minicounsel

Court File No.: 17-SA5020 Date: 2019/05/14 Superior Court of Justice - Ontario

Re: Her Majesty the Queen v. A.J.

Before: Justice R. Laliberté

Counsel: Stephen J. Donoghue, Counsel for the Crown Graham S. Bebbington, Counsel for the Defence Tony Paciocco, Counsel for Complainant R.L.

LALIBERTE, J.

1The accused, A.J., is charged with having sexually assaulted the complainant R.L.. His trial is set to proceed on May 21st, 2019.

2He has brought an application under s. 276 of the Criminal Code, R.S.C., 1985, c. C-46 (the “Code”) seeking the admission at trial of evidence that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge.

3The Crown and counsel acting on behalf of the complainant in this application are opposed to the admission of such evidence.

[4] The Crown agreed that the application met the procedural and substantive threshold set out in s. 278.93(4) such that, there was a basis for the holding of a hearing under s. 278.94 to determine whether the evidence is admissible under s. 276(2). The Court was in fact satisfied of the following:

a copy of the application was given to the prosecution and the Clerk of the Court at least seven days prior; and
the evidence sought to adduced is capable of being admissible under s. 276(2).

5The Court also ensured that the complainant was advised of the application and of her right to participate in the hearing and be represented by counsel. She has chosen to participate and is represented by counsel.

6So that the issue for the Court is whether the evidence of the complainant’s other sexual activity sought to be admitted by the accused should be allowed under the provisions of s. 276 of the Criminal Code.

The Facts

7Much of the issues in this application revolve around the true nature of the relationship between the parties prior to the December 4th, 2016 alleged sexual assault.

8The prosecution summary provided to the Court reveals that they had known each other for approximately 4 years. The accused was 24 at the time of the alleged offence while the complainant was 20. The said summary goes on to explain that they shared mutual friends and were friends themselves but were never romantically involved.

9The complainant states that on December 4th, 2016, she texted the accused wanting to meet with him to discuss the fact that he was having a relationship with her 18 year-old cousin. She felt he was dating her cousin as a means to get back at her.

10She was picked-up by the accused at her residence and driven to an apartment at 1400 Lepage Street. They sat on a mattress in the living room as there was no furniture and talked about his relationship with her cousin. At the end of the conversation, she laid down and placed her head on his lap. In her December 13th, 2016 statement she reported that she did so because her back started to hurt. She reached out her hand to him and asked if they were cool. He would have touched her face and tried to kiss her but she was turning her face and saying no that they couldn’t do this. He would have then asked her to remove her clothing which she refused to do.

[11] The police summary described the alleged sexual assault as follows: “The victim and the accused stood up and the accused told the victim to take her jacket off and followed her to the bathroom. The victim tried to close the door and the accused pushed on the door to keep it open. Once in the washroom, the accused turned the victim around and took off her jacket and pulled down the straps of her jumpsuit and took her bra straps off. The victim tried to get the accused to stop and he told her he was too horny.

The accused then pushed the victim into the bedroom and forcefully kissed her then pulled her clothes off. After pushing the victim onto the bed, the accused then inserted his finger into the victim’s vagina telling her – you don’t want me to put it in so let me do this.

The accused then flipped her over so that he could sit on the victim’s chest and then he put his penis into her mouth. The victim told the accused – No I don’t want to do this. The accused then grabbed the victim’s legs and put them over her head and forced his penis inside her vagina. The victim told the accused that she did not want to do this and the accused said that he just wanted to go faster. The victim kept pushing onto the accused forcing his penis to fall out of her vagina. The accused then masturbated in front of the victim until he ejaculated.

During the interview with the police, the victim stated that she kept repeating the word no and said it at least 15 times during the sexual assault”.

12In his March 25th, 2019 affidavit filed in support of his Application, the accused states that the December 4th, 2016 sexual activity was consensual and if not, he held an honest but mistaken belief that it was consensual.

[13] He described his relationship with the complainant as being an “unlabeled and informal romantic relationship” meaning that they were not officially boyfriend and girlfriend. The nature of their relationship would vary in accordance with their involvement with other people. He reports the following sexual activities:

in 2015, they went to see a movie; there was kissing and sexual touching;
around July 2016 they regularly went on dates and would kiss;
from July to October 2016, they would kiss for long periods; there was also sexual touching;
on one occasion in October 2016, they drove to an area near Albion Road South and the train tracks that she had shown him; he performed oral sex on her and engaged in sexual intercourse; the text messages filed as Exhibit A in this hearing refers to this sexual encounter;
in late November 2016, he received oral sex from her; she stopped just before he ejaculated as she was mad at him because he was dating her friend.

