Court File and Parties

COURT FILE NO.: CR-20-0099

DATE: 20200827

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. S.G.

BEFORE: Stribopoulos J.

COUNSEL: Mr. G. Hendry, on behalf of the Crown / Applicant Mr. R. Tomovski, on behalf of Ms. G. / Respondent

HEARD: August 27, 2020, via Zoom videoconference

ENDORSEMENT

[1] The accused, Ms. S.G., is charged with assault, aggravated assault, and robbery with a firearm. Mr. M.K. is the complainant. The Crown applies for directions. And, depending on the outcome, also seeks a ruling.

[2] The Crown asks for direction on whether the regime developed by the Supreme Court of Canada in Seaboyer, which at common law controls the admission of evidence concerning prior sexual activity by the complainant, where an accused faces "a sexual offence" charge, applies in the circumstances of this case: R. v. Seaboyer, [1991] 1 S.C.R. 577, at pp. 634-635.

[3] If the accused wishes to elicit such evidence, the regime found in s. 276 of the Criminal Code now controls. In Barton, the Supreme Court concluded that s. 276 does not reach situations where the Crown seeks to elicit such evidence. At the same time, the Court held that the common law rules developed in Seaboyer do apply to the Crown: R. v. Barton, 2019 SCC 33, at para. 80.

[4] Should the court conclude that the Seaboyer regime applies, the Crown seeks a ruling that certain statements made by an unidentified co-assailant, during the alleged offences, that reference prior sexual activity between the complainant and the accused, are admissible at the accused's trial.

[5] To properly situate the issues raised by the Crown's application, a brief overview of the allegations against the accused is necessary.

[6] The Crown alleges that on March 16, 2019, Ms. G. visited Mr. K. at his residence. They had a prior romantic relationship. With Mr. K.'s permission, at some point in the evening, Ms. G. invited two female friends to join them. (The identity of these women remains unknown.). Eventually, Mr. K. ended up in a bedroom at the residence with one of the unknown women, where he undressed and was tied up. At that point, the dynamic of the evening changed drastically.

[7] Mr. K. alleges that, while he was tied up, both Ms. G. and the second unidentified woman entered the bedroom. He claims that all three women then began to yell at him and assault him. While this was taking place, one of the women referred to Mr. K. having "raped" Ms. G., which he denied. The ordeal then persisted, with the women continuing to assault Mr. K. He alleges that one of the unknown women then produced and brandished a gun. Eventually, an unidentified male also attended, and he too assaulted Mr. K. They then also took some of Mr. K.'s property. Finally, one of the women pointed and fired the firearm. The bullet struck Mr. K.'s foot.

[8] At Ms. G.'s trial, the Crown wants to adduce evidence from Mr. K. about the "rape" comment made to him by the unidentified woman. The Crown submits that this evidence is essential to the narrative, and that it is also relevant to Ms. G.'s motive to commit the crimes charged.

[9] On this application, on behalf of the Crown, Mr. Hendry submits that the common law regime developed in Seaboyer has no application because none of the crimes charged are "sexual offences" nor is an offence of that nature implicated in the proceeding: Barton, at paras. 72-77. Alternatively, if Seaboyer does apply, the Crown submits that the evidence regarding the rape allegation is admissible because it is integral to the narrative and relevant to motive. Further, the evidence does not raise any danger of twin-myths reasoning or invite any other kind of prejudice.

[10] In contrast, defence counsel, Mr. Tomovski, submits that the proposed evidence triggers the operation of s. 276 of the Code. Alternatively, he contends that, in the circumstances, Seaboyer applies. Ultimately, although Mr. Tomovski concedes that the evidence is most likely admissible under the Seaboyer regime, he argues that a more formal application by the Crown is necessary if it wants to obtain a ruling to that effect.

[11] In my view, s. 276 has no application in the circumstances of this case. In short, that legislative regime applies only in respect of “evidence . . . adduced by or on behalf of the accused”: s 276(2) (emphasis added). It does not reach the Crown's efforts to adduce evidence of that nature: Barton, at para. 80.

[12] Instead, the threshold question before me is whether the Seaboyer regime applies in the circumstances of this case. The accused does not face a charge for any of the offences enumerated in s. 276(1). Nevertheless, mindful of the Supreme Court of Canada's guidance in Barton (at paras. 72-77), given the allegation that the assaults took place while the complainant was tied up and nude, it is at least arguable that the offences impinged on his sexual integrity: see R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293. Ultimately, in my view, it is unnecessary to decide that question.

[13] Out of an abundance of caution, assuming, without deciding, that the common law regime from Seaboyer applies, evidence that one of the unidentified co-assailants referenced Mr. K. "raping" Ms. G. is undoubtedly admissible under the principles established in that decision. I have come to that conclusion for two primary reasons.

[14] First, the evidence is relevant and extremely probative. It is somewhat essential to the unfolding of the narrative of the alleged offences. And, far more significantly, it sheds critical light on Ms. G.'s alleged motive to commit the crimes charged. Of course, I recognize that, ultimately, the statement may not be substantively admissible against Ms. G. Not being her statement, its admissibility will depend on it qualifying for admission under a hearsay exception. For example, the statement may be admissible under the adoption by silence exception (see R. v. Tanasichuk, 2007 NBCA 76 at para. 110, leave to appeal to S.C.C. refused, [2009] S.C.C.A. No. 18), or, more probably, the common-design exception (see R. v Carter, 1982 CanLII 35 (SCC), [1982] 1 S.C.R. 938. I note that, with the latter exception, it will be for the trier of fact to decide admissibility after hearing all of the evidence at trial.

[15] Second, in the circumstances, the evidence is clearly not being elicited to support prohibited twin-myths reasoning. To the extent that the evidence could have any prejudicial effect, it is the danger of provoking hostility towards the complainant for his alleged victimization of the accused. In the circumstances of the case as a whole, I am satisfied that the probative value of the evidence undoubtedly outweighs any prejudicial effect. To the extent that there is any potential risk of prejudice, it can be more than adequately addressed by a limiting instruction.

[16] Accordingly, neither section 276 of the Criminal Code nor the common law rules from Seaboyer preclude the Crown from eliciting evidence from the complainant regarding the accusation made by the unidentified woman during the alleged offences that the complainant had "raped” the accused.

Stribopoulos J.

Date: August 27, 2020