CITATION: R. v. S.M., 2017 ONSC 6226
COURT FILE NO.: CR-39700-17-13
DATE: 20171018
INFORMATION CONTAINED HEREIN REGARDING THE IDENTITY OF THE (WITNESSES OR COMPLAINANT) IS PROHIBITED FROM PUBLICATION BY ANY METHOD PURSUANT TO AN ORDER UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
S.M.
Defendant
Isabel Blanchard, counsel for the Crown
Dominique Smith, counsel for the Defendant
HEARD: October 6th, 2017
ruling under section 276 Criminal code
laliberté, j.
INTRODUCTION
[1] The accused, S.M. is charged with having sexually assaulted his partner D.M. The incident is said to have occurred in their home between February 1st, and 29th, 2016.
[2] He has brought an Application pursuant to section 276 of the Criminal Code seeking permission to cross-examine the complainant in regards to a consensual sexual encounter which he says took place after the alleged sexual assault on either February 24th or 25th, 2016.
[3] On October 6th 2017, the Court ruled that the accused had met the procedural and substantive threshold set out in section 276.1 and granted the application thereby allowing the holding of a hearing to determine whether the impugned evidence is admissible at trial under subsection 276(2).
[4] The hearing under section 276.2 proceeded on the same date. The accused testified and was cross-examined by Crown counsel. He also filed a sworn affidavit which was filed as Exhibit #1.
[5] The Court must now decide whether this evidence will be admitted at the trial set to proceed on December 6th, and 7th, 2017.
THE FACTS
[6] The evidence provided in the section 276.2 hearing reveals that the parties were in a relationship from September 2013 to January 2016. They resided together in a jointly owned home located in North Stormont Township. The accused states that while he resided in the home up to the end of February 2016, he had terminated the relationship in January 2016. They were not sharing a bedroom after January 2016. He explains that the complainant was not pleased with his decision to put an end to their relationship and leave the home.
[7] He indicates that the complainant attended the police detachment on August 31st, 2016, and alleged having been sexually assaulted by him at the end of February 2016. She would have stated that the accused had left the residence a couple of weeks after the alleged incident.
[8] The accused reports that the complainant provided the following details of the alleged sexual assault to the police:
"7. The complainant further states that on a Thursday evening in the month of February, 2016, at approximately 9-10 p.m., she was upset and crying. On that night, she confronted me regarding my decision to end our relationship and she asked me to come and lay with her in bed. She further states that she was wearing a t-shirt and could not recall if she was wearing any underwear at the time. She states that I was wearing only underwear."
The complainant further states that we laid in the complainant's bed under the sheets and that I was cuddling from behind.
The complainant further states that she continued to cry while we cuddled, eventually stopping due to exhaustion.
The complainant further states that, a brief time later, she felt me penetrating her vagina with my penis twice. She states that she did not say anything to me and that she laid there motionless thinking "why this was happening?" The complainant further states that she did not want to have sexual intercourse with me...
The complainant further states that she did not fear me until the night that she claims that I sexually assaulted her...
The complainant does not state that we had any additional sexual interactions during the two weeks following the night that she claims I sexually assaulted her.
During her interview with police at the Long Sault Ontario Provincial Police Detachment, on August 31, 2016, the complainant stated "I probably called police out of fear, because I didn't know what was going to happen on Saturday. All I know is I panicked and I didn't want to be there but I also didn't want to leave him in the house alone with him taking whatever he wanted and coming home to an empty home."
[9] The accused denies having had non-consensual sex with the complainant. He states that she had never acted as if she was afraid of him prior to his leaving the home. Nor had he ever given her a reason to be afraid of him.
[10] He states the following at paragraph 21 of his affidavit:
"21. The complainant is very upset that I ended our romantic relationship. Any "fear" that the complainant might have related to me retrieving my possessions from the residence and her not being able to replace those possessions without incurring significant expenses."
[11] The accused testified that he continued to pay the mortgage on the home for a period of 4 months following his departure at the end of February 2016. He indicates that he then went bankrupt. He suggests that the complainant contacted the police and fabricated these fake allegations as a response to him stopping the mortgage payments and expenses for the home.
