ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 14-65
DATE: 2015/08/25
ONTARIO
SUPERIOR COURT OF JUSTICE
INFORMATION CONTAINED HEREIN REGARDING THE IDENTITY OF THE COMPLAINANT AND/OR ACCUSED IS PROHIBITED FROM PUBLICATION BY ANY METHOD BY ORDER DATED THE 10th DAY OF SEPTEMBER, 2013 PURSUANT TO SECTION 486.4 and 486.5 OF THE CRIMINAL CODE OF CANADA.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
G. G.
Applicant
Jason Pilon, counsel for the Crown
Ian Paul, counsel for the Applicant
HEARD: July 16, 2015
RULING – SECTION 276 APPLICATION
LACELLE, J.
Overview
[1] The Applicant is charged pursuant to ss. 266 and 271 of the Criminal Code in relation to events alleged to have occurred on July 27th, 2013. The complainant in the case is G.G. The Applicant is further charged with an assault on G.G. on July 22nd, 2013.
[2] The Applicant and the complainant met in May 2013 and were married in July of 2013. The allegations are that on July 27th, 2013, the Applicant woke from a nap and that he and the complainant engaged in an argument about the complainant being on Facebook. In anger, the Applicant is alleged to have pushed the complainant on the couch and to have ripped her underwear off in an attempt to have sexual intercourse with her. While doing so, he made comments that she was a “dirty whore” and that she “liked it”. The complainant told him she did not like it and told him to stop several times. The Applicant was grabbing her legs and opening them. At some point he put a finger in her anus. The Applicant then grabbed the complainant and brought her to the bedroom where he grabbed the complainant’s head and placed his penis in her face, attempting to have her perform fellatio. At some point in this effort, the complainant slightly bit the Applicant’s penis to get him away from her. After the oral sex, the Applicant began to play with himself and ordered the complainant to do the same. She declined, and the Applicant again called her a “dirty whore”. The Applicant announced he could no longer do this, and stopped. The complainant ordered him to leave. The Applicant then started to pack some of his belongings. He is alleged to have pushed the complainant against the wall during this process. Eventually he left the residence.
[3] Police were called. When they attended, they observed a few scratches and marks on the complainant’s arms. The complainant reported having further marks near her crotch area. Police also seized torn underwear.
[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 an Affidavit dated November 25th, 2014. The Affidavit indicates that the Applicant first met the complainant in May of 2013. They were married on July 16th, 2013. The Affidavit states that during their relationship, the Applicant and the complainant engaged in consensual sexual activity where the complainant was rough with him, including scratching him and biting his penis.
[5] At the hearing of his Application, the Applicant filed a subsequent Affidavit dated July 16th, 2015. In it, he specifies that on one occasion, which he believes was in the month of July of 2013, there was an incident of consensual sexual activity in which the complainant bit him on the penis and scratched him. The Applicant’s counsel confirmed during the hearing of the Application that the proposed evidence is limited to this one occasion.
[6] The Applicant’s second Affidavit of July 16th, 2015 also sets out the Applicant’s account of the events on July 27th, 2013, which found the sexual assault allegation. The Applicant states that on that date, he engaged in consensual sexual activity with the complainant. He says the complainant performed consensual oral sex on him and bit his penis. He alleges she also asked him to grab her by the neck and pull her hair. He further alleges she told him to pretend he was raping her.
[7] No other details are provided either with respect to the prior incident the Applicant alleges occurred in July of 2013, or with respect to his account of the events during the sexual encounter giving rise to the charges.
[8] Counsel for the Applicant confirms that notwithstanding an indication in the Notice of Application dated November 23rd, 2014 that the Applicant intended to advance the defence of mistaken belief in consent as an alternative to his primary defence of consent, the defence at trial will be consent.
[9] At the s.267.2 stage of the process, the Crown confirmed that it was not seeking to cross-examine the Applicant on his Affidavits. The Applicant filed no further evidence, and no additional viva voce evidence was called. Accordingly, the issues are to be decided on the basis of the written record before the court, as described above.
The positions of the parties
The Applicant’s position
[10] 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.
[11] 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 credibility.
[12] More particularly, the Applicant says this evidence is relevant to an assessment of the credibility of the complainant and the accused (should he testify), and is necessary to understand the nature of their relationship. For instance, he says the proposed evidence will assist in determining whether the court accepts that the complainant’s act in biting the accused’s penis was a defensive one, or part of consensual sexual activity. He argues that where the defence is consent, prior sexual activity involving unique features may be relevant and admissible. He argues that if the evidence is not admitted, the court is at risk of having a one dimensional view of the relationship between the parties. He argues any prejudicial impact of the evidence is diminished because the proposed evidence involves just one incident.
