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Court File and Parties

Court File No.: CR-19-50000141-0000 Date: 2020-03-09 Ontario Superior Court of Justice

Between: HER MAJESTY THE QUEEN, Respondent – and – L.H., Complainant Respondent – and – R.S., Applicant

Counsel: Christian Moreno and Michael Townsend, for the Respondent (Her Majesty The Queen) Emily Dixon, for the Complainant Respondent (L.H.) Anthony De Marco, for the Applicant (R.S.)

Heard: February 10, 11, 12, 13, 14, 17, 18, 19 and 20, 2020

Justice S. Nakatsuru

Ruling on S. 276 Application

[1] R.S. is charged with two counts of sexual assault and one count of choking with intent to facilitate a sexual assault. Before trial, he brought an Application to introduce evidence of three prior consensual sexual encounters with the complainant, L.H. I dismissed the Application. Here are my reasons for doing so. I have considered s. 278.95 and find no reason why this decision should not be published. I thereby make an order permitting publication under that section.

A. Factual Background

[2] Given the privacy interest of the complainant, the outline of the evidence will be brief.

1. The Alleged Offences

[3] R.S. and L.H. became friends when they worked in the same building. They shared common interests. Including hockey. They saw each other from time to time. They often communicated through text messaging.

[4] On December 25, 2017, after watching a movie and sharing a meal, R.S. and L.H. went back to L.H.’s apartment. A snow storm made it hard to travel. So L.H. invited R.S. to stay the night. She allowed R.S. to share her bed rather than sleep on the hard futon couch. But she told R.S. that nothing was going to happen. In the morning, L.H. was awoken by R.S. touching her. She verbally objected. She told him no and to stop. R.S. persisted over her objections. R.S. had sexual intercourse with L.H. She did not consent to any of the sexual activities.

[5] On March 25, 2018, after a hockey game, R.S. and L.H. went for drinks and something to eat. L.H. could not remember how they got back to her apartment. Her first memory was of being slammed against her fridge by R.S. They fell to the floor. When R.S. started digitally penetrating her, she repeatedly said no and stop. R.S. continued. During this, L.H. felt R.S. choke her throat to the point she saw stars. They got back on their feet. L.H. was bent over the kitchen counter with R.S.’s arm on her back. They were interrupted by a neighbor who came to the door to see if everything was alright. L.H. did not consent to any of the sexual activities.

2. The Evidence of Prior Sexual Activities

[6] R.S. provided an affidavit on the Application. He also testified. The following are the prior sexual activities that R.S. wishes to tender into evidence.

[7] In August of 2016, L.H. came to R.S.’s apartment. They had consensual sex. He initially had sexual intercourse with L.H. Then he began to digitally penetrate her. L.H. moved her hips, gasped, and moaned. She stated, “Oh God, you’ve got to stop” and pushed his hand away. R.S. stopped and asked her if she was okay. L.H. told him to keep going and that it was okay. He did. She continued to say, “Oh God, you’ve got to stop” and “it hurts” while communicating by behavior she was enjoying it. R.S. did not inquire again if it was okay. She continued to softly chant stop though R.S. believed from her expression and body language she wanted him to continue. L.H. had an orgasm.

[8] Immediately afterwards, R.S. asked L.H. about what had happened. R.S. testified that he was concerned about it. L.H. explained that she got pleasure from the pain and that she orgasms as a result. R.S. understood from the discussion that L.H. effectively liked to role play by pretending that she wanted him to stop, pretending that he was hurting her, and feigning non-consent.

[9] This was the first time they spoke of this. R.S. and L.H. had no prior discussions about how she might express objections despite wanting him to continue with the sexual activity or that she would express pain while enjoying the sex.

[10] In March of 2017, R.S. and L.H. made plans to go to a club with a friend. They arrived at the friend’s place. The friend took a nap. L.H. said she wanted to have sex on the couch. R.S. digitally penetrated her vagina. L.H. followed the same course of conduct as before and used the same words as in the session that had happened in August of 2016, by pretending to pull away from him as he vigorously continued. They then went to the club without the friend.

[11] After the show, R.S. and L.H. returned to his apartment. They engaged in sex in a missionary position. L.H. did not seem to be enjoying it so R.S. stopped.

