COURT FILE NO.: 17-19636

DATE: 2019/11/25

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

– and –

M.L.

COUNSEL:

Caroline Thibault and Michael Boyce, for the Crown

Ewan Lyttle, for the Accused

Joanne Meloche, for the Complainant

HEARD: September 5, 2019

reasons for decision

A.E. LONDON-WEINSTEIN J.

[1] The applicant, Mr. M.L. is charged with one count of assault dated June 29, 2016. He is further charged with one count of assault cause bodily harm, dated July 28, 2016, and one count of assault dated between July 1, 2015 and February 20, 2017. A count of criminal harassment is not being proceeded on by the Crown, although it was originally laid, and he is charged with one count of sexual assault dated February 20, 2017.

[2] He is also charged with breaching his recognizance by way of communicating with named individuals, including the complainant and her family.

[3] The applicant and the complainant were in a boyfriend-girlfriend relationship which began in 2015. They eventually moved in together. They both had children from a prior relationship.

[4] The couple broke up in late 2016 and ceased residing together. However, they continued to communicate with one another and to see each other.

[5] In March of 2017, the complainant reported to police that she had been sexually assaulted by the applicant on February 20, 2017. She also alleged that she was the victim of long-term domestic violence and abuse.

[6] A preliminary hearing was held in this matter on the lone count of sexual assault. Weeks after the preliminary hearing, the Crown amended the indictment to include a criminal harassment count, previously referenced, and the additional assault and assault cause bodily harm counts. The Crown indicates it is not proceeding on the criminal harassment count.

[7] The applicant seeks to adduce evidence of other sexual activity between himself and the complainant. The proposed evidence generally relates three areas of potential admissibility:

• The complainant’s credibility;
• The complainant’s character;
• To adduce evidence in support of the Applicant’s defence to assault; and
• Whether the alleged sexual assault on February 20 occurred.

[8] Specifically, he refers to proposed evidence that:

• The complainant only enjoyed rough and aggressive sex.
• The complainant would routinely say “fuck me hard” and to “go harder”. If he did not slap her, pull her hair and if he did not meet her sexual expectations, she would become upset and angry with him.
• Sometimes the complainant slapped him during sex. Sometimes she scratched his back so hard it would leave marks.
• If he did not have sex with her in a rough and aggressive manner, she did not enjoy it and would complain. If he did not meet her sexual expectations, she sometimes simply stopped the sex, pushed him off and became extremely frustrated and angry. She would belittle him by calling him bitch or pussy.
• On one occasion when they were having sex at their home, the complainant pushed him off the bed and they went to buy lubricant. The complainant put lubricant all over her buttocks and anus and stated, “fuck me in the ass.” This was the first time the applicant had anal sex with anyone and that was the first time they had anal sex together. The sex was rough at the request of the complainant. From this point on, whenever they had sex, it was primarily anal sex
• On another occasion on the complainant’s birthday, the complainant requested a threesome with her friend and the applicant. When he refused, she called him names.
• The applicant worked as a stair finisher and was often tired when he returned home from work. The complainant would want sex after he came home. He did not have enough energy to be rough or aggressive with her. During those times, she would become frustrated and just stop. Alternatively, she would criticize him for not going hard enough and they would fight about it.
• The applicant indicated he felt badly after these arguments and felt that the complainant was using sex, unmet expectations, arguments and name calling as a way to control and manipulate him.
• The applicant indicates that he and the complainant often had sex in cars. He indicates the sex was always in her car, a small white Chevy. Some of the spots they frequented were: Off Canotek Rd., near Green’s Creek, off the Ottawa River Parkway.
• After they broke up in late 2016, and even after February 20, 2017, the complainant and the applicant continued to have sexual intercourse. They rented hotel rooms numerous times at the Beacon Hill Motel and the Value Inn for the purpose of having sex.
• The applicant admits to having sex with the complainant on February 20, 2017 but insists that the sex was consensual.
• After February 20, 2017, the date of the alleged sexual assault, the applicant maintains that he had sex with the complainant. The sex occurred within days of the February 20 incident. The sex was rough at her request. The complainant was not injured or in any pain.
• The applicant was not charged until March 17, 2017. Between February 20, 2017 and March 17, 2017, he communicated regularly with the complainant. He alleges that the complainant sent him sexually charged messages about how she wanted him and wanted to have sex. They met in hotels on numerous occasions during that time period and the sole purpose of those meetings was to have sex.