14The accused suggests that the complainant was angry that he was romantically pursuing her cousin during the period of December 4th, 2016.

15The materials provided to the Court in this Application reveal that the complainant has provided the following description of her relationship with the accused:

(i) Prosecution summary – March 13, 2017

known each other for approximately 4 years;
they shared mutual friends and were friends themselves, however, were never romantically involved;

(ii) Transcript of complainant’s testimony during the June 7, 2018 preliminary inquiry

their relationship was an on and off friendship;
she thought of him as a best friend
- she could trust him;
- she could confide in him;
- she would spend time with him;
- he did nice things for her;
he wanted her as a girlfriend and told her so;
she never had romantic feelings for him; he was just a friend;
she describes the incident at the movies as just having broken off with her boyfriend and feeling upset; she didn’t want to be with the accused forever in the future; she went to the movies with the accused to get advice and comforting.

(iii) Police interview – December 13, 2016

he was a friend;
he was a really close friend;
he really does have love for her;
he is such a nice guy and did everything for her during her birthday;
he loves her;
she never wanted to be with him or anything like that;
their relationship was always on and off;
they always fought over small little things;
he told her “I really do love you”; this has been an ongoing issue because he keeps trying to prove how much he loves her;
he knows that she doesn’t love him in that way; she doesn’t love him in a “boyfriend/girlfriend” way;
in a perfect world they would probably be together but his attitude doesn’t work with her; it would not be healthy for them to be in a relationship;
she would not date him and he thought she treated him bad because of this;
she describes the occasion when they had gone to the movies and kissed; she had just broken up with her boyfriend and went to the movies so he could try and cheer her up.

(iv) Complainant’s R7 statement – December 6th, 2016

she describes the accused as her really close friend;
she had told him on December 4th, 2016 that she still wanted to be his friend but didn’t love him the same way he loved her.

16The accused filed a supplementary affidavit sworn by him on April 24th, 2019 which was filed as Exhibit “A” in this hearing. Attached to this affidavit are some text messages of a sexual nature which he states were communications between him and the complainant on October 24th, 2016 referring to their sexual activities.

Position of the parties

Defence (Applicant)

[17] The accused’s position is that the proposed evidence of the complainant’s other sexual activity is admissible because:

it is of specific instances of sexual activity;
it is relevant to issues at trial;
its significant probative value is not substantially outweighed by the danger of prejudice to the proper administration of justice.

18It is argued that the impugned evidence, which includes the text messages filed as Exhibit “A”, is relevant and necessary in order for the Court to properly understand the context surrounding the alleged sexual assault and the whole relationship between the parties. The narrative is necessary to refute the complainant’s claim that they were just friends.

19The evidence is relevant and necessary for narrative, context, motive to fabricate and credibility.

20It is said that excluding this evidence would distort the fact-finding process and artificially render the accused’s position that there was consent and/or a reasonable belief in consent inherently improbable. This in turn would hinder his right to make full answer and defence.

[21] The following points are raised in regards to the weighing of the probative value and prejudicial effect of the impugned evidence:

the evidence is not being tendered in support of the twin myth inferences that the complainant is less worthy of belief and/or more likely to have consented;
this is a judge alone trial;
it is essential to the accused’s ability to make full answer and defence;
it is necessary for the Court to come to a just determination on the facts;
the intent is to cross-examine the complainant with regard to the nature of their sexual relationship and not on the details or specifics of her sexual activity in general;
the probative value of the evidence outweighs any potential prejudice.

Crown (Respondent)

22The Crown submits that the proposed evidence is not relevant to an issue at trial and has no significant probative value. Therefore, the Application should be dismissed.

[23] The following points are raised on the issue of relevancy:

it is not relevant to the complainant’s credibility;
it is not relevant to the complainant’s description of their relationship as being just friends and that she had no romantic interest in the accused;
there is no basis to support the suggestion that it will demonstrate that the complainant had a motive to lie;
it will not serve to yield contradictions with the complainant’s anticipated testimony; the accused himself described their relationship as an “informal romantic relationship”, meaning that they were not officially “boyfriend and girlfriend”;
he is not permitted to obtain denials from the complainant during cross-examination with the hope of disproving these denials;
he does not articulate how this evidence will demonstrate that the complainant has a motive to fabricate;
he has not provided evidence of what his belief was at the time of the alleged sexual assault; thus, there is no basis to establish some relevancy to his alternate defence of an honest mistaken belief in consent.

