Court File and Parties

Court file number: 341/20 DATE: 2020-05-19 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Her Majesty the Queen AND: Michael Marsden, accused AND: A., complainant

BEFORE: Mr Justice Ramsay

COUNSEL: Jill Witkin for the Crown; L. Wilhelm for the accused; David Butt for the complainant

Endorsement

[1] This is an application in writing for certiorari to quash the decision of Wolfe J. dated January 27, 2020 with respect to admission of evidence of sexual activity of the complainant other than that which forms the subject-matter of the charge.

[2] The accused is charged with two counts of sexual assault causing bodily harm. The accused elected to be tried by a provincial court judge and brought a motion before the trial judge for a hearing under s.278.93 of the Code. At that hearing, the complainant appeared through counsel and made submissions, as was her right under s.278.94(2).

[3] She now applies for certiorari to challenge the judge’s decision. Review at the instance of a party is limited to an error of law that goes to jurisdiction. No such error is alleged. As a non-party to the litigation, however, the complainant has a broader right to complain of error on the face of the record if the decision has a final and conclusive character for her: R. v. Awashish, 2018 SCC 45.

Admissibility of Evidence of Extrinsic Sexual Activity

[4] Under s.276 of the Criminal Code, evidence of sexual activity (which is defined to include communication about sexual activity) extrinsic to the offence charged is not admissible to prove that by reason of the sexual nature of the activity the complainant is more likely to have consented to the activity that forms the subject-matter of the charge or is less worthy of belief. If the statutory procedure is followed, such evidence can be admitted if it relates to specific instances of sexual activity, is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. The judge must consider any relevant factor including seven factors specified in s.276(3).

Specific Instances

[5] Evidence of a relationship that implies sexual activity inherently encompasses specific instances of sexual activity. As a rule, requiring further details would unnecessarily invade the complainant’s privacy, defeating an important objective of the provision. Specifying the parties to the relationship, the nature of that relationship and the relevant time period satisfies the purposes of trial fairness: R. v Goldfinch, 2019 SCC 38, para. 54.

Relevance to an Issue

[6] The complainant told the police that on April 30, 2018 and July 5, 2018 she and the accused took part in sexual activity. She did not consent to all of the sexual activity that took place. Specifically, she did not consent to anal intercourse or to being choked. She also told the police a number of things that are contradicted by her emails and texts to the accused:

a. That she never consented to anal sex and that it was a “hard limit;” b. That she feared the accused; and c. That she did not communicate with the accused during a certain period of time.

[7] The accused deposed that he and the complainant had a relationship that was limited to sexual activity, although the contents of some of their communications suggest that the complainant might not have agreed on that point. They liked to pretend that the accused was sexually assaulting the complainant. They had a code word that meant, “stop,” because to them, “stop” did not mean “stop” and “no” did not mean “no.” The accused referred to this in his affidavit as BDSM (bondage, discipline, sadism, masochism).

[8] The issues for trial, then, were stated to be the credibility of the complainant, consent and belief in communicated consent.

The Matters on which the Parties and the Complainant Agreed

[9] At the hearing before the trial judge the Crown, the defence and the complainant agreed that evidence of the following previous sexual activity was admissible:

a. The fact that the relationship involved BDSM, role playing and safe words, but not the specific activities, in order to understand how the parties communicated consent. b. Communications in which the complainant spoke favourably about anal intercourse, to challenge her credibility on the basis that they were inconsistent with her statement to the police that anal intercourse was a “hard limit.” c. The complainant’s 2017 complaint to the police, which resulted in no charges, in order to understand the complainant’s later state of mind, but not the content of the complaint. (The accused did not know about the complaint.) d. The text messages leading up to the July 5 incident as part of the narrative and to challenge the complainant’s credibility in view of her assertions to the police that she feared the accused. e. Communications sent by the complainant to the accused in the period during which, according to her statement to the police, she had not communicated with him or was refusing to see him, to challenge the complainant’s credibility on that point and on the question whether she feared the accused.

[10] The judge accepted that these items of evidence were admissible for the agreed purposes. At the request of the accused he also ruled that there was an air of reality to the defence of belief in communicated consent and that, within limits, the previous sexual activity was relevant to that issue. It is this ruling that is contested here.