[9] There was only one instance where evidence of other sexual conduct could be admissible in this case, and whether or not it is admissible depends on whether it is proffered by the Crown. This area of evidence relates to the complainant indicating that the applicant took advantage of her for his sexual pleasure, taking more than she was willing to give, as he always did. This evidence was elicited by the police officer and suggests an ongoing pattern of behaviour outside of the context of the sexual assault allegation. For reasons which I will explain later, if the Crown leads this evidence, it would be unfair to bar the defence from rebutting this evidence. However, the rebuttal evidence will be specifically tailored to rebut the statement that the applicant always took more in a sexual context than the complainant was willing to give.

Position of the Crown:

[10] The Crown’s position is that none of the proposed bodies of evidence proposed by the defence are admissible as they variously are in contravention of the twin myths, or the evidentiary point can be achieved without resort to evidence involving sexual activity. The Crown did not specifically address the issue of rebutting the complainant’s contention that it was the applicant who always took advantage for his own pleasure, and whether that specifically opens the door for the defence to rebut this assertion with evidence that he was actually belittled for poor sexual performance, thus belying the assertion that he always took advantage.

Position of the Complainant:

[11] Counsel for the complainant argues that the principle respecting the privacy and dignity of complainants are not ousted from a trial by the presence of allegations of assault in a domestic context. Counsel for the complainant takes the position that the applicant has not identified a proper purpose for the introduction of evidence of other sexual activity. The risk of distortion of the trial process through sexual reputational evidence is also a threat. Again, counsel did not specifically address the issue of the defence being able to rebut the statement of the complainant regarding the accused always taking more than she was willing to give sexually.

Position of the Applicant:

[12] The applicant’s position is that the evidence of other sexual conduct is required for the reasons outlined above.

Legal Analysis:

[13] Evidence of the complainant’s other sexual activity in a sexual assault trial is presumptively inadmissible. Section 276(1) of the Criminal Code states that evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person is not admissible to support an inference, that by reason of the sexual nature of that activity, the complainant

(a) Is more likely to have consented to the sexual activity that forms the subject matter of the charge; or

(b) Is less worthy of belief.

[14] This provision prohibits reliance on sexual activity evidence to support one of the twin myths identified by the Supreme Court in R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577. These myths are not relevant to issues at trial and can distort the trial process, R. v. Darrach, 2000 SCC 46 at para 33.

[15] Sexual activity evidence will not always be ruled inadmissible. Where an accused person can clearly identify a legitimate purpose for introducing the evidence, not based on twin-myth reasoning, admission is possible.

[16] The three-part test set out in s. 276(2) of the Code, requires that:

In proceedings in respect of an offence referred to in subsection (1) no evidence shall be adduced by or on behalf of the accused that the Complainant has engaged in sexual activity other than the sexual activity that forms the subject matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge, or justice determines, in accordance with the procedures set out in sections 276(1) and 276(2), that the evidence

(a) Is of specific instances of sexual activity;

(b) Is relevant to an issue at trial; and

(c) Has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

[17] If the evidence is of specific instances of sexual activity and is relevant to an issue at trial, the trial judge must determine whether the evidence has significant probative value which is not substantially outweighed by the danger of prejudice to the proper administration of justice.

[18] The trial judge must also take into account the factors listed in s. 276(3)

(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.

[19] In the case before me, the accused complied with the requirements of filing the appropriate application under s. 276(2). The applicant set out detailed particulars of the evidence that the Applicant sought to adduce, linking the proposed evidence to issues at trial.

[20] I found the evidence capable of admission. A voir dire was held, and the applicant testified and was cross-examined.

Specific Instances of Sexual Activity:

[21] The first issue to be determined is whether the proposed evidence relates to specific instances of sexual activity.

[22] The degree of specificity required to permit the court to make a proper evaluation of the evidence and for the interests of the complainant to be safeguarded is context dependent.

