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COURT FILE NO.: CR-19-50000141-0000
DATE: 20200309
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
L.H.
Complainant Respondent
– and –
R.S.
Applicant
Christian Moreno and Michael Townsend, for the Respondent
Emily Dixon, for the Complainant Respondent
Anthony De Marco, for the Applicant
HEARD: February 10, 11, 12, 13, 14, 17, 18, 19 and 20, 2020
JUSTICE S. NAKATSURU
SECOND RULING ON THE 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 that Application: R. v. R.S., 2020 ONSC 1328. The factual background to that Application and the case more generally is set out in that decision.
[2] After L.H. testified in-chief before the jury, R.S. asked to reopen his s. 276 Application.
[3] I exercised my discretion and allowed this. As Moldaver J. noted in R. v. Barton, 2019 SCC 33, at para. 65:
Finally, a ruling on the admissibility of prior sexual activity evidence under s. 276 is not necessarily set in stone. There may be circumstances in which it would be appropriate for the trial judge to reopen a s. 276 ruling and hold a new hearing to reconsider the admissibility of prior sexual activity evidence. By way of illustration, where a complainant makes a statement to the police that prior sexual activity occurred but later contradicts that evidence in her testimony at trial, that contradictory testimony would open the door to the defence bringing a renewed s. 276 application seeking to have the prior sexual activity evidence admitted for credibility purposes (see R. v. Crosby, 1995 CanLII 107 (SCC), [1995] 2 S.C.R. 912; R. v. Harris (1997), 1997 CanLII 6317 (ON CA), 118 C.C.C. (3d) 498 (Ont. C.A.)), despite an initial ruling of inadmissibility. This is but one example. There may be other circumstances in which it would be appropriate for the trial judge to reopen a s. 276 ruling and hold a new hearing to reconsider the admissibility of prior sexual activity evidence.
[4] In my view, although the renewed Application was based on different grounds than originally applied for, reopening it at this point is just and fair. The basis for the renewal is narrow. Counsel were able to respond to the issues. I see no prejudice arising in permitting the defence to reopen the Application. Finally, having heard L.H. testify, I agree that before cross-examination, it is necessary that the jury hear the evidence of the two prior consensual sexual activities between LH. and R.S.
[5] Thus, I partially granted R.S. renewed s. 276 Application. These are my reasons explaining why.
1. The Framework of Section 276
[6] Before any such evidence is admissible, I must be satisfied that the evidence: (1) is not being adduced for the purpose of supporting the two inferences set out in s. 276(1)(a) and s. 276(1)(b); (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.
[7] In determining admissibility, I am required to take into account 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. Analysis
[8] The defence submits that having heard the testimony of L.H., in the absence of knowing that L.H. and R.S. had two prior consensual sexual activities, the jury will be left with a misleading view of two material pieces of evidence. One is the comment made by L.H. to R.S. on December 25, 2017, that he could sleep in her bed but that “Nothing was going to happen.” The other involves some of the text messages between L.H. and R.S. after December 25th where they discuss what had happened between them, their feelings about the nature of their relationship, and their expectations of each other including a comment about wanting a “platonic relationship.”
[9] In assessing the relevance of the prior sexual activities to an issue at trial, and whether the evidence has significant probative value that is not substantially outweighed by the danger of prejudice in the proper administration of justice, I have considered the factors enumerated under s. 276(3).
[10] I find that the evidence of the prior consensual sexual activities to be admissible. There is no twin myth reasoning involved in the admission. They are of specific instances of sexual activity. They are relevant to an issue at trial and the evidence has significant probative value that is not substantially outweighed by the danger of prejudice in the proper administration of justice.
[11] First of all, the admission of this evidence is not based on any inference that due to the sexual nature of the prior consensual sexual activities that L.H. is less credible or is more likely to consent. Obviously, on the facts of this case, the latter is the most worrisome.
[12] In this case, the purpose for the admission is limited but materially relevant to important factual issues that the jury must determine.
[13] I appreciate this type of evidence cannot be admitted merely as narrative or context. I recognize that admission on that basis is rare. Moreover, any arguments for admission relying on context or narrative must be carefully scrutinized. As the Court stated in R. v. Goldfinch, 2019 SCC 38, at para. 65:
Finally, Goldfinch submits that the sexual aspect of a relationship may be relevant to the coherence of the accused's narrative, and by extension, credibility. There will, of course, be circumstances in which context will be relevant for the jury to properly understand and assess the evidence. That assessment, however, must be free of twin-myth reasoning. General arguments that the sexual nature of a relationship is relevant to context, narrative or credibility will not suffice to bring the evidence within the purview of s. 276(2).
[14] Here the evidence of the two prior consensual sexual activities is not just narrative or context. Nor in admitting the evidence for this limited purpose is any twin-myth reasoning involved. Rather, the purpose of its admission is to provide important context to these communications between R.S. and L.H so they can be properly assessed. It provides the jury suitable perspective in assessing why L.H. made these comments and why there was a need for such clarity between the two that there was to be no sex involved in their interactions. The interpretation and the weight to be given to the communications between R.S. and L.H. requires some allusion to these prior sexual activities in order that accurate weight and sense be made of the communications.
