COURT FILE NO.: CR-18-10000669
DATE: 20191008
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
J.M.
John Flaherty, for the Crown
Dean F. Embry for the accused, J.M.
Joanna Birnbaum, for the Complainant, S.S.
PUBLICATION RESTRICTION
Pursuant to s. 278.95(1)(a) and (b) of the Criminal Code, the identity of the complainant, the contents of the application record, and the evidence taken and submissions at the hearing of this matter may not be published. Pursuant to s. 278.95(1)(c) of the Criminal Code these reasons for judgment may be published in a legal publication or report (online or print).
R.F. GOLDSTEIN J.
REASONS FOR JUDGMENT on s. 276 application
[1] The Crown alleges that J.M. sexually assaulted S.S. three times. The first time was on October 9 2017. The second and third times were in May 2018. The Crown alleges that J.M. administered GHB to S.S. during the third assault. She was, therefore, incapacitated when the assault occurred. J.M. is charged with three counts of sexual assault, one count of administering a noxious substance, and one count of possession of GHB for the purpose of trafficking.
[2] S.S. testified at the preliminary inquiry that she and J.M. were “just friends”. J.M.’s counsel, Mr. Embry, argues that J.M. and S.S. had a consensual sexual relationship. He seeks to introduce evidence for the purpose of impeaching S.S.’s credibility. The evidence consists of WhatsApp messages and photographs. He argues that the photographs and WhatsApp messages show that they had consensual sex on October 15 and 16 2017. J.M. is not charged with any offences on those days. Mr. Embry argues that the photographs and messages will be used solely to impeach S.S.’s credibility. He applies pursuant to s. 276(2) and s. 278.92(2) of the Criminal Code for an order that he should be permitted to use the material during his cross-examination of S.S.
[3] In my view, the photographs and WhatsApp messages may not be used for any purpose at J.M.’s trial. The probative value of the evidence is limited whereas the prejudicial effect is significant. For the reasons that follow, the application is dismissed.
THE ALLEGATIONS AGAINST J.M.
[4] J.M and S.S. used to go dancing together at clubs and parties. They met in September 2017. S.S. says that the two were just friends. J.M. says that they had a consensual sexual relationship.
[5] The counts on the indictment are not chronological. The third count alleges that J.M. sexually assaulted S.S. on October 9, 2017. That was during the Thanksgiving weekend. The two of them went out dancing and then went back to his apartment, where the assault took place. The first count alleges that on May 20, 2018 S.S. and J.M. went dancing again at an after-hours club. They went back to J.M.’s apartment. She passed out but woke up with her pants off. The second count alleges that on May 26 and 27, 2018 S.S. and J.M. went out dancing again. They went back to J.M.’s apartment. S.S. says that she passed out at his apartment. When she briefly awoke (it was May 27 at that time) J.M. was sexually assaulting her. The fourth count alleges that J.M. used GHB to incapacitate her during the sexual assault on May 27, 2018. The fifth count alleges that J.M. possessed GHB for the purpose of trafficking on May 27, 2018.
J.M.’S PROPOSED EVIDENCE AND RULING ON CROSS-EXAMINATION
[6] J.M. filed an affidavit setting out the proposed evidence. He stated that on October 15 and 16, 2017 he and S.S. went out dancing. They had consensual sex at his apartment. During the course of the consensual sex he ejaculated on her face. J.M. took pictures. J.M. and S.S. subsequently exchanged messages on WhatsApp. J.M sent the pictures to S.S. during the course of their WhatsApp exchange. J.M. is not charged with anything arising out of sexual contact on October 15 and 16, 2017.
[7] There are three photographs that J.M. sent over WhatsApp to S.S. Two are selfies with J.M. and S.S. One is of S.S. alone. J.M. and S.S. are both clothed. It appears that J.M.’s ejaculate is on her face in all three photographs.
[8] There are also WhatsApp messages. Some of the WhatsApp messages relate to the photographs. J.M.’s comment under the first picture is “cream of sum yung guy”. He makes further comments about the other pictures. S.S. did respond. She expressed laughter, either in words or emojis. Later in the day, S.S. indicated that she was “sober enough to properly articulate my thoughts”. She discussed other things that did not involve sexual contact between her and J.M.
[9] J.M. attached the WhatsApp messages and photographs to his affidavit.
[10] Crown counsel, Mr. Flaherty, requested permission for an expanded cross-examination on J.M.’s affidavit at the hearing. At the time I described Crown’s counsel’s argument:
Mr. Flaherty’s argument is that he ought to be able to cross-examine on the larger issues regarding capacity and communicated consent, and the details of the sexual encounter. He also argues that he needs to know if there are other text messages between the complainant and the accused. Those other text messages – if they exist - put context to the relationship. Mr. Flaherty says he needs to understand whether and how Mr. Embry intends to use them. He ultimately needs to be able to cross-examine to ensure that the twin myths are not put forward under the guise of attacking credibility.
