COURT FILE NO.: CR-19-0000000443
DATE: 20200909
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: her majesty the queen,
AND:
C.R., Applicant
BEFORE: S.F. Dunphy J.
COUNSEL: Harry Black, for the Applicant
Katherine Beaudoin, for the Respondent Crown
HEARD at Toronto: August 19, 2020
REASONS FOR DECISION – s. 276 Part 1 Application
(Subject to publication ban of any information that might identify the complainant or a witness pursuant to s. 486.4 of the Criminal Code – this ban does NOT apply to the publication of these reasons by order made pursuant to s. 278.95(1)(c) of the Criminal Code)
[1] This application raises the question of whether and to what degree an accused person may adduce evidence at trial of sexual activity between himself and the complainant during the period of time following an alleged violent sexual assault.
[2] The applicant Mr. C.R. is charged with sexual assault. The trial on a single count of sexual assault is currently scheduled to be heard before a judge and jury on November 23, 2020.
[3] This application is being brought pursuant to s. 276(2) of the Criminal Code. Pursuant to s. 278.93(4) of the Criminal Code, the application proceeds in two parts. In the first phase of the application, I am required to be satisfied that a copy of the application was provided to the prosecutor (as to which condition there is no issue), that the content of the application so provided satisfies the formal requirements of s. 278.93(2) of the Criminal Code and that “the evidence sought to be adduced is capable of being admitted under subsection 276(2)” of the Criminal Code.
[4] The defence submits that the evidence it seeks to adduce is in no way intended to support one of the inferences forbidden by s. 276(1) of the Criminal Code but rather goes to the question of the credibility of the complainant as regards sworn evidence she has given concerning the nature and duration of her relationship with the accused in the weeks and months following the incident including the timing of and reason for the ending of that post-incident relationship. The defence also submits that the evidence in question is necessary to support the defence theory that the incident in question was not the violent sexual encounter described by the complainant but was in fact the first chapter of what became a nearly year-long sexually intimate and loving relationship. This evidence, the defence submits, is necessary to permit the accused to make full answer and defence to the charge of sexual assault.
[5] The Crown’s position is that the evidence in question is simply not relevant to any issue at trial and, despite the protestations of the defence, is in fact a violation of the twin myths prohibited by s. 276(1) of the Criminal Code. The existence of a post-incident friendship is not in dispute and the neither the characterization of that relationship as sexual nor the details of particular sexual encounters is or can be relevant to any matter at issue. The only matter at issue is whether the non-consensual sexual assault occurred on the night in question.
[6] For the reasons that follow, I have determined that the accused has satisfied the requirements of s. 278.93(4) in that the application satisfies the content requirements of s. 278.93(2), notice thereof was appropriately given and that the proposed evidence “is capable of being admissible” under subsection 276(2). A full hearing will be required to determine, among other things, whether some or all of the proposed evidence ought to be excluded and whether the evidence ought to be admitted having regard to the factors in s. 276(3). That hearing cannot proceed until the complainant has been given notice of her right to appear and be represented by counsel.
[7] The notice given contained a detailed summary of the evidence proposed to be adduced and an explanation of the issues that the proposed evidence was said to be relevant to. The application notified the Crown of the intention of the accused to adduce evidence to show that the incident in October 2010 was not the violent incident described by the complainant but instead represented the beginning of a “kind, considerate and loving relationship” that featured regular episodes of consensual sexual activities and which developed and continued over the following eleven months. The proposed evidence is potentially relevant to that narrative. Further, the complainant has given evidence characterizing her subsequent relationship with the accused in a quite different light, suggesting that she “went along” with the accused’s suggestion of a friendship with a degree of reluctance and only to help her career and that she terminated the relationship as soon as she learned that her hoped-for promotion would not occur. The proposed evidence of the accused would contradict the complainant’s narrative by evidencing her alleged willing participation in developing their on-going relationship (i.e. without a multi-week delay) and the persistence of a close and sexual relationship for several months after the complainant said that the relationship had been brought to a close by her.
