WARNING
The court hearing this matter directs that the following notice should be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4 of the Criminal Code:
(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
NEWMARKET COURT FILE NO.: CR-17-07871-00
DATE: 20191010
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
– and –
A.C.
Applicant/accused
Phyllis Castiglione, for the Provincial Crown
Ian B. Kasper, for the Applicant/accused
David Butt, for the complainant
HEARD: September 28, 2019
REASONS FOR DECISION ON AN APPLICATION UNDER SECTIONS 276 and 278.94 OF THE CRIMINAL CODE[^1]
SUTHERLAND J.:
Introduction
[1] The applicant, A.C. brought an application for a declaration that certain evidence the applicant intends to lead at trial, either through cross-examination of the complainant or through viva voce evidence, should the defence elect to call evidence, is not evidence of sexual activity other than the sexual activity that forms the subject-matter of the charges pursuant to section 276(2) of the Criminal Code.
[2] In my decision released on March 15, 2019, I found that the proposed evidence does fall under section 276 and ordered an in camera hearing pursuant to section 278.94.
[3] The applicant has been charged with two counts of sexual assault against the complainant.
[4] The applicant requests that evidence dealing with discussions between him and the complainant, prior to the first count on the indictment, on their mutual sexual likes and dislikes concerning "rougher sex" and a "rape fantasy", and evidence of the complainant referencing the incident of the first count as being like "a grey area," be admitted at trial (the proposed evidence)[^2]. The applicant does not intend to cross-examine or lead evidence, subject to any further order of the court, detailing the specifics of the activity discussed.
[5] For the reasons to follow, I grant the application of the applicant and find that the proposed evidence is admissible at trial, with limitations.
Factual Basis
[6] The factual basis was described in my decision dated March 15, 2019 and will not be repeated in this decision.
Positions of the Applicant, the Crown and the Complainant
[7] The applicant submits that the proposed evidence should be admitted for it is relevant and probative. The applicant argues that the proposed evidence does not concern the "twin myths" and is necessary for full answer and defence on whether the Crown can prove beyond a reasonable doubt the issue of consent. The applicant further argues that the proposed evidence is from the mouth of the complainant. No further affidavit material is required to detail the proposed evidence and, as such, an affidavit from the applicant is not required, as suggested by the Crown, to detail the specifics of rough sex and any incidences of rough sex. The applicant reiterates that he will not be advocating a defence of honest but mistaken belief. The proposed evidence is only for the interests of the complainant and her consent of the activity on the date of the first count on the indictment (first count).
[8] The Crown submits that the proposed evidence falls fully within the "twin myths." The proposed evidence is to provide evidence of the complainant's past sexual activity to argue that her past sexual activity or interests show that she consented to the sexual activity that form the basis of the first offence. In addition, the Crown submits that the evidence provided by the applicant on his application is not sufficient for the court to make a determination of the admissibility of the proposed evidence. The affidavit in support of this application is from an assistant of counsel for the applicant. The affidavit is not from the applicant. The affidavit does not specify in detail the incidences that the complainant spoke about rough sex. How many conversations? When did these conversation(s) take place? Where did these conversation(s) take place? What were the circumstances surrounding these conversation(s)? As the argument goes, the Crown contends that the affidavit does not satisfy section 278.93(2) of the Criminal Code in that it does not set out detailed particulars of the proposed evidence. The Crown thus submits that the application should be dismissed based on insufficiency of the affidavit material and also for violating section 276(2) as evidence of the "twin myths".
[9] The complainant takes a different position than that of the Crown. The complainant agrees that it is "fair" for the defence to challenge the complainant in cross-examination of her view that it was a "grey area" because she had an interest in rough sex. But it becomes problematic if the defence intends to take it further. The defence cannot question the complainant that at the time of the offence the complainant had an interest in rough sex. It is not permissible to permit any inflection of consent at the time of the offence. Because such an inflection undermines the complainant's right to change her mind in the moment. The defence cannot be allowed to put past conversations to the complainant of her interest in rough sex or rape fantasy as evidence of consent or her credibility. To allow such questions, the issue of consent and credibility collapse on each other. On the procedural issue of the sufficiency of the affidavit material in support of the application, the complainant agrees with the applicant that it is sufficient. The complainant's evidence in her police video statement and her evidence at the preliminary inquiry have sufficient specifics. The complainant cautions the court that the applicant must be limited to the specifics in his application material on the substance of the "grey area", rough sex and the rape fantasy. The applicant cannot at trial bring in other evidence to elaborate on the proposed evidence. The applicant is limited to the scope and specifics of the proposed evidence, as revealed in his application.
