COURT FILE NO.: CR-17-10000701-000 and CR-17-10000826-0000
DATE: 20191029
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
GAVIN MacMILLAN
– and –
ENZO DE JESUS CARRASCO
Rick Nathanson and Pamela Santora, for the Crown
Sean Robichaud and Chantelle LaFitte, for Gavin MacMillan
Uma Kancharla, for Enzo de Jesus Carrasco
Dawne Way, for the complainant
HEARD: October 10, 15, & 16, 2019
By virtue of s. 648(1) of the Criminal Code, this ruling may not be published, broadcast or transmitted in any way until the jury that hears this trial retires to consider its verdict. Furthermore, an order has been made in this proceeding pursuant to s. 486.4(1) of the Criminal Code directing that the identity of the complainant and any information that could disclose the identity of the complainant shall not be published in any document or broadcast or transmitted in any way.
M. Dambrot J.:
[1] This ruling concerns the admissibility of evidence of prior sexual activity in a sexual assault trial.
BACKGROUND
[2] Gavin MacMillan and Enzo De Jesus Carrasco, whom I will refer to as Enzo De Jesus in accordance with his preference, are charged in an indictment with gang sexually assaulting the complainant (s. 272(1)(d) of the Criminal Code); administering a stupefying or overpowering drug to the complainant to enable their commission of the sexual assault (s. 246(b) of the Code); and forcibly confining the complainant (s. 279(2) of the Code). On the same indictment, Mr. De Jesus is also charged with two other counts of sexually assaulting the complainant (s. 271 of the Code). Mr. MacMillan and Mr. De Jesus are being tried by me with a jury.
[3] Mr. MacMillan was the owner of the College Street Bar, where Mr. De Jesus was the manager. On December 14, 2016, the two accused hosted an event at the bar, which they referred to as Blazers, for participants in a bartending course that they ran. The complainant arrived at the bar while the event was on-going to meet a friend who was participating in the course. The sexual activity that forms the subject matter of the offences took place, for the most part, at the bar after everyone but the two accused and the complainant had left. Most of what took place in the bar that evening was video recorded by surveillance cameras. The video recording is not accompanied by an audio recording, and the accused have stated that they intend to advance the defences of consent and honest but mistaken belief in communicated consent on the sexual assault charges.
[4] Mr. De Jesus is charged with one count of sexual assault relating to conduct that took place in the bar several hours before the gang sexual assault that he and Mr. MacMillan are alleged to have committed. He is charged with another count of sexual assault that is alleged to have taken place in his apartment during the morning of December 15, 2019, after both he and the complainant left the bar.
[5] Prior to the commencement of this trial, the accused each brought applications pursuant to s. 278.93(1) of the Criminal Code for a hearing under s. 278.94 to determine whether certain evidence is admissible under ss. 276 or 278.92. Those sections relate, respectively, to evidence that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, and records relating to the complainant. In both cases, such evidence is inadmissible unless a judge determines that the conditions for admissibility in those provisions have been met.
[6] Where an accused applies to have evidence that falls within ss. 276 or 278.92 admitted at trial, the accused must follow the two-stage procedure established by ss. 278.93 and 273.94. Section 278.93 provides for an initial screening of the application. If the judge is satisfied that the accused has complied with the notice requirements 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 ss. 276(2) or 278.92(2).
[7] In this case, the initial screening stage of the application was heard by Dunnet J. on September 23, 2019, ten days before the trial was to commence. Justice Dunnet granted the application in part and adjourned the hearing stage of the application to me, as the judge conducting the trial. What remains to be considered falls exclusively under s. 276, and not s. 278.92. At the suggestion of counsel, I deferred the hearing of the application until after the jury had been empaneled and the video had been played, in order to better enable me to place their arguments in context.