[8] In accordance with s. 278.95(1)(c), I have determined that a publication ban need not apply to these reasons providing that a ban pursuant to s. 486.4 of the Criminal Code shall apply to prevent the publication of any details that may identify the complainant or a witness at the trial. In so ordering, I have considered the complainant’s right to privacy and the interests of justice. These reasons have been anonymized to remove all references to the name of the complainant or the accused (beyond initials of the accused) including geographic or other refences that might serve to identify either of them.
Factual summary
[9] This case concerns a sexual assault that is alleged to have occurred almost ten years ago: in October 2010. At the time, the accused was one of the complainant’s supervisors at work, the two having begun working together a short while prior to the incident (although they had been co-workers in the same location but in different units for a number of years beforehand). The allegation was first brought to the attention of authorities in 2017 and this charge has arisen from the investigation that followed. The complainant gave evidence concerning this matter in a December 2017 recorded statement and in sworn testimony at the preliminary inquiry that was held in June 2019.
[10] The incident is alleged to have occurred in the condominium apartment of a friend of the accused on a Friday or Saturday night during the month of October 2010. The complainant’s account of the incident as related in those two recorded statements is unambiguously one of a violent, non-consensual sexual assault and I shall not recount the details of it further here.
[11] There is no dispute from the defence that a sexual encounter occurred that night – the main issue is thus the question of consent. The defence describes the encounter as being but the beginning of an intimate and sexual relationship that endured in a continuous and frequent fashion for almost a year, ending when he decided to return to his wife and children.
[12] Needless to say, the two accounts of this first sexual encounter could not be more diametrically opposed. There is no need for me to recount here the contrasting versions of the events of that evening – this will be a matter for the trier of fact to review in due course at trial.
[13] In her original statement to police given in December 2017, the complainant described in some detail her relationship with the accused in the weeks and months following the October 2010 incident. That description clearly described the relationship between the two as being a sexually intimate one. She described it as being a “friendship with benefits”, one that began as a friendship soon after the incident but that evolved over the following weeks to include an infrequent but consensual sexual component. She also indicated that there was an unspoken assumption that the accused would assist the complainant in her quest to be promoted to a position that she had earlier sought without success and that she would remain silent about the incident and be his friend. When she learned that her application had been unsuccessful, she said that she terminated this relationship with the accused immediately thereafter.
[14] Not having proceeded with a s. 276 application beforehand, the defence was precluded from asking questions at the preliminary inquiry regarding sexual relations between the accused and the complainant after the incident and was unable to cross-examine her on those aspects of her prior statement. The complainant’s testimony at the preliminary inquiry neither explicitly confirmed nor denied that the relationship after the incident included a sexual component. Notwithstanding these limitations, the defence was able to elicit considerable evidence regarding the nature of their subsequent relationship from the complainant including:
a. That the two had a “friendship” following the incident until she terminated it when her renewed application to be promoted proved unsuccessful (an event she initially placed in May 2012 but subsequently confirmed occurred in May 2011), their contacts being only “civil” thereafter;
b. That she gave the accused a copy of her house key and he came to her house on many occasions;
c. That the two had a “boyfriend/girlfriend” relationship;
d. That the accused kept a bottle of rum at her house for when he came over;
e. That she left her daughter to stay with the accused on at least one occasion;
f. That the accused would play ping-pong with her daughter when he came to visit at her house, that he came to dinner with her parents on one occasion and that she took him along with her when visiting friends and neighbours;
g. That the accused brought his two sons over to her house for a barbecue on at least one occasion;
h. That the accused gave her a used cell phone to facilitate their communications; and
i. That the accused gave her gifts including a jacket and pair of running shoes.
