Court File and Parties

COURT FILE NO.: CR-18-0054-00 DATE: 2019-04-29

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Respondent

T. Jukes, for the Crown (Respondent)

• and -

J.F. Accused (Applicant)

N. McCartney, for the Accused (Applicant) J. Dagsvik, for the Complainant

HEARD: February 19, 2019, at Thunder Bay, Ontario

Madam Justice T. J. Nieckarz

WARNING

AN ORDER RESTRICTING PUBLICATION OF ANY INFORMATION THAT COULD “IDENTIFY” THE COMPLAINANT OR WITNESS HAS BEEN MADE IN THIS PROCEEDING UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA.

By Court Order, there is no ban on publishing the determination under the Criminal Code, s. 278.5(1) or s. 278.7(1) and the reasons under Criminal Code, s. 278.8. See the Criminal Code, s. 278.9(1)(c).

There is a ban on publishing the contents of an application made under Criminal Code, s. 278.3, the evidence taken, information given or submissions made at a hearing under s. 278.4(1) or 278.6(2). See the Criminal Code, s. 278.9(1).

Reasons On Application

Overview

[1] J.F. (the “Accused”) stands charged with committing sexual assault contrary to s. 271 of the Criminal Code upon S.S. (the “Complainant”) on April 23, 2017 and in June of 2017.

[2] The Complainant and the Accused were a cohabiting couple during the time the alleged events are said to have occurred.

[3] The Accused has brought an application, pursuant to sections 276.1 and 276.2 of the Criminal Code, permitting the cross-examination of the Complainant, and allowing the Accused to adduce evidence with respect to the Complainant’s prior sexual history with him. He takes the position that without being able to adduce evidence as to the context within which the events happened, namely the ongoing sexual relationship between the parties, he will not be able to make full answer and defence to the charges against him.

[4] The Crown opposes the application on numerous grounds, the primary one being relevance.

[5] For the reasons set out herein, I dismiss the application. In short, it is my conclusion that the fact that these parties may have had an ongoing, and active sexual relationship, with no prior objections by the Complainant to any activity on previous occasions is not relevant to the issues to be tried. Neither is the fact that they may have previously engaged in bondage related activity.

The Facts

[6] At the Preliminary Inquiry, held on July 6, 2018, the Complainant testified as to the particulars of the alleged events. The events were summarized by the Crown as follows:

a) April 23, 2017 – Event #1

The Accused offered to give the Complainant a back rub in the living room of the home they shared. The Complainant accepted. When the Accused started touching her genitals, the Complainant said “no”. The Accused kept progressing and did not stop after she said “no” multiple time. The Accused called the Complainant a “whiner”, she started crying, and he then stopped.

Preliminary Inquiry Transcript, pp. 9-10

b) June 2019 – Event #2

The Complainant was sleeping in their bedroom, and she woke up at approximately 3:00 a.m. to find the Accused rolling her over, pulling down her pants, and engaging in penetrative sex with her. It was painful. She said “no” multiple times. He flipped her over onto her hands and knees and she started crying inconsolably. She was able to get away, went to a corner and was crying on her knees. He pushed her onto the ground so that her face was on the floor, and ejaculated into her hair.

Preliminary Inquiry Transcript, pp. 11-13

[7] In paragraphs 8 – 11 of the Affidavit of the Accused, sworn January 7, 2019 in support of this application, he provides his evidence with respect to the two alleged incidents that form the subject matter of the charges.

[8] With respect to Event #1, the evidence of the Accused is that while he does recall the Complainant asking him for a “sexy massage”, with the use of erotic products she had purchased, there was no unwanted sexual contact as alleged, or at all. The Accused states that he assumed that there was a sexual element to her request. During the massage he gestured to touch her sexually but she objected. He immediately stopped, and there was no further massage or sexual contact.

[9] With respect to Event #2, the evidence of the Accused is that he does recall a night in which he had consensual sexual intercourse with the Complainant at approximately 3:00 a.m., and it was only in the minutes following this, that the Complainant first expressed being upset. Her upset was over the Accused’s “detached participation in the intercourse”. The Accused and the Complainant discussed her concerns at the time, resolved it, and went to bed.

