Court File and Parties

Court File No.: CR-19-1609-0000 Date: 2020-03-11

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN H. Rim for the Crown

- and –

SUJENDRA PERINPAMOORTHY C. Murphy for the Defendant

HEARD: March 2-4, 2020

Publication Ban

PUBLICATION IS BANNED PURSUANT TO Section 486.4 of the Criminal Code OF ANY INFORMATION WHICH COULD REVEAL THE IDENTITY OF THE COMPLAINANT. THIS RULING CONFORMS TO THIS PUBLICATION BAN.

RULINGS ON PRE-TRIAL MOTIONS

D.E HARRIS J.

1Several pre-trial motions were argued before me in advance of the trial which is set for April 6, 2020: 1. The admissibility of the accused’s statement to the police was challenged under Section 10(a) and (b) of the Charter. Voluntariness was also raised; 2. A Section 278.93 application; and 3. An application to edit out parts of the complainant’s Section 715.1 statement.

THE SECTION 10(A) AND 10(B) CHARTER APPLICATION

2The accused is charged with sexual assault and sexual interference with respect to the complainant, amongst other charges. At the time, he was 19-years-old and she was 14-years-old. He was more than five years older than her, 72 days older to be exact.

3When he was arrested, the accused was told he was being charged with sexual assault x2, assault x2, fail to appear in court and fail to comply with recognizance. At the preliminary inquiry, the two counts of sexual interference were added arising out of the same transaction as the sexual assault counts. The main allegation with respect to the sexual counts is that on February 4, 2017, there were two acts of sexual intercourse between the two in a Motel 6.

4During his post-arrest interview, having been properly advised of his right to counsel, the accused declined to contact counsel. He agreed to answer the officer’s questions. Although there was some reference to their respective ages, the accused was never clearly informed that the basis for the charges was the age difference between the complainant and himself. The Crown now intends to use this statement in cross-examination if the accused testifies at trial.

5The thrust of the accused’s argument is that the police failed to comply with Section 10(a) of the Charter in not advising him that he was being charged with a sexual offence in which the complainant’s putative consent was legally ineffective and in which his liability pivoted on the age difference. The only available defence is mistaken belief in age if reasonable steps were taken to ascertain it: see Section 150.1(1), (2.1), (4) of the Code.

6It is argued that without being informed that the age difference was the key to the sexual charges, the accused was not in position to fairly decide whether to exercise or waive his right to counsel under Section 10(b) of the Charter or his right to silence.

7The basis for the prosecution has now expanded. The Crown’s first approach will be that the sexual activity was not factually consensual. The statutory incapacity tack will be the second, fall-back position. The defence will not argue that the sexual activity did not take place but will argue that it was consensual and, with respect to statutory incapacity, that there was a mistaken belief in the complainant’s age and reasonable steps were taken to ascertain it.

8Section 10(a) reads:

10. Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefore

9The requirements of Section 10(a) are minimal. The law was neatly summarized by Justice Paciocco in R. v. Roberts, 2018 ONCA 411, [2018] O.J. No. 2279:

78 Section 10(a) does not require that detainees be told of the technical charges they may ultimately face. A person will be properly advised of the reason for their detention if they are given information that is sufficiently clear and simple to enable them to understand the reason for their detention and the extent of their jeopardy: R. v. Evans, [1991] 1 S.C.R. 869 (S.C.C.), at pp. 886-88; and R. v. Nguyen, 2008 ONCA 49, 232 O.A.C. 289 (Ont. C.A.), at paras. 16-22. … “The issue is whether what the accused was told, viewed reasonably in all the circumstances, was sufficient to permit [her] to make a reasonable decision to decline or submit to arrest”, or in the alternative, to meaningfully exercise the right to counsel under s. 10(b): R. v. Gonzales, 2017 ONCA 543, 136 O.R. (3d) 225 (Ont. C.A.), at para. 125.