24Even if the Court was to find some relevance, the resulting probity is minimal such that it does not have significant probative value. The damages and disadvantages of admitting this evidence militates against finding it significantly probative. Reference is made to the factors set out in s. 276(3) on how the admission of such evidence would dissuade victims of sexual crimes from reporting such crimes and inevitably impact on the complainant’s personal dignity.

Complainant

[25] Counsel for the complainant stated that he relied on the Crown’s submissions in opposing the Application and raised the following additional points for the Court’s consideration:

The complainant’s description of their relationship as not being romantic and just friends is not significantly probative to issues in this trial; one cannot exclude a sexual interest in the absence of a romantic relationship as individuals who are friends can engage in sexual activities;
she was never asked whether she had a sexual interest in the accused; nor did she ever state that she didn’t;
if she is asked and denies such an interest, then the proposed evidence may have some relevancy; in the absence of such a denial, this application is premature and there is no basis for same;
the Application is based on ambiguous assertions as to the nature of the relationship between the accused and the complainant;
the factors set out in s. 276(3) favour exclusion of such evidence:
- an ambiguous response provided by a victim of sexual violence such as the one in this matter should not serve to open the door to all of her sexual activities; allowing this would go against society’s interest in having such crimes reported to the authorities;
- it is based on discriminatory beliefs and bias;
- the complainant will be called upon to testify on traumatic events; it is her life and respect should be given to her personal dignity and right to privacy.

26In the end, the allegations should be decided on merit and what happened at the time of the alleged sexual assault. There is no basis for allowing the proposed evidence at this time and the application is premature as it is unknown whether the complainant denies having had a sexual interest in the accused as part of their relationship.

The Law

27In deciding this matter, the Court is guided by the following principles:

A. Criminal Code

s. 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.

s. 276(2) In proceedings in respect of an offence referred to in subsection (1), evidence shall not 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, in accordance with the procedures set out in ss. 278.93 and 278.94, that the evidence: (a) is not being adduced for the purpose of supporting an inference described in subsection (1); (b) is relevant to an issue at trial; and (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.

s. 276(3) In determining whether evidence is admissible under subsection (2), the judge…shall take into account: (a) the interests of justice, including the right of the accused to make 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.

sec. 276(4) For the purpose of this section, sexual activity includes any communication made for a sexual purpose or whose content is of a sexual nature.

B. Jurisprudence

(i) Purpose of s. 276

As explained by the Ontario Court of Appeal in R. v. L.S. 2017 ONCA 685, [2017] O.J. no 4586 at para. 79: “79… Evidence of other sexual activity can be important to an accused’s ability to make full answer and defence. At the same time, however that evidence has historically been misused to blacken the character of the complainant, distort the trial process, and undermine the ability of the criminal justice system to effectively and fairly try sexual allegations. Sections 276(1) and (2) are designed to create an evidentiary filter, which separates evidence of other sexual activity that is germane to an accused’s ability to make full answer and defence, from evidence of other sexual activity that will prejudice the proper conduct of the trial”.
S. 276 categorically prohibits evidence of a complainant’s sexual history only when is it used to support one of the two general inferences, namely that the complainant is more likely to have consented to the alleged sexual assault and that the complainant is less credible as a witness by virtue of his or her prior sexual experience
R. v. Darrach 2000 SCC 46, [2000] 2 S.C.R. 443

(ii) Specific instances of sexual activity

The phrase “specific instances of sexual activity” does not require, as a necessary condition, the particularization of identified instances of sexual activity; it requires adequate identification to enable a proper s. 276 evaluation and sufficient notice to the Crown and the complainant
R. v. L.S., op. cit.
R. v. R.V. 2018 ONCA 547, [2018] O.J. no 3162

(iii) Relevancy

Relevance is assessed in the context of the entire case and the positions of the parties
R. v. Cloutier, [1979] 2 S.C.R. 709
Evidence is relevant where it has some tendency as a matter of logic and human experience to make that proposition for which it is advanced more likely than that proposition would appear to be in the absence of the evidence; relevancy can be tested by asking what inference is sought to be made from the proposed evidence
R. v. White 2011 SCC 13, [2011] 1 S.C.R. 433
R. v. Candir 2009 ONCA 915, [2009] O.J. no 5485
Relevance is fact specific and 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.
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.

