CITATION: R. v. A.G. and E.K., 2015 ONSC 923
COURT FILE NO.: CR-14-10000003-0000
DATE: 20150211
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Cara Sweeny, for the Crown
Respondent
- and -
A.G.
Boris Bytensky, for the Defendant, A.G.
Defendant/Applicant
-and-
E.K.
Joseph Neuberger, for the Defendant, E.K.
Defendant/Applicant
HEARD: October 27-28, 2014,
at Toronto, Ontario
Michael G. Quigley J.
Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4 of the Criminal Code of Canada.
Reasons for Ruling
Re: Admissibility of Evidence under s. 276 C.C.
Overview
[1] The applicants A.G. and E.K. are both charged with sexual assault with a weapon and with gang sexual assault against the complainant, J.F. The offence is alleged to have occurred on May 26, 2012.
[2] Stated shortly, the complainant alleges that on May 26, 2012, she was outside of a downtown Toronto shelter when the two applicants passed by. She had a conversation with them and ultimately agreed to join them for a drink. She willingly went with them, first on foot, and then in their vehicle. She consumed alcohol with one of the two applicants in the back seat of the vehicle, while the other drove the car. It is claimed that they stopped at a variety store where the applicants purchased various items, including condoms. Eventually, the allegation is that they ended up in a field located near a school in an unknown part of Toronto, about a half-hour away. The complainant recalls that there were apartment buildings located nearby and a large football field with bleachers. She also claims that she was quite drunk by this time, having consumed one quarter to half of a bottle of vodka.
[3] It was at that location that the complainant claims that the two applicants sexually assaulted her. She claims that one of the men pushed her to the ground and demanded sex from her. He told her that if she did not cooperate, she was going to get hurt. One of them allegedly said that he had a knife. They took her clothes off and forced her to perform oral sex on both of them. Then it is claimed that they both had intercourse with her. She claims that they were physically and verbally abusive to her as the intercourse took place. The complainant insists that she did not consent to having any sexual contact with either of the applicants, and repeatedly told them “no”, but that she did not struggle or resist because of the threat of the knife that was made to her. Eventually, after the sexual acts were completed, she put her clothes on and ran away. She came upon a couple who were walking on the sidewalk. She asked them to call 911 on her behalf. The police responded to the 911 call and she was taken to the hospital where she was admitted and statements were provided to the police.
[4] The position of defence counsel at trial and on this application is that the complainant consented to all of the sexual activity that occurred or that, at the very least, the applicants had a mistaken but honest belief in her consent.
[5] On this application, the applicants seek a ruling under s. 276 of the Criminal Code to permit them to cross-examine the complainant on statements she made to the police with respect to her prior sexual activity with persons other than these two applicants. They ask to be permitted to question her in respect of other occurrences that took place seven or eight years before these charges arose. Two of the occurrences are not of a sexual nature, and subject to raising collateral issues, may properly be the subject of cross-examination. The others, however, are occurrence reports of prior allegedly non-consensual sexual activity.
[6] Counsel for the defence claim that the reports of those occurrences are directly relevant and ought to be admitted under s. 276. They acknowledge that s. 276 absolutely bars the introduction of evidence of a complainant’s prior sexual history when it is used to support either of the two prohibited inferences: (i) that the complainant is more likely to have consented to the alleged sexual assault, or (ii) that “she is less credible as a witness by reason of the prior sexual activity.” However, they argue that evidence of the reporting of the prior occurrences should be admitted and is directly relevant to show that she is less credible, not by reason or by virtue of her prior sexual activity, but because the evidence shows that the complainant had previously made a number of false reports of having been sexually assaulted to the police. As such, it is claimed that the evidence is not proffered to show that she is less credible by reason of her prior sexual activity, but to show that she is less credible because she lies to the police.
[7] It is important that in addition to the provisions of s. 276 of the Code and several of the Supreme Court decisions that have interpreted and explained the circumstances in which evidence of a complainant’s prior sexual activity may be introduced notwithstanding the exclusionary rule, both parties here rely on the 1992 decision in R. v. Riley[^1] to support their positions. In that case, as explained further in the reasons that follow, the Court of Appeal held that the cross-examination of a complainant on evidence of prior allegations of non-consensual sexual activity should not be permitted except where the defence is in a position to establish either that the complainant recanted her earlier accusations, or that they are demonstrably false. Counsel for the defence claim to have met that requirement while the Crown argues that neither test has been met.