[11] I declined to permit cross-examination at large on the affidavit. I ruled that the cross-examination should be limited to the completeness and provenance of the material the accused sought to introduce. I gave an oral ruling at the time.
[12] I limited the Crown’s cross-examination to the issue of the admissibility of the proposed evidence. Cross-examination on an accused’s affidavit on an application under s. 276(2) is confined to what is necessary to determine whether the proposed evidence is admissible: R. v. Darrach, [2000] 2 S.C.R. at para. 64.
[13] In this case, the proposed evidence is in the possession of the accused. The procedure under s. 278.92 of the Criminal Code applies. That procedure is designed to permit the accused to advance an argument that he should be able to use evidence pursuant to s. 276(2). The Crown’s cross-examination of an accused under this procedure should be limited to questions that go to the admissibility of the evidence.
[14] Any time that an accused files an affidavit in a criminal proceeding there is a risk that he or she could engage the constitutional right against self-incrimination. This right is not unlimited. As the Supreme Court made clear in Darrach, the provisions requiring an accused person to support the application with detailed particulars are not unconstitutional. That said, the scope of any cross-examination on such an affidavit must be limited so as not to go so far as to infringe the right against self-incrimination, balancing all of the other interests that are at stake in the process. Those interests include the right to privacy and dignity of the complainant.
[15] In R. v. Goldfinch, 2019 SCC 38 the Supreme Court of Canada recently re-affirmed that an accused must provide detailed particulars of the proposed evidence – which is, of course, a statutory requirement – in this case, pursuant to s. 278.93(2) of the Criminal Code. At para. 53 of Goldfinch the Supreme Court pointed out that a trial judge needs evidence that will help him or her to conduct a fully informed analysis. The legislative scheme requires specificity so that judges can protect the rights of the complainant and also ensure trial fairness.
[16] I found that it was not necessary for the Crown to cross-examine on the context and nature of the relationship between the complainant and the accused. Neither was it necessary for the Crown to cross-examine on issues that are ultimately for the jury, such as capacity and consent. Nor was it necessary for me to examine text messages that are not sexual in nature. The cross-examination was limited to completeness and provenance of the text messages and photographs. I was satisfied that I could decide the relevance of the proposed evidence based on affidavit, the allegations, and the arguments of counsel.
[17] J.M. testified that he downloaded the WhatsApp messages and photos from his phone at his lawyer’s request. He downloaded all of the messages and photographs and his lawyer took what was needed. He did not cut and paste or alter anything. An emoji or GIF did not download properly but he did not alter them. There is no evidence that he altered the messages or photographs. I find that he did not do so.
ISSUES AND ANALYSIS
[18] Mr. Embry argues that he wishes to use the WhatsApp messages and photographs only for the purpose of impeaching the complainant’s credibility. It is therefore highly probative. He says that the proposed evidence is not being adduced for one of the prohibited “twin myth” purposes. Rather, he argues that the evidence will be used to show that S.S. was untruthful when she denied at the preliminary inquiry that she had a prior consensual relationship with J.M.
[19] I respectfully disagree with Mr. Embry’s position. I accept his assertion that he does not intend to adduce the evidence for a prohibited purpose; that said, the evidence cannot help but engage the first of the twin myths. I also find that the evidence is relevant; but it is of very low probative value. Finally, the probative value of the evidence is substantially outweighed by the prejudicial effect.
[20] Where an accused person possess material that is a “record” and wishes to adduce it in evidence he (and we will assume it is a “he”, as it is in most cases) must do so in accordance with the procedure set out in s. 276(2) and 278.92 (and following) of the Criminal Code. A “record” means anything over which the complainant has a reasonable expectation of privacy: s. 278.1 of the Criminal Code. In this case, there is no question that the WhatsApp messages and photographs are a “record”. The complainant has an obvious expectation of privacy in them.
[21] Sections 278.92 to 278.94 of the Criminal Code are very new. The new provisions apply to evidence in the possession of the accused that the accused intends to “adduce”. By “adduce” I assume that Parliament meant evidence that the accused meant to introduce either as part of the defence case or use to impeach the credibility of the complainant. The new provisions set out a two-step process: first, the judge determines whether the application is properly brought and capable of being admitted pursuant to s. 276(2) of the Criminal Code. If so, then the judge must order that a hearing be held. The second stage is the hearing on the merits of the application. The public is excluded from that hearing. Pursuant to s. 278.94(4) of the Criminal Code the judge must give reasons for any disposition.