[15] The proposed evidence to be adduced by the accused paints a very different picture of the relationship between them both at the time of and following the incident. The affidavit filed in support of this application asserts that the two “commenced an intimate sexual relationship in October 2010 which lasted until approximately September 2011”. It alleges approximately fifty sexual encounters occurred between them, the incident giving rise to the charge being the first of these. It describes their relationship as being intimate, frequent and continuous and contains explicit details of a number of their sexual encounters. There is no need for me to relate the particulars of those encounters as told in the affidavit at this stage.
[16] Before leaving this summary of the factual issues, I should address the question of the termination of the relationship. The complainant gave an account of the ending of the relationship and their relationship thereafter in both of her sworn statements. While s. 276 of the Criminal Code is not directly implicated in the telling of the story of the breaking-off of the relationship and events subsequent (because no sexual activity is alleged to have occurred thereafter), the sexual nature of the relationship being terminated may have some relevance to that description and this may in turn have some bearing upon the scope of evidence that may be permitted.
[17] As noted, the complainant described the relationship between the two following the incident as being in the nature of a tacit quid pro quo: her silence and friendship (and later sexual intimacy) in return for his career advancement assistance (the reference to sexual intimacy not having been raised at the preliminary inquiry but being admitted in her initial statement to police). This understanding was something that she said was never expressed but was tacitly understood by both. Her evidence also suggested that her agreement to go along with this tacit understanding was reluctant. When it became clear in or about May 2011 that her career would not advance in the way she had hoped, she terminated the relationship herself[^1]. Thereafter, a professional and civil relationship only persisted. The two had only occasional requirements to see each other professionally thereafter and began working in different units in or about August 2011. She said that she found these encounters distressing as time went on.
[18] The applicant has offered no direct evidence for the purposes of this application regarding the termination of their relationship beyond the allegation that the intimate sexual relationship continued until “approximately September 2011”. The affidavit in support of the application outlines details of at least two specific intimate encounters in July 2011 and three such encounters in September 2011. Each of these alleged sexual encounters occurred at a time when the complainant has stated that their relationship had already been terminated by her as a result of her application for a promotion having been turned down in May 2011.
Issues to be argued
[19] Is the evidence proposed to be admitted by the defence capable of being admissible under s. 276(2) of the Criminal Code and does the application itself contain a sufficient description of the relevance of the proposed evidence to a matter in issue at the trial?
Analysis and discussion
[20] I need not describe here the background to s. 276 of the Criminal Code. The Supreme Court of Canada in R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443 described this provision as excluding evidence “about a complainant’s disposition to consent or about her credibility based on the sexual nature of her past sexual activity on the grounds that these are improper lines of reasoning” [^2] (emphasis in original). It is a provision designed to prevent unfounded assumptions regarding the behaviour of complainants in sexual assault cases being permitted to distort the trial process.
[21] In the present case, the evidence of the complainant at the preliminary inquiry clearly addressed (i) the aftermath of the initial sexual encounter and the nature of the relationship between the two in the years that followed; and (ii) the reasons why the complainant took no steps to alert authorities to her complaint for approximately seven years. The nature of an application of this sort is that relevance must be determined prior to trial and thus before the complainant has actually testified at trial. The preliminary inquiry and, to a degree, the prior recorded statement provide me with a reasonable yardstick to infer the nature of the story she will likely tell and relevance must be weighed based on the best evidence I have before me.
[22] Comparing the evidence proposed to be adduced by the accused to the evidence of the complainant in her initial December 2017 statement as well as her June 2019 preliminary inquiry testimony, it is clear that the accused wishes to contradict in a very material way the narrative of the complainant regarding her relationship with the accused after the incident and the proposed evidence would do so in a very fundamental way.
[23] The complainant described the accused as acting as if nothing had happened following the initial encounter and said that she eventually decided that she would “go along” with his offer to assist her career which offer she considered to have been tacitly conditioned on her silence and on-going friendship. She described her thinking at the time as being based in part upon her assessment of the futility in making a complaint.