10Also see R. v. Evans, [1991] 1 S.C.R. 869, at pp. 886-88; R. v. Smith, [1991] 1 S.C.R. 714, 63 C.C.C. (3d) 313; R. v. Black, [1989] 2 S.C.R. 138, 1989 CarswellNS 389 at para. 30 (Carswell); R. v. Sawatsky (1997), 35 O.R. (3d) 767 (Ont. C.A.) at p. 776; R. v. Latimer, [1997] 1 S.C.R. 217, 112 C.C.C. (3d) 193 at para. 31; R. v. Wong, [1998] B.C.J. No. 858 (B.C.C.A.), 52 C.R.R. (2d) 89 at paras. 22-27; R. v. Ekman, 2003 BCCA 485, [2003] B.C.J. No. 2097 at paras. 81-92.

11The focal point of the issue in this case is whether the accused was sufficiently informed of the reason for his arrest so as to facilitate his exercise of his right to counsel protected by Section 10(b).

12The concept behind the defence argument appears to be that an accused is being actively misled if the police do not impart and he fails to understand specifics of the charges against him. In this case, the true foundation for the sexual assault charge was not a lack of actual consent—what a lay person would perhaps expect—but rather a legal incapacity to consent based on the five-year rule embodied in Section 150.1(2.1). Because the accused did not know this, a breach of Section 10(a) was occasioned.

13In my view, the defence argument attributes a broader purpose and scope to Section 10(a) than can be derived from the case law. The first purpose of Section 10(a) is to give the arrestee a general sense of the reason he is being arrested thereby ensuring that he or she does not see it as unjustified or an action which should be resisted: Christie et al. v. Leachinsky, [1947] A.C. 573 at pp. 587-8; R. v. Kelly (1985), 17 C.C.C. (3d) 419 (Ont. C.A.) at p. 424. Informing the accused that he was under arrest for sexual assault was satisfactory under this first rationale.

14The second rationale for the Section 10(a) requirement—which is the heart of the defence argument—is to give the detainee sufficient information to decide whether he should obtain the advice of a lawyer as guaranteed by Section 10(b) of the Charter. The chief purpose is to make meaningful and effective the informational component of the Section 10(b) right to counsel. A critical factor, as stressed in the leading cases, is to ensure the information is sufficient to convey the extent of the accused’s jeopardy. This, as the example in Smith at para. 26 makes plain, is because an arrestee may decide a lawyer is not necessary for a traffic charge but may well feel differently if it is a murder charge at issue. The higher the jeopardy, the more likely the accused will decide to exercise their right to counsel.

15Although Mr. Murphy disavowed that he was arguing that an accused must be informed of the elements of the offence against him, that was the net result of his argument. None of the authorities go nearly this far. The elements of the offence need not be conveyed. It is not the purpose of Section 10(a) to enable the accused to anticipate regular police subterfuge or to obviate the possibility that the accused might misunderstand the elements of the charge and inadvertently incriminate himself as a result. That is clearly not the function of Section 10(a). Practically speaking, it would put an impossible burden on the police if they had to explain the parameters or nuances of an offence to an accused person.

16Of course, as happened here, the police might decide to charge the act in a different way at a later stage of the investigation. This did not alter the fact that their investigation and interview of the accused was with respect to certain events which could be charged as sexual assault, sexual interference or both. The police were not deliberately hiding anything from the accused.

17It is true that the sexual interference charge, only instituted as a result of the preliminary inquiry, is more tailored to a situation with a 14-year-old complainant and a 19-year-old accused who is more than five years older than the complainant than is a sexual assault charge. But that is of no real moment. In this case, sexual interference charged the same delict as the sexual assault, it has the same mandatory minimum of one year in jail and has the same maximum of 14 years. And the two are Kienapple the one to the other such that the accused cannot be convicted of both: R. v. M. (S.J.), 2009 ONCA 244 at paras. 8-9. The extent of jeopardy and the general nature of the charge is the same with respect to sexual assault and sexual interference.