[22] The principles are well known and are set out in s. 276(1) and 276(2) of the Criminal Code. Under s. 276(1) evidence of a complainant’s sexual activity that is not the subject of a charge is inadmissible if it supports an inference of one of the “twin myths”: that the complainant was more likely to have consented to sex; or that the complainant is less worthy of belief. Under s. 276(2) the accused may not adduce this evidence unless a judge is satisfied 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;
(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.
[23] The factors that a judge must consider are set out in s. 276(3) of the Criminal Code, which I will discuss later in these reasons.
[24] I agree that the proposed evidence relates to a specific instance of sexual activity. The only statutory questions I need to answer are whether the evidence is relevant; and whether the probative value of the evidence is substantially outweighed by its probative effect.
[25] The issues to be analyzed, therefore, are these:
(a) Is the evidence relevant?
(b) Is the evidence being adduced for a prohibited purpose?
(c) Is the probative value of the evidence substantially outweighed by its prejudicial effect?
(a) Is the evidence relevant?
[26] Mr. Embry argues that the evidence is relevant because the credibility of the complainant will be a central issue at trial. As he puts it in his factum:
The evidence sought to be admitted directly contradicts facts material to this matter previously sworn to by the complainant. It is important to note that it is not the fact of sexual activity or discussion related to it that is independently important. Rather it is the fact the complainant has lied about it to the police, while under oath at the preliminary inquiry.
[27] Mr. Embry argues that S.S. was asked a straightforward question at the preliminary inquiry: whether there was a sexual component to her relationship with J.M. She said there was not. The photographs and the WhatsApp messages, however, show that they had consensual sex at least once. If S.S. were impeached on that evidence it would bear directly on her credibility. The evidence shows that she was untruthful at the preliminary inquiry.
[28] The complainant testified that her relationship with J.M. consisted of dancing at clubs and going to parties. She testified that she had told him that they were not in a relationship. Mr. Gugalio, J.M.’s counsel at the preliminary inquiry, followed up. I excerpt some of the key passages from the cross-examination:
Q: … you and J.M. have always just been friends, is that right?
A: Yes
Q: And you explained to my friend that that meant there was no sexual component to your relationship?
A: Correct.
And just so I’m clear on the.. the full timeframe. So you met J.M., you said, it was around Labour Day weekend, 2017?
A: Yeah.
Q: So from that point until the point that you went to the police in May 2018, the entirety of that span of time you were just friends and there was no sexual component to your relationship.
A: We were just friends.
Q: Okay. And as I understand it, you’ve always been clear that you want your relationship to be just a friendship…
A: Yes.
Q: … not to have a sexual component, is that right?
A: Yeah.
Q: Now, did you ever do or say anything that would indicate otherwise to J.M.?
A: No.
Q: You never expressed any kind of sexual interest in him?
A: No.
Q: Physical attraction, that sort of thing.
A: No.
Q: I think you told my friend a bit about what you did to, to ensure that your friendship just stayed friendly. What kinds – maybe you could just sort of repeat, for my sake, what sorts of things did you do in order to ensure that J.M. was clear that you just wanted friendship and nothing more?
A: He was often accusing me of trying to make him jealous by talking to other men when we were out and I told him there was nothing to be jealous about because him and I are strictly friends so its nothing like that.
[29] I agree that the evidence is relevant. Whether evidence is relevant to an issue is a matter of everyday experience and common sense. It is not a question of degree, as “the law knows no degrees of relevance”: R. v. Jackson, 2015 ONCA 832 at paras. 119-123.
[30] The photographs depict sexual activity. The WhatsApp messages acknowledge that sexual activity took place. That makes the evidence relevant.
[31] Probative value, however, is not the same thing as relevance. There are degrees of probative value and prejudicial effect. Unlike relevance, probative value requires a trial judge to assess the weight of the evidence. That is why a trial judge must balance them. It is a gate-keeper function. As Jill Witkin and Daniel Brown put it in Prosecuting and Defending Sexual Assault Cases (Edmond, 2018):
… an assessment of probative value also takes into consideration the strength of the inference relied upon and the importance of the issue to which the evidence is relevant.
[32] The evidence is relevant to an important issue in this case, but I find that the probative value of both the photographs and the WhatsApp messages is low. The preliminary inquiry transcript must be read as a whole. The questions and answers cannot be divorced from the context. The photographs clearly show sexual activity, but the WhatsApp messages are ambiguous. The ambiguity lowers the probative value of the WhatsApp messages. There is no clear-cut contradiction between the WhatsApp messages and S.S.’s preliminary inquiry testimony.