(iv) Probative value / prejudice

Significant probative value means that the proposed evidence is not to be so trifling as to be incapable, in the context of all of the evidence, of raising a reasonable doubt
R. v. R.V., op. cit.
“S. 276 allows the admission of evidence of “significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice”. The adverb “substantially” serves to protect the accused by raising the standard for the judge to exclude evidence once the accused has shown it to have significant probative value. In a sense, both sides of the equation are heightened in this test, which serves to direct judges to the serious ramifications of the use of evidence of prior sexual activity for all parties in the case”.
R. v. Darrach, op. cit.

(v) Burden of proof

The Applicant seeking to introduce evidence of the complainant’s extrinsic sexual activity bears the burden of establishing its admissibility under the s. 276 regime on a balance of probabilities
R. v. Darrach, op. cit.

Discussion

[28] Having considered the circumstances and relevant principles, the Court finds that the accused’s proposed evidence is properly admissible under s. 276 of the Criminal Code. The accused is found to have established each of the essential elements, namely:

it is not being adduced for the purpose of supporting an inference based on the twin myth inferences;
it is relevant to issues in the trial;
it is of specific instances of sexual activity;
it has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

29These findings are based on the following analysis:

1. Purpose of adducing evidence

30The Court is very mindful of the prohibited use of a complainant’s extrinsic sexual activities. The significance of this shield in the context of sexual violence is far-reaching and to be seen from a societal, law enforcement (prevention and detection) and judicial perspective. There is simply no room for a belief that a complainant is more likely to have consented or is less worthy of belief because of involvement in other sexual activity.

31The Court is of the view that the accused in this matter is not directly, indirectly or inferentially proposing to adduce evidence tending to support one of the archaic and obsolete beliefs in regards to victims of sexual violence.

2. Relevance to issues

32The nature of the complainant’s relationship with the accused is found to be relevant in this matter. There is no dispute that consent is a material fact in issue to be decided by the Court. As a matter of common sense and life experience, the existence or not of prior consensual sexual activity between the parties would tend to make consent more or less likely.

33To be clear, the Court is not suggesting that prior consensual sexual activity makes it more likely that the complainant consented to the sexual touching on December 4th, 2016. As already discussed, such false reasoning is based on defunct myths. Section 273.1(1.1) of the Criminal Code provides that “consent must be present at the time the sexual activity in question takes place”.

34A reasonable and fair inference from the material provided in this Application is that the complainant describes her relationship with the accused as being platonic. She was asked to describe their relationship on a number of occasions and referred to it as being friendship. The only reference by her to physical contact is when they kissed at the movie and felt bad afterwards. The accused’s version is that the kissing was accompanied by sexual touching on that occasion. She never mentioned any of the other sexual encounters alleged by the accused.

[35] So that the Court is left with two (2) significantly different settings leading up to the alleged incident of December 4th, 2016. The relevance of the true nature of the parties’ relationship in such matters was discussed in a number of cases including:

R. v. Harris, [1997] O.J. no 3560
R. v. L.S. 2017 ONCA 685, [2017] O.J. no 4586
R. v. Blea [2005] O.J. no 4191
R. v. M.M., [1999] O.J. no 3943
R. v. Stone, 2018 ONSC 39 [2018] O.J. no 39
R. v. Strickland, [2007] O.J. no 517

[36] In R. v. Harris, op. cit., the Ontario Court of Appeal stated the following at para. 49: “49. By failing to permit the appellant to lead evidence of the Tuesday night incident, the jury was deprived of the tools needed to fully and fairly assess the conduct of the parties and the believability of their respective positions. Left unchallenged, the complainant’s testimony concerning her relationship with the appellant was potentially devastating to his position. If accepted, it would be a short step for the jury to conclude that the complainant did not consent to the sexual activity at the motel. To interpret s. 276 of the Code in a manner that would foreclose the appellant from attempting to rebut this crucial evidence would be to deprive him of his right to make full answer and defence”.

[37] The Court adopts the conclusion of Justice Heeny found at para. 46 of R. v. Strickland, op. cit.: “46… I conclude that the evidence of an existing sexual relationship between the parties in this case is a significant and essential contextual fact, without which the trier of fact cannot fully and fairly assess the behaviour of the parties on the night in question, the testimony of the complainant that she did not consent, and the testimony of the accused that she did. To prevent the accused from putting evidence of this existing relationship before the Court is to run the risk of distorting the fact-finding process and artificially rendering his evidence inherently improbable. This would, in my view, deprive him of the right to make full answer and defence”.