[24] In her initial statement, she described that friendship as taking shape a couple of weeks after the alleged sexual assault and only later evolving into a sexual relationship perhaps six or eight weeks after the incident. However, she said that this later aspect of their relationship going forward was relatively infrequent – about once per month. Finally, she described the friendship and relationship as having been terminated on her initiative and with finality very shortly after she found out that her aspiration of being hired by the police force would not be realized, an event she now places in or about May 2011 (or about seven months after the incident). Doing the math, this would suggest something in the order of about five such sexual encounters after the incident giving rise to the charge.
[25] The inference that might potentially be drawn from her evidence if unchallenged would be that the complainant only reluctantly decided to offer her friendship thinking at the time that she was making the best of a bad situation. That inference is one that the evidence the accused seeks to introduce challenges and, if the evidence were accepted by the jury, could lead to the conclusion that the complainant was not being truthful in her description of their relationship as to its beginning, its middle or its end.
[26] In my view, the case of R. v. L.S., 2017 ONCA 685 provides helpful direction in this matter. In L.S., the accused and the complainant were in a spousal relationship. The accused was charged with two counts of assault arising from incidents shortly before their relationship ended and one count of sexual assault arising from an incident three years beforehand. The s. 276 issue that arose was in relation to the desire of the accused to adduce evidence that the two were a couple for the entire year of the alleged sexual assault and had an active sex life for that year involving sex on a regular basis. No evidence of specific occurrences or events of sexual activity was proposed to be adduced. The accused wished to adduce the evidence to support his defence that the relationship continued before and after the alleged sexual assault as if nothing had happened because in fact nothing had happened.
[27] Doherty J.A. cautioned (at para. 66) that “[e]vidence of other sexual activity involving the complainant, particularly cross-examination of the complainant about other sexual activity, can, unless carefully controlled, interfere with the trial process by unfairly compromising the complainant’s ability to give an accurate and complete account of the relevant events”. However, it was clear in that case that the jury would hear evidence of the spousal relationship that existed at the relevant time from which it could readily conclude that the relationship included consensual sexual relations both before and after the alleged incident. The evidence sought to be adduced would make that inference explicit but would not delve into details of particular encounters.
[28] It was objected in L.S. that the proposed evidence was merely “relationship” evidence that does not satisfy the “specific instances of activity” requirement of s. 276(2)(c) of the Criminal Code. Doherty J.A. found that the specific instances requirement could be satisfied in the case of relationship evidence with evidence that describes “the parties to the relationship, the relevant time period, and the nature of the relationship”. This purposive approach to the “specific instances of activity” requirement was approved by the majority of the Supreme Court of Canada in R. v. Goldfinch, 2019 SCC 38 at para. 53.
[29] In the present case, the applicant accused seeks to introduce evidence of the relationship that began with the incident and continued for almost a year consistent with his description of it as a “kind, considerate and loving relationship” that involved regular, consensual sexual activities. Such evidence is capable of being the sort of relevant “relationship evidence” that Doherty J.A. in L.S. found to be capable of being admissible for much the same reasons expressed in that case. In significant measure, the evidence would make explicit the nature of a relationship that the jury may in infer from the evidence at all events. The evidence of details of particular sexual encounters also obviously satisfies the “specific instances” requirement of s. 276(2)(c) of the Criminal Code.
[30] In my view, the proposed evidence satisfies the formal requirements of s. 278.93(2) of the Criminal Code in that it describes the evidence to be given with adequate particularity. The application filed also satisfies the formal requirement in the same provision that the relevance of the proposed evidence to an issue at trial be adequately described:
a. “the Applicant seeks to adduce evidence that from the date of the alleged incident onwards for more than a year, the Complainant and Applicant developed a loving, respectful, considerate, trusting and intimate relationship” (Application, para. 13);
b. “the evidence is relevant because the Complainant also alleges that she maintained a sexual relationship with the Applicant so that he would help her get hired on as a police constable yet the evidence would establish that she continued the sexual relationship long after her final application … had been denied: (Application, para. 15))
c. “the entire account of the relationship between the Complainant and the Applicant would be distorted were this evidence not to be admitted” (Application, para. 16); and
d. “the evidence of the ongoing sexual activity is fundamental to the coherence of the defence narrative” (para. 17).
