Court File and Parties
COURT FILE NO.: CR-16-0013 DATE: 2017/06/07 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. N.K.
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Lee Burgess, for the Crown Jason I. Easton, for the Accused
HEARD: June 5, 2017
Amended Endorsement
Introduction
[1] This is a revised version of reasons given at the opening of trial in relation to an application under s. 276 of the Criminal Code. The revisions are to reflect the fact that the evidence given by the accused on the voir dire was ultimately admitted as part of his evidence at trial and to permit publication of the reasons by removing identifying information. The original ruling provided that the reasons along with the affidavit of the accused be a sealed letter exhibit and that no longer applies.
[2] At the time of the s. 276 application, the accused was on trial for sexual assault contrary to s. 271 of the Criminal Code as well as certain other offences. The accused brought the application pursuant to s. 276(2) of the Code for an order permitting the introduction of evidence of “incidents of sexual activity other than the sexual activity that forms the subject matter of the charges before the Court.”
[3] Specifically counsel for the accused wished to ask the complainant questions about an alleged sexual relationship between the accused and the complainant which the accused claims to have existed for several years prior to the events in question. If the accused elected to testify at trial (which he subsequently did) he also sought to admit his own evidence on this point.
[4] The procedure set out in the Code is a two part process. Firstly an application is made in writing under s. 276.1 so that the court may consider whether or not the application has been properly brought and whether or not the evidence is capable of being admissible under subsection 276(2). If the court is satisfied that the evidence has such potential, then the court must conduct a separate in camera hearing or voir dire under s. 276.2 in order to decide whether or not the evidence will in fact be made admissible. The latter requires a finding that the proposed evidence of specific instances of sexual activity is relevant to an issue in the trial and the proposed evidence “has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.” (Criminal Code, s. 276(2); see R. v. Darrach, 2000 SCC 46, at para. 40).
Step I – Is the evidence potentially admissible?
[5] One of the criteria for a properly constituted application is that it is brought on at least seven days’ notice “or such shorter interval” as the court may allow where the interests of justice so require. This application was brought on slightly less than 7 days notice as required by S. 276.1(4)(b) of the Code because the complete written application was only served last Thursday.
[6] I was satisfied that the proposed evidence is capable of being admissible under s. 276(2) and that notwithstanding the short notice to the Crown, the time should be abridged. The Crown was aware of the application and does not seriously contest it on the basis of late notice. As a consequence I proceeded to hold a voir dire.
Step II – Is the evidence actually admissible?
[7] In accordance with the procedure mandated by the Code and articulated in R. v. Darrach, 2000 SCC 46, the accused tendered affidavit evidence, gave oral evidence and was cross examined without surrendering his constitutional right to remain silent during the trial itself. (Although as noted above, he ultimately elected to testify and to include his evidence from the voir dire as part of his trial evidence).
The Evidence
[8] The accused states that he began a sexual relationship with the complainant when she lived with him at his apartment for a period of approximately two months in June of 2010. In his oral evidence he testified that the sexual relationship continued in 2011 and 2012 prior to his marriage to K.L. (but while he was dating her) and as stated in his affidavit that the relationship continued after his marriage until it terminated in October of 2014. He therefore describes a relationship which included many sexual encounters over a period of more than four years.
[9] The accused was cross examined at length. He was shown inconsistencies between his affidavit, his answers to the cross examination and the statement he gave to the police. He describes a relationship that took place at his apartment, at the complainant’s apartment and at various hotels or motels in the Ottawa area. According to him, except for the period in 2010 this was a clandestine relationship which he wished to conceal from his fiancée who later became his wife. His evidence is that the relationship was erratic with some interruptions but he regarded the complainant as his mistress and all of their encounters were consensual.
[10] Without reviewing the evidence in detail, it is fair to say that the evidence of the accused regarding the locations and frequency of these encounters was confusing and inconsistent. He was completely unable to describe with precision any particular event apart from the initial period of time when according to his evidence, the complainant resided with him. I should add that if his affidavit is correct, the relationship predated the complainant’s 18th birthday although the accused was very reluctant to agree with this conclusion when it was put to him in cross examination.
[11] Despite the lack of details, the accused was firm in his evidence that there was a long standing sexual relationship between the two which explains why the complainant was invited to accompany him to the cottage where the sexual assault allegedly took place. He sought to introduce this evidence as he argued that without it he could not make a full and complete defence to the charges levelled against him.
