the hearing stage.” As noted by the court in Ecker, “the court must be cautious when applying the limits on the rights of an accused to cross examine and adduce evidence”. Having regard to the importance of these rights, and the articulation of an arguable basis for admissibility of the evidence by the Applicant, the court proceeded with a hearing under s. 276.2.

[21] The Applicant testified during the hearing and was cross‑examined. He maintained that he and the complainant had had sexual relations on the five specific occasions disclosed in his Affidavit, although there were a number of inconsistencies in the details of his account of those sexual encounters. These encounters generally involved foreplay of some kind. The Applicant also testified that his sister lived at the same group home as the complainant, and that he was a regular visitor there. This is where he says the fifth consensual sexual encounter took place. This was about a month before the alleged sexual assault. On this occasion, the sexual activity involved the complainant giving the Applicant a blow job outside near some garbage bins. He described his contact with the complainant as “just a fling thing”.

[22] While the Applicant’s Affidavit in his Application Record indicated that there were at least two other occasions he and the complainant had sexual relations, when he testified, the Applicant said that he no longer recalled any other incidents. He explained this by saying he was “doing solvents” at the time. He further confirmed he had been using solvents through the entire period he described in his evidence. On some of the occasions, he was also using alcohol. At one point during cross‑examination, when asked about the details of one of the sexual encounters, the Applicant looked down at the Affidavit he had been referencing on the stand. He appeared very confused about the details of the sexual encounters he alleged.

Analysis

[23] The admissibility of the proposed evidence in this case turns on its relevance. In questioning during the hearing, counsel for the Applicant confirmed that what he seeks to do at trial is to demonstrate that the complainant was in certain locations with the Applicant, contrary to her evidence at the preliminary hearing, and to thus lay the groundwork for establishing an inconsistency between her evidence and other evidence at trial he would lead, if permitted. In other words, he wants to test the credibility of the complainant with regards to her denials of prior contact in certain locations. When he was questioned by the court during the hearing, counsel for the Applicant fairly acknowledged the limits of the facts which would be necessary to advance his defence. Counsel did not articulate a nexus between the sexual nature of the activity that is alleged to have occurred on these occasions and the inconsistency he seeks to establish, or any other issue at trial. He simply indicated that he wishes to be able to explore the specifics of the Applicant’s previous contact with the complainant.

[24] Having considered the Application materials, the viva voce evidence of the Applicant on the s.276.2 hearing, and the submissions of counsel, I find that the details of the extrinsic sexual activity alleged to have occurred between the Applicant and the complainant are not relevant to an issue at trial. While it is clear that the credibility of the complainant will be a live issue at trial, the evidence of extrinsic sexual activity is not necessary to the defence in advancing its challenge to her credibility on the basis advanced in this application. The Applicant wants to show that the complainant lied when she says she did not meet him at her apartment or at his. This is what he says is relevant to the complainant’s credibility. On this record, the sexual activity she is alleged to have engaged in there is not critical to the inconsistency he wishes to establish.

[25] This not a case where the details of the alleged sexual encounters are so inextricably bound to other relevant evidence that the Applicant’s defence cannot be advanced without reference to them. The Applicant may fully advance his defence by questioning the complainant at trial about her previous knowledge of the Applicant, and whether they were together in certain locations, without adducing evidence of the alleged extrinsic sexual activity. The material filed by the Applicant discloses additional facts apart from those relating to the alleged sexual encounters that may be put to the complainant, if necessary, to further particularize the occasions the Applicant says they were together. For instance, on many of the occasions, other individuals are alleged to have been present with them. To continue the questioning with reference to the alleged sexual encounters would add nothing to the ability of the defence to establish the inconsistency it says is the relevant issue to her credibility. The Applicant has thus failed to meet the requirements of s. 276(2)(b).

[26] Further, even assuming the proposed evidence was relevant, having regard to the direction in M.T. and Darrach, it has not met the threshold of having significant probative value that substantially outweighs the danger of prejudice to the proper administration of justice, as is required by s. 276(2)(c). In that regard, I consider the strength of the proposed evidence. The Crown argues that the Applicant’s evidence was internally inconsistent, incredible, and unreliable. There is merit to that submission. At a minimum, the Applicant concedes he was using solvents, and sometimes alcohol, throughout his encounters with the complainant. The difficulties with memory associated with the use of those substances appear to be present here. Contrary to the facts alleged in his Affidavit, the Applicant can no longer recall if there were only five sexual encounters, or whether there were more. The details of the encounters he says he does recall shifted in his viva voce evidence. The proposed evidence is only marginally reliable. This heightens its prejudicial effect.

[27] The factors enumerated in s. 276(3) also weigh against admission of the evidence. The proposed evidence is not required to permit the accused to make full answer and defence. The Applicant may advance his defence without adducing evidence of the extrinsic sexual conduct alleged. There is no reasonable prospect that this evidence is necessary to arrive at a just determination of the case. On the other hand, admission of the evidence in these circumstances would negatively impact on society’s interest in encouraging the reporting of sexual assault offences, and the complainant’s personal dignity and right of privacy. The court also considers that the complainant is entitled to the full protection and benefit of the law during her participation in the trial process.

[28] As indicated above, the Applicant may question the complainant at trial about her previous knowledge of the Applicant, and whether they were together in certain locations. As to whether the Applicant may lead evidence to rebut the complainant’s anticipated denial of some of the previous meetings alleged, this is an issue that remains to be addressed in the context of the evidence heard at trial and any argument which may be made by the parties as to the applicability of the collateral facts rule.

[29] The court is mindful, as highlighted by the Court of Appeal for Ontario in R. v. Harris, [1997] O.J. No. 3560 at paras. 37‑51 that evidentiary rulings must be responsive to the evidence adduced at trial. The court has not heard any of the trial evidence at this stage. In the event the evidence adduced at trial warrants reconsideration of any of these issues, the parties remain free to make whatever arguments they feel appropriate.

[30] For the reasons indicated above, the Application is dismissed.

Madam Justice Laurie Lacelle

Released: July 17, 2015

COURT FILE NO.: 14-74
DATE: 2015/07/17

INFORMATION CONTAINED HEREIN REGARDING THE IDENTITY OF THE COMPLAINANT AND/OR ACCUSED IS PROHIBITED FROM PUBLICATION BY ANY METHOD BY ORDER DATED THE 22ND DAY OF NOVEMBER, 2013 PURSUANT TO SECTION 486.4 and 486.5 OF THE CRIMINAL CODE OF CANADA.

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN
Respondent

– and –

D. L.
Applicant

RULING - SECTION 276 application

Madam Justice Laurie Lacelle

Released: July 17, 2015