[31] To this point, my reasons have touched upon what might be described as the formal compliance of this application with the requirements of s. 276 and s. 278.93 of the Criminal Code. The crux of the issue to be decided by me though is whether the evidence proposed is actually relevant to a matter at issue in the trial or whether, to the contrary, the evidence is simply a direct or indirect attempt to introduce one or the other of the prohibited myths into the trial process.
[32] The Crown objects that the proposed evidence is not capable of being admissible because it is in reality nothing more than a thinly-veiled attempt to invoke the “twin myths” prohibited by s. 276(1) of the Criminal Code, seeking to refer to the complainant’s subsequent sexual activity to suggest either that she consented to sexual activity at the time of the incident in question or that she is less worthy of belief. The Crown relied, in particular, upon the case of R. v. A.R.J.D., 2018 SCC 6, [2018] 1 S.C.R. 218 (affirming for reasons given by majority R. v A.R.D., 2017 ABCA 237). In A.R.J.D., the Supreme Court agreed with the majority of the Alberta Court of Appeal that the trial judge had committed a reversible error by acquitting the accused primarily because he “judged the complainant’s credibility based solely on the correspondence between her behaviour and the expected behaviour of the stereotypical victim of sexual assault”.
[33] The Crown also pointed to the decision of the majority of the Supreme Court in Goldfinch which emphasized (at para. 51) the need to preserve “the integrity of the trial by ensuring twin-myth reasoning masquerading as “context” or “narrative” does not ambush the proceedings”.
[34] The Crown was not unfairly mischaracterizing the application before me in making this claim. This application rather explicitly raised the very myth proscribed by the Supreme Court (and common sense) in A.R.J.D. by suggesting that it was “virtually inconceivable that any person, male or female, would choose to form such a close relationship including a sexually intimate relationship with some who had so brutalized them”. Discretion being the better part of valour, the applicant recognized that this particular claim to relevance expressed in the written application plainly went too far and withdrew it at the outset of the hearing.
[35] Disregarding that plainly inadmissible claim expressed in the application, can it be said that the four other grounds of relevance raised by the application (and listed by me above) provide a sufficiently cogent argument for the relevance of the proposed evidence to withstand scrutiny at this initial stage of the inquiry? In my view, they do for two reasons.
[36] First, the complainant’s prior testimony put her own post-incident conduct in issue by describing (i) her reasons for both pursuing and terminating the relationship that ensued and (ii) more generally why she waited as long as she did to bring her complaint to the attention of authorities. She has alleged specific facts in support of that narrative that the accused seeks to contradict with different facts and, by so doing, to impugn her credibility. The attack on credibility implicit in this approach is not a prohibited attack premised on the fact of other sexual activities as such but a permitted attack arising out of her alleged dishonesty in mischaracterizing the whole of their releationship. It would be fundamentally unfair to permit the complainant to allege facts in support of her own narrative after the fact – a narrative that a jury may choose to find supports her credibility generally or with regard to the specific event – without permitting the accused to challenge the veracity of those very facts on cross-examination or with affirmative contradictory evidence. In particular, the defence seeks to lead evidence of at least four occurrences of sexually-intimate relations persisting months after the complainant alleges that she had terminated the relationship definitively following the failure of her promotion application.
[37] It may be objected that it cannot be known today what matters the complainant will discuss at trial. That is true. The complainant may close her evidence with the events of the alleged incident of sexual assault and go no further. Her trial evidence may not place any of her post-event conduct in issue. Relevance is always a matter for the trial judge to determine as the trial actually unfolds and not, as is necessarily the case with a pre-trial application such as this one, based on best estimates of how it is likely to unfold using the record before us today.