[12] When they woke up the next morning, R.S. began to vigorously digitally penetrate L.H. L.H. began to follow the same course of conduct and use the same words as the previous sexual sessions. L.H. had an orgasm. After a break, R.S. had sexual intercourse with L.H. L.H. moaned loudly. Concerned about his neighbours hearing her, R.S. put his hand over L.H.’s mouth. L.H. laughed throughout this process. Eventually, L.H. told R.S. to stop as it burned and put her hand on R.S.’s shoulders and pushed him away. R.S. stopped. To R.S., from the tone of her voice and her behavior, he believed she actually wanted him to stop so he did.

[13] There had been no discussion before or after the sexual activities in March of 2017 about how they were going to engage in the sexual encounter. R.S. testified that he felt that parameters were already laid out about how she would react and how he would react.

[14] R.S. testified that there were times when L.H. said stop that he stopped a specific sexual activity and other times when he did not. He testified that he decided based upon his interpretation that he was doing a good job of giving her love and pleasure and his past experiences and discussion with L.H.

3. R.S.’s Testimony About His Belief on the Dates of the Offences

[15] R.S. testified that on December 25, 2017, when he and L.H. woke up, after having sex in the missionary position, he started to digitally penetrate L.H. L.H. then said “Oh, no, no, you’ve got to stop” and used her fingers to push his hand away. R.S. testified that he was used to that. This was now the fourth time. So R.S. thought this was great since she was going to get pleasure from it and have an orgasm. As a result, he did not stop.

[16] R.S. testified that on March 25, 2018, inside her apartment, R.S. took off L.H.’s clothes and digitally penetrated her as well as giving her oral sex. During digital penetration, L.H. exhibited the exact same reactions he was hoping for. She was again saying “No, oh, God, no, it hurts.” R.S. continued because he believed by doing so, she would have an orgasm. The neighbour then came in.

[17] R.S. testified that on these occasions, although L.H. said stop, he did not stop based on his interpretation that she was enjoying herself immensely and his experience with her. R.S. agreed that L.H. did not say at the time that she was enjoying herself or building up to an orgasm. When asked if he had assumed on these dates that L.H. was consenting in the same way every time because of something that happened once in 2016 and once in 2017, R.S. agreed. He said his experiences were very specific and she reacted the same way when he was beginning these acts. On other occasions, when he believed that he was not giving her pleasure, for instance when she was passive or silent, he interpreted that as to stop.

[18] R.S. agreed that although L.H. liked to be dominated and be submissive, they had not explicitly laid out a master and slave relationship. R.S. testified that they had not agreed to the use of any “safe words” during their sexual activities. R.S. testified that this was his biggest regret as he did not want to cause L.H. pain and trauma.

B. Analysis

[19] The defence submits that this evidence is relevant for two purposes: (1) to establish a foundation for R.S.’s honest but mistaken belief in communicated consent; and (2) to establish that L.H. did consent and/or that L.H. is not credible when she says she did not consent.

1. The Framework of Section 276

[20] Section 276 of the Criminal Code mandates that evidence that a complainant has engaged in sexual activity is not admissible to support an inference that by reason of the sexual nature of the activity, the complainant is more likely to have consented to the sexual activity alleged in the offence or that the complainant is less worthy of belief. To so admit evidence would be based on twin myths of relevance that the provision is designed to eradicate in criminal trials.

[21] Before any such evidence is admissible, I must be satisfied that the evidence: (1) is not being adduced for the purpose of supporting these two inferences; (2) is relevant to an issue at trial; (3) is of specific instances of sexual activity; and (4) has significant probative value that is not substantially outweighed by the danger of prejudice in the proper administration of justice.

[22] In determining admissibility, I am required to consider the following factors:

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.

2. Relevance to Honest but Mistaken Belief in Communicated Consent

[23] R.S. submits that the evidence of the three prior consensual sexual activities is relevant to his defence of honest but mistaken belief in communicated consent. Put another way, this evidence shows that L.H. had a unique way of communicating consent when engaging in certain sexual acts. He argues that in the absence of the jury knowing that on two prior dates the complainant had agreed to sexual acts even though she was saying “No”, he will not be able to put forward, let alone do so persuasively, that he had an honest but mistaken belief in communicated consent to the sexual activity in question on December 25, 2017 and March 25, 2018.

[24] I do not agree. In my opinion, the defence position is based upon a mistake of law. Not a mistake of fact. Thus, the evidence is not admissible as it is not relevant to an issue at trial.

[25] The combined effect of ss. 273.2(a)(iii) and 273.1(2)(d) of the Criminal Code is that it is not a defence to a charge of sexual assault that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where consent is vitiated because the complainant expresses, by words or conduct, a lack of agreement to engage in the activity. Thus, any belief by R.S. that L.H. was consenting on December 25, 2017 and March 25, 2018, cannot form the basis of a defence. R.S. made a mistake of law.