THE APPLICATIONS
[8] In his application, Mr. MacMillan described the evidence that he sought to adduce "or cross-examine the complainant on" as follows:
Sexual comments and gestures that the applicants claim the complainant made at the bar during the Blazers event earlier that night;
The complainant's purported suggestion, earlier that night, that the applicants attend Oasis Aqualounge, a known sex club, with her;
Purported conversations with the complainant prior to any sexual encounter during which she began making sexual advances and statements; and
Various social media postings attributed to the complainant that purport to reference her preference for dominant/submissive sexual encounters.
[9] In the application brought by Mr. De Jesus, the evidence he sought to tender is described as follows:
Sexual comments about bondage and choking;
Sexual comments about dominant and submissive BDSM [an overlapping abbreviation of bondage and discipline, dominance and submission, sadism and masochism] acts;
Sexual comments about preference for polygamous relationships [in both Mr. De Jesus's application and his affidavit he uses the word polygamous, but I assume he means polyamorous]; and
Consensual sexual activity between the complainant and the accused.
[10] Both applicants filed affidavits on their motions and were cross-examined by Crown counsel in accordance with the decision of the Supreme Court in R. v. Darrach, [2000] S.C.R. 443, 2000 SCC 46.
[11] In her first-stage ruling, Dunnet J. concluded that the applicants had failed to offer any basis upon which the social media postings could be relevant to any issue at trial and dismissed that part of the application. The applicants had argued that they should be permitted to challenge the complainant's credibility by cross-examining her about her sexual proclivities and preferences. It is unsurprising that Dunnet J. screened out this part of the application.
[12] As a result, I need only address items 1 to 3 in Mr. MacMillan's application, and the additional matters raised in Mr. De Jesus's application. I will address each category of evidence in turn.
ANALYSIS
Sexual comments and gestures during the Blazers event
[13] Mr. MacMillan says that while he was making a presentation to his bartending students, the complainant made a number of sexually suggestive remarks. For example, when he was describing the process of "spanking the mint" in the making of a drink, she said that she likes being spanked. At another point in time he noticed that she was wearing a collar. He says that he commented that Mr. De Jesus had one too, and she replied that she saw it, but it was too big to choke her. At still another point, he says that when Mr. De Jesus was making a drink using a muddler, she commented that she likes them big like a muddler and that she doesn't have to be a bartender to stroke one. He also claimed that while staring at him, she poked her tongue repeatedly into her cheek.
[14] Mr. De Jesus recalls the complainant making a different but equally suggestive comment when he used the muddler. He says that she also told him that she liked BDSM, had a bruise on her hip caused by BDSM sex, liked to be submissive, called her dominant partner "Daddy", gets turned on by being humiliated, had participated in rope-tying sex, and liked having her choker pulled hard. Mr. De Jesus told her about his involvement in BDSM. He also said that the complainant told him that the Bar would be a great setting for a nude photo shoot (she is in fact a photographer and was in Toronto to do a photo shoot the next day).
[15] Counsel for Mr. MacMillan properly conceded that each of the comments and gestures Mr. MacMillan alleges were made by the complainant amount to sexual activity in light of s. 276(4), which broadly defines sexual activity as including any communication made for a sexual purpose or whose content is of a sexual nature. However, he argued that they form a part of the context of the sexual activity that he engaged in with the complainant later that night along with Mr. De Jesus. It is necessary for the jury to hear this evidence, he said, because it will lend credibility to their evidence that the complainant later explicitly asked the accused to engage in rough sex with two partners simultaneously, and that they had, at that later time, an honest but mistaken belief in communicated consent.
[16] It is helpful to begin my discussion of this argument with a reminder of what "consent" and "an honest but mistaken belief in communicated consent" mean.