[23] The proposed evidence relates to instances of assaultive and abusive behaviour during times of sexual intimacy over the course of the relationship. The applicant has also identified a time frame within days of the sexual activity on February 20, 2017 when he asserts that he had sex with the complainant and she had no injuries, despite her earlier claim.

[24] I would not expect that the applicant would be able to pinpoint the exact timing of these incidents. In my view, they incidents were adequately identified so as to permit me to perform the balancing required under s.276,

[25] In R. v. R.V., 2019 SCC 41 at para 51 the Court cited with approval Paciocco J’s observation that this requirement be interpreted purposively.

The Complainant’s Credibility and Character:

[26] The applicant argues that since he is permitted in law to attack the credibility and character of the complainant, he should be able to lead evidence regarding credibility and character failings occurring in a sexual context.

[27] The applicant maintains that since the domestic assault counts, particularly the one spanning a considerable time frame in the relationship, will involve referring to alleged character failings on the part of the applicant, fairness demands the admission of a body of other sexual activity evidence to contradict many of the complainant’s statements.

[28] The applicant points out that the evidentiary landscape of the trial has changed and that the addition of allegations of repeated assault has converted the trial into a credibility contest. The applicant argues he should not be precluded from raising new defences unrelated to the sexual assault. The evidence of other sexual activity is therefore now more relevant.

[29] Further, the applicant seeks to challenge the complainant’s assertion that she never hit the accused; that she “never did any of that”, and that she is afraid of the accused and did not want to see him.

[30] The applicant seeks to lead evidence that the complainant demeaned him through sexual and non-sexual encounters.

[31] The applicant seeks to rebut the stereotypical notion that only men can use sex to inflict control and manipulation.

[32] The applicant submitted a detailed chart indicating areas where he sought to impeach the evidence of the complainant’s assertions with specific examples of proposed evidence relating to other sexual activity.

[33] For the following reasons, I would not permit cross-examination in regard to other sexual activity for the stated purposes for which the applicant seeks to undermine the credibility of the complainant or to impeach her character.

[34] The right to undermine the credibility of a witness is a right belonging to the applicant, but it is not without limits. All parties face certain limitations relating to relevance and policy rationales which may drive the admissibility analysis. The Crown for example, cannot cross-examine an accused in regard to an assertion of the right to silence by suggesting that an honest witness would have told the police all there was to know. The policy rationale behind this rule is to safeguard the protection of the right to silence, and the prohibition against requiring an accused person to incriminate himself. In the context of a sexual assault trial, the fact that a line of cross-examination may undermine the credibility of a witness does not end the analysis in favour of the defence. A trial judge is still required to engage in a careful and rigorous approach to determine if the evidence is properly admissible in light of the policy rationales which Parliament has chosen to safeguard. The applicant seeks to cross-examine the complainant in regard to her hitting the applicant during sex to challenge her assertion to police that she never hit the applicant. The defence posits that this line of cross-examination will contradict the assertion of the complainant that she is passive and meek. I turn to the requirement that the proposed evidence be relevant to an issue at trial and have significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

[35] From my reading of this evidence, it was clear to me that the complainant was saying she did not hit the applicant in terms of assaulting him. It was clear that she was not referring to a sexual context for her comment. It also was not clear to me that the applicant was not consenting to the rough sex. Hitting someone within the context of a consensual sexual relationship is conceptually distinguishable from hitting someone in terms that constitute assault, that is without consent. For that reason, I find the probative value of this evidence to be limited. Further, I have no evidence that persons who enjoy rough sexual activity might be otherwise meek and passive individuals in the regular course of their life outside of the bedroom. While that may seem like a common-sense inference, these types of inferences in sexual assault trials are fraught with the danger of falling into stereotypical reasoning. Therefore, the relevance of this evidence, given the context in which it arose is questionable. Further, the relevance of the evidence is based on my acceptance of the inference that people who enjoy rough sex cannot be otherwise meek and passive in the balance of their lives. I am not willing to make that assumption in the absence of evidence. Relying on a stereotype infuses a danger of prejudice to the proper administration of justice and I did not admit the evidence of hitting during sex for the purpose for which it is proposed.