The Evidence Before the Trial Judge on Communication of Consent

[11] The accused deposed that he and the complainant routinely engaged in consensual sexual activity that included playing dominant and submissive roles and engaging in “rape play” scenarios:

The hallmark of these sexual encounters was the pretense that they were non-consensual and the thrill of pushing our mutual limits under that pretense. In these scenarios words or actions that would otherwise amount to a revocation of consent, such as saying “no” or screaming, were part of the pretense and the kink. The mutual goal was to push these interactions to their limits. The revocation of consent by either party would be communicated not by traditional means, but by the use of a safe word. In our case, the chosen safe word was “red”.

My belief in [the complainant’s] consent on the two incidents at issue was premised on our unique sexual history and practices and the many conversations we had about our sexual desires, which as set out below, involved BDSM and role play.

The absence or revocation of consent would be communicated through the use of a safe word. It may also be communicated through non-verbal communications such as tapping out.

[12] In cross-examination, the accused said:

Q. And the basis for your belief that she was consenting was your whole prior history with her, is that correct? A. The whole thing with consenting was that we had a safe word and on April 30th it was never spoke of and on the 5th, it was spoke of, but it was stopped, so that would be my consent. Q. And in your mind then I take it once you had those conversations anything was fair game until the word “red” or the tapping out happened, is that right? A. That is correct. Q. So when you – when the videos depict you entering her apartment and engaging in sex acts on April 30th and July 5th you went in with the mindset that you were going to act out activities you’d done before, right? A. Correct. Q. And you were going to continue to do that until she did one of two things, either say the word “red” or tap out. A. That is correct. Q. And you would agree with me that in those two days of text [July 3-5] we just reviewed together there’s nothing in it where she says “I agree that you come over and choke me with a belt. A. In those text messages, no. Q. And you agree with me that nothing in it says, “I agree for you to come over and anally penetrate me.” A. In those messages, no. Q. And so, when you entered her home that night and engaged in those acts with her you were doing so based on your expectation from the earlier times where you’ve engaged in similar activities. A. Like the night before, correct, where I said, “I’m going to come over and use you how I feel.”

[13] Regarding anal sex the accused said during cross-examination:

Q. So, you had reason to believe that at least at some point in time this wasn’t an activity that she was particularly keen on. A. She just wasn’t ready for it when we spoke on it, that is correct. Q. All right. And then once she agreed and said ‘okay, I know you want this’ she obviously wanted the relationship to continue, right? A. That is correct. Q. So, she agreed. A. That is correct. Q. And you relied on that agreement for the purposes of having anal intercourse with her going forward. A. That is correct. Q. Including on the event dates of April 30th and July 5th. A. Correct. Q. And so at the bottom of that page when you say, “I guess you want it in the ass then,” that’s at line 22, and she says, “No, no, no,” again you’re relying on right back to the time when you first gave her the ultimatum about anal intercourse, that, in your mind, was sufficient to believe that you had consent nonetheless even though she said “no, no, no.” A. That’s correct.

The Decision

[14] The trial judge set out the law as it relates to s.276 of the Code and the relevant considerations thereunder, and the law as it relates to belief in communicated consent. He concluded as follows.

[61] The prior consensual sexual activity as described in the email/text communications is similar to the sexual activity forming the subject matter of the charge. The events took place over several years of a sometimes on-again/off-again relationship but are not separated by a significant time period. The nature of the relationship between the parties is one in which both were seeking involvement in BDSM. In R. v. Harris the Court of Appeal concluded that prior sexual conduct should have been admitted and stated "... because credibility was the central issue at trial and the proposed evidence was capable of contradicting specific testimony given by [the complainant] that was central to her version of the relevant events." That approach is equally appropriate in the circumstances of this case.

[62] There is an air of reality to the defence and the accused will be permitted to adduce evidence of prior sexual activity as it is relevant to the mens rea of the offence. During the course of the trial the evidence sought to be adduced must continue to conform to the requirements of s. 276 before it can be admitted. I encourage counsel to consider preparation of an agreed statement of fact for any aspects of the evidence. Proposed questions can be provided in advance to allow vetting. This would potentially allow a more effective cross-examination by litigating in advance Crown objections or judicial intervention in the gate-keeping role and minimize any negative impacts-on the complainant or trial process.

[63] The defence will be allowed to cross-examine the complainant and testify about prior sexual activity as it relates to his understanding of consent. However, the evidence must not be elicited in support of the error of arguing propensity reasoning that her prior activities made her more likely to have consented and, on this basis, he believed she consented.

[64] The more critical the evidence to the accused's ability to make full answer and defence, the more weight that must be given to the right of the accused. To restate the example from R. v. Goldfinch the relative value of sexual history evidence will be significantly increased if the accused cannot advance a particular theory without referring to that history.