[12] The accused describes 2 distinct sexual encounters with the complainant in February 2016. He describes the 1st one as follows:
"18. I remember a sexual interaction with the complainant in the month of February 2016 that was particularly "cold". During this interaction we were having consensual sex, but the complainant and I were not kissing or caressing each other. We changed sexual positions at least twice. The complainant was on her back at one point, and on her hands and knees at another point. I believe that this is the incident that the complainant is referring to when she claims that she was sexually assaulted."
[13] The second encounter is the subject matter of this application. He provides the following particulars:
"19. I also remember a subsequent instance of consensual sex with the complainant. This was the last time I had consensual sex with the complainant. I believe it took place on either February 24 or 25, 2016, which was approximately one or two days before I permanently stopped residing at the residence on February 26, 2016. During this episode of consensual sex, the complainant and I changed sexual positions at least three times. The complainant was on her back at one point, on her hands and knees at another point, I penetrated her from the sides at another point. This sexual interaction was passionate. We both engaged in significant kissing and caressing.
POSITION OF THE PARTIES
DEFENCE
[14] Defence's position is that it should be allowed to introduce the complainant's post event sexual conduct in this trial.
[15] Counsel raises the following points in support of this position:
− The evidence provides a detailed account and particulars of the complainant's alleged other sexual activity.
− This evidence is relevant to issues in this trial:
• Relevancy revolves around the complainant's professed fear of the accused following the alleged sexual assault; the essence of the argument is that she would probably not have consented to sex with the accused had she feared him
• Relevancy is also grounded on the complainant's credibility and reliability; not knowing what her position is on whether or not she did have a post consensual sexual encounter with the accused, her possible responses are significant to her credibility and/or reliability
− The evidence has probative value which outweighs prejudice :
• It allows defence to provide full answer and defence
• The focus will be on the nature of the contact as oppose to the specific sexual acts
• The complainant will not be questioned at large on her sexual activities; nor will her historical sexual conduct be raised; the focus will be on one specific event for which she will receive prior notice
• Her personal dignity and privacy will be preserved
• The issue of the complainant's fear is relevant and will assist the Court in arriving at a just determination in this trial
• This is a judge alone trial
• The relevancy is not based on any discriminatory beliefs, bias or the twin myths noted in section 276
CROWN
[16] The Crown opposes the accused's request to admit this evidence.
[17] While it is conceded that it is evidence of particular sexual activity, the Crown maintains that it is not relevant to an issue in this trial and highly prejudicial.
[18] Crown counsel raises the following considerations:
− The evidence and its proposed use fall within both prohibited grounds
− The dual myths are hidden in this application:
• The complainant is more likely to have consented to the sexual activity that forms part of the subjected matter of the charge because she engaged in other consensual sexual intercourse
• She is less worthy of belief; she is less credible because she engaged in consensual sex
− Evidence of other sexual activity will rarely be relevant to support a denial that sexual activity took place or to establish consent
− The accused has failed to show on balance that the evidence has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice:
• The evidence will not assist the Court in arriving at a just determination in this trial
• Its admission will only serve to distort the truth-seeking purpose of the trial
• The Court will be called upon to make findings of credibility and reliability if the complainant denies the alleged sexual encounter; this will distance the Court from the true essence of this trial
• The evidence raises discriminatory beliefs and bias; every victim of a sexual assault reacts differently; in a domestic context, a non-consensual sexual encounter does not inevitably preclude the possibility of subsequent consensual sex
THE LAW
[19] In deciding this matter, the Court is guided by the following relevant principles:
− section 276(1). In proceedings in respect of an offence under section ...271..., 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
− section 276(2)... 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... determines... 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
− section 276(3) In determining whether evidence is admissible..., the judge 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
(h) any other factor that the judge considers relevant
JURISPRUDENCE
− section 276 applies to all of the complainant's sexual activities, whether with the accused or with someone else; it applies to non-consensual as well as consensual sexual activity; it equally applies to sexual activity that precedes and/or follows the subject matter of the charge
R. v. Boulianne [2009] N.B.J. no 398
− relevance is fact-specific; it depends on the material facts in issue, the evidence adduced and the positions of the parties; evidence does not have to establish or refute a fact in issue to be relevant; it need only, as a matter of common sense and human experience, have some tendency to make the existence or non-existence of that material fact more or less likely; there is a big difference between evidence that is relevant and evidence that is determinative
- R. v. L.S. op.cit.