[33] There must be a logical link between the proposed evidence and the issues that the jury must decide. That was the crux of the reasoning of both Karakatsanis J. and Moldaver J. in their separate concurring reasons in Goldfinch. The reference to the general credibility of the complainant is also problematic. General references in the context of sexual activity most go beyond mere assertions of “context” or narrative: Goldfinch at paras. 58, 65. As Moldaver J. stated at para. 124 of Goldfinch:
To be clear, however, just as generic references to "context" or "narrative" will not suffice to justify the admission of sexual activity evidence under s. 276(2), bare invocations of "credibility" will not be enough. Credibility is a key issue in almost every sexual assault trial — the centrality of credibility assessments does not, however, allow the accused to bypass the rigours of s. 276. Instead, where credibility is concerned, the accused must identify specific facts or issues that require reference to the sexual activity evidence to be understood and that could have a material impact on a credibility assessment.
[34] All of the WhatsApp activity at issue here took place on October 16, 2017. S.S. and J.M. exchanged WhatsApp messages between 9:20 am and 9:21 am. According to J.M.’s testimony, he was in the garage of his building and arranging to take S.S. home.
[35] J.M. testified that he and S.S. exchanged messages over Facebook after he drove her home that morning. J.M. was unable to download those messages because S.S. blocked him from her Facebook account. He testified that the Facebook messages were not sexual.
[36] At 11:41 am J.M. sent the first of the three photographs to S.S. He commented “cream of sum yung guy”. The photograph is a selfie taken by J.M. with S.S. lying down. The photographs show their upper bodies and faces. S.S.’s eyes are closed. Both of them are wearing tops. It appears that ejaculate is on her face. S.S. responded at 5:09 pm with “OMG LMAO”. There are several more messages – almost all of them from J.M. Those messages discuss a conversation J.M. had had with another person about S.S. S.S. did not comment on it.
[37] At 6:13 pm J.M. sent another photograph over WhatsApp. It is difficult to see, but it appears to be a photograph of S.S. from the neck up. J.M. is also in the photograph. Again, they are both clothed. Again, it appears that ejaculate is on her face. At 6:15 pm J.M. sent the third picture. It is a picture of S.S. alone from the neck up, clothed. She appears to be smiling. Again, it appears that ejaculate is on her face. J.M. made comments about the photograph. S.S. responded with “hahahahaha”.
[38] At 6:51 pm S.S. sent a WhatsApp message to J.M. The message began: “alright, now that I’m sober enough to properly articulate my thoughts, I need to get this off my chest.” S.S. went on to explain to J.M. that she enjoyed spending time with him but she could not have him acting like she was his property. She told him that she was interested in dating someone else. The discussion continued that day sporadically until 8:36 pm. There is further WhatsApp discussion on another day. That discussion is not relevant.
[39] On their face, the three photographs appear to contradict S.S.’s testimony at the preliminary inquiry. S.S.’s WhatsApp messages to J.M., however, call the nature of that contradiction into question. Her WhatsApp messages do not acknowledge any form of consensual sexual relationship. J.M. commented on the photographs in his messages. His comments were sexual in nature. He also suggested that he wished to repeat the sexual activity. S.S.’s comments were limited to “OMG LMAO” and “hahahahah”. Those comments cannot be read in isolation from the rest of the conversation. S.S. later explained (after she was “sober enough”) that she was not interested in a relationship with J.M.
[40] There are several possible interpretations of her brief “OMG LMAO” and “hahahaha”. A trier of fact could infer that she was acknowledging that there was a consensual sexual component to their relationship. That would, of course, directly contradict S.S.’s preliminary inquiry transcript. There are several other inferences that a trier of fact could also infer. A trier of fact could infer that S.S. was unsure how to respond, or that she confused the different sexual encounters, or that she was amused, or that she was embarrassed, or that she was surprised. A trier of fact could infer that S.S. did not mean that a single encounter did not mean there was a “sexual component to the relationship”. Or, a trier of fact could determine that there was some other explanation. I do not have to decide what inference a trier of fact would ultimately draw. I simply mention that there are several different inferences to show that the contradiction, while potentially real, is not clear-cut. That undermines the argument that the photographs and WhatsApp messages are highly probative. The contradiction is also undercut by the fact that S.S. took the opportunity in the same series of messages to indicate that she did not want a relationship with J.M. Indeed, she said she wanted a relationship with someone else. J.M. suggests that they do it again but at no time does S.S. acknowledge that she wants to.