[8] Against that introductory background, I gave the following rulings at the conclusion of this pre-trial application with the understanding that these reasons would follow:
(i) I am satisfied that the occurrences of August 31, 2004, October 15, 2004 and April 13, 2005 (Tabs A, B and C of the Application Record), have been proven to be relevant by the defence. I am satisfied that the complainant’s words recorded in those occurrence reports show that each of those three allegations of sexual assault was demonstrably false or recanted. As such, those three occurrences meet the admissibility standard established in Riley. The other two occurrences relating to sexual activity (documented at Tabs D and F) do not meet that test and are hence not admissible separate and apart from the exclusionary rule in s. 276 of the Code;
(ii) I am satisfied that the introduction of the evidence of the complainant’s prior sexual activity, to the limited extent that I will permit, is not prohibited by s. 276(1) of the Code since it will not be introduced to support either of the prohibited inferences. Since I have found that the reporting of each of the three occurrences to the London Police Service by the complainant was either demonstrably false or recanted, the applicants will be permitted to cross-examine the complainant relative to those three occurrences, but solely for the purpose of impeaching the credibility of the complainant, and not for either of the prohibited purposes under section 276;
(iii) To ensure that the prohibited territory is not entered in the course of cross-examination and that the complainant’s personal dignity is not compromised, defence counsel will not be permitted to ask the complainant questions with respect to any of the factual detail of the reported sexual activity. Defence counsel must limit their cross-examination to those particular statements that were made by the complainant to the police, as reflected in the three occurrence reports that were referenced by Mr. Neuberger in his submissions, and that are necessary to prove that those occurrences were either demonstrably false or recanted;
(iv) No cross-examination shall be made of the complainant that is directed towards establishing either (i) that the factual aspects of the complainant’s prior sexual activity displays a pattern of intentional false reporting of consensual sexual activity as non-consensual, or (ii) that would serve as a foundation for an argument that the present complaint represents an intentional escalation of the level of severity of the sexual conduct complained of in order to regain credibility having regard to the prior recanted or demonstrably false allegations. In my view, both of these lines of inquiry impermissibly cross the line and would necessarily invite the prohibited inferences under s. 276;
(v) Questions asked of the complainant in cross-examination relative to the prior occurrences shall go solely to the credibility of the complainant as a witness separate and apart from the sexual nature of the activity that underlies the prior occurrences, and shall be made solely for the purposes of being taken into account, together with other evidence that may call her credibility into question, in my assessment of the credibility and reliability of her testimony relative to these charges in this matter; and finally,
(vi) In assessing the credibility of the complainant, the weight to be given to her prior recanted or false allegations of sexual assault must reflect the seven to eight year lapse of time between those prior occurrences and the events that gave rise to the charges against the applicants. Those prior allegations took place when the complainant was 19 years old, as opposed to 27, as she was when these offences allegedly occurred, or 29, as she is testifying before me.
Background to this Application
[9] As set out in the application record, the applicants rely upon seven prior occurrence reports generated by London Police Services. Those occurrences were reported between 2004 and 2007. The complainant reported being the victim of sexual assault by five different individuals in London. The other two occurrence reports concern non-sexual matters. No charges were laid as a result of any of the five reports of non-consensual sexual activity.
[10] Following the Supreme Court of Canada’s decision in R. v. Quesnelle[^2], those occurrence reports were ordered to be produced to the applicants following a third party records application that was heard by Roberts J. on October 14, 2014, just two weeks prior to the trial. In Quesnelle, the Supreme Court held that occurrence reports maintained in the custody of a police service constitute third party records for the purposes of being produced in criminal litigation under ss. 278.2 to 278.9 of the Criminal Code. As a result, a defendant who seeks to access police occurrence reports for the purpose of impeaching the credibility of a witness, including complainants such as J.F., must first obtain an order that the records sought are properly producible and potentially relevant at trial using the procedure described in those provisions.