[26] This analysis is simple and straightforward. “No” means “No”.

[27] To begin, I emphasize that my decision is confined to the set of facts before me. I recognize that in human sexual interactions, how consent is communicated can be highly variable depending on the circumstances, the individuals involved, the nature of the relationship and any prior agreements about how consensual sexual activities would occur and how consent will be communicated. It would be foolish to categorically state that any and all negative expression by word or conduct by a complainant would fall within the meaning of “an expression of a lack of agreement to engage in the activity” as found in s. 273.1(2)(d).

[28] Yet, at the same time, the Supreme Court of Canada in R. v. Barton, 2019 SCC 33 explained there were clear legal limits to what can constitute communication of consent when considering an accused’s purported honest but mistaken belief. Moldaver J. stated, at para. 93:

Focusing on the accused's honest but mistaken belief in the communication of consent has practical consequences. Most significantly, in seeking to rely on the complainant's prior sexual activities in support of 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…For example, in some cases, prior sexual activities may establish legitimate expectations about how consent is communicated between the parties, thereby shaping the accused's perception of communicated consent to the sexual activity in question at the time it occurred. American scholar Michelle Anderson puts it this way: "prior negotiations between the complainant and the defendant regarding the specific acts at issue or customs and practices about those acts should be admissible. These negotiations, customs, and practices between the parties reveal their legitimate expectations on the incident in question" …These "negotiations" would not, however, include an agreement involving broad advance consent to any and all manner of sexual activity. As I will explain, 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.

[29] Even accepting R.S.’s evidence, I find there was no communicated consent in law. Any argument that these three prior sexual encounters could properly inform his honest but mistaken belief that L.H. communicated consent to the sexual activities in question is untenable. R.S. cannot escape the proscription in the Criminal Code.

[30] First, there was no agreement regarding consent in the discussion after the first consensual acts in August of 2016. It was merely an explanation by L.H. that she derived pleasure from pain. From this discussion, R.S. “understood” that L.H. liked to role play by pretending that she wanted him to stop and by imitating non-consent. This is not an agreement as to how consent was to be communicated in any sexual activity between them. On the second encounter, there was no discussion at all about consent and how it was to be uniquely communicated. Rather R.S. just presumed he had it because of his belief that she enjoyed the vigorous digital penetration and that she achieved an orgasm.

[31] Second, there were only three prior sexual encounters. Two of the sexual activities occurred on the same night/morning that R.S. stayed over in March of 2017. These few occasions given their particular fact situations, do not make up a custom or a practice that can establish legitimate expectations of how consent was to be communicated between R.S. and L.H.

[32] Third, the consensual sexual encounters are remote in time from the offences. The last encounter was about 9 months before the December 25, 2017, alleged offence. The first one, 16 months prior.

[33] Fourth, the minimal sexual relationship they had was terminated at R.S.’s insistence as he had begun to see someone else. Thus, any re-engagement of sexual activities should involve a fresh re-assessment of how consent would be communicated.

[34] Fifth, it may well be that R.S. made a mistake of law at least on one of the prior occasions he wishes admitted into evidence. Put another way, R.S. may have committed sexual assault in March of 2017 because he did not stop and make an inquiry after hearing L.H. say stop. Moreover, given that R.S. did not inquire again after L.H. continued saying no and stop in August of 2016, he may have also committed sexual assault. Assuming L.H. was subjectively consenting on these occasions, her communicated lack of consent vitiated that consent. As explained by Major J. in R. v. Ewanchuk, [1999] 1 S.C.R. 330, at para. 51:

…An accused cannot say that he thought "no meant yes". As Fraser C.J. stated at p. 272 of her dissenting reasons below:

One "No" will do to put the other person on notice that there is then a problem with "consent". Once a woman says "No" during the course of sexual activity, the person intent on continued sexual activity with her must then obtain a clear and unequivocal "Yes" before he again touches her in a sexual manner. [Emphasis in original.]

I take the reasons of Fraser C.J. to mean that an unequivocal "yes" may be given by either the spoken word or by conduct.

R.S. did not obtain such an unequivocal “yes”. Hence, I would just echo the comment of Moldaver J. in Barton by saying it would be “perverse” to hold that prior sexual assaults could somehow inform the defence of honest but mistaken belief in consent (at para. 107).

[35] In addition to this, the defence argument engages other mistakes of law.

