Court File and Parties
COURT FILE NO.: CR-17-70000770-0000 DATE: 20191126
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
W.M. Defendant
Counsel: Cidalia Faria, for the Crown Sherif Foda, for the Defendant Jessyca Greenwood, for the Complainant, Ms. M.-A.
HEARD: February 21 and October 17, 2019
Davies J.
PUBLICATION RESTRICTIONS NOTICE
A non-publication order in this proceeding has been issued pursuant to subsection 486.4(1) of the Criminal Code. By order of this court, any information that could identify the Complainant shall not be published in any document, broadcast or transmission. Publication of this decision is also prohibited pursuant to s. 278.95(1)(d) of the Criminal Code.
REASONS ON DECISION
(Prior Sexual History Evidence, ss. 276(1) and 278.93)
A. Overview
[1] W.M. is charged with several offences, including sexual assault with a weapon and aggravated sexual assault. The charges arise from an altercation between W.M. and the complainant, Ms. M.-A., on March 25, 2017.
[2] This trial was scheduled to commence with a jury in February 2019. I heard oral argument at that time on a defence application, under ss. 276(2) and 278.93 of the Criminal Code, to adduce evidence of other sexual activity between Mr. M. and Ms. M.-A. I decided to reserve my decision on that motion until the end of Ms. M.-A.’s examination-in-chief. During other pre-trial motions, a potential conflict of interest arose between Mr. M.’s lawyer and a Crown witness. Counsel withdrew on May 3, 2019 and the trial was adjourned to early December 2019. Mr. M. has since re-elected to be tried without a jury.
[3] When the new trial dates were set, Crown counsel asked for an opportunity to make further submissions on this motion considering the Supreme Court of Canada’s decisions in R. v. Barton, 2019 SCC 33, R. v. Goldfinch, 2019 SCC 38 and R. v. R.V., 2019 SCC 41, which were released after the motion was originally argued. All counsel also asked me to reconsider my decision to reserve judgment until after the complainant completes her examination-in-chief and asked me to rule on the application before the complainant starts her testimony.
[4] For the reasons that follow, I will permit the defence to adduce evidence, through cross‑examination of Ms. M.-A. or otherwise, that Mr. M. and Ms. M.-A. were in a romantic, sexual relationship before the alleged sexual assault. The defence is not permitted to adduce evidence that would disclose the details of any sexual activity between Mr. M. and Ms. M.-A. other than what transpired on March 25, 2017.
B. Relevance of other sexual activity evidence to an issue at trial
[5] Sexual activity evidence is never admissible to support an inference that, because the complainant has engaged in other sexual activity, she is more likely to have consented to the sexual activity that forms the subject matter of the offence or is less worthy of being believed: Criminal Code, R.S.C. 1985, c. C-46, s. 276(1). However, if an accused can identify a legitimate purpose for introducing the evidence that does not involve one of the prohibited inferences, evidence of other sexual activity may be admissible. The defence must identify with precision specific instances of sexual activity and explain how the evidence of other sexual activity is relevant to an issue at trial.
[6] Mr. M. is seeking to adduce evidence that W.M. and Ms. M.-A. engaged in “sexual activity” on three occasions before March 25, 2017.[^1] Mr. M. filed two affidavits in support of the application. One sets out his version of what transpired on March 25, 2017; the other details three specific occasions he says he engaged in sexual activity with Ms. M.-A. before March 25, 2017. Mr. M. was cross-examined on his affidavits.
[7] The issue for me to decide is whether the three incidents of prior sexual activity between Ms. M.-A. and Mr. M. are relevant to an issue at trial.
[8] Counsel agreed that, in addition to Mr. M.’s affidavit, I could also rely on the preliminary inquiry transcripts to determine the likely issues at trial. Ms. M.-A. testified that she ran into Mr. M. at a bar on the night of March 25, 2017. She says they left the bar together and went to his apartment. They had known each other for a few months. She described her relationship with Mr. M. as casual; she said that she had seen him three or four times before the alleged sexual assault but had never been to his place. She testified that they did communicate through Facebook but she blocked him a few weeks before the incident because he was sending too many messages and her boyfriend was getting angry.