38There may well be a reasonable explanation as to why the complainant did not disclose a prior sexual activity with the accused. Perhaps there was no such prior activity. If there was, it is possible, as suggested by her counsel, that she was never outright asked if she had a sexual interest in the accused. To be clear, the Court is not making any credibility findings against the complainant at this stage of the proceedings. The Court is simply asked to decide whether the non-disclosure of prior sexual activity with the accused is relevant to an issue at trial. The Court finds that as a matter of logic and human experience, the non-disclosure by the complainant may be relevant to the issue of her credibility depending on the whole of the evidence presented at trial.

39The Court finds that the proposed evidence is not relevant to the questions of the complainant’s motive to fabricate and the accused’s alternate defence of honest but mistaken belief in consent.

40There is no reasonable basis to believe that the complainant would fabricate allegations of sexual violence by reason of their prior sexual activity. This suggestion was never put to the complainant when cross-examined at the preliminary inquiry. The prior sexual activity alleged by the accused does not as a matter of logic and common sense tend to make fabrication more or less likely.

41In regards to mistaken belief in consent, the allegations are such that there is no air of reality to such a defence. Again, the Court is not deciding this question in the context of the trial but in this s. 276 pre-trial Application.

42The complainant describes an incident of sexual violence where the accused used force and physical resistance on her part. She also states having told him repeatedly “no”.

[43] In R. v. Harris, op. cit., the Ontario Court of Appeal made it clear that such a scenario cannot form the basis for a s. 276 Application. The Court stated the following at para. 36: “36. Under these circumstances, it is difficult to understand how both counsel could present their arguments on the s. 276 Application as if the defence of honest but mistaken belief was a viable one when in fact, as the trial record reveals, it was not. Had the trial judge been alerted to the position of the parties…he no doubt would have rejected the proposed evidence, at least insofar as it was being proffered to support the defence of honest but mistaken belief, on the basis that the defence was not a viable one and therefore the evidence was both immaterial and irrelevant to it”.

44The Court therefore finds that the proposed extrinsic evidence of the complainant’s sexual activity is relevant to issues in this trial.

3. Specific instances of sexual activity

45The information provided in this Application is sufficient to identify the specific instances of sexual activity raised by the accused. It refers to kissing and sexual touching during a specific period of time from July 2016 to October 2016 and locations. Reference is made to an incident when they went to see a movie and she had broken up with a boyfriend.

46Reference is also made of a sexual intercourse in October 2016 and oral sex in November 2016.

47The evidentiary record is such that it allows for a proper s. 276 analysis. It is also sufficient notice to the Crown and the complainant.

48It is noted that the Crown did not raise any concerns with regards to this prong in his Factum.

4. Probative value and prejudice

[49] The Court’s view is that the impugned evidence has significant probative value that is not substantially outweighed by the danger of prejudice to the administration of justice. In coming to this conclusion, the Court has considered the following:

the evidence is seen as highly probative to material issues in this trial, namely whether the complainant consented to the sexual activity; it is also relevant to the accused and complainant’s credibility;
as discussed in this ruling, the inability to adduce this evidence will provide the Court with an incomplete picture and impede on the Court’s ability to properly assess the allegations; the true nature of the parties’ relationship is a significant and essential contextual fact;
this evidences goes to the accused’s right to make full answer and defence in response to very serious allegations of sexual violence against the complainant;
there is a reasonable prospect the this evidence will assist the Court in arriving at a just determination of the case on its merit;
the Court is mindful that the admission of extrinsic sexual activity encroaches on the complainant’s personal dignity and right to privacy; however, this interest must be balanced against the accused’s right to a fair trial;
this is a judge alone trial and the Court is capable of deciding this matter on its merit and not be aroused by prejudice, sympathy or hostility; the Court’s duty is to objectively and reasonably assess the whole of the evidence;
the Court will manage the cross-examination and ensure that it is fair and relevant; there is no need to go into specific details of the extrinsic sexual conduct; the relevance is whether or not there was such prior sexual activity between the parties;
the Court will also make an order prohibiting the publication of the complainant’s name and any evidence which may serve to identify her;
when looked at objectively, the Court’s belief is that this ruling would not serve to discourage victims of sexual violence from disclosing same to the authorities.
the ruling is not based on any archaic belief identified as twin myths as to the believability of complainants in sexual assault trials.

Conclusion

50Therefore, for the reasons discussed in this ruling, the Court grants the accused’s Application under s. 276 of the Criminal Code and will allow the admission of the complainant’s other sexual activity with the accused as described herein.

The Honourable Justice R. Laliberte

Released: 2019/05/14