[36] Further, the applicant seeks to lead evidence that the complainant requested rough sex, called him names, argued about his failings and belittled the applicant for a lack of sexual performance. The fact that the complainant often requested rough sex does not permit me to draw an inference that the applicant was not dominating, aggressive and controlling. I would have to conclude that a person who requests rough sex cannot be otherwise dominated and controlled in her relationship. I have the same issue with this proposed line of questioning as I did to the line of questioning just discussed. I cannot draw the required inference without relying on a stereotype about what persons who request rough sex are like in their day-to-day lives, outside of the bedroom. In the absence of evidence, I cannot engage in a form of reasoning where the underlying premise is far from clear.

[37] In regard to the proposed evidence that the complainant initiated the first alleged anal sex after pushing the applicant off the bed, going to purchase lubricant and requesting rough anal sex, the respondent seeks to admit this evidence to establish that it was the complainant who was demanding and controlling and that she was not a meek and passive person. Again, the premise underlying the proposed relevance of this evidence is that a meek and passive person would not behave in this manner in a sexual context. I have no evidence that the applicant was not consenting to this form of sexual activity. This evidence lacks significant probative value and also engages the danger of prejudice to the administration of justice through the injection of reasoning which may be based on stereotypes about how persons behave in a sexual context.

[38] The applicant seeks to lead evidence that the complainant requested a threesome with her friend and the applicant. When he refused she called him names. This evidence is relevant to the complainant’s assertion that the applicant always took more from her in a sexual context than she was willing to give. This proposed evidence contradicts the assertion that it was the applicant who was constantly taking more sexually than she was willing to give. In this instance, the evidence suggests that it was the complainant who was making demands which the respondent was unwilling to fulfill. However, despite the relevance of this evidence, I have exercised my discretion not to admit it. It is relevant to rebut the statement which the complainant made to the police about the accused always making demands of her which exceeded her desire to fulfill them. At the risk of engaging in value-laden judgments, I regarded this line of questioning regarding a threesome to represent a significant incursion into the complainant’s personal dignity and right of privacy. I appreciate the right of an accused person to make full answer and defence. However, I have permitted another area of evidence to be admitted if the Crown leads the statement in question from the complainant and it is admitted. The area of evidence which I permitted to be admitted if the Crown succeeds in leading the statement is less intrusive of the right to privacy and dignity of the complainant, but accomplishes the same evidentiary purpose, which is to rebut the complainant’s assertion that the applicant always took more from her than she was willing to give in a sexual context. I discuss the purported evidence which I would permit to be admitted later in these reasons.

[39] The defence argues both areas of evidence are part of the right to make full answer and defence. I agree that the evidence of sexual belittling and the threesome evidence are both encompassed in the right to make full answer and defence. However, in engaging in the balancing exercise required, I limited admissibility to the evidence of belittling and did not permit the evidence of a proposed threesome. If the Crown evidence can be rebutted without resort to evidence which is more violative of the dignity of the complainant, the evidence which is less violative of that dignity should be admitted in lieu of evidence which will have a greater impact on the privacy and dignity rights of the complainant.

The Defence to Assaultive behaviour outside of the counts on the Indictment:

[40] The accused argues that the addition of the historical charge of assault will open the floodgate to evidence which paints the accused in an unfavourable light. The accused describes the Crown’s case as an all-out character assassination of the accused.

[41] The complainant’s evidence is replete with what I would describe as extrinsic misconduct evidence. Pursuant to R. v. DSF, 1999 CanLII 3704 (ON CA) 132 CCC(3d) 97 (Ont. C.A.), this type of evidence is admissible for various purposes, for example, to provide context regarding the nature of the relationship or to establish longstanding animus. However, the evidence can still be excluded where its probative value is exceeded by prejudicial effect. A trial judge is tasked with the role of gatekeeper to ensure that evidence is properly admissible for a clearly identified purpose. It is critical that the trial judge ensure that evidence is limited to the purpose for which it is admitted and that it not serve as a Trojan horse for character assassination of the accused.