[10] The Crown does not object to the Accused adducing evidence of, or cross-examining the Complainant with respect to these two incidents. The Crown concedes that paragraphs 8 – 11 of the Affidavit of the Accused do not relate to “other sexual activity” but rather the events in question.

[11] The Crown’s objection lies with paras. 6-7 and 12 of the Affidavit of the Accused. To summarize:

a) Paragraphs 6 and 7 relate to the fact that the Accused and the Complainant were regularly sexually active, engaging in sexual activity every two to three days. The Accused deposes that there were no prior objections to any of the activity by the Complainant, nor did she say anything that expressed and unwillingness to continue to participate, nor did she cry.

b) In paragraph 12 the Accused deposes that during the relationship he and the Complainant sometimes engaged in consensual bondage activity. There was no violence involved, but they had safe words.

[12] In paragraph 13 of the Affidavit of the Accused he states that:

“I feel that I will not be able to fully defend myself against these false accusations, if my trial does not include the context within which these events happened – our ongoing sexual relationship.”

The Law

[13] Section 276 (1) of the Criminal Code provides that “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.”

[14] Section 278.93 of the Criminal Code contemplates a two stage analysis with respect to s. 276 applications as follows:

a) Stage 1 contemplates a review of the written application to determine whether it meets the procedural requirements, and whether it satisfies the threshold issue of relating to evidence capable of being admissible under subsection 276(2);

b) If so, the application will be granted and the matter will proceed to Stage 2. Stage 2 contemplates a hearing under section 278.94 to determine whether the evidence is admissible, taking into consideration ss. 276(2) and the factors set out in 276(3).

[15] Section 276(2) provides that evidence shall not be adduced that the complainant has engaged with sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or any other person, unless the court is satisfied that:

a) the evidence is not being adduced for the purpose of supporting the twin myths set out in ss. 276(1)(a) and (b);

b) is relevant to an issue at trial;

c) is of specific instances of sexual activity; and

d) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

[16] In determining the admissibility of evidence under s. 276(2), s. 276(3) directs the court to take into consideration the following factors:

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; and

h) any other factor that the judge considers relevant.

[17] In R. v. J.G., [2015] O.J. No. 4598, at para. 10, Tausendfreund J. cited with approval the following statement of Heeney, J in R. v. Latreille, [2005] O.J. 4845, at para. 15:

“s. 276 is not a blanket prohibition against ever using the sexual history of the complainant on the issue of consent. It is only where the defence seeks to do so in a way that invokes the “twin myths” that this line of reasoning is prohibited.”

[18] In R. v. J.G. at para. 11, Tausendfreund J. also noted examples of evidence of consensual sexual conduct by the complainant that may be admissible. Citing McLachlin, J. (as she then was) in R. v. Seaboyer, [1991] S.C.J. no. 62, it was noted that these examples may include the following:

“Evidence of a pattern of sexual conduct so distinctive and so closely resembling the accused’s version of the alleged encounter with the victim as to tend to prove that the victim consented to the act charged or behaved in such as [sic] manner as to lead the accused reasonably to believe that the victim consented.”

Analysis

[19] I concur with the Crown that the application must fail at the first stage of the analysis.

[20] The evidence set out in paragraph 12 of the Affidavit of the Accused pertaining to bondage activities is not relevant to the issues to be tried. The Accused fails to demonstrate any nexus whatsoever between the alleged bondage activities and the issues to be determined by the court. He does not, for example, claim that with respect to either Event #1 or Event #2 he believed the parties were engaging in bondage related activities based on previous sexual experiences with the Complainant. I fail to see how this evidence has any bearing on the issues at trial, including but not limited to credibility. Even if there were some probative value to this evidence, it would be limited and would not outweigh the danger of prejudice to the proper administration of justice given the prejudice to the Complainant’s personal dignity and right of privacy.

[21] With respect to the evidence pertaining to an active sexual relationship between the parties with no prior complaints of inappropriate conduct, again, I struggle to see the relevance of this evidence.