[12] At the time of the voir dire the complainant was expected to testify that the relationship between the parties was platonic and she regarded the accused as a friend. She was expected to state that she had expected his wife to be in attendance at the cottage and would not have agreed to go to an isolated cottage alone with the accused. (This evidence was ultimately given at the trial).
Analysis
[13] No evidence of sexual activity other than the precise activity before the court is admissible to infer that because of that activity the complainant is more likely to have consented to the sexual activity in question nor that the complainant is less worthy of belief. These are the prohibited “twin myths” articulated by the Supreme Court of Canada in R. v. Seaboyer, [1991] 2 SCR 577 and now codified in s. 276. No evidence of previous sexual activity can ever be probative of propensity not to tell the truth nor can the fact of previous sexual activity be used to infer consent. If introduced for either purpose, the evidence would be irrelevant and inadmissible both under the Code and at common law.
[14] If the evidence is not adduced for that purpose then pursuant to S. 276(2) of the Code the court may admit it only if the court is satisfied that the evidence relates to a specific instance or instances of sexual activity, that it is relevant to an issue at trial, and that it has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. S. 276 as it now reads is a codification of the common law as set out in Seaboyer and the section subsequently survived a constitutional challenge. The section as it currently reads was approved by the Supreme Court in R. v. Darrach, 2000 SCC 46.
[15] The accused argued that he was not seeking to admit evidence of propensity. He would not be arguing that the complainant is promiscuous and therefore must have consented nor that she is unworthy of belief because of her sexual history. On the other hand he did wish to use the evidence of a long standing sexual relationship (which she was expected to deny) to impeach her credibility and he did seek to use the sexual history between the complainant and the accused as a building block to prove consent on the occasion in question.
[16] As noted above, the accused was not able to provide consistent details about the previous sexual activity under cross examination. In an inquiry under s. 276 I am not called upon to make findings of credibility or to determine the accuracy or reliability of the evidence put forward by the accused. But I must consider the probative value of the evidence in order to conduct the exercise required by s. 276(2) and to apply all of the factors described in s. 276(3). I must be satisfied that the proposed evidence is necessary to the defence and that the benefit outweighs the potential harm to the complainant’s personal dignity and right of privacy in being subjected to an inquiry into previous sexual activity. I have great difficulty in finding anything in the evidence of the accused that is directly probative of consent on the occasion in question.
[17] In that regard, this case is very similar to R v. G.G., 2015 ONSC 5321 decided by Madam Justice Lacelle. In that case, as in this case, the accused wished to introduce evidence of a previous sexual encounter not to prove a mistaken but honest belief in consent but to prove actual consent. The argument that without the information about the previous sexual encounter, the court may be less inclined to accept the applicant’s assertion that the sexual activity in question was consensual was found by the court in G.G. to be indistinguishable from the prohibited line of reasoning set out in s. 276(1)(a) of the Code. As stated by the Supreme Court in Darrach, at paras. 58 & 59, evidence of prior sexual activity will rarely be relevant to establish consent. I confess I have the same difficulty as Justice Lacelle. I cannot readily distinguish how previous sexual activity can be probative of consent on the occasion in question without engaging the prohibited purpose of inferring that consent is more likely if it had previously been given.
[18] In the C. G. case there was also an element of similar fact evidence as the previous incident involved “rough sex” including biting of the applicant’s penis, pulling of hair and simulated rape. These elements are missing from the present case. The accused simply wishes to prove the lengthy sexual relationship and does not seek to rely on details of the sex acts themselves. But this gives rise to another difficulty. The Crown argues that vague and contradictory evidence about various sexual encounters is so lacking in specifics that it cannot meet the test in s. 276.2 which requires that the evidence admitted be evidence of specific instances of sexual activity.
[19] I do not accept this argument because the accused’s inability to furnish dates and times and places may well be issues going to the weight to be given to his evidence but he is clear that there were specific instances of sexual activity over a long period of time. The evidence may meet the test of being evidence of specific instances of sexual activity without precise dates and times but in my view insofar as its purpose is to prove consent, it founders on the questions of relevance and probative value in relation to that question even if it is not completely inadmissible for that purpose under s. 276(1).