[42] The litany of extrinsic misconduct evidence attributable to the complainant’s anticipated evidence which is listed in the accused’s factum takes up two full pages. I shall not repeat the list here, but a few items of significance are the fact that the complainant says that the accused has a triple black belt and has ties to major drug organizations; that he is a scary man and has done terrible things, that he threatened family members and that he hit her on a regular basis.

[43] A criminal trial is not an exercise in character assassination even in a case where a limited body of what would otherwise be inadmissible discreditable conduct evidence may be admitted for a specific and limited purpose, where a limiting instruction must also be provided. A trial judge has a gate keeping function in a trial, and the gate is not flung widely open to a stampede of bad character evidence just because the case is one where abuse is alleged to be an ongoing pattern.

[44] In R. v. Thomas, 2018 ONCA 694 the trial judge had spent 12 pages of a jury charge summarizing extensive bad character evidence for the jury. The Court of Appeal agreed that the evidence could be characterized as a “relentless depiction of the appellant as a bad person.” (Para. 27). The Court of Appeal held that the trial judge had the discretion to admit the evidence, however “it was also open to the trial judge to restrict the scope of this evidence on the basis that permitting all of it to be admitted might overwhelm the jury and cast the appellant in such a bad light as to make it impossible for them to evaluate the ultimate question objectively.” See also R. v. Stubbs, 2013 ONCA 514, [2013] O.J. No. 3657, R. v. Batte, 2000 CanLII 5751 (ON CA), 49 O.R. (3d) 321.

[45] The appropriate method of attaining a fair evidentiary balance in this judge alone trial, is not to open the door to evidence of other sexual activity, but rather to use the court’s gatekeeping function to ensure that the evidentiary record is not reduced to a relentless depiction of the accused as a bad person.

[46] Finally, where the evidentiary purpose for which the evidence is sought to be adduced can be found in a non-sexual context, it should not be admitted. The applicant must be able to identify specific facts or issues relating to his defence that can be properly understood and resolved by the trier of fact only if reference is made to the sexual activity in question.

[47] For those reasons, I would not permit evidence of the bad character of the complainant to be lead in a sexual context to answer the defence concern that the trial will be an all out character assassination. Rather, the gatekeeping function of the court will answer that concern.

The Alleged Sexual Assault of February 20, 2017

[48] The accused also seeks to introduce evidence of sexual activity which is alleged by him to have occurred after the incident which is the subject matter of the charge before the court. The accused seeks to challenge the credibility of the complainant through this cross-examination. The accused argues that if the complainant was injured in her genital area as she claimed, she would not have been willing to engage in the sexual activity with him which he alleges were rough at her request. The complainant did not indicate she was in pain, or demonstrate any injury, according to the applicant.

[49] The evidence I had before me was that the complainant said her “lady parts” hurt after the sexual activity which is the subject matter of the charge before the court. She indicated that she was bleeding afterward. I have no evidence as to how severe the injury was to her genital area.

[50] At first blush, it may seem like a common-sense inference that a vaginal injury might disinhibit the complainant from being willing to engage in further sexual activity, within days of being injured. However, there are problems associated with relying on that common-sense inference.

[51] I had no information regarding how severe the injury was beyond what I have just described. I also had limited evidence as to how much time elapsed between the date of the purported injury and the sexual activity which the defence suggests took place within days of the sexual activity which is the subject matter of the charge. Thus, the probative value of this proposed evidence is weakened by the informational limitations.

[52] It is problematic that if I were to admit this evidence to challenge the complainant’s credibility on the basis that a woman who sustained a vaginal injury would not be willing to engage in further sexual activities within days of the injury, I would be relying on a common-sense notion. The use of common-sense approaches to credibility assessments is fraught with danger for it can mask reliance on stereotypical assumptions. R. v. A.B.A., 2019 ONCA 124, as cited in R. v. Cepic, 2019 ONCA 541, [2019] O.J. No. 3398, para 13. Further, I have heard evidence in this matter that the complainant enjoyed rough sex. I need not decide if I accept this suggestion to determine that the possibility it may be true might be relevant to the complainant’s tolerance for pain and her amenability to sexual activity if she were injured to some unknown degree. Given the problems identified, the evidence lacks significant probative value when weighed against the potential for prejudice to the administration of justice.