The Respondent Crown’s position
[13] The Crown takes the position 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). He says that at bottom, the defence submission is that the complainant’s account ought not to be believed because she has had sex like this before. Further, he says that the only inference available from the evidence on the credibility analysis as framed by the defence would be that the complainant was more likely to have consented to a second occasion of rough sex because it happened once before consensually.
[14] Alternatively, the Crown argues that the proposed evidence does not meet the criteria in s. 276(2), because it lacks sufficiently detailed particulars, it is not relevant to an issue at trial, and its prejudicial impact far outweighs its probative value. Further, the Crown argues that the factors in s. 276(3) weigh against the admission of the proposed evidence.
The governing principles
[15] 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”).
[16] 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.
[17] At the second stage the trial judge must consider the factors set out in s. 276(3).
[18] 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.
[19] 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, Crosby at para. 14.
[20] 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.
[21] 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.
[22] 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.
[23] 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.
[24] 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.
[25] 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”.
Analysis and conclusion
[26] As indicated above, the Crown’s position is that the proposed evidence is statute barred because it offends against the dictates of s. 276(1) of the Code. In order to fairly assess whether the proposed evidence is inadmissible on this basis, it is necessary to fully consider the Applicant’s arguments about the relevance of the evidence to an issue at trial under s. 276(2)(b) of the Code.
[27] The Applicant takes the position that the evidence is relevant to credibility because it will provide the necessary context for evaluating the accounts of each of the complainant and the Applicant (either as proffered in his testimony, or suggested through cross-examination). The Applicant’s submission is based on the premise that without this evidence, the trier of fact may be less inclined to accept the evidence or argument by the Applicant that the complainant willingly engaged in what he calls “rough sex”.
[28] In support of that position, the Applicant relies on authorities where evidence of extrinsic sexual activity has been admitted because without it, the trier of fact would be left with a misleading impression of the nature of the relationship between the parties, and/or the exclusion of the evidence would bar the defence from leading evidence to explain why events unfolded between the parties in the manner alleged either by the complainant or the accused: see R. v. Harris, 1997 6317 (ON CA), [1997] O.J. No. 3560 (C.A.), R. v. Temertzoglou, 2002 2852 (ON SC), [2002] O.J. No. 4951 (S.C.J.), R. v. B.B., [2009] O.J. No. 862 (S.C.J.), R. v. Wilson, [2008] O.J. No. 3583 (O.C.J.). The Applicant also relies on cases where the evidence of extrinsic sexual activity was contained in previous statements that would otherwise be admissible: Crosby, supra, and R. v. D.S., [2003] O.J. No. 2901 (S.C.J.).
[29] I have carefully considered the Applicant’s argument as to the relevance of the proposed evidence, and the authorities he relies upon in support of that position. The Applicant has not satisfied me that the proposed evidence is relevant to an issue at trial, and in particular, to the issue of the complainant’s credibility.
[30] The heart of the defence submission as to relevance of the proposed evidence is that the Applicant and the complainant engaged in consensual rough sex before these allegations were made, and that without that information, the court may be less inclined to accept the Applicant’s assertion that the complainant consented to the sexual activity on this occasion. I find it difficult to distinguish this position from the prohibited line of reasoning set out in s. 276(1)(a) of the Code that the complainant is more likely to have consented to the sexual activity on this occasion because she consented to similar sexual activity on another occasion.
[31] The law is clear that consent is specific to each occasion of sexual activity. Whatever type of sexual activity the complainant may have consented to outside of this event, the issue before the court at trial will be whether the Crown establishes her lack of consent to the sexual activity which occurred on July 27th, 2013. It is anticipated that the complainant will testify that she did not consent to the sexual activity on July 27th, 2013, and that she told the Applicant to stop. The Applicant indicates his position is that the complainant did consent to the sexual activity on the date in question. The court in Darrach confirmed that evidence of extrinsic sexual activity will rarely be relevant to the issue of consent, a position which reflects the logic of the principle codified in s. 276(1)(a) of the Code that a person is not deemed more likely to have consented to one discrete incident of sexual activity because they have engaged in another: see Darrach at paras. 58‑59. There is nothing in the facts alleged by the Applicant in his Affidavits on this Application, or in the arguments made during the Application, which links the proposed evidence to any other line of reasoning to establish its relevance.