[22] The Accused takes the position that being able to lead evidence as to the context within which these events are alleged to have happened is relevant to the issue of credibility and his ability to fully defend himself. That context is the ongoing sexual relationship. Counsel for the Accused argued that the absence of this evidence may lead to a distorted representation of the type of relationship that had developed between these two individuals. He further argued that it is the pattern and nature of the relationship between the parties that is relevant; that there existed a pattern of consensual activity with no objections by the Complainant.

[23] While I acknowledge that there are cases in which the pattern and nature of the sexual relationship may be relevant, I cannot conclude that it is in this case based on the limited evidence currently before the court. Unlike R. v. J.G., the Accused has not demonstrated based on the evidence that there existed a pattern of consensual activity which may be consistent with what occurred during the particular incidents in question. The general description by the Accused in this case of an active sexual relationship does not demonstrate a pattern of sexual conduct so distinctive and so closely resembling the Accused’s version of the alleged encounters so as to prove that the Complainant either consented to the acts or behaved in such a manner as to give raise to an honest but mistaken belief in consent.

[24] The Accused has merely established a pattern of consensual sexual activity. As the trier of fact, in this case the fact that the parties had consensual regular sexual activity does not assist me in a determination as to whether the Crown has proven its case beyond a reasonable doubt with respect to each alleged incident. With respect to each incident forming the subject matter of the charges, the evidence of the Complainant is that she repeatedly said “no” and the Accused allegedly failed to stop. Whether the Complainant did or did not engage in frequent consensual sexual activities with the Accused previously or not is irrelevant to the issue of consent in light of the Complainant’s allegation that she clearly signaled to the Accused that she was not consenting. Given the Complainant’s allegations that she clearly expressed “no”, the general nature of the parties’ relationship is also not relevant to honest but mistaken belief in consent.

[25] I am left to conclude that the only relevance of this general evidence is to support the conclusion that because the Complainant engaged in an active and ongoing sexual relationship with the Accused without any objections, that she is more likely to have consented to the activity alleged by her. This is one of the twin myths that the exclusionary rule set out in s. 276 seeks to guard against.

[26] At the argument of this matter the Complainant’s counsel was present to argue the companion s. 278 application (decided separately) and was prepared to make submissions with respect to the Stage 2 analysis of the s. 276 application. While the Crown quite correctly pointed out that the legislation contemplates two separate hearings for Stage 1 and Stage 2, the parties all confirmed that there would be no further evidence adduced at the Stage 2 hearing, and the Defence and Complainant confirmed that they were prepared to proceed with the Stage 2 arguments. Those arguments were heard by me. The Complainant’s counsel, who has no standing with respect to the Stage 1 analysis, made submissions on the Stage 2 analysis only.

[27] If I am incorrect, and if the general nature of the sexual relationship between the parties can be said to be relevant to an issue at trial, upon a consideration of s. 276(2) and the factors in s. 276(3) I would not determine that the evidence is admissible. As with the evidence of bondage activities, even if relevant, the evidence of the ongoing sexual relationship between the parties would have limited, as opposed to “significant” probative value to a determination as to whether the Crown has proven its case beyond a reasonable doubt with respect to Events #1 and 2.

[28] The requirement in s. 276(2) of “significant probative value” is intended to exclude evidence of trifling relevance that, even though not used to support one of the twin myths, would still endanger the proper administration of justice. R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, at para. 41.

[29] It is undisputed that the parties were living together and in a relationship with each other. The Complainant alleges that on the two occasions in question she said “no” to sexual activity but the Accused persisted. Evidence as to their sexual relationship, including the frequency leading to the incidents in question will not assist me in any meaningful way in arriving at a just determination of the case. It will not assist in determining the issue of consent, honest but mistaken belief in consent or Complainant’s credibility with respect to whether she objected to the activity that forms the subject matter of the charges or not. I therefore do not find any prejudice to the Accused’s right to make full answer and defence by refusing to admit such evidence.

[30] On the other hand, I do find that admitting the evidence would have the potential to prejudice the Complainant’s personal dignity and right of privacy. Unnecessarily delving into the sexual relationship between the Complainant and the Accused does not promote society’s interest in encouraging the reporting of sexual assault offences.

[31] The Application is hereby dismissed.

“Original signed by” The Honourable Madam Justice T.J. Nieckarz

Released: April 29, 2019