[53] The applicant also seeks to lead evidence that he and the complainant continued a clandestine sexual relationship post the alleged sexual assault. The applicant is free to lead evidence that he met with the complainant after February 20^th. He can lead evidence as to where they met and how long they met. These post February 20, 2017 meetings are relevant to challenging the credibility of the complainant relating to her evidence that she did not want to have contact with the applicant. (PH transcript p. 36 line 29) The complainant testified at the preliminary hearing that between February 20, 2017 and March 1, she most likely saw the applicant. However, no evidence can be lead as to sexual activity post February 20, 2017 for reasons outlined.

[54] The defence also sought to introduce evidence that the complainant and the applicant enjoyed lots of sex during their relationship. This evidence emerged at the preliminary hearing. I could not identify a purpose for which this evidence could be properly adduced. Certainly, it could not be adduced to demonstrate the complainant was not meek or passive (her character). It is not relevant to credibility. Finally, common sense inferences in sexual assault trials can be deceiving. I have limited information about the sexual practices of these two people, one of whom I have never even seen in the courtroom. An inference based on a premise which may not be accurate is a prescription for legal error. Even relatively benign relationship evidence must be scrutinized and handled with care. If the accused cannot point to a relevant use of the evidence other than the twin myths, mere assurances that evidence will not be used for those purposes are insufficient. The relative value of sexual history evidence will be significantly reduced if the accused can advance a particular theory without referring to that history. In contrast, where the evidence directly implicates the ability of the accused to rise a reasonable doubt, the evidence is obviously fundamental to the ability to make full answer and defence. R. v. Goldfinch, 2019 SCC 38, para 69.

Rebutting an allegation by the complainant outside of the charge of Sexual Assault:

[55] In her audiovisual statement the complainant says that the applicant took advantage of her for his own pleasure.

[56] The complainant at page 30 of her March 17 statement indicates that the applicant took advantage, for his own pleasure, of how much she wanted to give him, and he took more as he always does; that he always takes more than she was willing to give him. If the Crown leads this evidence from the complainant, it would strengthen the probative value of evidence which would tend to rebut the inference that it was the applicant and not the complainant who was sexually aggressive and not the applicant.

[57] I note that in the March 17, 2017 statement the complainant indicates that she was not agreeable to have anal sex in the car. Whether or not she had anal sex, or any kind of sex in the car on prior occasions, is evidence of other sexual activity. In R. v. Barton, 2019 SCC 33, at para 80, The Court said:

“While it is true that this provision applies only in respect of evidence adduced by or on behalf of the Accused, the common law principles articulated in Seaboyer, speak to the general admissibility of prior sexual activity evidence. Given that the reasoning dangers inherit in prior sexual activity evidence are potentially present regardless of who adduces the evidence, trial judges should follow the Court’s guidance in Seaboyer to determine the admissibility of Crown led evidence of prior sexual activity on a voir dire.” I would add to this, that this would include not only prior sexual activity evidence, but evidence of other sexual activity.

[58] In regard to whether the complainant demonstrated aggressive behaviour, both in and out of intimate contexts, where that evidence is available in a non-intimate context it can be led. The applicant should be able to avail himself of evidence of manipulation and aggression without resort to similar evidence which is situated in a sexual context. The application record indicates this evidence is available in a non-sexual context.

[59] In her statement of March 17, 2017, the complainant was asked whether there was any reason why she referred to the incident that being the alleged sexual assault as being taken advantage of. She answered: “Because….why…good question. That’s um….because I mean I wanted to have sex with him, but I say that he took advantage of me because he took advantage of…for his own pleasure, he…took advantage of how much I wanted to give him and he took more as he always does, always takes more than what I’m willing to give him.”

[60] The applicant’s position is that the complainant is the one who routinely belittled the applicant if he did not perform to her sexual satisfaction. The proposed defence evidence should be admissible to rebut the specific suggestion by the complainant that the applicant was always taking advantage of her for his own pleasure.