[41] A different response from S.S. would have made the evidence much more probative. If, for example, S.S. had sent the photos to J.M. with approval then that would be highly probative. If S.S. had indicated that she really enjoyed the encounter and wanted to repeat it, that would also be highly probative.
[42] In my view, it is questionable whether the photographs and the WhatsApp messages really do demonstrate that S.S. and J.M. were involved in a consensual sexual relationship. J.M.’s counsel suggested in cross-examination at the preliminary inquiry was that there was “no sexual component to your relationship”. S.S. stated in her testimony that she and J.M. did not have a sexual relationship but that J.M. wanted one. She testified that she had made it clear to him that they were just friends. The photographs indicate that there was some form of sexual contact involving J.M. and S.S. on the evening of October 16 and 17. The nature of that sexual contact is unclear except that it appears to have culminated in J.M. ejaculating on S.S. S.S. appears dazed in the photographs. It is much later in the day that she says she has “sobered up”. At most, the photographs indicate that J.M. and S.S. were involved in some form of sexual activity once. When viewed in the context of the WhatsApp messages, the supposed contradiction is far less compelling. Thus, the evidence, while relevant, is not of “significant probative value”: s. 276(2)(d) of the Criminal Code.
(b) Is the evidence being adduced for a prohibited purpose?
[43] I accept Mr. Embry’s argument that the evidence is not being adduced for the purpose of advancing one of the “twin myths”. That said, there is no doubt that there is a danger that the first of the twin myths – that the complainant is more likely to consent because she has consented to other sexual activity – could be accepted by the jury. To cross-examine on that point would also likely require S.S. to explain her relationship with another person. That bears directly on the first of the “twin myths”: it almost invites a jury to speculate that S.S. consented to sex with J.M. because she consented to sex with others during the same time frame.
[44] I do think that the danger might be overcome with an appropriate jury instruction. Even if it could, as I explain next, the probative value does not outweigh the substantial prejudicial effect.
(c) Is the probative value of the evidence substantially outweighed by its prejudicial effect?
[45] Mr. Embry argues that the evidence is highly probative because it strikes at the heart of the main issue in the case. The evidence directly contradicts the complainant on a matter that is critical to the defence. The right of the accused to make full answer and defence in this situation greatly outweighs the complainant’s right to privacy and personal dignity: R. v. R.V., 2019 SCC 41 at para. 64.
[46] Despite Mr. Embry’s careful and focussed argument, I respectfully disagree. The prejudicial effect of the proposed evidence substantially outweighs the probative value.
[47] I am required to balance probative value and prejudicial effect when considering the admission of evidence under s. 276(2) of the Criminal Code. Section 276(3) sets out the factors that I must consider:
(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.
[48] Factors (a), (c), (d), (e), (f), and (g) are clearly engaged in this application. I find that the factors militate against admission. I say that for these reasons:
• the probative value of this evidence is very limited for the reasons that I have already explained.
• The concerns about the explicit nature of the photographs and the associated sexual messages (all from J.M.) are obvious. S.S. is depicted in a way that some people might find degrading. It might well lead some people to question her personal sexual choices – which are entirely her business and nobody else’s.
• There is also an obvious danger that some triers of fact might engage in prohibited reasoning: that S.S. was more likely to consent at other times because she was willing to engage in adventurous sex at a different time.
• Allowing the defence to impeach on the photographs would clearly prejudice S.S.’s “personal dignity and right of privacy”.
• The photographs would also distract the jury. The photographs depict intimate sexual activity. They would not remove discriminatory belief and bias from the fact-finding process.
• The WhatsApp messages do not clearly contradict the testimony. Furthermore, they cannot be severed from the photographs as they provide context.
[49] I find, therefore, that the prejudicial effect of the proposed evidence substantially outweighs the probative value.
DISPOSITION
[50] The application is dismissed.
PUBLICATION BAN
[51] These reasons may only be published in a legal publication pursuant to s. 278.95(1) of the Criminal Code. The reasons may be published using initials only to identify the accused and the complainant.
[52] The provisions of the Criminal Code governing applications to use evidence caught by s. 278.1 in the possession of the accused are quite new. The latest “trilogy” of Supreme Court of Canada cases regarding sexual assault cases is also new: Goldfinch, R. v. R.V.; and R. v. Barton, 2019 SCC 33. There is a legitimate public interest in publishing trial court judgments applying the new provisions. Publishers must take measures to protect the privacy of the complainant. They will use only initials.
R.F. Goldstein J.
Released: October 8, 2019
COURT FILE NO.: CR-18-10000669
DATE: 20191008
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
J.M.
REASONS FOR JUDGMENT ON S. 276 APPLICATION
R.F. Goldstein J.