ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR 13-00018-00MO

DATE: 2015-11-12

BETWEEN:

HER MAJESTY THE QUEEN

– and –

S.A.

Accused

Jeremy Schaffer, for the Crown

James Weppler, for the Accused

HEARD in Gore Bay: November 10, 2015

BAN OF PUBLICATION PURSUANT TO S. 486.4
OF THE CRIMINAL CODE OF CANADA

RULING ON MOTIONS

DEL FRATE, J.

[1] The accused faces one count of sexual assault and two counts of sexual touching.

[2] The Crown brings two motions, one for the admissibility of the complainant’s video recorded statement, the admissibility of evidence of other discreditable conduct and narrative evidence, and testimony by CCTV and a support person.

[3] The defense brings a motion pursuant to s. 276(1) of the Criminal Code of Canada seeking permission to cross-examine the complainant on evidence that was generated by the computer viewing.

Background

[4] The accused was involved in a relationship with the complainant’s mother. The complainant, her mother, two other siblings and the accused all had been residing together in Wikwemikong for some three years.

[5] The complainant alleges that during this three year term, the accused would enter her bedroom after her mom and sisters had fallen asleep. On one occasion, the complainant awakened and realized that the accused had his hand under her underwear. She removed his hand and left the room.

[6] On a more recent occasion, being September of 2011, the accused entered the complainant’s room and laid down. He started to talk about sex and told the complainant that he had a crush on her. He then started putting his hand on her back. He explained to her that sex was beautiful and that although it hurts the first time, after two or three pushes it hurts less and it starts to feel good. He also informed her that he could show her how to do it. If she said no, he would respect her decision. The complainant got up and left the room. When this occurred, the complainant was 14 years of age.

[7] The next day, she went to school but she had no intention of returning home. The complainant then contacted her maternal grandmother to whom she recounted what had transpired the previous evening. The maternal grandmother then contacted the mother and eventually the police were called to investigate. On October 2, 2011, a videotape interview was conducted with the complainant by Constable W. McComb.

[8] At this proceeding, only two motions were argued. Firstly, the admissibility of evidence pursuant to s. 276(1) of the Code, and secondly the introduction of evidence of prior discreditable conduct.

Prior Sexual History

[9] The defense submits that it should be permitted to question the complainant about her viewing explicit pornographic materials on the computer. This questioning is vital to its case since its theory is that the accused entered the complainant’s room because he had observed the websites that had been accessed by the complainant and he wanted to question her about her conduct.

[10] The Crown submits that the viewing of the pornographic materials constitutes sexual activity and, accordingly, the defense is prevented from questioning her pursuant to s. 276.1 of the Criminal Code.

[11] The Crown further contends that if that evidence, and especially the titles of the videos, were admitted as evidence the jury could conclude that that the complainant is more likely to have consented to the sexual activity and secondly, that her testimony is less worthy of belief. That line of questioning, engages the twin myth theory and case law prohibits its introduction.

The Law

[12] Section 276 reads as follows:

276. (1) In proceedings in respect of an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, 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.

Idem

(2) 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.

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.

[13] The issue is whether accessing pornography constitutes “sexual activity”. The Code does not define sexual activity. There does not seem to be any decisions specifically on this point, however both parties have filed case law for and against what constitutes sexual activity.

[14] The Crown’s authorities define instances of what constitutes sexual activity, for instance soliciting a prostitute for sexual favours is one (see R. v. Drakes, 1998 14968 (BC CA), [1998] B.C.J. No. 127); discussion about “threesomes” is another (see R. v. Zachariou, [2013] O.J. No. 4899); the postings and discussions from the complainant’s social media accounts is another (see R. v. J. I., [2015] O.J. No. 703).

[15] For the defense, discussions about sexual inactivity were held not to be sexual activity (see R. v. Antonelli, [2011] O.J. No. 4661); as was a discussion about sexually suggestive topics (see R. v. M.M. 1999 15063 (ON SC), [1999], O.J. No. 3943).

[16] The Concise Oxford English Dictionary defines “sexual” as “relating to the instincts, physiological processes and activities connected with physical attraction or intimate physical contact between individuals”. It also defines “activity” as “an action taken in pursuit of an objective”. It appears as though the sexual activity is performed with another individual.

[17] Section 276(1) specifically refers to a sexual activity “… whether with the accused or with any other person…”. The Crown submits that I should disregard those words since a sexual activity, such as masturbation, does not require the involvement of anyone else other than the masturbator.