[11] In her lengthy and detailed endorsement granting the third party records application of the accused, Roberts J. reminded the parties that while the third party records provisions govern the production of records of the prior occurrences as sought by the applicants, they do not determine their admissibility.[^3] That determination is for me alone to make as the trial judge. As the third party records application judge, Roberts J. was required to determine whether the occurrence reports were likely relevant to issues at trial and whether their production was necessary in the interests of justice. Justice Roberts also acknowledged her obligation to consider the salutary and deleterious effects of production on the accused’s rights to make full answer and defence, and on the complainant’s right to privacy and equality.
[12] In the result, Roberts J. concluded that the complainant’s entire criminal record, including all the detailed records of misconduct on the part of and charges and convictions against her, ought to be produced, subject to vetting as specified in her reasons. In addition, Roberts J. concluded that the records pertaining to the complainant’s allegations of sexual assault against others ought to be produced in their entirety, subject to vetting to protect the privacy interests of the persons named in those records. She stated her reasons for reaching that conclusion in paragraph 20 of her endorsement:
I find that the records concerning the complainant’s allegations of sexual assault against others (not the applicants) are likely relevant to the issues of the complainant’s credibility and reliability as a witness, as well as to the unfolding of the events giving rise to the charges against the applicants, because they concern allegations of sexual assault against others, which the police concluded did not amount to sexual assault and for which no charges were laid, and many of the surrounding details giving rise to these allegations appear strikingly similar to the circumstances underlying the charges before this court.
[13] Initially, I was confronted at the commencement of the trial with an adjournment request on the basis that the mere volume of the productions from the Toronto and London Police Services relative to the complainant, which counsel only received in its vetted form on October 20, one week before the commencement of the trial, would require time for counsel to digest and fully understand relative to the accused’s right to make full answer and defence. However, faced with a vulnerable complainant, a trial date set one year ago, and no available trial dates until September 2015, even without my encouragement, all parties came to understand the need to proceed with this case now.
[14] Thus, to permit the matter to proceed, and to avoid the need to call a procession of witnesses for the purpose of proving those occurrence report records, defence and Crown counsel reached an agreement on how that evidence would be treated and the basis on which it was to be put forward and accepted by the court. They have agreed that for the purposes of this application and the trial, the police occurrence reports of the complainant’s statements relative to the alleged sexual offences that she claimed took place between 2004 and 2007, and the two non-sexual matters, would be treated, effectively, as if they were statements given by the complainant at that time to the police, statements upon which she could be cross-examined.
[15] The police occurrence reports are therefore not admitted for the truth of their contents, but the descriptions in each relative to what transpired, as relayed to the officers by the complainant, are acknowledged by all parties to be accurate. They are accepted to accurately reflect what J.F. said in the course of making her complaints at that time relative to the non-consensual sexual relations that she alleged took place between herself and other individuals, as well as what was said by those in authority or others with whom she dealt and who are reported to have said certain things.
[16] There are two other important background points that need to be borne in mind before I set out my analysis on the admissibility issue itself. First, as these reasons show, in my view, there are legal and factual reasons why defence counsel ought to be permitted to cross-examine the complainant on those prior events, at least as they relate to or inform a consideration of her credibility as a witness relative to those events. However, the complainant is developmentally challenged. She was claimed by the Crown to have the mental acuity of only a 10 to 12 year-old girl at the time that those occurrences took place between 2004 and 2005, when she was about 19 years of age. While the complainant is now in her late twenties, Crown counsel has advised me that she continues to be developmentally challenged. Her mental and emotional development to date has not progressed materially since 9 or 10 years ago, even though her general behaviour has evidently become considerably less aggressive.
[17] Nevertheless, there was no evidence put before me that would support a contention that the complainant ought to or can be treated as a child witness when she gives her testimony,[^4] nor am I aware of any evidential foundation, apart from s. 276 itself and the possibility of venturing into collateral matters, that would deny the right to cross-examine the complainant on at least part of the record of her prior sexual conduct involving others, given my findings that the three specific occurrence reports noted evidence of complaints made to police authorities that were either recanted or demonstrably false.