[15] With respect to the December 25th sexual assault, the comment “Nothing was going to happen” was said by L.H. in advance of them sharing a bed. She said this given their prior history. That explains why she said it. Moreover, the fact that there was this limited prior sexual history would support her credibility when she testified that she felt she had to communicate this condition to R.S. Put differently, if the defence seeks to challenge that this condition was communicated, this history makes it more likely that L.H. did in fact make this statement.
[16] It would not be fair to L.H. if she is questioned about the comment in cross-examination without admission of this evidence. She would not be able to refer at all to these prior sexual acts in explaining why she said what she said. The problem is illustrated by L.H.’s evidence at the preliminary inquiry. She testified at the preliminary inquiry that when she told R.S. on December 25th that he could stay the night, she told him “Nothing’s going to happen.” The Crown asked what she meant when she made this statement to R.S. This was an obvious and an innocuous follow-up question. In response, L.H. volunteered that they had sex consensually twice before then. After those experiences, she wanted only a platonic friendship to which they had agreed.
[17] This was why she told him “Nothing’s going to happen.” In order to properly explain why she made that comment, L.H. had to refer to the prior consensual sexual activities. This gave important context to the comment she made. It further supported the clarity of the message conveyed to R.S. by that comment. It is a clearer and more unmistakable message conveyed to R.S. than if the comment is assessed by the jury without knowledge of such prior sexual history. Put differently, without reference to these two prior sexual acts, any assessment of that comment would be artificial. It may also be erroneous.
[18] With respect to the text messages, the most important ones are a series of text messages exchanged between R.S. and L.H. on January 14, 2018. In the texts, R.S. asked L.H. if she felt bad that they had slept together on December 25th because she had just met someone else she was interested in. L.H. replied that this was not the reason but rather that she did not want to sleep with R.S. at all. She said. “I want us to be just friends, nothing more.” R.S. replied that they could be “platonic friends” and that he “never had a problem with that.” L.H. responded she knows but she “just want us to be clear of that”. Then R.S. stated “all of the other stuff is in the past” and they could be just friends. He further texted that he “was also cool with casual encounters” if L.H. was feeling it and if not, no worries at all.
[19] In my view, in assessing the text messages, it is highly probative that the jury knows that the two had shared prior sexual encounters. This permits them to properly assess why these texts, expressing an agreement that they were to be just platonic going forward, was required. Moreover, it also helps the jury properly assess why L.H. wanted to be “clear” about that, why R.S. responded that “all of the other stuff is in the past”, and that he was also “cool with casual encounters” if L.H. was feeling it. Otherwise, the jury would only be aware of the one sexual interaction on December 25, 2017; one where L.H. testified that she was sexually assaulted. Without knowing of the two prior consensual sexual activities, these texts would leave the jury confused.
[20] I appreciate the Crown submission that a jury could interpret these texts and comments without any allusion to prior sexual activities. While this might be possible, the nature and the strength of the inferences the jury would draw from those messages may be inaccurate.
[21] Further, as I noted to the Crown during oral submissions, admission of these prior sexual acts does not diminish the Crown’s case. Indeed, in some ways, it would strengthen it. Knowing that R.S. and L.H. had prior consensual sexual activities, it makes sense that L.H. and R.S. would have these communications and conversations to make it clear that their relationship was going to be a platonic one; that there was no agreement to having any sexual relationship between the two; that L.H. did not want to have sex on these two occasions of the alleged sexual assaults; and that R.S. knew that sex was off the table on these two occasions.
[22] In this way, the admission of the evidence furthers the truth-finding process. It will assist in coming to a just disposition. No discriminatory belief or bias would be involved in its admission. As I pointed out in oral submissions, having heard L.H. testify in-chief, her testimony has only supported my reasons for permitting this evidence for this limited purpose.
[23] In assessing the factors of potential prejudice to L.H.’s personal dignity and right of privacy, her right to personal security and protection of the law, whether the evidence may unduly arouse sentiments of prejudice or hostility in the jury, and society’s interest in encouraging reporting sexual offences, I have decided that a very limited scope should be given to what can be introduced into evidence. This narrow scope will further the proper use of the evidence in R.S.’s ability to make full answer and defence and avoid any potential deleterious effects of its admission. Thus, reference can be made to the fact that R.S. and L.H. had these two prior sexual activities. But there will be no other details of the prior sexual activities other than the dates on which they occurred and that they were consensual. Any witness testimony and other evidence like the text messages must be kept within the parameters of this ruling.
[24] It is not lost on me that while it is the defence that seeks admission of this evidence, on the facts of this case, that evidence is not necessarily helpful to the defence. Thus, there is always the possibility that some form of twin-myth reasoning could result by its admission. I have been very mindful of this in coming to this decision. That said, continued vigilance is required as the cross-examination of L.H. proceeds. Careful instructions must be given to the jury to ensure that only appropriate use be made of these instances of prior sexual activity.
Finally, although the Crown had finished their examination-in-chief of L.H., I find it only fair that their request to re-open their examination of L.H. to lead this evidence be granted.
Justice S. Nakatsuru
Released: March 9, 2020
COURT FILE NO.: CR-19-50000141-0000
DATE: 20200309
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
L.H.
Complainant Respondent
– and –
R.S.
Applicant
REASONS FOR JUDGMENT
NAKATSURU J.
Released: March 9, 2020