[17] In the context of the offence of sexual assault, "consent" is defined by s. 273.1(1) of the Code as "the voluntary agreement of the complainant to engage in the sexual activity in question". It is the conscious agreement of the complainant to engage in every sexual act in a particular encounter, and it must be freely given. Consent means that the complainant in her mind wanted the acts to take place. It must be linked to the sexual activity in question, which encompasses the specific physical sex act, the sexual nature of the activity, and the identity of the partner (R. v. Barton (2019), 376 C.C.C. (3d) 1, 2019 SCC 33 at paras. 88-89). Section 273.1(2) makes clear that consent must be present at the time the sexual activity in question takes place. As McLachlin C.J. stated in R. v. J.A. (2011), 271 C.C.C. (3d) 1, 2011 SCC 28, "The definition of consent for sexual assault requires the complainant to provide actual active consent throughout every phase of the sexual activity" (para. 66) and "the only relevant period for ascertaining whether the complainant consented under the Criminal Code is while the touching is occurring" (Emphasis in the original) (para. 53).
[18] For the purposes of the defence of "honest but mistaken belief in communicated consent", consent means that the complainant had affirmatively communicated by words or conduct her agreement to engage in the sexual activity with the accused. Hence, the focus at this stage shifts to the mental state of the accused, and the question becomes whether the accused honestly believed the complainant effectively said "yes" through her words and actions (Barton, at para. 90). The accused must be able to explain how and why that evidence informed his honest but mistaken belief that she communicated consent to the sexual activity in question at the time it occurred (Barton, at para. 93). Both the communicated consent and the honest belief in communicated consent must relate to consent given at the time that the sexual activity occurred (Barton, at para. 118). Importantly, an honest but mistaken belief in communicated consent cannot arise from prior sexual activity, the complainant's profession, or the accused's own speculation about what was going on in the complainant's mind at the time.
[19] With the meaning of consent properly understood, it becomes clear that the sexual words and gestures immediately before and during the sexual activity in question will generally be admissible, while earlier comments and gestures generally will not. Crown counsel seeks to draw a bright line of admissibility between words and gestures immediately prior to a sexual encounter, and earlier words and gestures. I would not go so far. Undoubtedly, as a matter of law, consent must be specifically renewed, and communicated, for each sexual act, and the proposition that the complainant could give broad advance consent to whatever the accused wanted to do to her is a mistake of law (Barton, para. 118). But this does not mean that everything said earlier than immediately before the activity in question is inadmissible. In my view, however, earlier words in the nature of the words alleged to have been spoken here, such as "I like being spanked", "I like them big like a muddler", "I like BDSM", "I get turned on by being humiliated", "I want you to make me squirt" (unrelated to any particular time or place), and even words of consent to an earlier sexual act are wholly irrelevant, highly prejudicial to the administration of justice, and inadmissible. On the other hand, words such as "come up to my hotel room for sex" if subsequently anchored to evidence of contemporaneous communicated consent to sex in the hotel room, such as "what took you so long to get here - let's get started" probably would be admissible. But that is not this case.
[20] My approach to this issue finds support in Barton. As Moldaver J. explains at paragraph 93 of Barton, when an accused seeks to rely on the complainant's prior sexual activities to support a defence of honest but mistaken belief in communicated consent, the accused must be able to explain how and why that evidence informed his honest but mistaken belief that she communicated consent to the sexual activity in question at the time it occurred. Justice Moldaver gives two examples: where the prior sexual activities of the complainant and the accused shaped the accused's perception of communicated consent to the activity in question; and where the prior negotiations, customs, or practices between the complainant and the accused regarding the specific acts at issue reveal their legitimate expectations on the incident in question. But, he cautioned, a belief that the complainant gave broad advance consent to sexual activity of an undefined scope will afford the accused no defence, as that belief is premised on a mistake of law, not fact.
[21] In attempting to fit himself into this window of admissibility, Mr. MacMillan emphasizes that the type of sexual activity that ultimately took place (rough sex with two partners simultaneously) was similar to the type of sex that, according to the accused, had been intimated and spoken about by the complainant openly and enthusiastically earlier. This lends credibility, it is said, to the position of the accused that the complainant consented, and that the accused had an honest belief in communicated consent.