[36] Assuming an implicit agreement was reached between R.S. and L.H. about communicated consent, this would be a broad advance consent of an undefined scope. This is not legal consent: Barton, at para. 99. Essentially, R.S.’s belief is premised on L.H.’s consent to any future sexual activity that is painful and to which she would feign objection to. While I appreciate that R.S. avers that he stopped in the past when he decided that she did not want to continue (i.e. he stopped when she was in a missionary position and did not look like she was enjoying it), a belief in consent dependent upon R.S.’s perspective of whether L.H. truly meant “No” is abhorrent and repulsive.

[37] Moreover, R.S. testified that he just assumed consent on the dates of the alleged offences. That is not a defence. Contemporaneous and affirmatively communicated consent must be given for each and every sexual act. Thus, R.S.’s own testimony does not establish any relevance to an issue at trial. As Major J. stated in Ewanchuk, at para. 46:

In order to cloak the accused's actions in moral innocence, the evidence must show that he believed that the complainant communicated consent to engage in the sexual activity in question. A belief by the accused that the complainant, in her own mind wanted him to touch her but did not express that desire, is not a defence. The accused's speculation as to what was going on in the complainant's mind provides no defence.

In the same vein, s. 273.2(c) states that an honest but mistaken belief in consent does not arise where there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct.

[38] R.S. has argued that the prior sexual activities, as a unique form of communicated consent, constitutes “similar act” evidence and should be admissible: R. v. Goldfinch, 2019 SCC 38, at para. 62. Assuming that this is a route for admission under s. 276, for the reasons I have explained, this evidence would not have so qualified. I see this form of argument as one which was disallowed in Barton. In Barton. Ms. Gladue, an Indigenous woman and a sex worker, was found dead in the bathroom of Mr. Barton's hotel room with an 11 cm wound in her vaginal wall. Mr. Barton was charged with first degree murder. The Crown's theory was that on the night of Ms. Gladue's death, during the course of commercial sexual activities while she was incapacitated by alcohol, Mr. Barton cut the inside of her vagina with a sharp object with intent to seriously harm or kill her. Mr. Barton testified in his defence that he and Ms. Gladue engaged in "similar" consensual sexual activity on both the night leading up to her death and the previous night. On both occasions, he said, he formed his fingers into a cone and penetrated her vagina, thrusting repeatedly. He claimed that on the second night, after thrusting deeper, more forcefully, and for a longer duration, she started to bleed unexpectedly, at which point the sexual activity came to a halt. Ms. Gladue then went into the bathroom and Mr. Barton promptly fell asleep, only to awake the next morning to find her dead in the bathtub. He denied ever using a sharp object and asserted that she consented to the sexual activities in question or at least he honestly believed she did. The defence submitted the two nights formed a part of a continuing commercial transaction, with supposedly "similar" sexual activities occurring on both nights.

[39] Moldaver J., at para. 118, held that Mr. Barton’s belief that prior "similar" sexual activities between the accused and the complainant could not be substituted for communicated consent to the sexual activity in question at the time. As a matter of law, consent had to be specifically renewed and communicated for each sexual act. The inference that the complainant's past sexual activities, by reason of their sexual nature, may make it more likely that she consented to the sexual activity in question, the first of the "twin myths", was a mistake of law.

[40] In conclusion, I find the evidence is not admissible. To hold otherwise would strip L.H. of the protection afforded to her by law. I do not think I need to spell out why accepting that the facts of this case could amount to an honest but mistaken belief in consent would be a dangerous precedent to set. It would mean that L.H. would not be able to stop any future sexual assault by R.S. even though she repeatedly and loudly voiced her objections. To allow any accused to resort to the defence in these circumstances would be a significant setback to the progress made in eliminating the myths, stereotypes, and injustices in this area of the law.

[41] Alternatively, even if it were relevant to an issue at trial, I find this evidence does not have significant probative value that is not substantially outweighed by the danger of prejudice in the proper administration of justice.

[42] I have seriously considered R.S.’s right to make full answer and defence. I know that if R.S. cannot point to these previous sexual encounters, he will not be able to meaningfully advance any defence of honest but mistaken belief in communicated consent. Bluntly, in the absence of this evidence, no jury will accept his testimony that during the sexual activities that are the subject-matter of the offences, that he believed “No” meant “Yes”. However, such a defence is predicated upon a mistake of law and on myths about sexual offences. Consequently, there is no air of reality to his defence of honest but mistaken belief in communicated consent even if he were permitted to adduce this evidence. In that way, his ability to make full answer and defence is not impacted by its non-admission.