[9] In terms of the alleged assault, Ms. M.-A. testified that Mr. M. got upset with her when they got back to his apartment because she had blocked him on Facebook. He also accused her of sleeping with one of his friends. The complainant testified that during the argument Mr. M. punched her in the face, breaking her jaw. He then got a knife from the kitchen and put it on the coffee table. The complainant says that Mr. M. threatened her and forced her to have intercourse with him. Once the sexual assault ended, Mr. M. took the complainant’s cell phone and money and threw her out of his apartment. She went to a neighbouring apartment and called 911. When asked in cross-examination if she wanted to have any sexual contact with Mr. M. on the night of the alleged assault, she responded, “I have a boyfriend so, no.”
[10] In his affidavit, Mr. M. says that Ms. M.-A. came to his apartment unexpectedly on March 25, 2017. She wanted drugs from him. He says they had consensual sex after consuming alcohol and cocaine together. Mr. M. says that Ms. M.-A. became angry and violent with him after they had sex because he would not give her more drugs and he wanted her to leave. The defence will not contest that the complainant’s jaw was broken during the altercation between Mr. M. and Ms. M.-A. but will argue that Mr. M was acting in self-defence.
[11] In terms of their prior sexual history, Mr. M. says that he and the complainant had consensual sexual intercourse at a mutual friend’s apartment the first night they met, in late December 2016. He asked Ms. M.-A. if she had any sexually transmitted infection. She said no and they had unprotected sex. He says they went together to his apartment the next morning. He describes having consensual sexual intercourse with Ms. M.-A. later that day at his friend’s place after consuming cocaine together. Mr. M. says that he did not hear from Ms. M.-A. for a few weeks. One day, she showed up at his apartment and asked him for cocaine. Mr. M. says he gave her cocaine in exchange for sex.
[12] Mr. M. and Ms. M.-A. have provided diametrically opposed versions of what took place in his apartment on March 25, 2017. They have also given conflicting evidence about the nature of their relationship in the weeks and months before the alleged assault. The main issue at trial will be whether Ms. M.-A. consented to the sexual activity that occurred.[^2] However, given the conflicting versions I am likely to hear, Ms. M.-A.’s credibility and the reliability of her evidence, including whether she has a reason or motive to lie about Mr. M., will also be an important issue at trial.
[13] Defence counsel argues that the three incidents of prior sexual activity are relevant to several issues at trial:
a. To provide necessary context about their relationship so the court can properly assess the credibility of the competing versions of what happened on March 25, 2017;
b. To explain why Ms. M.-A. would engage in unprotected sex with Mr. M. on the night of the alleged sexual assault;
c. To challenge Ms. M.-A.’s credibility;
d. To establish that there is a pattern to the manner in which Ms. M.-A. engages in consensual sexual intercourse with Mr. M.; and
e. To demonstrate that Ms. M.-A. has animus towards Mr. M.
[14] Crown counsel advised that she will not be relying on the fact that Mr. M. and Ms. M.-A. had unprotected sex on March 25, 2017 in any way to corroborate Ms. M.-A.’s evidence that she did not consent. As a result, the reason protection was not used on that the night of the alleged sexual assault is not an issue at trial.
[15] The remaining issues identified by the defence can be grouped into two broad categories:
a. Is the proposed sexual activity evidence relevant to the credibility and reliability of the competing versions of events?
b. Does the proposed sexual activity evidence establish a pattern of conduct on the part of the complainant that is relevant to the issue of consent?
Is the proposed sexual activity relevant to the credibility and reliability?
[16] Given that Mr. M. and Ms. M.-A. have provided diametrically opposed versions of what took place on March 25, 2017, the credibility and the reliability of each version will be a crucial issue at trial. There are three points of disagreement that will be particularly important. The resolution of these issues will likely have a significant impact on the credibility and reliability of their respective versions of what transpired.
[17] First, they disagree about the nature of their relationship generally. She will say they were just casual acquaintances. She says she had only seen him three or four times before the alleged assault. She did not know his last name. On the other hand, Mr. M. will say that they were in an intimate, sexual relationship or had been in the past. To the extent that the court finds that Ms. M.‑A. is being untruthful about the nature of their relationship or downplaying it in order to make her version of events more plausible or sound more serious, that would be an important consideration in relation to her credibility. Mr. M. must have an opportunity to challenge Ms. M.‑A.’s evidence about the nature of their relationship and adduce evidence to convince the court that she is being untruthful about this.