[22] Accepting for the sake of this discussion that the sexual activity earlier and later were similar, nevertheless, in my view, this argument is nothing more than a dressed up version of one of the twin myths proscribed by s. 276(1) of the Code: evidence that the complainant has engaged in other sexual activity makes it more likely that she consented to the sexual activity that forms the subject matter of a charge. It is no different than saying that the fact that a woman told an accused that she is a sex worker should be admissible to show that it is more likely that when she later had sex with that accused, that sex was consensual. A woman is entitled to express her sexual preferences, discuss her sexual history, wear sexually suggestive clothing, be flirtatious or express herself in a sexually suggestive way without fear that those words and acts may be used as a substitute for consent or to undermine any complaint she may make that she was sexually assaulted.
[23] In addition, the fact that the sex a complainant ultimately engaged in is unconventional does not alter the playing field. The accused suggests that the jury's not knowing that the complainant communicated earlier that she likes and engages in BDSM will make their claim that she later invited it from them and that they honestly believed that she was consenting to it incredible. I cannot accept this argument. As the Alberta Court of Appeal stated in R. v. Goldfinch (2018), 363 C.C.C. (3d) 406, 2018 ABCA 240 at para 40, aff'd (2019), 55 C.R. (7th) 215, 2019 SCC 38 at paras. 58-60, "admitting evidence to dispel the inference of the unlikelihood of consent is no different than introducing such evidence to support the inference of an increased likelihood of consent." If this argument were to prevail, it would mean that women who engage in unconventional sex are less worthy of the protection of the law then other women. But in this case, the argument is also tautological. It is the same accused who says that the complainant told him she likes BDSM earlier and asked for BDSM later. His credibility is not enhanced by saying that the complainant told him twice that she likes and engages in BDSM. But the potential prejudice occasioned by showcasing the extent of the complainant's unconventional sexual interests is palpable.
[24] The accused also says that this evidence must be admitted because without a complete account of what happened that evening, they will not be able to explain to the jury why the complainant communicated consent to them. In this sense, the request is simply an appeal for the admissibility of context or narrative evidence. But, as explained in the Supreme Court decision in Goldfinch at paras. 65-68, while there will be circumstances in which context will be relevant for the jury to properly understand and assess the evidence, that assessment must be free of twin-myth reasoning. Arguments that evidence of the sexual nature of a relationship, or, as here, the complainant's unconventional sexual inclinations, should be admitted as necessary narrative or context, rarely succeed. To be admitted, the evidence must be more than helpful context; it must be fundamental to the coherence of the defence narrative. Here, it clearly is not. The evidence might support the accused's belief about the complainant's unconventional sexual preference, a matter of no significance. Once again, the complainant's alleged unconventional sexual preference has absolutely nothing to do with consent to unconventional sex with the two accused.
[25] If I am wrong, and the evidence in question has some slight probative value, it would still be inadmissible, having regard to the factors listed in s. 276(3) that must be considered when determining the admissibility of evidence of other sexual activity of the complainant. Admitting the evidence would be contrary to the interests of justice, would discourage the reporting of sexual assault offences by persons who engage in unconventional sex, would fail to remove discriminatory beliefs and bias from the fact-finding process, might unduly arouse sentiments of prejudice or hostility in the jury, and might prejudice the complainant's personal dignity and right of privacy. Excluding the evidence would not limit the legitimate exercise by the accused of their right to make full answer and defence. The evidence does not have significant probative value, and whatever probative value it might have (and again, I say it has none) would be substantially outweighed by the danger of prejudice to the proper administration of justice (see s. 276(2)(d) of the Code).
[26] I note that there is one other point raised by counsel for Mr. MacMillan on this issue that I must address. Counsel have advised me that, in a statement to the police, the complainant said that after the accused had taken away her clothing, when she asked for it back, Mr. MacMillan said, "'oh, you'll get this back after you do this for me', or, 'you'll get this back'. Or, you know, 'be a good girl and do this', and he would like force me onto my knees." When asked a few minutes later if she remembered anything else he said, she responded that Mr. MacMillan "said a lot of things like that. He was really weird like that. I didn't like that."