18The police were not obligated to tell the accused about the sexual interference counts; they never did formulate an intention to charge sexual interference. The authorities stress that the accused’s understanding need only be general and there is no need for great precision or technical detail. Even if they had intended to charge sexual interference from the outset, informing him of the sexual assault allegations would have fully covered the sexual interference allegation and would have imparted sufficient information to fulfill the purpose and requirements of Section 10(a).

19In this case, the accused knew exactly what the police were investigating and what he was going to be charged with and, from this information, had a general sense of the extent of his jeopardy. The police did not hold back informing him of a more serious investigation they were pursuing as occurred in Black, nor was there a whole category of offences he was unaware of like in R. v. Joseph, 2017 ONSC 4566, 145 W.C.B. (2d) 339.

20The defence also argues that the officer incorrectly informed the accused about the nature of the offence. This is what occurred: When the accused told the officer that he thought the complainant was 16 or 17, he asked the officer what the age of consent was. The officer said 16 years old. The officer added that it depended on the age range. Age was relevant to the investigation, the officer said.

21In fact, if the complainant had been 73 days older, there would have been less than five years between she and the accused. The sexual allegations would no longer have been “statutory” and the Crown would have to prove lack of consent beyond a reasonable doubt. The officer’s statement that the age of consent was 16 years old was inaccurate.

22The less than accurate information did not deviate substantially from the information conveying to the accused the reasons he was detained. Again, it was not alleged that the incorrect information had the purpose or effect of unfairly tricking the accused into making a statement.

23The Charter application under Section 10(a) and (b) is dismissed. The voluntariness argument was, as I understand it, based on the same legal premise as the Section 10(a) argument—a failure to properly inform the accused what allegations he was facing. That being the only argument, I find that the statement has been proved voluntary beyond a reasonable doubt.

24The accused’s statement is therefore admissible for the purpose of cross-examination.

THE SECTION 278.93 ISSUE

25This issue was styled as a motion for directions. There was no constitutional attack launched against this regime. The facts are these. The defence is in possession of a very brief video taken by the accused during his time with the complainant in the motel on February 4, 2017. During their time in the room, a period of at least several hours, it is alleged that there were two acts of sexual intercourse between them. This is the subject matter of a sexual assault count on the indictment, court 4, and the sexual interference count, count 5, although the latter appears to bundle this allegation with several other allegations as the time period is not confined to the February 4, 2017 date.

26The video as described by defence counsel is a “selfie” apparently taken by the accused. His hand is shown on the complainant’s breast, over her clothing.

27There were ethical issues emanating from defence counsel’s possession of this video. The evidence was reminiscent of the Bernardo tapes issue which was the subject of the attempt to obstruct justice prosecution against lawyer Ken Murray: see R. v. Murray (2000), 144 C.C.C. (3d) 289 (Ont. S.C.).

28In addition, given its broad definition, the video is likely child pornography under Section 163.1 of the Code. It should be noted that possession for the purpose of these legal proceedings is permitted by subsection 6 of this provision.

29In this case, defence counsel did everything right ethically. He disclosed his possession of the video to the prosecution and he obtained advice from senior lawyers and from the Law Society. Counsel conformed to the ethical rule which was crafted in the aftermath of the Murray prosecution: see Rules of Professional Conduct, Incriminating Physical Evidence, Rule 5.1-2A.

30At this hearing, it was decided that the best approach would be to place the video, in the form of a DVD, under court seal. This is recommended in some of the articles written in this area and is one option available under the Rules (Rule 5.1-2A (3)(c)).

31Other copies were ordered destroyed so that the sealed version would be the only one in existence. The DVD is to be unsealed only by court order.

32Defence counsel as an officer of the court described the intended use of the video. He proposes to ask the complainant in cross-examination about the accused videotaping some of their time in the hotel room. It was my impression that the purpose of this question was to establish that their association in the room was convivial and amicable, thereby countering evidence and argument that the sexual activity was non-consensual and forced.