[38] Second, the evidence described in the application – or at least that part of it that may be described as the “relationship evidence” of the sort described by Doherty J.A. in L.S. – is a fundamental element of the narrative that the accused wishes to establish to support his own credibility. The defence is not seeking directly or indirectly to suggest that other sexual activity can be used as propensity evidence to infer consent on the night in question. To the contrary, his evidence (and hers) is that the two had never been sexually intimate before and had only recently begun working closely together and socializing with each other more intensely. The defence evidence describes the events of that night as being the first chapter in a relationship that developed and deepened over the following weeks and months. The circumstances surrounding the termination of a relationship that allegedly had its genesis with the same encounter the complainant has alleged was a sexual assault may also provide evidence in support of a motive for mischaracterizing the events of that first encounter. It would be impossible or impractical to explore motives arising from the termination of a relationship whose true nature cannot be disclosed to the jury.
[39] In summary, the defence wishes to present to the jury evidence from which it may infer that the sexually-intimate relationship between the complainant and the accused was a continuum with a beginning, middle and an end and that the story of the whole relationship as told by the accused is a coherent and consistent one that is worthy of belief. The jury may find some, all or none of that evidence compelling but it is evidence that is at least capable of being relevant and none of it requires or covertly urges the jury to adopt either of the twin myths s. 276 of the Criminal Code is directed at suppressing.
[40] While it might be suggested that the various admissions given by the complainant at the preliminary inquiry regarding the nature of the post-October 2010 relationship are sufficient to permit a jury to infer the general nature of the post-incident relationship and remove it from the list of “matters in issue” about which evidence is admissible, I do not think that is a fair or accurate characterization. The complainant did agree with the suggestion that the relationship was “boyfriend/girlfriend” and agreed to various other suggestions regarding the frequency of their contacts. However, the relationship evidence the accused seeks to adduce, if believed, would make explicit to the jury that which they would otherwise be required to infer from equivocal evidence. The absence of this evidence would preclude the jury from assessing the competing narratives of the parties (reluctant participant contrasted with enthusiastically pursued and continuous-from-the-first-night intimate romance).
[41] In finding the proposed evidence potentially clears the bar of potential relevance and formal adherence to the requirements of s. 278.93(2) of the Criminal Code I am of course not to be taken as ruling that any or all of this evidence would be admissible after a full hearing on notice to the complainant and after consideration of the criteria in s. 276(3). At least some of the proposed evidence appears to be clearly irrelevant in my view – I refer here to the evidence of the complainant’s activities going to night clubs with other people. All of that is to be sorted through after the complainant has been given notice of her right to appear and be represented by counsel.
Disposition
[42] Accordingly, I am granting this part of the application and rule that the evidence sought to be adduced is capable of being admissible under s. 276(2) of the Criminal Code. Notice of this ruling shall be given to the complainant forthwith and she shall be advised of her right to be represented by counsel at the hearing to be held to determine whether some or all of the proposed evidence should be admitted.
[43] As noted above, there will not be a publication ban in respect of these reasons. I have prepared them consciously excluding references to geography, names or particulars of employment that might identify the complainant or the accused. However, for greater certainty, the ban in s. 486.4 of the Criminal Code on the publication of information identifying the complainant or a witness shall apply. I reserve the right to amend these reasons to further anonymize them prior to release to the public and request the parties to notify me through my assistant of any references that may need editing in this regard before September 11, 2020 (with a copy to the other party).
S.F. Dunphy J.
Date: September 9, 2020
[^1]: The complainant’s email correcting/explaining her preliminary inquiry testimony regarding the ending of the relationship stated that the relationship ended in “May/June 2011” although the parties remained “in communication” thereafter.
[^2]: Darrach para. 34.