[27] Counsel argues that he should be permitted in cross-examination to attempt to adduce evidence from the complainant that she told Mr. De Jesus that when engaged in BDSM, she liked to be submissive and called her dominant partner "Daddy" because it is inconsistent with what she said in her affidavit and undermines her credibility. I fail to see how the fact that the complainant likes her consensual BDSM partner to call her "Daddy" contradicts her statement that Mr. MacMillan, whom she says sexually assaulted her, was "really weird", and she "didn't like" what he said and did.
[28] In any event, if the complainant's statement could somehow be seen as contradicting what she is alleged to have said to Mr. De Jesus, it is a trivial contradiction, the significance of which is substantially outweighed by the danger of prejudice to the proper administration of justice. It is a far cry from the situation in R. v. Crosby, 1995 CanLII 107 (SCC), [1995] 2 S.C.R. 912 where an inconsistency between two statements made by a complainant about sexual activity unrelated to the charge had "significant probative value on the issue of credibility."
[29] Before leaving this category of evidence, I note that the reference by Mr. De Jesus to nude photography is not sexual activity, but I exclude it as wholly irrelevant.
The complainant's purported suggestion, earlier that night, that the accused attend Oasis Aqualounge, a known sex club, with her
[30] Mr. MacMillan says that during the evening of December 14, the complainant asked him if he wanted to attend the Oasis Aqualounge nightclub with her and Mr. De Jesus. He understood the Oasis to be a sex club where individuals go to engage in sex with others. He declined and left the bar.
[31] Mr. De Jesus says that at some unidentified time during the evening of December 14, the complainant told him that she wanted to go to the BDSM night at the Oasis. She asked him if he had been there, and he replied that he had, numerous times, but that it was not BDSM night at the Oasis. She still wanted to go there. They then had the discussion about BDSM that I made reference to earlier. Mr. De Jesus then said that the complainant asked him to go to the Oasis with her. He said that he wanted to drink at the Bar first, because the drinks were free for him there. He said that the complainant told him that she had never squirted in her life. He told her that he had done it to women when they wanted it and could make her squirt if she wanted it. She said that she wanted it.
[32] I note that in her statement to the police, the complainant confirmed that the Oasis was mentioned in her conversation with the accused. However, she said that she was planning to meet a friend there and asked the accused if they wanted to share a taxi.
[33] If this evidence stood alone, I would exclude all of it for the same reasons that I would exclude the evidence about sexual comments and gestures. The complainant's interest in a sex club says nothing about consent to sex later that night. It does not make her consent, or their honest but mistaken belief in communicated consent any more likely. Even the complainant telling Mr. De Jesus earlier in the evening that she wanted him to make her squirt is not relevant to the offences alleged. If they had engaged in sex of that nature at a time proximate to the discussion, of course it would be relevant. But it does not make consent to, or an honest but mistaken belief that the complainant consented to sex with both Mr. De Jesus and Mr. MacMillan together, hours later, after considerable drinking and the apparent ingesting of cocaine, any more likely. Once again, this theory of relevance is based on one of the twin myths.
[34] There is, however, a problem with excluding this evidence in its entirety. The Crown has adduced evidence that at 10:40 p.m., a time when the complainant appears, to the untrained eye, to be very drunk, and hardly able to walk, Mr. De Jesus, who was present, sent a text message to Mr. MacMillan, that reads, "Squirt already but shes too fuck to go to oasis I will not attempt that it will look bad on me, are you at orbit?". This evidence supports an inference that Mr. De Jesus knew, and communicated to Mr. MacMillan, that the complainant was too drunk to consent to sex. Mr. De Jesus testified to a different interpretation of his text message, but the inference I outlined remains available.