[18] I cannot agree with that submission since if that thinking is extended to its logical end, then activities such as a person thinking of sex or a person reading a pornographic book or article, would be deemed to be involved in a sexual activity. That is not what I consider to be a logical conclusion.

[19] The more reasonable conclusion is that Parliament enacted this section and specifically added the words “with the accused or with any other person” to mean that such “sexual activity” would have the involvement of another participant.

[20] Accordingly, I conclude that the defense may question the complainant about her viewing the pornographic sites. However, having been given the topics of such sites, which can only be described as crude, explicit, disgusting, and gross, some sanitation is required so as not to enflame the jury because of these titles. Further, I intend to instruct the jury at mid-trial and in my final charge as to the twin myth theory.

[21] I would suggest that counsel discuss this amongst themselves and if no compromise is achieved, then counsel may raise this issue at the continuation of the other motions.

Discreditable Conduct

[22] The Crown wishes to lead evidence about the conduct of the accused while all were living together. The conduct would consist of the accused teasing the complainant and her sisters about “spanking and slapping bums”, about holding his penis and the supplying of alcohol to the complainant. These incidents are summarized at para. 96 of the Crown’s factum and I quote from it in its entirety:

“Teasing” About Spanking and Slapping Bums

E.P.: no, he teases everyone in the house about how, how he’s gonna spank them or slap their bum

Cst. W. McComb: how does he do that

E.P.: I don’t know, he always, sometimes he said “kay whose been bad, who needs a spank’, and then my little sister Georgia would always say, ‘I do’ and I would just leave and go stay in my bedroom

Cst. W. McComb: and then he’s spank them, spank their bums

E.P.: no he would say, ‘I’m just kidding. I’m not gonna do that’

“Teasing” About Holding his Penis

Cst. W. McComb: okay, has S.A. ever ah exposed himself to you, like have you ever seen him without his clothes

E.P.: no, he always teases about it though

Cst. W. McComb: what do you mean about that?

E.P.: when he goes to the wash room

Cst. W. McComb: yeah

E.P.: he always says, he’ll always say someone’s name and say, ‘come hold it for me’, and then they all, they all goes ‘ewww gross’, or ‘no!’, but then when he asks my mom, she says, ‘kay’, he says, ‘no, I’m kidding!, you probably will’, and then my mom, my mom said to me one time, he goes.. she said, ‘next time he asks that, should say, yeah, cause he’ll probably say, instead of walking over there, he’ll probably say, no way! You actually will’.

Inducing Alcohol Consumption

Cst. W. McComb: no, okay, um, I know they’re not very nice questions to ask, but I have to ask them, um hic em, um has S.A. ever um given you anything like alcohol or drugs?

E.P.: yeah

Cst. W. McComb: he has?

E.P.: uhmm, but my mom says they were only small little bottles.

Cst. W. McComb: your mom knew about it

E.P.: yeah, he said it was… um S.A. said it was a test to see if I was gonna be an alcoholic, he says everything he does or says, is for a reason, it’s a test to see where I am at in my… because I’m always in my room, and barely go out there (sniff) um they say I keep myself all bottled up.

Cst. W. McComb: who says that?

E.P.: S.A. and my mom

Cst. W. McComb: okay, um they, so did they make you drink alcohol

E.P.: no my mom was never around

Cst. W. McComb: oh your mom wasn’t there?

E.P.: no it was um when we went to Toronto for um, for work trip, he went to the store and bought um bottles of alcohol that were mixed in with um with pop, and we started playing a game, I don’t know, it was the loser had to take a drink and then, one time, and sometimes when we go hunting, he .. he brings another… another kind, its like a peach whiskey, he said it tastes like cough syrup and he said it tastes good in orange juice and he bought me orange juice, then we went hunting, and then he, he… when my orange juice was like half way gone, he um put some of that peachy drink and mixed in with it, and then, he said “here try that”, and I tried some, then he said, ‘doesn’t taste bad eh?’ And I said, I agreed with him.., cause I didn’t really like it, and if I said no, he would’ve asked why or what kind I would (sniff) and then after… after that it was all gone, that same day, he asked me if I wanted to try a Caesar, and I said ‘no’, there was another time, at his work, he works at the Manitoulin Cedar Fence thing..

Cst. W. McComb: yeah

E.P.: he um bought um a big bottle that cherry thing, whiskey, and he got pop, and then when half my pop was gone, he asked if I wanted to put that in there and half my pop, and I said ‘kay’, cause I thought he wanted it, but then he had a drink, he asked if I wanted some, and then I said ‘kay’, and then I had a … and then I tried some, he said, ‘does it taste better than the cough syrup?’, and I said, ‘yeah’ and then a customer came in, and then, then he had to hid it.