[18] Finally, specific note should be made of Roberts J.’s finding that “many of the surrounding details giving rise to these allegations appear strikingly similar to the circumstances underlying the charges before this court.” As I understand it, Crown counsel made no submissions on the third party records application, although she was apparently invited to do so. It is not surprising to me that the Crown would not have made any submissions, because on a third party records application such as the one that was conducted before Roberts J., it is the complainant, J.F., who is the principal person whose rights are engaged in a determination of whether the third party records relating to her ought to be disclosed to the applicants. As is the case in all such applications, she was represented by counsel, in this case by Ms. Dawne Way, who regularly and competently represents complainants in many similar applications heard in Toronto.
[19] The important point, however, is that an assertion of “striking similarity” between the prior occurrences and the predicate offence on which these applicants are standing trial serves no cogent evidentiary purpose on this application, nor indeed at the trial that will follow. On the record that Roberts J. had in front of her, the question may have figured in her analysis of whether the records ought to be produced based on principles of claimed relevancy. Justice Roberts may have regarded the prior events as strikingly similar to these events, but that view does not bind me in any way. In my view, it is not a factor that can weigh in any way in my decision regarding the admissibility of the evidence relative to the prior occurrences.
The Analytical Framework
[20] All counsel agree that subsection 276 (1) of the Criminal Code serves as a complete barrier to the admissibility of evidence of prior sexual conduct for prohibited purposes. That is clearly established by the wording of the Parliament, its intention in enacting the provision, and the governing authorities. At the same time, however, s. 276 does not categorically bar the admission of evidence of a complainant’s sexual activity. The decision of the Supreme Court of Canada in R. v. Darrach makes clear that:
Far from being a “blanket exclusion” 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 a 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.[^5]
[21] Justice Gonthier went on to elaborate in his reasons on the evidence that Parliament intended to be specifically excluded by subsection 276(1). He said:
The phrase “by reason of the sexual nature of the activity” in s. 276 is a clarification by Parliament that it is inferences from the sexual nature of the activity as opposed to inferences from other potentially relevant features of the activity, that are prohibited. 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. The phrase “by reason of the sexual nature of the activity” has the same effect as the qualification “solely to support the inference” in Seaboyer that it limits the exclusion of evidence to that used to invoke the “twin myths”.[^6]
[22] In order to be admissible, evidence of a complainant’s sexual history must meet the requirements of subsections 276(2) and (3) of the Code. It must relate to specific instances of sexual activity, as opposed to the general sexual behaviour of the complainant. It must also be “relevant to an issue at trial”. However, relevance alone is not sufficient to warrant the admission of evidence of a complainant’s prior sexual conduct. In Darrach, the Supreme Court explained that even when evidence of prior sexual conduct is adduced for a non-prohibited purpose, the trial judge must still weigh the probative value of the evidence against its prejudicial effects.[^7] Evidence of a complainant’s prior sexual conduct may be admitted under s. 276(2)(c) if “it has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.” This determination requires the trial judge to take into account the following factors enumerated in s. 276(3):
(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.
[23] Section 276 thus protects the right of the accused to a fair trial while recognizing the prejudicial and distorting effects of forbidden inferences drawn from a complainant’s prior sexual conduct. The following remark by McLachlin J., as she then was, in R. v. Seaboyer is particularly pertinent to the interpretation and application of the rule in s. 276 of the Code:
Accepting that the rejection of relevant evidence may sometimes be justified for policy reasons, the fact remains that [former] s. 276 may operate to exclude evidence where the very policy which imbues the section – finding the truth and arriving at the correct verdict – suggests the evidence should be received. Given the primacy in our system of justice of the principle that the innocent should not be convicted, the right to present one’s case should not be curtailed in the absence of an assurance that the curtailment is clearly justified by even stronger, contrary considerations. What is required is a law which protects the fundamental right to a free and fair trial, while avoiding the illegitimate inferences from other sexual conduct that the complainant is more likely to have consented to the act or less likely to be telling the truth.[^8]
[24] The credibility of the complainant on a matter relating to issues other than sexual activity is an acceptable ground upon which evidence of prior sexual activity may be admitted. In Riley, the Court of Appeal held that defence counsel may be permitted to cross-examine the complainant on her prior allegations of sexual assault against other individuals, but only if “counsel is in a position to establish that the complainant has recanted her earlier accusations or that they are demonstrably false”.[^9]
Application of the Legal Framework
[25] Counsel for the applicants, again referring to the Supreme Court’s decision in Darrach, observed that the s. 276 prohibition is directed at evidence that tends to show that the complainant is “less worthy of belief” by reason of the sexual nature of the activity. Section 276 was created to prevent the “slagging” of a complainant based upon the complainant’s prior sexual history. He submits that, in the present case, the evidence in question is proffered for its non-sexual features as it relates to the credibility of the complainant.
