Court File and Parties
COURT FILE NO.: CR-14-00002183 DATE: 20160822 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – K.M. Defendant
Counsel: Mr. Tait, for the Crown Ms. Fernandes, for the Defendant
HEARD: August 2, 3, 4, 5, 8, 9, 10, 11, 12, 15, 22, 2016
Publication Restriction Notice
Pursuant to subsection 486.4 of the Criminal Code, there is a ban on disclosing the name of any person involved in the proceedings as a party or a witness or any information likely to identify any such person. This judgment complies with this restriction so that it can be published.
Ruling Regarding Questioning of Complainant’s Mother Regarding History of Sexual Abuse
EDWARDS j. :
Introduction
[1] Defence counsel wishes to cross-examine the mother of a 13 year old complainant about the complainant’s knowledge of her mother’s history of being sexually abused. This issue was confronted during the course of the cross-examination by defence counsel of the complainant, relating to whether or not the defence can delve into the complainant mother’s prior history of sexual abuse.
[2] The accused in this case is charged with Sexual Interference, Invitation to Sexual Touching and Sexual Assault. During the course of the cross-examination of the complainant, defence counsel asked the question as to whether or not the complainant knew of her mother’s prior history of sexual abuse. The Crown objected on grounds of relevance and I ruled that the defence could not put questions to the complainant, or any other witness in this case, that dealt with the mother’s history of sexual abuse. I provided brief oral reasons with an undertaking to give more fulsome reasons, as this appears to be the only case that counsel knows of where this issue has arisen.
Position of the Defence
[3] Counsel for the accused argues that if someone has a personal experience with respect to prior sexual abuse that this may impact on what that person, in this case the mother, may have told her daughter in terms of protecting herself against the possibility of unwanted sexual overtures. Counsel for the accused wants to delve into the complainant’s state of mind, in determining whether or not she had been told how to protect herself against unwanted sexual overtures based on her mother’s prior history of sexual abuse. Defence counsel does not want to get into a blow-by-blow account of the actual sexual abuse suffered by the mother, but argues that the jury should know of that history as it may very well inform how the mother took steps to protect her daughter’s best interests.
[4] Counsel for the defence argues that the protection provided by s. 276 of the Criminal Code only provides protection to the complainant. It does not afford protection to all witnesses. Counsel for the defence argues that if Parliament had intended to provide such protection to witnesses in general it would have done so. As such, counsel for the defence argues that this Court must balance the interests of protecting a witness from questioning with respect to that witness’ history of prior sexual abuse as against an accused’s rights to a fair trial.
Position of the Crown
[5] Counsel for the Crown argues that factually, based on the evidence that unfolded at the preliminary hearing, the complainant in this case did not find out about her mother’s history of prior sexual abuse until after she disclosed the facts that underlie the charges against the accused in this case.
[6] More fundamentally, Crown counsel argues that an individual’s prior sexual history has nothing to do with that individual’s overall credibility. The real issue in this case is whether or not the complainant is telling the truth. A person’s prior sexual history is not relevant to the assessment of the complainant’s credibility.
Analysis
[7] The determination of whether the alleged history of prior sexual abuse suffered by the mother is relevant to the proceedings before this Court is to be determined independent of the analysis that would be done under s. 276 of the Criminal Code. I agree with the argument advanced by Ms. Fernandes that Parliament never intended that s. 276 would apply to anyone other than the complainant. The determination of this issue, therefore, is one to be determined on the basis of relevance.
[8] The jury in this case will ultimately have to decide whether they believe the complainant’s evidence. At this stage of the proceedings, the only evidence that the jury has heard is that of the complainant. Whether the accused will testify will ultimately be a decision made after the completion of the Crown’s case.
[9] The cross-examination of the complainant has not yet been completed. At this point in the cross-examination there have been no questions directed to the complainant, either by the Crown or by the defence with respect to what if any advice, counselling, training or education the complainant may have received from anyone with respect to how to protect herself against unwanted and improper sexual overtures. For want of a better expression, during the course of argument I referred to this type of education as “street-proofing”. The complainant at the time of the alleged offence was 13 years of age.
[10] As I indicated to counsel and as conceded by the Crown, questions directed to the complainant with respect to what information she might have received from her mother with respect to street-proofing could be relevant evidence that the jury might consider in assessing her overall credibility.
[11] Whether the mother in this case had been the victim of sexual abuse at some point earlier in her life, whether as a child or as an adult, in my view has no relevance to the ultimate decision that the jury will have to come to – that being whether they believe the evidence of the complainant. There is no suggestion that the complainant had herself been the victim of prior sexual abuse. There is no suggestion from the record as it has presently unfolded, or as it is anticipated to unfold, that the mother may have spoken to her daughter, the complainant, about street-proofing in the context of her own prior sexual abuse.
[12] I am advised by Crown counsel, and it is not disputed by defence counsel, that the mother gave a statement to the police subsequent to the disclosure made by the complainant about the allegations as they related to the accused. In that statement, for the first time the mother revealed her history of prior sexual abuse. There was nothing from the evidentiary record that the Crown anticipates that would establish any suggestion that the mother advised her daughter of her prior history of sexual abuse, in the context of any discussions that she may have had with her daughter with respect to street-proofing.
[13] In assessing relevance, I am guided by the comments of Watt J.A. in R. v. Luciano, 2011 ONCA 89, [2011] O.J. No. 399, at paras. 203 through 206, as follows:
The issue raised can be determined by the application of general principles of the law of evidence, not the pigeon-hole approach that seems favoured any time the evidence discloses conduct of a party after an offence has been committed.
Relevance is not an inherent characteristic of any item of evidence. Relevance exists as a relation between an item of evidence proposed for admission and a proposition of fact that the proponent seeks to establish by its introduction. Relevance is a matter of everyday experience and common sense. Attaching a label like “evidence of after-the-fact conduct” or “post-offence conduct” to an item of evidence does not establish its relevance. An item of evidence is relevant if it renders the fact it seeks to establish slightly more or less probable than it (the fact) would be without the evidence, through the application of everyday experience and common sense.
We assess the relevance of items of evidence in the context of the entire case and the positions of counsel. Relevance does not exist in the abstract or in the air: R. v. Cloutier, [1979] 2 S.C.R. 709, at pp. 730-32. An item of evidence does not cease to be relevant or become irrelevant because it can support more than one inference: R. v. Underwood (2002), 2002 ABCA 310, 170 C.C.C. (3d) 500 (Alta. C.A.), at para. 25.
To be relevant, an item of evidence need not prove conclusively the proposition of fact for which it is offered, or even make that proposition of fact more probable than not. What is essential is that the item of evidence must reasonably show, by the application of everyday experience and common sense that the fact is slightly more probable with the evidence than it would be without it: 1 McCormick on Evidence (6th ed.), para. 185, at p. 733.
[14] In assessing the credibility of the complainant, the jury in this case - amongst other things, will be told by counsel and by the Court that they are to bring to bear in their analysis their everyday experience and common sense. The assessment of the complainant’s evidence, insofar as she received any information about street-proofing, may ultimately assist the jury in coming to the conclusion that they either believe or do not believe the complainant’s evidence. The fact that her mother may have been the subject of sexual abuse herself has no relevance whatsoever to those considerations and, as such, as I advised counsel at the completion of the argument, questions that might ultimately be directed either to the complainant or to the complainant’s mother with respect to the mother’s alleged history of prior sexual abuse would not be allowed.
Justice M.L. Edwards
Released: August 22, 2016
R. v. K.M. 2016 ONSC 5305 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – K.M. Ruling Justice M.L. Edwards