[61] Further, this evidence is elicited by the police. While the situation is not directly analogous to the factual scenario in R. v. Crosby, 1995 CanLII 107 (SCC), [1995] 2 S.C.R. 912, it is comparable. In Crosby, the trial judge denied defence counsel’s application to cross-examine on a material inconsistency between a statement and the complainant’s later testimony. In that case the material inconsistency was inextricably linked to a police reference to an earlier consensual sexual contact between the complainant and the appellant. The trial judge erred in invoking s. 276 and excluding otherwise admissible evidence (the complainant’s prior statement as to her original intention in going to the appellant’s house) by piggybacking it atop otherwise prima facie inadmissible evidence (the evidence of the unrelated sexual activity). In Crosby, the court held that it would be unfair for an accused person to be denied access to evidence which is otherwise admissible and relevant to that person’s defence if the prejudice related to admitting that evidence is uniquely attributable to the authorities’ conduct.

[62] The facts before me are different. The officer was seeking clarification. However, in seeking that clarification, the officer elicited evidence from the complainant that the accused always took advantage of her for his own (sexual) pleasure. In suggesting that the accused always took more than she was willing to give him in a sexual context, the complainant is suggesting that the accused sexually assaulted her on multiple other occasions. The inescapable inference is that the accused always took more from her sexually than she was willing to give. Having sex with an unwilling partner is definitionally sexual assault.

[63] Given the Supreme Court’s ruling in R. v. Barton, [2019] SCC 33, the Crown will have to make an application to introduce this evidence of other sexual activity, if it wishes to use it for purposes of narrative, or to explain the state of mind of the complainant, or for other legitimate evidentiary purposes. The evidence that the accused always took sexual advantage of the complainant is not admissible, absent a similar fact evidence application, for propensity purposes. Nevertheless, in my view, its introduction would render evidence admissible which would be otherwise inadmissible by the operation of s. 276.

[64] In my view, this discreet body of evidence is a specific enough reference to sexual activity to orient the complainant what incidents are at issue. I note it is the complainant who raised this issue, which further reduces the chance there could be any confusion or prejudice in regard to what incidents are in contention. The defence seeks to rebut the suggestion that he always took sexual advantage of the complainant by leading evidence that, in fact, it was the complainant who would berate him when he failed to perform to her standards. This pattern of berating the accused contradicts the complainant’s proposed evidence that the accused always took advantage of her sexually.

[65] I have concluded that this evidence is of specific instances of sexual activity and is relevant to an issue at trial. I turn now to an analysis of whether the evidence has significant probative value which is not substantially outweighed by the danger of prejudice to the proper administration of justice.

[66] In my view, the particular circumstances surrounding this proposed evidence raise serious concerns about the accused’s ability to make full answer and defence. If the accused is not permitted to lead evidence that the complainant berated him when he did not perform sexually, the court will be left with a one-sided evidentiary record where the accused cannot lead evidence to rebut a specific reference to ongoing sexual misbehaviour beyond the four corners of the specific charge before the court.

[67] In terms of society’s interest in encouraging the reporting of allegations of sexual assault, I have no evidence before me that permitting the rebuttal of this specific allegation by the complainant would have any effect on the reporting of sexual assault allegations generally. I also am uncertain that a complainant would be deterred from reporting an allegation of sexual assault just because a defendant is afforded the ability to rebut those allegations. Cross-examination cannot probe irrelevancies, engage in stereotyping, or be abusive. A complainant might pause before reporting an allegation of sexual assault, if he or she believed that the process would be a humiliating exercise where irrelevant aspects of other sexual activity would be needlessly probed. That is not what is happening in this case.

[68] The complainant made a specific allegation referring to ongoing sexual misconduct on the part of the accused. This allegation was made at the prompting of police. The fact that the accused will be permitted to challenge that evidence by rebutting it may cause some embarrassment to the complainant, but this type of rebuttal evidence would not deter others from reporting allegations of sexual assaults. The rationale for the conclusion that admission would have no deterring effect on others is:

i. the evidence was proposed by the complainant; ii. this defence rebuttal evidence will be narrowly construed; iii. the evidence will only be lead to rebut the suggestion by the complainant that the accused always engaged in sexual assaultive behaviour; and iv. neither the twin myths, nor any stereotypical reasoning are engaged.