Issues
[10] The questions for this court to answer are:
i Is the evidence filed on the application sufficient for the court to make a determination on the admissibility of the proposed evidence?
ii If so, is the proposed evidence admissible at trial?
iii If so, are there any limitations to the admissibility of the proposed evidence?
Is the material filed by the applicant sufficient for the court to determine whether the proposed evidence is admissible?
[11] The Crown submission is predicated on the use and purpose of the proposed evidence.
[12] The applicant has indicated that he does not intend to use the proposed evidence to support a mistaken belief claim. Further, the applicant has stated that he does not intend to utilize the proposed evidence to show that the complainant consented to the sexual act of the first count. He does intend to use the proposed evidence to raise a reasonable doubt as to the evidence of the complainant as to her belief at the time of the first count.
[13] The proposed evidence is not intended and cannot be used to violate section 276(1) of the Criminal Code, the "twin myths". The proposed evidence is not intended to indicate the previous sexual activity of the complainant to support one of the "twin myths." The proposed evidence is not the conversations(s) between the complainant and the applicant as to the desire or details of rough sex and/or rape fantasy. The proposed evidence thus does not require specific detail of the incidences or conversations of rough sex and/or rape fantasy that may have taken place between the complainant and the applicant.
[14] The proposed evidence is that from the complainant herself. It is not evidence the applicant intends to introduce on his own. The proposed evidence is that from the complainant given to the police and her evidence on the preliminary inquiry.
[15] An affidavit from the applicant in the circumstances of this case is not required.
[16] The evidence before the court includes the affidavit provided in support of the application along with the transcripts of the complainant's video statement to police and her evidence from the preliminary inquiry. The question is whether the evidence provided on the application is sufficient for the court to determine the issues in the application and adequately identifies the proposed evidence to permit the Crown to safeguard a complainant's interests.[^3]
[17] I find that the evidence provided by the applicant is sufficient and adequately identified the proposed evidence to allow the Crown to safeguard the complainant's interests.
[18] The court, therefore, is not persuaded by the submission of the Crown. I will turn to the next issue.
Is the proposed evidence admissible at trial?
[19] In determining whether the proposed evidence is admissible at trial, the court is governed by sections 276 and 278.94.
[20] The Ontario Court of Appeal in R. v. L.S.[^4] indicated that section 276(1) does not create a new rule of evidence. It is an expression by parliament of the fundamental rule that to be admissible evidence must be relevant to a fact in issue. It also identifies two illegitimate inferences from a complainant's sexual activity that will not provide a "road to admissibility" of sexual activity that is not the sexual activity alleged in the offence charged (other sexual activity). Section 276(2) and (3) set out a mechanism for which other sexual activity may be admissible at trial.
[21] Section 278.94 describes the procedure to be followed when an accused seeks to tender evidence of other sexual activity.
[22] The Supreme Court of Canada in R. v. R.V., reviewed the purpose of section 276 and a courts determination of admissible evidence and stated:
The question in this case is how s. 276 operates when the accused seeks to cross-examine the complainant to challenge sexual history evidence led by the Crown. Section 276 requires that the accused's right to make full answer and defence be balanced with the dangers that cross-examination may pose to the complainant's privacy and dignity and to the integrity of the trial process. This analysis applies with equal force regardless of whether the accused seeks to introduce evidence to establish a defence or to challenge inferences urged by the Crown.[^5]
[23] The Court in examining the defences request to cross-examine the complainant on previous sexual activity stated:
If, as in this case, evidence that the complainant has engaged in sexual activity is to be adduced for another purpose, it is presumptively inadmissible unless the accused satisfies s. 276(2)(a) and (b) by identifying specific instances of sexual activity, relevant to an issue at trial. Where the accused applies to cross-examine the complainant about her sexual history to challenge Crown-led evidence, the analysis will often turn on the balancing exercise mandated by s. 276(2) (c). This third step involves weighing the factors set out in s. 276(3) to determine whether the probative value of the cross-examination is significant enough to substantially outweigh the dangers of prejudice to the proper administration of justice. This provision requires judges to determine the permissible scope of cross-examination in light of the competing rights of the accused and the complainant and the other interests set out in s. 276(3). Where the right to full answer and defence requires some cross-examination, judges should tailor their rulings to best safeguard the other interests protected by s. 276(3).[^6]
[24] In the circumstances of this case, the applicant wishes to cross-examine the complainant on their discussion of "rough sex", a "rape fantasy" and that on the first count, her consent to the sexual activity was a "grey area".
