ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-15-0009-00
DATE: 2015, September 3
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
J. G.
Applicant
LYNN ROSS, for the CROWN
JOHN S. WONNACOTT, for the APPLICANT
HEARD: August 20, 2015
REASONS FOR JUDGMENT
TAUSENDFREUND, J
[1] The applicant moves under s.276 of the Criminal Code of Canada to allow him to tender evidence at trial of the complainant’s sexual history.
FACTS
[2] The applicant is charged that he, between the 1st day of October 2013 and the 30th day of November 2013, at the City of Quinte West, committed sexual assault on E.M. contrary to s.271 of the Criminal Code of Canada. He elected to be tried by a Judge alone. The trial date is set for the week of February 1, 2016.
[3] The complaint was a 16 year old, grade 11 student in September 2013, when she started dating the accused who had already graduated from high school the previous year. Regular sexual encounters became part of their relationship.
[4] They dated between August and mid December 2013. A few weeks later, their relationship resumed for an approximate two week period until February 21, 2014. They reconnected once more for one occasion on April 27, 2014.
[5] The applicant seeks leave under s.276 of the Criminal Code to cross-examine the complainant and to testify regarding both prior and subsequent consensual sexual activity between the complainant and the applicant. He states that this leave is necessary for him to make full answer and defence for these reasons:
a. This evidence is said to be relevant to the issue of consent. The accused intends to demonstrate a pattern of consensual sexual activity. This, he states, was consistent with what occurred during the incident in question. It is not the sexual nature of the activity that is relevant, he states, but rather the repetitive pattern of consenting.
b. He asserts that the evidence is further necessary to establish the nature of the relationship as an on-going intimate relationship. The absence of this evidence, he further asserts, may lead to a distorted representation of the type of relationship that had developed between these two.
[6] The Crown opposes the relief sought, based on s.276 of the Criminal Code. That section of the Code states, in part, that evidence of sexual activity is prohibited to support an inference that by reason of the sexual nature of that activity, the complainant was more likely to have consented to such activity or that her statements are less worthy of belief.
ANALYSIS
[7] The rules governing the admissibility of specific instances of sexual activity between the complainant and the accused are addressed in s.276(2) of the Code as follows:
In proceedings in respect of an offence referred to in subsection (1), no evidence shall be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other
person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 276.1 and 276.2, that the evidence
a. is of 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.
[8] Referring to the exclusionary rule in s.276(1), the Supreme Court in Darrach v. R., [2002] 2 R.C.S. dated para 32:
. . .s.276(1) only prohibits the use of evidence of past sexual activity when it is offered to support two specific, illegitimate inferences. These are known as the “twin myths”, namely that the complainant is more likely to have consented or that she is less worthy of belief “by reason of the sexual nature of the activity” she once engaged in.
[9] I am satisfied that the request by the applicant to touch upon the sexual nature of his relationship with the complainant beyond the one incident covered by the indictment, he does not intend to advance the illegitimate inferences known as the “twin myths”. I accept that the applicant seeks this relief to attempt to demonstrate that there existed a pattern of consensual activity which may be consistent with what occurred during the incident in question. That, of course, will be left to the trier of fact.
[10] I note this comment by Heeney, J in R. v. Latreille, [2005] OJ 4845 para 15:
S.276 is not a blanket prohibition against ever using the sexual history of the complainant on the issue of consent. It is only where the defence seeks to do so in a way that invokes the “twin myths” that this line of reasoning is prohibited.
[11] I also note now that McLachlin, J (as she then was) in R. v. Seaboyer, 1991 76 (SCC), [1991] S.C.J. no.62 referred with approval to Professor Galvin’s review of the various approaches to “rape – shield” legislation. He stated that certain examples of evidence of consensual sexual conduct by the victim may be admissible. These examples may include the following:
Evidence of a pattern of sexual conduct so distinctive and so closely resembling the accused’s version of the alleged encounter with the victim as to tend to prove that the victim consented to the act charged or behaved in such as manner as to lead the accused reasonably to believe that the victim consented.
[12] The expected evidence of the incident here would be that the complainant and the accused were in his bedroom in his parents’ home watching TV. They removed each other’s clothing. This lead to sexual activity. The accused was apparently attempting unsuccessfully to penetrate the complainant vaginally while lying behind her in a “spooning” position. It was in that position that he chose to penetrate her anally. She told him repeatedly to stop, yet he continued this activity for about three minutes.
[13] In the month following this incident, the accused is said to have asked the complainant to again have anal sex with him. She consented. It did not last long, as it hurt the complainant. She asked him to stop and he did.
[14] The accused states that the last encounter between these two on April 27, 2014 is critical to his defence. They reconnected that day and drove around in the van of the accused. He parked his vehicle and starting to kiss her. She stated that it was not a good idea, but he continued. He did not ask her for her consent, but took her clothes off and started to have sex with her. The complainant is expected to say that it was uncomfortable, but she did not say no. The accused was apparently very rough with her during that sexual encounter. When it was over she stated to him that she did not feel good about it. He took her home. She then had a panic attack based on what she said had happened to her. She texted the accused, stating that she did not know why she had “freaked out” when she got home, but felt that he had been too rough with her while having sex. The accused is expected to say that at no point during their sexual encounter did she voice any concerns or objections. Her direct quote of her text message to the accused is said to be that she “had never been fucked that rough”. The accused then points to her evidence from the preliminary inquiry touching upon their sexual encounter that is the subject of this charge. Referring to that incident, the complainant described an extremely forceful anal penetration by the accused.
[15] In making my decision, I am mindful that I must have regard and take into account s.276(3) of the Code, which states:
In determining whether evidence is admissible under subsection (2), . . . justice shall take into account
a. the interests of justice, including the right of the accused to make full answer and defence;
b. society’s interests 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 [by the fact finder];
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 . . . justice considers relevant.
[16] I am satisfied that the evidence sought to be introduced is relevant to the issue of consent or, in the alternative, to an honest but mistaken belief of consent. I am also satisfied that the evidence has significant probative value and is not substantially outweighed by the danger of prejudice to the proper administration of justice. I am satisfied that the evidence sought to be introduced meets the tests enumerated under s.276(3) of the Code.
[17] I find that the complainant may be cross-examined on and the accused may testify to:
a. particulars of their sexual relationship leading to the incident in question, confined to the issue of consent. As the frequency and number of such encounters is not in evidence before me, I may be spoken to by counsel on this question.
b. the incident which is said to have occurred between the accused and the complainant about a month later which is said to have included anal sex; and
c. the incident of April 27, 2014 which is said to have occurred in the van and the subsequent text messages relating to this incident.
Tausendfreund, J
Released: September 3, 2015
COURT FILE NO.: CR-15-0009-00
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
J. G.
Applicant
REASONS FOR JUDGMENT
TAUSENDFREUND, J
Released: September 3, 2015