[69] In terms of whether there is a reasonable prospect that the evidence will assist in arriving at a just determination of the case, the evidence is relevant and is essential to balancing the evidentiary field. This evidence does not derive its logical relevance from any discriminatory belief or bias. It is relevant to rebut a specific allegation of sexual misconduct outside of the charge on the indictment which the complainant made at the behest of the police in regard to the accused.

[70] The defence has re-elected judge alone, so there is no danger that sentiments of prejudice, sympathy or bias will be aroused.

[71] The potential prejudice to the complainant’s personal dignity and right of privacy will be minimally disturbed. There will be no cross-examination on specific sexual acts which would be needlessly intrusive. The accused will be able to cross-examine the complainant about the fact that she berated him when he did not perform sexually to her satisfaction. The permissible area of cross-examination has been tailored to achieve the purpose for which it is relevant, without expansion into details which may needlessly undermine the complainant’s right to privacy and her personal dignity. The information regarding the accused always taking advantage of the complainant was volunteered by the complainant at the urging of police. The complainant’s right to personal security and to the full protection and benefit of the law have also been considered within the context of this trial. In my view, a proper balancing of all of the relevant factors requires that the accused be permitted to cross-examine on this statement by the complainant if the Crown chooses to lead it as part of its case.

[72] The defence shall be permitted to lead a discrete body of evidence relating to the complainant belittling him when he did not perform to her satisfaction. I am referring to the time periods when he was employed as a stair builder. Specifically, if the Crown leads the evidence that the applicant always took advantage of the complainant sexually, the defence shall be permitted to lead evidence that:

• If he did not have sex with the complainant in the manner she preferred, she would complain. If he did not meet her sexual expectations, she would push him off and become extremely frustrated and angry. She would belittle him by calling him bitch or pussy. This lead him to feeling demoralized, used and manipulated by the complainant.
• The applicant worked as a stair finisher and was often tired when he returned home from work. The complainant would want sex after he came home. He did not have enough energy to meet her demands during sex. During those times, she would become frustrated and just stop. Alternatively, she would criticize him for not going hard enough and they would argue about that fact.

[73] This evidence is relevant to a material issue in the trial, that is the nature of the relationship between the two, and the complainant’s characterization of the accused as someone who always took sexual advantage of her. I found this evidence to be less intrusive to the privacy and dignity rights of the complainant than the proposed evidence relating to a threesome with her friend, which was also relevant. I declined to admit the threesome evidence in the balancing in which I engaged and admitted this belittling evidence instead.

[74] It would create a distorted evidentiary picture if the complainant were permitted to adduce evidence of the complainant that the accused always took sexual advantage of her, and the defence was not permitted to challenge the evidence through leading evidence that in fact, it was the complainant who took sexual advantage of him.

[75] In conclusion, the complainant is anticipated to testify that she initially consented to sex, but when the applicant became too rough, she told him to stop. She also said she did not want to have anal sex. Evidence that the complainant may have previously enjoyed rough sex, or anal sex is not admissible in relation to consent, nor is it relevant nor admissible in relation to credibility.

[76] The defence is free to lead evidence challenging the character and credibility of the complainant. However, s. 276 has created a regime to ensure that where the challenge is based on evidence relating to other sexual activity, the evidence must conform to the requirements of s. 276 before it can be admitted. The complainant assertion that it was the applicant who always took advantage of her sexually, opens the door to his rebuttal that she was the one who berated him when he did not satisfy her sexually. A narrow body of evidence described in paragraph 72 is therefore admissible if the Crown leads the complainant’s statement regarding the applicant taking sexual advantage of her constantly. All other proposed areas of evidence are denied admissibility on the basis that they lack the significant probative value required which would justify admission when the prejudicial effect of the admission of the evidence is considered within the context of the factors enumerated in s.276(3).

A.E. London-Weinstein J.

Released: November 25, 2019

COURT FILE NO.: 17-19636

DATE: 2019/11/25

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen

– and –

M.L.

REASONS FOR JUDGMENT

A.E. London-Weinstein J.

Released: November 25, 2019