33If the complainant agrees that this took place, counsel will have achieved his object and no further questions in this area will be asked. If, however, the complainant resists the tendency of the question, and further prompting does not persuade the complainant to agree, it may be necessary to go further and ask questions about the content of the video and, as a final step, show the video to the complainant. Defence counsel acknowledged that he was tactically disinclined to show the video but stated that he might have to, nonetheless.

34It is this eventuality which is the reason this motion for directions was brought. I believe if the complainant does resist this suggestion, as it goes to the issue of consent and mistaken belief in consent, the questioning and the video could be of significant probative value and potentially clear the admissibility hurdle in Section 278.94 of the Code.

35The video is clearly a record under Section 278.1 as would be questions putting the contents of the video to the witness: see R. v. Boyle, 2019 ONCJ 226, [2019] O.J. No. 1922. But the dilemma is that based on the defence plan of attack, the reference to the content of the video and playing the video itself is contingent on the complainant’s negative response to defence counsel’s initial questioning.

36I have read the incisive judgments of Justice Breen and Justice Chapman on the timing of applications under the Section 278.1 regime: R. v. A.R.S., 2019 ONCJ 645, [2019] O.J. No. 4705; R. v. M.S., 2019 ONCJ 670, [2019] O.J. No. 4866. Justice Breen holds that the scheme is only constitutional if the application can be made during the evidence of the complainant. Otherwise, the defence is forced to disclose evidence in their possession before trial, contrary to the right against self-incrimination and the presumption of innocence. Justice Chapman, on the other hand, is of the view that the provision is constitutional and the seven-day notice period in Section 278.93(4) ought to be adhered to although she acknowledges that pre-trial rulings may have to be revisited during trial.

37I do not find it necessary to fully enter into the debate. The fact is, in this case, without knowing what the complainant will answer to the lead-in questions about videotaping, it is unclear whether any issue invoking the third party record statutory regime will arise at trial. In my view, it would not be wise to attempt to resolve the admissibility question based on what the evidence might be. All I can say at this point is that the content of the video is potentially probative and admissible depending on the complainant’s answers.

38It is impossible to predict in advance. It would be difficult to make a definitive ruling given these uncertainties. This is a relatively discreet issue and will pose little difficulty to resolve if it does arise.

39The authorities acknowledge the contingency of probative value in these types of circumstances. For example, Justice Breen in his judgment quotes R. v. Harris, [1997] O.J. No. 3560 (C.A.) in which Moldaver J.A. (as he then was), said:

[38] Given the vagaries that all too often exist when trial judges are asked to make "advance" evidentiary rulings, it seems to me that as a matter of prudence, apart from perhaps stating a tentative view, trial judges should resist making final rulings until such time as they are required to do so. Experience suggests that as the trial progresses, issues raised at the outset of the proceedings have a tendency to either disappear or get resolved. Those that remain outstanding are likely to be brought into much sharper focus as the evidence unfolds. To be certain, where the proposed evidence is likely to have a significant impact on the outcome of the trial, an ounce of prevention is worth a pound of cure and trial judges would be well advised to refrain from making conclusory rulings until such time as they are required to do so.

40Justice Chapman is undoubtably correct to warn against “significant trial management mischief” (paras. 81 and 94) by delaying an application until the complainant is on the witness stand. This is particularly worrisome in a jury trial like in this case. An application could take days and lead to intolerable disruption of the trial.

41However, there is little choice here. Furthermore, as noted, the issue is a discrete one and will not take up much time. Counsel are now fully attuned to the issue, the trial judge will have this endorsement, and counsel for the complainant will be poised to deal with the issue if need be. Counsel and the trial judge will have a head start in resolving the admissibility question.