[25] I am not persuaded that the proposed evidence falls within the prohibited categories as described in section 276(1) - the twin myths. The proposed evidence is not from the applicant concerning prior sexual activity of the complainant. The evidence is that of discussions of likes and dislikes and the state of mind of the complainant at the time of the offences charged. The evidence is not intended to illicit the prior sexual activity of the complainant to put forth either of the twin myths.
[26] In considering section 276(2) and (3) and the factors the court shall take into account, I conclude that the probative value of the proposed evidence to the applicant's right to full answer and defence outweighs any prejudicial effect. The applicant has the right to contest the evidence of the Crown and the Crown's obligation to prove the offences against the applicant beyond a reasonable doubt. The applicant asking questions of the complainant concerning their conversations of likes and dislikes - "rough sex" and "rape fantasy" - and the "grey area", I find, does not affect the complainant's privacy and personal dignity or the society's interest to an extent that would not permit the proposed evidence as being admissible.
[27] However, this does not end the analysis. I am cognizant of the submissions of the complainant and find those submission compelling and practical. To reiterate, as Supreme Court of Canada indicated in R.V. "...judges should tailor their rulings to best safeguard the other interests protected by s. 276(3)".
[28] The concern the court has with any cross-examination by the applicant is the breadth of that cross-examination and that consent and credibility collapse on each other. The scope of the cross-examination of the complainant is not open-ended. It is limited to the proposed evidence detailed and specific as put forth in the application and is limited to the specific question on "rough sex", "rape fantasy" and "grey area". It is not an invitation to infuse the questioning of the complainant on her past sexual activity that will engage the twin myths. Such questioning is not and will not be permitted.
[29] In addition, though the applicant may challenge the evidence of the Crown on consent that challenge cannot go down the path that either directly or indirectly portrays the complainant in light of a twin myth. To be clear, the complainant has the right to change her mind at any time in the moment of the alleged sexual activity that forms the basis of the offences charged, including the first offence.
[30] It is not disputed that the court is the gatekeeper of evidence admitted at trial along with the permissible questions to be asked at trial. The limitations as described take into count the interests of the complainant and society's interest in encouraging the reporting of such offences and remove from the fact finding process any discriminatory belief or bias. I am of the view that the limitations described are a balancing of the interests of the complainant and society with the applicant's right to full answer and defence.
Disposition
[31] I therefore allow the application that the proposed evidence is admissible at the trial with the limitations as described in these reasons.
[32] If further clarification of the limitations and how those limitations are to be complied with in practical terms is required, such clarification can be given at trial, prior to the applicant's cross-examination of the complainant.
Justice P.W. Sutherland
Released: October 10, 2019
NEWMARKET COURT FILE NO.: CR-17-07871-00
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
– and –
A.C.
Defendant
REASONS FOR DECISION on AN APPLICATION UNDER SECTIONS 276 and 278.94 OF THE CRIMINAL CODE
Justice P.W. Sutherland
Released: October 10, 2019
[^1]: RSC 1985, c.C-46. [^2]: The proposed evidence can be found at the Video Statement Transcripts dated August 6, 2017 at pages 12, 15, 16, 17, 21, and 22 and Transcripts from the Preliminary Inquiry on June 12, 2018, pages 26, 27, 28, 29, 31, 139, 140 and 157. [^3]: R. v. R.V., 2019 SCC 41. [^4]: 2017 ONCA 685 at paras. 44-49. [^5]: R.V. supra footnote 3, at para. 32. [^6]: Ibid at para. 45.