[18] Second, they disagree on whether Ms. M.-A. had ever been to Mr. M.’s apartment before March 25, 2017. This will be a very important fact at trial. Mr. M. says in his affidavit that Ms. M.‑A. showed up at his apartment unexpectedly on the night of the alleged sexual assault again looking for drugs and got angry when he stopped giving her drugs. For Mr. M.’s version of events to be true, Ms. M.-A. must have been to his apartment before March 25, 2017. In his affidavit, Mr. M. says that he and Ms. M.-A. went to his apartment together the day after they met. He also says that she showed up at his apartment uninvited a few weeks later looking for cocaine. He gave her cocaine when they first met but did not want to give her cocaine on that occasion. She offered to have sex with him in exchange for the cocaine.
[19] Ms. M.-A. testified at the preliminary inquiry that she unexpectedly ran into Mr. M. at a bar on the night of the alleged sexual assault and they went back to his place together. She testified that she had never been to his place before that night. Mr. M. must be able to put to Ms. M.-A. that she had been to his place before and explore the context in which he says that happened. In order to make full answer and defence, and to satisfy the requirements of the rule in Browne v. Dunn, Mr. M. must be able to ask Mrs. M.-A. questions about whether she had been to his apartment before, including once on her own initiative when she wanted drugs. Again, if the court were to find that Ms. M.-A. was not being truthful about how she got to Mr. M.’s apartment that night or why she went, that could significantly impact her credibility.
[20] Third, I expect that Ms. M.-A. will also say that she and Mr. M. had an argument on the night of the alleged assault because she blocked Mr. M. from communicating with her on Facebook. She will say that he was jealous and accused her of having sex with one of his friends. This evidence raises obvious questions about the nature of their relationship at the time and in the past. If Ms. M.-A. is permitted to testify about the argument she says they had, Mr. M. is entitled to challenge that evidence, including her suggestion that he was jealous.
[21] Trial judges must be very cautious about admitting evidence of a prior sexual relationship for the purpose of providing “context:” Goldfinch, at paras. 65-66. Nonetheless, there will be cases where evidence of a pre-existing sexual relationship will be relevant. For example, in Goldfinch, the Supreme Court held that evidence of a sexual relationship may be relevant when the complainant has given “inconsistent statements regarding the very existence of a sexual relationship” or if it is truly fundamental to the coherence of the defence narrative. Evidence of an existing sexual relationship can also be admissible if the fact-finding process will be distorted without that information.
[22] It is important to note that in Goldfinch, where the Court held that evidence that the accused and the complainant were “friends with benefits” should not have been admitted, there was no dispute about the nature of their relationship. The Crown was prepared to admit or adduce evidence that the accused and complainant had been in a romantic relationship and lived together for several months, and that the complainant would occasionally stay at the accused’s house after they broke up. The defence wanted to also adduce evidence that after their break-up, the accused and the complainant continued a casual sexual relationship. The Supreme Court held that because of the admissions by the Crown about the nature of the relationship between Mr. Goldfinch and the complainant, the additional fact that they continued a casual sexual relationship after they broke up was not relevant to any issue at trial and risked engaging prohibited reasoning.
[23] Here, there is no agreement between the parties as to the nature of their relationship. On Ms. M.-A.’s version they were casual acquaintances only and Mr. M. attacked her, forcing her to have sexual intercourse with him after they had a couple of drinks together. On his version, she came to his apartment uninvited asking for drugs and they had consensual sex.
[24] Given the dispute in the evidence and the relevance of the nature of the relationship between Mr. M. and Ms. M.-A., I will allow Mr. M. to adduce evidence that he and Ms. M.-A. were in an intimate relationship that included past sexual encounters. To prohibit Mr. M. from adducing evidence that he and Ms. M.-A. were in a romantic, sexual relations would, in the circumstances of this case, distort the fact-finding process. Mr. M. must be allowed to challenge Ms. M.-A.’s evidence about the nature of their relationship and, if he chooses to testify, describe the nature of their relationship in his own words. Counsel for Mr. M. can suggest to Ms. M.-A. that they were more than casual acquaintances and had engaged in sexual activity in the past. Questions about whether, how often and why Ms. M.-A. saw Mr. M. or went to his apartment before March 25, 2017 are also permissible so long as they do not reference any specific sexual activity they engaged in. Evidence that could establish that Mr. M. and Ms. M.-A. were in an intimate, sexual relationship prior to March 25, 2017 has significant probative value and, if used for the limited purpose described, does not engage either of the prohibited inferences.