[26] Amongst the defence theories that were being tried out on me as the trial judge in the course of this voir dire, two are in my view prohibited by s. 276 precisely because they result in the slagging of the complainant. They are effectively “similar fact” evidence based theories relative to the prior discreditable conduct of the complainant, advanced to support claims of (i) a pattern of lying by the complainant to the police about allegedly non-consensual sexual activity, and (ii) an intentional elevation by her of the description of the sexual conduct and aggressiveness that was present because of that prior pattern of lying.
[27] In Riley, the court found that a complainant may be cross-examined on her prior recanted or demonstrably false allegations of sexual assault in order to lay the foundation for a pattern of fabrication of similar allegations of sexual assault against other individuals.^10 In the circumstances before me, I have determined that defence counsel may not cross-examine J.F. for the purposes of establishing that her prior conduct reflects a “pattern” of false accusations culminating in the allegations of sexual assault against the applicants. Nor may defence counsel proceed with a line of questioning that suggests a deliberate escalation by the complainant of the severity of sexual assaults perpetrated against her. Rather, defence counsel may cross-examine J.F. on the three occurrence reports discussed below for the sole purpose of challenging her general credibility. I have based this decision on the complainant’s developmental disability, as well as the seven to eight year gap between her prior recanted or demonstrably false accusations and the allegations that have given rise to the charges against the applications. That relatively long gap, in my view, undermines the claim about the existence of a “pattern” of fabrication.
[28] Amongst the evidence that defence counsel sought to have admitted, the occurrence reports of August 31, 2004, October 15, 2004 and April 13, 2005 meet the test in Riley. Each involves an allegation of sexual assault by the complainant against an individual other than the two applicants. Each was, as explained in more detail below, recanted or demonstrably false. In so far that these recanted or false allegations concern the complainant’s credibility, a central issue at the trial, they are relevant and admissible for the purpose of cross-examination.
[29] The first admitted occurrence report detailing a prior allegation of sexual assault dates back to August 31, 2004. J.F., who was 19 years old at the time, reported to the police that she was sexually assaulted by a 22 year-old male that she met at a bar. J.F. told the police that the man bought two beers, walked with J.F. to a shrubby area, and forced her down and had intercourse with her. In her initial statement, J.F. stated that she first said “no”, but later agreed to have sex with the man. The conclusion report produced by the London Police Service indicates, however, that J.F. told the detective that the sexual intercourse was consensual. J.F stated that the man was unaware that J.F. did not want to have sex with him until she informed him after the sex was done. I have determined that this prior allegation of sexual assault and the related Civilian Witness Statement and Conclusion Report are admissible because the allegation was recanted by J.F. herself and, therefore, falls within the exception provided in Riley.
[30] The second recanted allegation of sexual assault admitted into the evidence is the occurrence report of October 15, 2004. On that occasion, J.F. provided a statement to the London Police Service that she spent the night at the house of a male acquaintance who allegedly took off her clothes and had sex with her. J.F.’s statement indicates that she was not sure if the sexual encounter was a rape. According to the Police Witness Statement of the constable in charge, it became apparent during the course of the interview that J.F. did not fully understand the allegation that she was making, including the fact that the sexual act was consensual. J.F. told the police that she wished to continue her sexual relationship with the man on the night in question, and that she in fact attempted to do so. Since this allegation satisfies the Riley test of being demonstrably false or recanted, I have concluded that it is admissible and that defence counsel is entitled to cross-examine the complainant for the purpose of undermining her general credibility.