[35] The problem is this. If I exclude the conversations about going to the Oasis it would leave the impression that the accused had hatched a plan to take an inebriated complainant to a sex club, presumably to have sex, but that they didn't go because the complainant had gotten too drunk. It would be unfair to deprive the accused of the opportunity to testify that their plan to go to the Oasis was not a secret, nefarious plan, but rather that they had discussed going to the Oasis with the complainant before she got so drunk.
[36] As a result, I will permit the accused to testify, and to cross-examine the complainant, about her discussions with the accused about going to the Oasis with her. But I will not permit them to testify that she in any way discussed or agreed to have sex with them there, that they believed that she did, that she said anything about wanting to go on BDSM night, that she and Mr. De Jesus discussed anything about squirting in relation to the Oasis, or that this had anything to do with consent or their belief in consent later. In addition, I will instruct the jury about the limited use they can make of this evidence.
Conversations with the Complainant Prior to the Sexual Encounters
[37] I have already stated that sexual words and gestures immediately before and during the sexual activity that forms the subject matter of an alleged sexual assault will generally be admissible in evidence, because they are ordinarily relevant to the issues of consent and honest belief in communicated consent.
[38] In his application, Mr. MacMillan asks to be permitted to testify about the complainant's words and gestures before and during the alleged gang sexual assault, beginning at 12:06 a.m. on December 15, 2016. The time can be stated with precision by adjusting the time on the surveillance video to real time, a calculation that is not in dispute. Crown counsel concedes that this is appropriate, for the reasons already stated. Counsel for the complainant did not disagree. I also agree.
[39] I note that Mr. De Jesus did not make a similar request in his application, but my decision on this category of evidence will apply to him as well, both in relation to the charge of gang sexual assault, and the two separate counts of sexual assault. I note, however, that while the things that Mr. De Jesus says that the complainant said and did in relation to the earlier charge of sexual assault are admissible in the joint trial of these charges, the jury will be instructed that they cannot make use of them in relation to the gang sexual assault charge. I will give the same instruction with respect to the evidence on the first sexual assault charge and the gang sexual assault charge in relation to the third sexual assault charge.
DISPOSITION
[40] The accused may not cross-examine the complainant about or otherwise adduce evidence of sexual comments and gestures that the applicants claim she made in the bar during the Blazers event on December 14, 2016.
[41] The accused may cross-examine the complainant and otherwise adduce evidence about the complainant's discussions with them about going to the Oasis Aqualounge with her during the night of December 14, 2016, but they may not adduce evidence that she in any way discussed or agreed to have sex with them there, that they believed that she did, that she said anything about wanting to go on BDSM night, that she and Mr. De Jesus discussed anything about squirting in relation to the Oasis Aqualounge, or that anything about the Oasis Aqualounge had to do with consent or their belief in communicated consent in relation to the alleged offences. In addition, I will instruct the jury about the limited use they can make of any evidence about the Oasis Aqualounge.
[42] The accused may cross-examine the complainant about and otherwise lead evidence of conversations they say they had with her immediately prior to and during any sexual encounter either or both of them had with her in which she made sexual advances and statements.
[43] Finally, while the things that Mr. De Jesus says that the complainant said and did in relation to the charge of sexual assault that preceded the alleged gang sexual assault are admissible in the joint trial of these charges, the jury will be instructed that they cannot make use of them in relation to the gang sexual assault charge. I will give the same instruction with respect to the evidence on the first sexual assault charge and the gang sexual assault charge in relation to the third sexual assault charge.
M. DAMBROT J.
RELEASED: October 29, 2019
COURT FILE NO.: CR-17-10000701-000 and CR-17-10000826-0000
DATE: 20191029
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
GAVIN MacMILLAN
– and –
ENZO DE JESUS CARRASCO
REASONS FOR DECISION
DAMBROT J.
RELEASED: October 29, 2019