[43] Moreover, a significant part of the defence is that L.H. did in fact consent. Thus, R.S.’s inability to raise a defence of honest but mistaken belief in communicated consent does not affect the Crown’s requirement to prove this essential element on the sexual assault counts.

[44] On the other hand, permitting such evidence carries with it several deleterious effects. This is a jury trial. Admission of this evidence would unduly arouse sentiments of prejudice in the jury. Even with proper limiting instructions, the evidence would play into long discarded stereotypes about sexual assault complainants. It would introduce discriminatory beliefs. It would not advance the truth-seeking role of the trial. It would introduce for no benefit a distracting and time-consuming exploration of the other consensual sexual activities between R.S. and L.H. It would prejudice the complainant’s personal dignity and right to privacy by permitting the defence to ask her about incidents that are dated, have no connection to the alleged offences, and imply certain sexual predispositions and preferences to L.H. that are only her business. Finally, society has an interest in encouraging the reporting of sexual assault offences. To strictly but fairly apply the test in s. 276 encourages such reporting. Admitting this type of evidence in the circumstances of this case, does not.

3. Relevance to Consent or Credibility

[45] To admit this evidence on the basis that it is relevant to consent or L.H.’s credibility when she denied consenting is prohibited by s. 276.

[46] The three prior sexual activities are not relevant to the question of whether she consented except through the prohibited reasoning that due to the sexual nature of the three prior sexual encounters, she would be more likely to have consented. The defence wishes to highlight the fact that on the first occasion, L.H. had initially said no to the aggressive digital penetration and then encouraged R.S. to continue. They then had the discussion about it whereby L.H. said she imitated non-consent by role playing and saying no when she was deriving pleasure. The second occasion, the defence points to as two more instances where L.H. had said no but enjoyed the rough digital penetration, asphyxiation, and other acts of domination.

[47] This evidence has no relevance to the issue of whether she consented to the sexual activities that form the subject-matter matter of the offences except through the false inference that given she had enjoyed and apparently consented to the aggressive sexual activity on three prior occasions, she was more likely to have consented to the ones before the court. Put another way, the defence would like to argue to the jury that because she consented to and liked rough sex, including an act of asphyxiation, before while she verbally objected to it, she was more likely to have consented to the rough sex that underly the charges. In my view, this position must be soundly rejected. Even if L.H. had consented previously in similar circumstances, she was fully entitled to not voluntarily agree to any other sexual acts with R.S. Consenting despite saying no on three previous occasions, does not extinguish L.H.’s right not to consent to future acts of sex with R.S. or to make him stop when she says no to them. The defence position asks that this evidence be admitted in order to support an inference that by reason of the sexual nature of the prior activities, the complainant is more likely to have consented to the sexual activity alleged in the offences. This is not permitted.

[48] In addition, the evidence is not relevant to her credibility except through a prohibited inference. This is not a case where L.H. has given any inconsistent statement about the three prior consensual sexual contacts with R.S. L.H. was asked by the Crown at the preliminary inquiry about the two prior sexual contacts and she simply referred to them as consensual sexual acts with R.S. [1] L.H. is expected to testify at trial that she repeatedly told R.S. “No”, she did not want to engage in the sexual activities that are the subject-matter of the charges, and that R.S. was aggressive in inflicting pain on her. To attempt to impeach her on this testimony by referring to the prior occasions where despite her saying “No”, she had consented to painful and aggressive sex, is merely a way to attack her credibility by putting forward an inference that given she had enjoyed such sex before, she is not being honest when she now testifies she did not enjoy it and did not agree to it. This is prohibited reasoning.

[49] For these reasons, the Application is dismissed.

Justice S. Nakatsuru

Released: March 9, 2020

Footnotes

[1] I simply note that no s. 276 Application was brought at the preliminary inquiry and this inquiry by the Crown was not proper. Although in fairness, the evidence was volunteered by L.H. in response to an open-ended question.

cited_cases: legislation: - title: "Criminal Code" url: "https://laws-lois.justice.gc.ca/eng/acts/C-46/" case_law: - title: "R. v. Barton, 2019 SCC 33" url: "https://www.canlii.org/en/ca/scc/doc/2019/2019scc33/2019scc33.html" - title: "R. v. Ewanchuk, [1999] 1 S.C.R. 330" url: "https://www.canlii.org/en/ca/scc/doc/1999/1999canlii711/1999canlii711.html" - title: "R. v. Goldfinch, 2019 SCC 38" url: "https://www.canlii.org/en/ca/scc/doc/2019/2019scc38/2019scc38.html"