− if evidence is not barred by s.276(1) because it is tendered to support a permitted inference, the judge must still weigh its probative value against its prejudicial effect to determine its admissibility
- R. v. Darrach, op. cit.
− significant probative value means that the proposed evidence is not to be so trifling as to be incapable, in the context of all the evidence of raising a reasonable doubt
R. v. Darrach, op.cit.
R. v. L.S., op.cit.
− evidence of prior sexual activity will rarely be relevant to support a denial that sexual activity took place or to establish consent; the determination of consent is only concerned with the complainant's perspective; the approach is purely subjective; actual consent must be given for each instance of sexual activity
- R. v. Darrach, op.cit
DISCUSSION
[20] Having considered all of the circumstances in this matter and the relevant principles, the Court finds that the complainant's alleged post sexual activity is admissible and the accused is given leave to adduce same at trial.
[21] The Court is of the view that the accused has met the three components set out in section 276(2) on a balance of probabilities.
[22] Firstly, the impugned evidence relates, to a specific instance of sexual activity. It is particularized as follows:
− Date
− Location
− Circumstances
− Details of the encounter
[23] The Court notes that Crown counsel had conceded that the evidence qualifies as specific instances of sexual activity.
[24] Next, this specific instance of sexual activity is found to be relevant to an issue at trial.
[25] The complainant and the accused agree that the sexual encounter which is the subject matter of the charge under section 271 did take place. The complainant asserts that she did not consent. The accused provides a somewhat different factual scenario and maintains that the sexual contact was consensual. So that properly articulated, the issues in this trial will be whether the complainant consented and credibility.
[26] The post-event sexual activity is found to be relevant to these core issues beyond the prohibited inferences set out in section 276(1). To be clear, the evidence is not allowed for the purpose of showing that the complainant is more likely to have consented and/or that she is less worthy of belief by reason of the alleged post-event sexual activity.
[27] The significance and relevancy of such evidence to the issues of consent and credibility find support in a number of cases, including decisions from the Ontario Court of Appeal.
[28] In R. v. Van Oostrom [1993] O.J. no 1084, the trial Judge had considered evidence of "continued friendly social contact" and " consensual sexual intercourse" after the alleged sexual assaults against the 2 complainants.
[29] The Ontario Court of Appeal ruled that the trial Judge was correct in finding that such evidence was relevant "... as part of the totality of the evidence to be considered in determining whether the specific acts of sexual intercourse referred to in the indictment were non-consensual."
[30] Similar reasoning is found in the Ontario Court of Appeal's recent decision in R. v. L.S. 2017 ONCA 685, [2017] O.J. no 4586.
[31] The facts in that case revealed that the parties continued a relationship that included consensual sexual intercourse after the alleged sexual assault. The accused had brought a section 276 application.
[32] The Court stated the following on the issue of the relevance of post-event consensual sexual activity:
"88. I think that evidence that the relationship between E.K. and the appellant, including the sexual component of the relationship, carried on as it had before the alleged assault was relevant to whether the assault occurred. The defence could argue that evidence that the sexual component of the relationship carried on as before, supported the defence position that the parties carried on as if nothing had happened because nothing had in fact happened."
"89. I do not suggest that evidence that E.K. and the appellant continued a relationship that included consensual sexual intercourse after the alleged assault demonstrated that the assault did not occur. Different people will react differently to the same event. However, to acknowledge that evidence that the relationship continued as before was far from determinative of whether the assault occurred, is not the same as holding that the evidence is irrelevant. Evidence does not have to establish or refute a fact in issue to be relevant; it need only, as a matter of common sense and human experience, have some tendency to make the existence or non-existence of that material fact more or less likely. There is a big difference between evidence that is relevant and evidence that is determinative... This evidence was relevant."