[65] There is no question that the evidence sought to be introduced has significant probative value for evaluating the credibility and reliability of the complainant’s testimony.

[66] I accept that this is one of those exceptional cases where it would be impossible for the accused to advance his defence without reference to the complainant's prior sexual history. Balancing the probative value of the proposed evidence against the danger of prejudice to the proper administration of justice is required. The nature of the evidence in the circumstances of this case cause me to rule in favour of its admission at trial for the limited purposes described. The evidence sought to be adduced is relevant to issues at the trial and its significant probative value is not substantially outweighed by its prejudicial effect. It is not to be adduced for the purpose of supporting the twin myths and must reference specific instances of sexual activity.

[67] The complainant’s dignity, equality and privacy rights will be interfered with and potentially affected by the introduction of the proposed evidence. The provisions of s.276 will continue to apply during the trial and limits will be applied to the proposed evidence should it stray from what is allowed by this decision. A publication ban continues in effect for this application and the trial itself to protect her privacy interests.

[68] I have not put detailed restrictions on the use of the evidence but will do that as may become necessary during the course of the trial. Having determined the evidence should be available at trial does not mean that counsel for the applicant is free to emphasize evidence of prior sexual activity in excessive and minute detail, once the necessary point in a focused cross-examination has been established. During the course of the trial, limitations on the manner and extent of cross-examination may be imposed if necessary, to avoid “gratuitous humiliation and denigration of the victim.”

[15] The judge, then, ruled that the previous activity in the relationship could not be used in support of the two inferences that are prohibited by s.276(1) of the Code, but he admitted it as evidence on the issue of the mens rea of the offence.

[16] I would not have made the same decision. I would have thought that what was agreed to be admissible was all that was necessary to full answer and defence. The accused would be able to call evidence of the fact of a role-playing relationship, how the parties communicated on the issue of consent and how the complainant’s credibility may be affected by her communications and conduct that are inconsistent with her statement to the police. The communications leading up to the incidents on the indictment would be admitted as narrative. In particular I do not see how the fact of previous anal intercourse helps on the issue of consent or communication of consent to later anal intercourse.

Disposition

[17] The decision in question is not black and white. It involves weighing a number of factors, some of which compete with others. This sort of decision should attract deference. The fact that the judge weighed the factors differently from the way I might have does not necessarily amount to an error of law on the face of the record.

[18] Furthermore, the ruling may not be final and conclusive for the complainant at this stage. As Moldaver J.A. advised in R. v. Harris (1997), 10 C.R. (5th) 287, para. 38, judges are well-advised to resist making final rulings until it is necessary to do so. The present ruling leaves room for adjustment and explicitly leaves open the question of how much detail will be permitted. The judge called on the parties to attempt an agreed statement of facts to narrow the remaining issues. Any interference by me at this stage will make it impossible or at least impractical for the judge to adjust and apply his own ruling as the issues come into focus.

[19] As a matter of discretion, I would not grant the relief in question whether there is a final and conclusive decision for the complainant that amounts to an error of law on the face of the record or not.

[20] The complainant argues that Parliament, by enacting s.278.94(2) of the Code, must be taken to have understood that it was giving standing to a third party and thereby creating the possibility of interlocutory review for error on the face of the record, as in Awashish. To deny her the opportunity to exercise this right would be clear error. I do not agree.

[21] In R. v. Boyle, 2019 ONSC 3641, Laliberté J. affirmed that the relief sought is discretionary. He set out sound reasons for refusing relief in similar circumstances:

a. The complainant’s rights are protected by the statutory right to participate in the hearing at trial. b. There are provisions for publication bans and hearings in camera to protect the complainant’s privacy. c. The history and purpose behind s.276 make it unique and distinct from other non-party issues which may arise in criminal proceedings. d. There is a need to minimize delay and disruption in criminal trials. It is not desirable to allow criminal proceedings to be delayed by interlocutory reviews that can take on a life of their own.

[22] The complainant is a third party like no other. Bringing accountability for a wrong allegedly done to her is at the heart of the process. This function is specifically assigned to the Crown. That is not true of other third parties, such as media, witnesses and counsel.

[23] I also think it pertinent (as did Laliberté J.) that no interlocutory review would be available in a trial conducted by a superior court of criminal jurisdiction. That tells me that Parliament did not think that interlocutory review was essential to the protection of the rights of complainants.

[24] In spite of Mr Butt’s able argument, the application is dismissed.

J.A. Ramsay J. Date: 2020-05-19