42I should also note that the Crown argued that the video was prohibited from being admitted by Section 276, it being previous sexual history evidence. I do not agree. Section 276(2) applies to “sexual activity other than the sexual activity that forms the subject matter of the charge.” The Crown has taken the position that the touching shown on the video, together with all of the sexual activity in the motel room—including the two acts of sexual intercourse--is charged in the sexual assault and sexual interference found in counts 4 and 5 of the indictment. The video is therefore literally “sexual activity which forms the subject matter of the charge.”

43Therefore, the defence does not need to satisfy the prerequisites of the Section 276 regime. Needless to say, the defence is in any case precluded from arguing twin myth reasoning but that is quite a different matter.

THE EDITING ISSUE

44The defence argues that in the complainant’s Section 715.1 interview, the interviewing female police officer asked a number of questions and made statements which were “irrelevant, inflammatory, demeaning, sarcastic” and ultimately would be prejudicial to the accused if heard by the jury at trial. It is proposed that the statement be edited to eliminate these parts. The defence concedes the statement is admissible otherwise under Section 715.1.

45Counsel have agreed with respect to most of the edits. There are three passages which they cannot agree on and upon which I have been asked to make rulings. I have the discretion to do so: R. v. P.S., 2019 ONCA 637 at para. 13.

46There are only three areas. In the first, this exchange took place:

Q. So he’s already hitting you and putting his hand on you when you first started dating? A. Yeah. Q. What did that tell you? Did it tell ya anything? A. I don’t know what to think about it ‘cause…

47The defence argues that the emphasized question was sarcastic and belittling. Accepting that there might be some truth in this, the question is relatively innocuous. The language could have been less suggestive. But it did not appear to have much effect on the complainant. She did not pick up on the officer’s comment. I would not excise this part of the interview.

48The next area is:

Q. That’s—that’s what somebody who cares about you would do? A. No.

49It is best if an interviewer stays away from commentary. That could interfere with the complainant’s telling of her story and possibly inject extraneous elements into the evidence. This sarcastic question might also encourage the jury to reason on the basis of character. A negative character conclusion is implicit. It should be edited out.

50The last area is this one:

Q. Okay. But shouldn’t once be enough? A. Yeah. Q. If you tell him you’ve not ready, shouldn’t he have been—shouldn’t he back off? A. Yeah.

51This interview was probably the first or one of the first occasions in which the 14-year-old complainant divulged her version of the sexual offences to an adult. It was a day after the alleged offences. The police officer is, I assume, trained in interviewing complainants in sexual cases.

52In light of these circumstances, it may be unavoidable for an interviewing officer to spend some time comforting and reinforcing the complainant during an interview. The problem is that a Section 715.1 statement is substantively admissible as an exception to the hearsay rule and will often form the foundation of the complainant’s evidence to support the allegation in the indictment. Comforting the complainant and bolstering her credibility and reliability may be incompatible with a neutral and objective interview, the type of interview best suited to forming substantive evidence.

53In this case, the two questions highlighted are pure commentary. Their main gist is rhetorical. The questions presuppose the answer and are highly leading. On this basis alone, they have little weight: R. v. Williams (1982), 66 C.C.C. (2d) 234 (C.A.).

54The questions focus on what the accused ought to have done, not on what he did. Accepting that the questions express the correct legal and social norm, the affirmative responses add virtually nothing of substance to the complainant’s evidence. They are divorced from the primary evidence, are legal conclusions not factual conclusions, and, in the final analysis, may well interfere with the fact-finding task of the jury.

55Instead, the questions convey a legal opinion which ought to come from counsel and from the trial judge, not a police investigator. The passage tends to raise the stridency volume and forsake a neutral, rigorous analysis of the evidence. Care must be taken not to inflame a jury hearing sexual offence prosecutions.

56This is one of the main passages in the interview focussing on the issue of the complainant’s lack of consent to the sexual acts. The prejudice significantly outweighs any nominal probative value associated with the one-word affirmative answers given in response to the officer’s leading questions.

57This passage will be edited out.