Court File and Parties
COURT FILE NO.: CR-1579-16 DATE: 2018-09-21
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN M. Thomaidis, for the Crown
- and -
K.G. R. Mwangi, for the Defendant
HEARD: August 1, 2018
Ruling Re: Prior Sexual Activity
Note: This proceeding is subject to publications restrictions under s. 486.4 of the Criminal Code
BALTMAN J
Overview
[1] The defendant is alleged to have committed sexual assault against B.M., a woman he had been friends with for some time through his social circle. The trial was to proceed before a jury. [1]
[2] The defendant applied pursuant to s. 276(2) of the Criminal Code to adduce evidence of prior sexual activity between the complainant and another man, Steve, whom the defendant also knew. Over the Crown’s objection, and following submissions from both parties, I determined that the defendant met the threshold set out in s. 276.1(4) to hold a hearing on this application.
[3] At the conclusion of the hearing I ruled the evidence admissible, with reasons to follow. The trial proceeded on August 2, 2018, and concluded on August 14, 2018. These are my reasons for my ruling on August 1, 2018.
Alleged Facts
[4] The complainant and the defendant knew each other socially before this incident. In the early morning hours of April 16th, 2014 the complainant and her friend, Anika, gathered at the defendant’s residence. The defendant’s male cousin, Brandon, was also present. All four individuals were drinking and talking in the main living area of the home.
[5] The complainant alleges she became very intoxicated and has limited memory of what followed. She recalls the defendant attempting to kiss her but she pulled away. She continued drinking. Her next memory is finding herself naked with someone penetrating her vaginally from behind, and then being ordered to perform fellatio on the defendant and Brandon. She next recalls being awakened by the defendant, who put her and Anika in a taxi and told them to go home. Later that day the complainant attended the hospital and reported that she had been sexually assaulted.
[6] It is undisputed that at some point during their encounter in his home, the defendant asked the complainant about her relationship with a man named Steve, and whether Steve might react negatively if he knew she had gone to visit the defendant. Importantly, the defendant and Steve knew each other; they grew up in the same neighbourhood and shared friends.
The Application
[7] At the preliminary inquiry in April 2016, when the complainant was asked about Steve during her examination-in-chief, she described him as “a mutual friend between all of us”, with whom she had a “long history”. When asked whether she was “seeing” Steve in April 2014, she replied that the suggestion was “false” and that Steve was not her boyfriend.
[8] However, on the eve of trial, the defence was informed that one of the DNA profiles developed from semen found on the complainant’s underwear within hours of the alleged assault matched Steve. Furthermore, partway through submissions on this application, the Crown advised that on June 5, 2016 – five weeks after the preliminary hearing – the complainant informed Detective Mike Bruce, the Officer in charge of the case, that she and Steve had sexual relations within a week of the alleged assault and that Steve was currently her boyfriend.
[9] The defence in this case is that the complainant consented to the sexual activity with the defendant, or, alternatively, he had an honest but mistaken belief in her consent. The theory of the defence is that the complainant has a motive to fabricate an assault by the defendant because she was then (and continues to be) in a sexual relationship with Steve, and therefore does not want Steve to believe she was unfaithful.
[10] Against this backdrop, the defendant seeks to question the complainant regarding inconsistencies between (1) the DNA evidence and statements made to Detective Bruce (indicative of a sexual relationship with Steve in April 2014), and (2) her previous assertion that she was not “seeing” Steve at that time. Defence counsel will suggest to the complainant that she is lying about being assaulted in order to protect her relationship with Steve.
The Legal Framework
[11] Section 276(1) of the Criminal Code provides that evidence of sexual activity other than the sexual activity at issue is not admissible to support an inference that, by reason of the sexual nature of that activity, a complainant is more likely to have consented to the sexual activity that forms the subject matter of the charge, or that the complainant is less worthy of belief (the “twin myths”): R. v. Seaboyer, [1991] 2 S.C.R. 577, at para. 23.
[12] Section 276(2) sets out three preconditions that must be met before any such evidence can be introduced. First, the evidence must refer to specific instances of sexual activity; second, it must be relevant to an issue at trial; and third, it must have significant probative value that is not substantially outweighed by the danger of prejudice to the administration of justice. The burden of proof is on the defendant to establish these factors on a balance of probabilities.
[13] In determining whether evidence is admissible, I must also take into account the factors set out in subsection(3), which include the right of the accused to make a full answer and defence; whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case; and the potential prejudice to the complainant’s personal dignity and right of privacy.
