Her Majesty The Queen v. L.E., 2019 ONSC 4103

COURT FILE NO.: CR-18-0053-000 DATE: 2019-07-04

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN G. Fillmore, for the Crown/Respondent

- and -

L.E. J. Shanmuganathan, for the Accused/Applicant

HEARD: July 3, 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.

Reasons on Section 278.93 Application

Overview

[1] L.E. is charged with a number of historic sexual assaults on his former spouse and step children, a female and a male. The trial of these charges is set to commence August 19, 2019.

[2] L.E. applies pursuant to s. 278.93 of the Criminal Code, R.S.C., 1985, c. C-46 for a hearing under s. 278.94 to determine whether evidence of sexual activity with one of the complainants, L.S., the step-daughter, is admissible under s. 276(2). The evidence sought to be adduced is evidence of alleged sexual activity between L.S. when she was about 10 years old and three other people: L.E.’s natural son; S.W.; and an unknown boy, all of whom were about the same age. It is alleged that this sexual activity with the other children occurred at about the same time as the alleged incidents involving L.E, that they involved similar activity, and that they occurred in some of the same locations.

[3] This application is to be considered in the absence of the public, including the jury, if selected. If the judge is satisfied that the prerequisite formal requirements for the application have been met and that the evidence sought to be adduced is capable of being admissible under s. 276(2) the judge shall grant the application and hold a hearing under s. 278.94 to determine whether the evidence is admissible under s. 276(2).

[4] At the hearing stage under s. 278.94, the complainant has the right to participate in the hearing and to be represented by counsel.

The Facts

[5] The evidence on this application consisted of transcripts of the police interviews with the complainant, L.S., on June 15 and June 22, 2017; a statement or summary entitled “Memories” written by the complainant; transcripts of the preliminary inquiry evidence of the complainant, L.S., and another complainant, her mother; and affidavits from L.E.’s natural son and S.W.

[6] The complainant alleges that the “indecent acts” giving rise to the charges against L.E. took place between 1981 and 1982. The complainant first reported the allegations to the police in June 2017. In addition to her recorded interviews with the police, the complainant provided a summary of her recollections. The alleged sexual activity between L.E. and the complainant consisted of L.E. applying cream to her vaginal area, L.E. “playing house” with the complainant on top of L.E. the complainant rubbing against L.E. in her bedroom and in her parents’ bedroom, and L.E. and the complainant “playing house” in a fort near the home.

[7] During the police interviews, the complainant also disclosed memories of sexual activity with three other people at around the same time as the incidents with L.E.: L.E.’s natural son; a female neighbour, S.W.; and an unknown boy. The complainant explained that she and L.E.’s natural son would rub against each other, sometimes with their clothes on or off, and that L.E. was aware of this sexual activity. The complainant described “rubbing” with S.W. and that S.W. used a vibrator on the complainant’s vagina. This occurred at S.W.’s house. The incident with the unknown boy occurred at the fort near the home and that the complainant and the boy were naked and that she told him where to put his penis.

[8] Both L.E.’s natural son and S.W. affirmed in their affidavits that the activity alleged with the complainant did not occur.

The Law

[9] 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.

[10] As was stated in R. v. Goldfinch, 2019 SCC 38, at para. 43: “Such evidence is ‘not probative of consent or credibility and can severely distort the trial process’ ( Darrach, at para. 33).”

[11] This prohibition 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.

[12] Although referring to the predecessor s. 276.1, the following passage in Goldfinch, at para. 55, is equally applicable to the current s. 278.93 and s. 278.94, which govern the first and second stage of the inquiry:

Section 276.1(2) requires the accused to set out, in writing, the “detailed particulars” of the evidence to be adduced as well as the “relevance of the evidence to an issue at trial”. The application judge must be satisfied that the evidence is capable of being admitted under s. 276(2) before ordering a voir dire (s. 276.1(4)(c)). Judges who admit such evidence must also provide written reasons identifying the relevance of the evidence admitted (s. 276.2(3)(c)). [1] These procedural requirements reflect the fact that sexual assault prosecutions require heightened attention to the general principle that no party should be allowed to distort the process by producing irrelevant evidence ( Darrach, at paras. 24 and 37).

Positions of the Parties

[13] Counsel for the accused argues that the proposed evidence is not being tendered for either of the prohibited purposes. Counsel for the accused argues that this other sexual activity did not take place and that this is, therefore, relevant to the reliability of the complainant’s memories.

[14] Counsel for the Crown concedes that this is evidence of sexual activity that is capable of being admissible in that it does not trigger the “twin myths” but that this evidence is inadmissible as contrary to the “collateral fact rule.” The rule prohibits the offering of evidence solely to contradict a witness’ testimony about a collateral fact. That is, a witness’ answers to questions in cross-examination concerning collateral facts are final and cannot be contradicted by extrinsic evidence, i.e. the evidence of L.E’s natural son and S.W. Further, the Crown argues that a s. 278.94 hearing is required to determine the relevance of the proposed evidence to an issue at trial and whether the proposed evidence has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

Analysis and Disposition

[15] Under s. 278.93, I must grant the application to hold a hearing under s. 278.94 upon being satisfied that the formal requirements have been met and that the evidence sought to be adduced is capable of being admissible under s. 276(2).

[16] The parties do not dispute that the formal requirements have been met, and I find that they have been met. The evidence is capable of being admissible under s. 276(2) in that the proposed evidence does not “fuel propensity reasoning” of the “twin myths”. (Goldfinch, at para. 48). The relevance of the proposed evidence and the balancing exercise contemplated by s. 276(2)(d) will be considered at the next stage. Integral to relevance and “balancing” is the admissibility of the evidence notwithstanding s. 276 considerations. Therefore, the admissibility of the proposed evidence in light of the “collateral fact rule” will also be considered at the next stage.

[17] The application is granted. This application will proceed to a hearing under s. 278.94 on July 12, 2019, at 10:00 a.m. The complainant shall be informed of her right to participate in this hearing and of her right to be represented by counsel. I have directed that counsel be appointed in accordance with the protocol adopted by Legal Aid Ontario. Responding material from counsel for the Crown and the complainant is to be served on counsel for the accused by email by 10:00 a.m. July 10, 2019, and thereafter filed. Counsel for the accused should deliver a factum addressing the “collateral fact rule” issue at least a day in advance of the hearing.

“Original signed by”

The Hon. Mr. Justice W.D. Newton

Released: July 4, 2019

Footnotes

[1] Now s. 278.94(4)(c).