Court File and Parties

Court File No.: 955/18 Date: 2019-03-20 Superior Court of Justice - Ontario

Re: R. v. A.S.

Before: The Honourable Mr. Justice R. Dan Cornell

Counsel: Kevin Ludgate, for the Crown, Danielle J. Vincent, for the Applicant, Alyssa J. Caverson, for the Complainant,

Heard: March 13, 2019

Endorsement on Application under s. 276 of the Criminal Code

[1] This is an application by the accused to permit certain evidence of the complainant’s sexual activity to be admitted at trial.

[2] It was acknowledged that the application met the requirements of s. 276.1 of the Criminal Code, R.S.C. 1985, c. C-46. Orders were made that the public be excluded at the time of the hearing.

[3] To its credit, the Crown has acknowledged that it is the Crown’s opinion that the requirements of s. 276 of the Criminal Code have been met in connection with the requests made on the behalf of the accused with the exception of certain references to sexual activity by the complainant with her husband.

[4] The complainant sought counselling services from the accused who represented that he was a medical doctor and a psychiatrist. It is acknowledged that at the time that the counselling services were provided, the accused had lost his license to practice medicine.

[5] The counselling sessions began in April of 2015. It is alleged that at some point in time in September of 2015 sexual activity took place between the complainant and the accused. It is alleged that a second sexual incident took place in October of 2015.

[6] Prior to and during the time of these incidents, various messages were sent to and from the accused and the complainant. Many of these messages contain explicit sexual references.

[7] The messages in question were marked as exhibits at the preliminary hearing. Subject to this court being satisfied that the requirements of s. 276 have been satisfied, it is the view of the Crown that preliminary exhibits 2, 3, 5, 6, 7 and 9 are properly admissible. The Crown takes exception to the inclusion of two paragraphs contained within exhibits 6 and 7.

[8] It is the Crown’s view that the post October 2015 communications are admissible.

[9] It is the Crown’s view that exhibits 1A and 1B and exhibit 8 from the preliminary inquiry do not reference sexual activity and accordingly do not fall within the ambit of s. 276. I agree.

[10] I am satisfied that the requests made by the accused detail specific instances of sexual activity.

[11] For the reasons that follow, I agree with the view held by the Crown that with an exception previously mentioned that will be subject of further discussion, the documents that the defence seeks to have admitted at the trial are admissible as having met the requirements of s. 276.

[12] I now turn to the objections raised by the Crown about references to sexual activity with the complainant’s husband. In exhibits 6 and 7, the complainant makes reference to sexual activity between her husband and her at which time she was “still thinking about you” [the accused]. The Crown seeks to remove these paragraphs from such records.

[13] It is the position of the accused that the complainant was the driving force in the relationship and that she consented to the sexual activity. The passages in question are relevant to that issue. The passages in question are also relevant to the complainant’s state of mind at the relevant time, something she was unable to recall at the preliminary hearing. Accordingly, I am of the opinion that exhibits 6 and 7 should be admitted in their entirety and not be subject to redaction.

[14] I am satisfied that the accused has demonstrated that the evidence that he seeks to adduce is relevant to additional issues that are likely to arise at the trial. These include the complainant’s possible motive to fabricate, whether or not she consented to the sexual activity and to assess her credibility given the evidence that suggests the complainant may be faced with evidence of prior inconsistent statements at the trial.

[15] The complainant’s state of mind and her operating mind at the relevant time will undoubtedly be relevant at the trial. The evidence that has been requested will be of assistance with respect to those issues as well.

[16] As previously mentioned, the issue of consent will clearly be an issue at trial. If consent can be established, the remaining issue will be whether such consent was vitiated by the fact that the accused was in a position of trust at the time of the alleged sexual activity.

[17] These issues cannot be considered in a vacuum. The evidence that the accused seeks is relevant to the issues I have identified and necessary for the accused to defend himself. To deny production of these records would deny the accused of his right to make full answer and defence.

[18] I am satisfied that the evidence that is sought is not being tendered to support either of the twin myths.

[19] In addition to the factors that I have mentioned and discussed, I have carefully considered the factors that are enumerated in s. 276(3) of the Criminal Code.

[20] After considering all of these factors, I conclude that the evidence that is sought to be adduced by the accused has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

The Honourable Mr. Justice R. Dan Cornell Date: March 20, 2019