Court File and Parties

Court File No.: CR-18-0082-000 Date: 2019-06-21

Ontario Superior Court of Justice

Between:

Her Majesty the Queen D. Silvestro, for the Crown

- and -

Joseph John Sinclair B. Sacevich, for the Accused (Applicant)

R. Karlstedt for Complainant, C.D.

Heard: June 13, 2019, at Thunder Bay, Ontario

Before: Mr. Justice W. D. Newton

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

The court hearing this matter directs that the following notice be attached to the judgment/file:

This hearing is governed by section 278.95 of the Criminal Code:

Publication prohibited

278.95 (1) A person shall not publish in any document, or broadcast or transmit in any way, any of the following:

(a) the contents of an application made under subsection 278.93;

(b) any evidence taken, the information given and the representations made at an application under section 278.93 or at a hearing under section 278.94;

(c) the decision of a judge or justice under subsection 278.93(4), unless the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the decision may be published, broadcast or transmitted; and

(d) the determination made and the reasons provided under subsection 278.94(4), unless

(i) that determination is that evidence is admissible, or

(ii) the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the determination and reasons may be published, broadcast or transmitted.

Offence

(2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.

Reasons on Section 276 Application

Overview

[1] Mr. Sinclair is charged with committing a sexual assault on C.D. contrary to s. 271 of the Criminal Code. The trial of this and related charges is set to commence July 15, 2019.

[2] This is a hearing pursuant to s. 278.94 to determine whether evidence of sexual activity involving the complainant is admissible under subsection 276(2). In my decision dated June 7, 2019 (R. v. Sinclair, 2019 ONSC 3555) I ruled that the formal requirements of s. 278.93 had been satisfied and that certain evidence sought to be adduced is capable of being admissible under subsection 276(2) and therefore, I ordered that this hearing proceed. As required by subsection 278.94(3), the complainant was informed of her right to appear, make submissions and to be represented by counsel.

[3] This application is to be considered in the absence of the public.

[4] The evidence sought to be adduced is evidence of “penetrative intercourse” alleged to have occurred between the accused and the complainant a few hours before the alleged sexual assault and evidence of another sample of male DNA found upon the complainant as a result of the sexual assault medical examination.

The Facts

[5] The evidence on this application consisted of the affidavit of Patricia Vo, counsel, the affidavit of Mr. Sinclair, and the testimony of Mr. Sinclair who was cross-examined by counsel for the complainant and the Crown. Some of these circumstances were reviewed in my prior decision, R. v. Sinclair, 2019 ONSC 3555.

[6] Based on her testimony at the preliminary inquiry and her statement to the police, it is anticipated that the complainant’s evidence will be that she has no memory of the alleged sexual assault. She had hosted an “after hours” party at her house and the accused was one of the guests. After all the guests left, the complainant, who was intoxicated, fell asleep on her couch fully clothed. She woke up on the floor with her head under a pillow and with her clothing disarrayed. She thought she had been sexually assaulted. She attended the hospital and a sexual assault kit was completed. Swabs obtained from the sexual assault examination indicated that two male DNA profiles were detected. One of the profiles matched the accused. The donor of the other profile is not identified. The complainant denied recalling any sexual activity between herself and the accused. The accused stated that he had consensual “penetrative intercourse” with the complainant after the other guests left and then he left the complainant’s home shortly thereafter.

The Law

[7] Evidence of prior sexual act activity is not admissible if its purpose is to support either of the following inferences, often referred to as the “twin myths”:

(a) a woman who was consented to sexual activity in the past is more likely to have consented to it on this occasion; and,

(b) an unchaste or sexually active woman is less worthy of belief.

[8] This principle is set out in s. 276 which provides as follows:

Evidence of complainant’s sexual activity

276 (1) In proceedings in respect of an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, 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.

Conditions for admissibility

(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, provincial court judge or justice determines, in accordance with the procedures set out in sections 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.

Factors that judge must consider

(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice 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; and

(h) any other factor that the judge, provincial court judge or justice considers relevant.

Interpretation

(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.

Positions of the Parties

[9] Mr. Sinclair argues that the evidence of prior “penetrative intercourse” and evidence of the explanation for the presence of other male DNA is relevant and admissible. It is self-evident, he argues, that his explanation for the presence of his DNA, arising from prior consensual sexual activity the same day, is relevant. The evidence with respect to the explanation for the presence of the other male DNA is probative because it suggests that a person other than Mr. Sinclair may have committed the assault.

[10] Counsel for the complainant and the Crown concede that the evidence with respect to the “penetrative intercourse” between the complainant and the accused prior to the time of the alleged incident is relevant as a possible explanation for the presence of the accused’s DNA on the complainant. Both also argue that an explanation with respect to the presence of other male is not relevant to any issue in the trial but serves the “twin myths”.

Analysis and Disposition

[11] Section 278.94(4) sets out the specific requirements for reasons on the admissibility of other sexual activity. If not all the evidence is to be admitted the reasons must state the part of the evidence that is to be admitted. The reasons must state the factors referred to in subsection 276(3) that affected the determination. The reasons must state the manner in which the evidence of other sexual activity is expected to be relevant to an issue at trial.

[12] It is admitted, and I agree that the evidence of prior “penetrative intercourse” between the complainant and Mr. Sinclair the same day is admissible as it is an explanation for the presence of the accused’s DNA. Therefore, the complainant can be asked whether she had consensual “penetrative” intercourse with Mr. Sinclair earlier that day. The evidence is only admissible to explain the presence of Mr. Sinclair’s DNA and, therefore, evidence of other sexual activity that is not necessary to explain the presence of the DNA is not admissible. In so concluding I have considered the right of the accused to make full answer and defence and conclude that there is a reasonable prospect that this evidence will assist in arriving at a just determination in this case. I have considered the prejudice to the complainant’s personal dignity and right of privacy in reaching my conclusion and have admitted only the evidence that goes to the explain the presence of the accused’s DNA. I conclude that this evidence has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

[13] The presence of other male DNA on the complainant can support an inference that another male sexually assaulted the complainant and is, therefore, probative. The complainant may, be asked if she has an explanation for the presence of other male DNA upon her person. Again, questions will be limited to the explanation only and not any other questions regarding any other sexual activity. I am “live” to the issue of prior sexual activity going to the prohibited inferences, in this case particularly that the complainant is more likely to have consented to sexual activity and will instruct myself not to use any evidence adduced to support that reasoning. In so concluding I have considered the right of the accused to make full answer and defence and believe that there is a reasonable prospect that this evidence will assist in arriving at a just determination in this case. I have also considered the potential prejudice to the complainant’s personal dignity and right of privacy. I also conclude that this evidence has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

“Original signed by” The Hon. Mr. Justice W.D. Newton June 21, 2019