[25] However, the details of any sexual activity they might have engaged in before March 25, 2017 are not relevant to the nature of their relationship, or the context of what happened on March 25, 2017 or whether she had a motive to lie about Mr. M. Defence counsel is not permitted to adduce any details about any sexual activity they engaged in before March 25, 2017. It is the fact that they were in an intimate, sexual relationship that is relevant, not the details of any sexual contact they had. Even if the details of those past sexual encounters were arguably of some relevance to an issue at trial, the relevance would be substantially outweighed by the prejudicial effect of allowing Ms. M.-A. to be questioned about intimate details. Permitting the defence to ask the complainant about details of sexual activity she might have engaged in with Mr. M. in the past likely would undermine her privacy and personal security and could, in my view, discourage other complainants from reporting sexual abuse.
Does the sexual activity evidence establish a pattern of consent?
[26] Counsel for Mr. M. sought leave to adduce evidence that Ms. M.-A. and Mr. M. had consensual intercourse on two occasions before March 25, 2017 after he gave her cocaine. Counsel argued that this evidence is relevant to the coherence of Mr. M.’s account of what happened on March 25, 2017 and is also relevant to the court’s assessment of whether Ms. M.-A. consented. I disagree.
[27] If Mr. M. was permitted to suggest that Ms. M.-A. consented to having sexual intercourse with Mr. M. twice in the past after he gave her cocaine and that makes it more likely she consented to having sex with him on March 25, 2017 after he gave her drugs, that would directly engage one of the lines of reasoning prohibited by s. 276(1). The “relevant issues” at trial cannot be one of twin myths prohibited by s. 276(1): Goldfinch, at para. 56. Even if Ms. M.-A. did consent to having sex with Mr. M. on two earlier occasions after consuming drugs with him or in exchange for drugs, that does not make it more likely she consented on March 25, 2017 even if the circumstances are similar.
[28] To the extent that Mr. M. is suggesting that there was a “pattern” to the manner in which Ms. M.-A. consented to sexual activity with him, it was not sufficiently distinctive to make the evidence admissible. In Goldfinch, at para. 64, the Court suggested that to use prior sexual history evidence to establish a pattern of conduct, the underlying circumstance must be sufficiently similar to the circumstances of the offence to meet the test that has been established for the admissibility of similar act evidence. A stringent test must be used for admitting evidence of prior sexual history for the purpose of establishing a “pattern of conduct” on the part of the complainant given the serious risks that this type of evidence will engage a prohibited inference. Unless there is something very distinctive or idiosyncratic about the manner in which the complainant communicated her consent in the past which is the same as how she allegedly communicated her consent during the offence, evidence of a “pattern” could easily lead a trier of fact to conclude that the complainant consented to the sexual activity that forms the basis of the offence because she consented in similar circumstances in the past. This is precisely the inference that s. 276(1) prohibits. Although there are some vague similarities here – sexual activity after consuming drugs provided by Mr. M. – those similarities do not rise to the level required to admit similar act evidence. As a result, evidence of prior sexual activity between Mr. M. and Ms. M.-A. is not admissible for the purpose of establishing a pattern of conduct relevant to the issue of consent.
C. Conclusion
[29] Counsel for Mr. M. is permitted to adduce evidence to establish that Mr. M. and Ms. M.‑A. were in an intimate, sexual relationship prior to March 25, 2017. That evidence is admissible for the purpose of challenging Ms. M.-A.’s credibility and the reliability of her evidence, including whether she has some motive or reason to lie. It is also admissible to provide necessary context for Mr. M.’s version of evidence. It is not admissible for any other purpose.
[30] Evidence about the details of any past sexual encounter between Mr. M. and Ms. M.-A. is not admissible for any purpose.
Davies J.
Released: November 26, 2019
COURT FILE NO.: CR-17-70000770-0000 DATE: 20191126
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
W.M. Defendant
REASONS FOR JUDGMENT
Davies J.
Released: November 26, 2019
[^1]: W.M. brought a second application under s. 278.92 for leave to cross-examine Ms. M.-A. on police occurrence reports that were produced following a third-party records application. One report discloses that Ms. M.-A. was charged with perjury and public mischief because she allegedly made a false complaint to the police that she was sexually assaulted by her boyfriend’s roommate. Those charges were withdrawn. The admissibility of the occurrence reports, including the allegedly false sexual assault report, will be addressed in a separate ruling.
[^2]: Based on the record on this motion and the submissions of counsel, honest but mistaken belief in communicated consent does not appear to be a viable argument in this case.