[20] In R.v.Temertzoglou, 2002 ONSC 2852 Madam Justice Fuerst admitted evidence of previous sexual activity because consent and the credibility of the complainant were in issue. The evidence was necessary because it explained a relationship that had developed under circumstances that might otherwise appear incredible and it was necessary to explain certain context of the visit to the motel room on the night in question that might otherwise appear bizarre. This was supported by specific evidence which justice Fuerst was able to determine would be relevant to consent and credibility in ways that did not involve twin myth reasoning. I do not have this kind of evidence from the accused in relation to consent. His general evidence of an ongoing consensual relationship fails to address how that can prove consent on the night in question without twin myth reasoning.
[21] Although the evidence of the prior sexual relationship may not be used to prove consent standing alone, the evidence may nevertheless be relevant and admissible to challenge credibility. R. v. Harris was a decision of the Ontario Court of Appeal written by Moldaver J.A. (as he then was) and although it pre-dated the decision in Darrach it followed the analysis set out in Seaboyer and is consistent with the law subsequently enunciated in Darrach. In Harris Mr. Justice Moldaver is clear that evidence of prior sexual activity cannot be relevant to consent although it could in some circumstances be relevant to the defence of mistaken but honest belief (not available in Harris). On the other hand he did admit the evidence because of the central importance of credibility. The complainant had opened the door to this because she had testified that the relationship with the accused in Harris was a platonic one and she had therefore placed the nature of the relationship in issue. He ruled that cross examination and rebuttal evidence about the nature of the previous relationship should have been permitted.
[22] A similar result was reached by Madam Justice Thorburn in R. v. Ludlow. The accused was permitted to cross examine the complainant concerning a previous sexual relationship for the limited purpose of proving a prior inconsistent statement but not to support an inference that the complainant was likely to have consented on the occasion in question. As noted, the question of credibility was also central to the ruling in R. v. Temertzoglou.
[23] I therefore conclude that fairness to the accused demands that he be permitted to cross examine the complainant on her allegation that there had never been a sexual relationship between them and to put in his own evidence about the nature of the previous relationship. While the evidence of previous sexual activity may not be used to infer consent, it has to be borne in mind that it is the Crown who has the onus of proving the elements of the offence including lack of consent. In that analysis, the credibility of the complainant is of central significance since she will be the primary witness.
[24] The precise determination of what is permissible cross examination and what evidence may be called in response must be determined in the context of the trial itself. It remained possible that the application of this ruling might have to be considered or re-considered in light of the evidence actually given by the complainant as well as other rules of evidence. The actual use of the evidence will be addressed in my reasons for judgment.
Conclusion
[25] In conclusion, having regard to the factors in s. 276(3) of the Code, I have ruled that the evidence concerning a previous ongoing sexual relationship is admissible. This is for the purpose of assessing credibility and not for the purpose of inferring consent. Moreover, it is the sexual nature of the relationship and its duration that are in issue and not explicit questions about the sexual acts themselves.
[26] In addition to ruling on admissibility, I am required by the Code to identify the relevant factors enumerated in s. 276(3). The relevant factors are (3)(a), (3)(b), (3)(c), (3)(d), 3(f) and 3(g). I am satisfied that the order I am making balances the needs of justice for the accused and protection of the complainant’s privacy in a manner that does not discourage the reporting of sexual offences and is in the public interest.
[27] At the time of the voir dire I indicated that it remained to be seen whether such evidence would actually be adduced, whether it would be inadmissible for any other reason, whether or not it would be credible and reliable and whether it should be given any weight. It was important to make that point because the evidence heard on the voir dire did not at that time form part of the trial and the affidavit of the accused or his cross-examination on that evidence did not require him to give up his right to remain silent in accordance with the ruling in Darrach. He only made the election to testify after the Crown had closed his case.
[28] S. 276.2 requires me to give reasons and enter them into the record but it also requires that those reasons not be made public unless the judge otherwise orders. I originally delivered the reasons orally as part of the voir dire. A written copy of the original endorsement was provided to counsel. The application, the supporting affidavit and a copy of those reasons was sealed and marked as a lettered exhibit.
[29] As the trial is now concluded and the accused with the consent of the Crown adopted his voir dire evidence as part of his evidence at trial, the sealing order is no longer required and was set aside. His affidavit was marked as an exhibit and I have released this amended version of my endorsement to the parties and it may be published in this form.
Mr. Justice C. MacLeod Date: June 5, 2017, amended for publication, June 8, 2017