[32] This is not a case like Harris or Temertzoglou where the nature of the previous relationship between the parties requires amplification in view of the circumstances leading to the allegations. This allegation is made in the context of a marital relationship, although a brief one. The facts led as part of the narrative in this case, as set out in the summaries of the allegations above, are sufficient to establish the nature of the previous relationship between the parties for the purposes of understanding and assessing the narrative each may provide at trial.
[33] The proposed evidence is also not inextricably bound to otherwise relevant and admissible evidence as is the case in Crosby and D.S., and is not part of a pattern of behavior to be relied upon in support of the defence of mistaken belief in consent.
[34] The Applicant relies on the unique features of the sexual activity alleged by the complainant and the Applicant to suggest that the court may not be in a position to properly evaluate the credibility of the parties, and accordingly the defence of consent, without reliance on the alleged previous encounter involving consensual “rough sex”. It appears that in some cases where the alleged offences involved bondage or other forms of rough sex, this argument has been persuasive, at least to the limited extent that general questions about the nature of the prior relationship have been permitted: see R. v. B.B., [2009] O.J. No. 862 (S.C.J.). While all cases are decided on their individual facts, in this instance, there is nothing about the facts alleged either in the allegations by the complainant, or by the Applicant, that is so unusual as to make information about their previous sexual encounters necessary in order to understand the nature of the relationship between them, or to assess credibility.
[35] For the reasons above, I find that the Applicant has not satisfied me that the evidence is relevant, or that it falls outside the prohibition of s. 276(1)(a) of the Code. The evidence is therefore not capable of being admissible pursuant to s. 276(2) of the Code: see R. v. Wylie, [2011] O.J. No. 4598 (S.C.J.) at paras. 27‑35.
[36] In the event I am wrong in that analysis, I find that the Applicant has also not met the requirements of s. 276(2) of the Code. In addition to the Applicant’s failure to establish the relevance of the proposed evidence as required by s. 276(2)(b), the proposed evidence is insufficient to satisfy s. 276(2)(c). As noted by the Crown, the details of the extrinsic sexual activity are sparse, and are dissimilar in many respects to the events at issue in the trial. For instance, it appears that the incident of alleged extrinsic sexual activity involves the complainant being rough with the Applicant, while the allegations additionally involve the Applicant being rough with the complainant. There is no indication in the materials filed by the Applicant that the biting he describes by the complainant during the previous incident occurred during an instance of fellatio. On this record, I am not satisfied that the proposed evidence has significant probative value that is substantially outweighed by the danger of prejudice to the proper administration of justice, as is required by s. 276(c).
[37] Finally, the factors set out in s. 276(3) weigh against the admission of the evidence in these circumstances. The proposed evidence is not necessary to permit the Applicant to make full answer and defence. This is not one of the rare cases where the proposed evidence is necessary in order to permit the accused to advance the defence of consent. The evidence is not necessary to permit a just determination in the case, and in particular, is not necessary to furnish the context against which to assess the issues in the trial. On the other hand, I find that the admission of the proposed evidence would adversely impact society’s interest in encouraging the reporting of sexual assault offences, and the interest in ensuring the fact-finding process is free from discriminatory beliefs and bias, as its admissibility is rooted in the prohibited reasoning barred in s. 276(1). The proposed evidence and questioning of the complainant would also adversely affect her personal dignity and right of privacy, and impact on her right to the full protection and benefit of the law.
[38] The court is mindful, as highlighted by the Court of Appeal for Ontario in R. v. Harris, 1997 6317 (ON CA), [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.
[39] For the reasons indicated above, the Application is dismissed.
Madam Justice Laurie Lacelle
Released: August 25, 2015
COURT FILE NO.: 14-65
DATE: 2015/08/25
ONTARIO
SUPERIOR COURT OF JUSTICE
INFORMATION CONTAINED HEREIN REGARDING THE IDENTITY OF THE COMPLAINANT AND/OR ACCUSED IS PROHIBITED FROM PUBLICATION BY ANY METHOD BY ORDER DATED THE 10th DAY OF SEPTEMBER, 2013 PURSUANT TO SECTION 486.4 and 486.5 OF THE CRIMINAL CODE OF CANADA.
HER MAJESTY THE QUEEN
Respondent
– and –
G. G.
Applicant
RULING – SECTION 276 APPLICATION
Madam Justice Laurie Lacelle
Released: August 25, 2015