[31] The third occurrence report admitted into evidence involves allegations of sexual assault made on April 13, 2005. J.F. told the London Police Service that she met a 17-year old male in the street. The two chatted and went to a park, where the male allegedly sexually assaulted her. According to J.F., the male invited her to his basement apartment, where the two had sexual intercourse. While J.F. indicated to the police that the male in question was forceful, the Civilian Witness Statement of her mother, C.F., to whom J.F. disclosed details of the event, indicates that the allegation on this occasion was demonstrably false.
[32] These three prior recanted or demonstrably false allegations of sexual assault against individuals other than the applicants are admitted into evidence since they are highly relevant to the complainant’s general credibility, which is a central issue at trial. As explained above, I have limited the scope and nature of the questions that defence counsel may ask the complainant on cross-examination in order to ensure that her dignity and privacy are protected.
[33] The admission of this evidence, in the limited form described above, is consistent with the interests of justice. It ensures respect for the dignity of the complainant and prevents the fact-finding process from being tainted with discriminatory insinuations and beliefs. At the same time, it protects the right of the accused to full answer and defence and contributes to a just determination of the issues at trial.
Conclusion
[34] The Supreme Court has consistently affirmed that the principles of fundamental justice protect more than the rights of the accused. They “reflect a spectrum of interests, from the rights of the accused to broader societal concerns.”[^11] These broader societal concerns include the protection of the dignity and privacy of complainants in sexual assault cases, and the importance of safeguarding the fairness and truth seeking function of the trial from the distorting and discriminatory effects of evidence of a complainant’s past sexual conduct. Section 276 of the Code categorically bars evidence proffered to support and perpetuate the “twin myth” inferences that a complainant is more likely to have consented or is less worthy of belief because of her past sexual activity. At the same time, s. 276 as well as authorities such as Seaboyer, Darrach, and Riley, provide guidelines for the admission of evidence of a complainant’s sexual history, when specific instances of sexual activity or prior recanted or false allegations of sexual assault are relevant to and substantially probative of an issue at trial, such as the credibility of the complainant as a witness and the reliability of her testimony.
[35] The occurrence reports of August 31, 2004, October 15, 2004, and April 13, 2005 meet the threshold for admissibility. Consistent with the criteria established in Riley, they concern past allegations of sexual assault by the complainant that were recanted or proven to be demonstrably false. I have ruled that these three occurrence reports are relevant to the complainant’s credibility, and that defence counsel is permitted to cross-examine her on these reports for the sole purpose of assisting this court in assessing the complainant’s credibility.
Michael G. Quigley J.
Released: February 11, 2015
CITATION: R. v. A.G. and E.K., 2015 ONSC 923
COURT FILE NO.: CR-14-10000003-0000
DATE: 20150211
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
A.G.
Defendant/Applicant
- and -
E.K.
Defendant/Applicant
REASONS FOR RULING
RE: ADMISSIBILITY OF EVIDENCE
UNDER s. 276 C.C.
Michael G. Quigley J.
Released: February 11, 2015
[^1]: 1992 7448 (ON CA), [1992] O.J. No. 4072 (C.A.), 11 O.R. (3d) 151.
[^2]: 2014 SCC 46, [2014] S.C.J. No. 46.
[^3]: R. v. C.T. (2004), 2004 33007 (ON CA), 189 C.C.C. (3d) 473 (Ont. C.A.).
[^4]: See R. v. W.S., 1994 7208 (ON CA), [1994] O.J. No. 811 (C.A.), (1994), 87 C.C.C. (3d) 242, at p. 7; R. v. B. (G.), 1990 7308 (SCC), [1990] 2 S.C.R. 30; and R. v. W. (R.), 1992 56 (SCC), [1992] 2 S.C.R. 122.
[^5]: 2000 SCC 46, [2000] 2 S.C.R. 443, at para. 32.
[^6]: Ibid., at para. 35.
[^7]: Ibid., at para. 38.
[^8]: R. v. Seaboyer; R. v. Gayme, 1991 76 (SCC), [1991] 2 S.C.R. 577.
[^9]: Riley, at para. 9.
[^11]: Seaboyer, at p. 603.