Submissions and Analysis
[14] The Crown submits that the defendant has failed to demonstrate how the complainant’s prior sexual history with Steve is relevant to the central issue at trial, namely whether she consented to the sexual intercourse that occurred on April 16, 2014, or whether the defendant held an honest but mistaken belief in her consent.
[15] The Crown correctly asserts that as a general rule, prior sexual activity will seldom be relevant to establish consent. Even where, as here, the alternative defence is honest but mistaken belief in consent, prior sexual activity with someone other than the accused is likely not relevant.
[16] But context is everything. This application must be assessed against the evidence before me, which includes not only the transcript from the preliminary hearing and joint statements by counsel, but also the defendant’s affidavit in which he describes his prior relationship with Steve and the dynamics within their social circle. Importantly, Crown counsel could have cross-examined the defendant on his affidavit but declined, leaving the defendant’s evidence unchallenged. Overall, the undisputed evidence is that:
- The defendant and Steve know each other and share friends in common;
- The defendant believed that the complainant and Steve were seeing each other in April 2014 and were in a sexual relationship;
- On the night in question the defendant and the complainant discussed her relationship with Steve, and what Steve’s reaction might be upon learning she was with the defendant that night;
- At the preliminary hearing on April 28, 2016, the complainant denied that she was “seeing” Steve when this alleged assault occurred;
- Six weeks later, on June 5, 2016, she told Detective Bruce that she’d had sexual relations with Steve within a week of this alleged assault, and described Steve as her current “boyfriend”;
- Steve remains her boyfriend today.
[17] In short, when this alleged assault occurred, the complainant was sexually involved with someone in the same social circle as the defendant, and the defendant himself raised with the complainant the prospect of Steve discovering their relationship. Since then the complainant has given inconsistent if not misleading evidence regarding her relationship with Steve at that time. With these unique facts, it is reasonable for the defence to question whether the complainant is motivated to fabricate a sexual assault by the defendant in order to protect her relationship with Steve. This evidence has significant probative value in that regard alone. The evidence is also relevant to the complainant’s credibility, which is pivotal to this case.
[18] Crown counsel argues there is a vast difference between “seeing” someone and simply having sex with them, and therefore it cannot be argued there was any contradiction between the complainant’s evidence at the preliminary hearing and what she told Detective Bruce six weeks later.
[19] I disagree. Even if her relationship with Steve in April 2014 was mainly sexual, the bottom line is that they were, at the time of the alleged assault, at least intimately involved. She was “seeing” him then for some purpose.
[20] In considering whether the evidence of other sexual activity is admissible I have considered all the factors in s. 276(3). In particular, the evidence bears on the defendant’s right to make full answer and defence with respect to a very serious allegation that he forced vaginal and oral sex upon a young woman who was under the influence of alcohol. Given its relevance to the issues, there is a reasonable prospect the evidence will assist in arriving at a just determination of the case.
[21] Moreover, the evidence does not stem from any discriminatory bias but is rather based on the unique circumstances of the persons involved and their prior connections with each other. The inquiry has a defined focus and should consume little trial time. While the case is to proceed before a jury, [2] there is little risk that the evidence will arouse sentiments of prejudice, sympathy or hostility once I relay the appropriate cautions. The complainant’s anonymity can be achieved through a publication ban on her identity.
[22] I am also satisfied that the defence does not seek to elicit this evidence in a way that invokes the “twin myths”. There should be no suggestion that because the complainant consented to sexual activity with Steve, she was more likely to have consented to the sexual acts alleged against the defendant, or that by virtue of her sexual relationship with Steve she is less worthy of belief. Again, this will be reinforced by the appropriate instruction from the bench.
Conclusion
[23] As the preconditions set out in s. 276(2) have been met, the evidence of other sexual activity summarized in paras. 8 and 10 of these reasons is admissible.
As I indicated to counsel, I agreed to rule on the application prior to the commencement of the trial with the caveat that if the trial evidence warrants a review of my initial determination, I reserve the right to revisit my earlier ruling.
Footnotes:
[1] The trial was initially scheduled to proceed before a jury. Shortly before the trial began, the defence sought to re-elect trial by judge alone, but the Crown declined. After I ruled on this motion, and the trial was underway, the Crown agreed to proceed judge alone when the complainant failed to attend court and a material witness warrant was issued.
[2] That was the plan when this ruling was given. The plan later changed: see footnote #1.