[33] The relevance of this evidence to the issues of consent and credibility is further reinforced by the complainant's statement to the police that she had started to fear the accused after the alleged sexual assault. It is also reported that she told the police that she called them "out of fear"... "That she didn't want to be there".
[34] The Court is mindful that "... different people will react differently to the same event". Furthermore, as stated by the Supreme Court of Canada in R. v. D.D. 2000 SCC 43, [2000] 2 S.C.R. 275, "... there is no inviolable rule on how people who are the victims of trauma like sexual assault will behave..."
[35] However, evidence of what is described by the accused as a consensual and passionate sexual encounter following an alleged recent episode of sexual violence instilling fear in the complainant cannot be seen as irrelevant to the core issues in trial. Such evidence has, as a matter of common sense and human experience, some tendency to make the existence or non-existence of the material facts more or less likely. To use the words of the Court of Appeal in R. v. Van Oostrom, op.cit, it is relevant "... as part of the totality of the evidence to be considered in determining whether the specific acts of sexual intercourse referred to in the indictment were non-consensual".
[36] The Court's view on the issue of relevance finds support in the following cases which the Court has reviewed and considered:
− R. v. T.J. [1994] O.J. no 4167
− R. v. K.C. [2005] O.J. no 2396
− R. v. R.S.L. 2006 NBCA 64, [2006] N.B.J. no 226
− R. v. Bartlett [2015] S.J. no 747
[37] Finally, the proposed evidence is found to have significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. This conclusion is based on the following considerations:
− It is not trifling in nature; it is capable, when looked at in the whole of the evidence, of raising a reasonable doubt on the issue of consent
− The trier of facts could conclude that the complainant would have unlikely consented to a passionate sexual encounter within a relatively short period of time following an incident of sexual violence which generated fear of the accused
− The fact that it is relevant and capable of raising a reasonable doubt make it such that its admission is in the interests of justice, including the right of the accused to make a full answer and defence
− Its rejection would provide the trier of facts with a limited and partial picture of the events and circumstances alleged by both parties
− There is a reasonable prospect that the evidence will assist in arriving at a just determination in the case
− Its admission at trial is not based on any discriminatory belief or bias; the significance of the evidence is not that it makes it more likely that she consented and/or that she is less worthy of belief; it is based on the notion that being subjected to sexual violence and being fearful by reason of this sexual violence would tend to make subsequent participation in a passionate consensual sexual encounter less likely
− While the Court will likely be called upon to assess the complainant's and the accused's credibility in regards to the alleged post-event sexual activity, this will not result in distorting the truth-seeking purpose of the trial; the Court is capable of properly measuring this evidence and giving same its due weight and consideration; the focus of the trial remains whether the complainant was sexually assaulted by the accused as alleged by her; the other sexual activity will be part of the evidence to be considered by the Court
− This is a judge alone trial so that the evidence will not unduly arouse sentiments of prejudice, sympathy or hostility in the trier of facts
− The Court will ensure that the complainant's dignity and right of privacy will be maintained:
• This will not be a fishing expedition
• The questioning and evidence will be limited to the alleged post-event consensual sexual activity
• The focus will be on the nature of the sexual encounter as oppose to the specific details of same
• The Court will order a publication ban prohibiting any evidence which may serve to identify her
CONCLUSION
[38] The accused's application under section 276(2) of the Criminal Code is therefore granted.
Justice Ronald M. Laliberté
Released: October 18th, 2017
CITATION: R. v. S.M., 2017 ONSC 6226
COURT FILE NO.: CR-39700-17-13
DATE: 20171018
INFORMATION CONTAINED HEREIN REGARDING THE IDENTITY OF THE (WITNESSES OR COMPLAINANT) IS PROHIBITED FROM PUBLICATION BY ANY METHOD PURSUANT TO AN ORDER UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
S.M.
ruling under section 276 criminal code
Justice Ronald M. Laliberté
Released: October 18th, 2017