Cst. W. McComb: okay, and what happens when he gives you these drinks, how do you feel

E.P.: I don’t know, I don’t feel scared

Cst. W. McComb: no

E.P.: no

Cst. W. McComb: has he ever done anything after he gives you a drink

E.P.: no, cause he said, um one of those small little jars is like (showing two fingers) that much of a beer bottle, and then, my mom, I told my grandmother, and then, my grandmother was getting made at my mom, then my mom, then I talked to my mom, he said, your… your grandma thinks you’re talking about these real big bottles, but they’re only small little ones like that, and she says that one of those is like this much of a beer bottle, and when I talked with my mom I don’t really say anything, I just said ‘yeah’, ‘kay’, ‘oh’.

[23] The Crown alleges that this evidence is necessary so that the jury would get a complete picture of the relationship between the accused and the other family members and in particular the complainant. It would alleviate the jury from guessing as to why all of a sudden the accused would appear in the complainant’s room in the middle of the night. The Crown further submits that this pattern of teasing and the supplying of alcohol were ways of “grooming” the complainant.

[24] The defense submits that such evidence is extremely prejudicial to the accused since if accepted by the jury, then it can conclude that the accused had a propensity to this type of action. As well, the defense submits that there is no nexus between this alleged “bad character evidence” to the alleged evidence of what the complainant testified to especially on the last complaint.

R. v. Handy 2002 SCC 56, [2002] S.C.J. No. 57 discusses why such evidence should be excluded. At para. 37 it states:

The policy basis for the exclusion is that while in some cases propensity inferred from similar facts may be relevant, it may also capture the attention of the trier of fact to an unwarranted degree. Its potential for prejudice, distraction and time consumption is very great and these disadvantages will almost always outweigh its probative value. It ought, in general, to form no part of the case which the accused is called on to answer. It is excluded notwithstanding the general rule that all relevant evidence is admissible: Arp, supra, at para. 38; R. (J.D.), supra, at p. 941; Morris, supra, at pp. 201-2; R. v. Seaboyer, 1991 76 (SCC), [1991] 2 S.C.R. 577 (S.C.C.) at p. 613.

[25] At para. 68, the court repeats what Charron J.A., in R. v. B.(L.) (1997), 35 O.R. (3d) at para 45:

… propensity reasoning in and of itself is not prohibited. Indeed, it is usually inevitable, given the nature of the evidence and the reason for its admission…

It is propensity reasoning that is based solely on the general bad character of the accused, as revealed through this evidence of discreditable conduct, which is prohibited.

[26] Keeping this in mind, I find that the Crown has not laid an evidentiary basis to substantiate the introduction of this evidence for the following reasons.

[27] I find that the evidence about the spanking and slapping of bums and what may have been said was more in a play like fashion involving young children as opposed to a willful attempt to spank and slap the bums. This conclusion is substantiated by the complainant when she states that at no time did he spank or slap the bums of the children.

[28] The exposing of himself to the children and asking them to hold his penis is not acceptable conduct by an adult, but one must question if such an incident occurred especially in the presence of the mother. The transcription is somewhat confusing as to what the complainant actually means since an interpretation may be that he mother encouraged the children to go and hold the accused’s penis. Such action seems somewhat farfetched.

[29] Lastly, supplying alcohol to a minor is also not acceptable.

[30] If both of these allegations are accepted by the jury as discreditable conduct in their decision making, then prejudice may well result towards the accused.

[31] As well, for such evidence to be admitted, there must be some connection to the elements of the offences. There is no evidence that on the two occasions described by the complainant that the accused exposed himself, offered to spank the complainant, or supplied alcohol to the complainant.

[32] The Crown submits that the accused was “grooming” the complainant. Grooming may be defined as preparing or training someone for some particular purpose.

[33] The evidence is that over a period of three years, the accused and the complainant may have consumed small amounts of alcohol on three or four occasions. There is no evidence whatsoever as to the number of times the accused suggested the spanking and the invitation of touching his penis. One would expect that if grooming is the end result that these actions by the accused would have occurred on a much more frequent basis.

[34] In my view, the introduction of such evidence would be highly prejudicial to the accused, so much so that its probative value would be outweighed by the prejudice. Accordingly the Crown’s application on this issue dismissed.

The Honourable Mr. Justice Robert G.S. Del Frate

Released: November 12, 2015