COURT FILE NO.: CR-18-1301-00

DATE: 2020 10 15

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

C. Mangat, for the Crown

• and -

ROYDEL COLE

F. Fedorsen, for the Applicant

Applicant

HEARD: September 10, 2020

RULING ON APPLICATION

André J.

[1] Mr. Roydel Cole brings an application pursuant to s. 278.93(1) of the Criminal Code for a hearing under s. 278.93(4) of the Code to determine whether evidence is admissible under s. 276(2) of the Code.

BACKGROUND FACTS

[2] The complainant alleged in a statement to the Peel Regional Police Force (PRPF) that her friend, Mr. Cole, whom she had known for two years, sexually assaulted her in the early morning hours of June 13, 2017.

[3] In support of his application, Mr. Cole deposes that from the time he met the complainant at a shopping mall in Mississauga in 2015, their relationship had sexual overtones, with the complainant sending him sexually suggestive photographs and messages. In one such message, she had even suggested that they would become intimate at some point in the future. He maintains that the complainant freely consented to the sexual activity they engaged in on June 13, 2017.

[4] Mr. Cole seeks to adduce evidence of the prior sexual relations he had with the complainant between 2015 and June 13, 2017.

EVIDENCE THAT MR. COLE SEEKS TO ADDUCE

Section A

[5] The two parties met at a shopping mall in 2015. Mr. Cole’s first words to the complainant were, “you’re too pretty to be leaning on that dirty wall”.

[6] The complainant asked Mr. Cole to walk her to her destination. The two continued talking and they exchanged telephone numbers.

Section B

[7] The parties repeatedly spoke over the phone prior to June 2017 and exchanged text messages. These conversations were playful and sexual in nature. They openly talked about sex. Mr. Cole told the complainant that she was sexy. She sent him pictures and videos of her dancing in revealing clothing.

Section C

[8] During the summer of 2015, the complainant made an overt sexual advance towards Mr. Cole. She attended his residence to braid his hair. They started to drink and watch music videos. The two went into a washroom where the complainant washed Mr. Cole’s hair. His shirt got wet in the process. After Mr. Cole removed his shirt, the complainant intentionally touched his nipple. Mr. Cole’s penis became erect. The complainant then grabbed his penis above his clothes. She eventually let go of it and stated suggestively: “I’m not sure if I can handle that”.

Section D

[9] Following the incident in the washroom, both parties hugged each other. They walked towards Mr. Cole’s bedroom. They entered and the complainant laid on the bed. Mr. Cole got on top of her and touched her breast over her clothes and then touched her vagina. The complainant giggled while this happened. Mr. Cole started to remove her pants and the complainant stated: “I don’t want to go there yet” or words to that effect. Mr. Cole stopped and the two returned to the living room where they continued to drink and watch video.

Section E

[10] Sometime after Christmas 2015, the complainant started a sexual relationship with a male called Andre who was an acquaintance of Mr. Cole. After the complainant became pregnant, she spoke to Mr. Cole over the phone and expressed concerns to him about her relationship with Andre. She advised him that she had heard a rumour to the effect that Andre had doubts that he was the biological father of the complainant’s child. The complainant feared that Andre would end his relationship with her because he believed that she had been unfaithful.

Section F

[11] During the evening of June 12, 2017, in the hours preceding the alleged sexual assault, the complainant leaned on Mr. Cole and showed him pictures and a video. The pictures were sexually suggestive and showed her wearing minimal clothing. In one picture she was only wearing a bra and underwear while stooping on her hands and knees on a bed with her buttocks facing the camera. She also showed Mr. Cole another video depicting her dancing while wearing a bra and underwear.

POSITION OF THE APPLICANT

[12] Mr. Cole’s counsel submits that the above incidents are relevant for various reasons including the following:

a) They support Mr. Cole’s assertion that his relationship with the complainant was sexual;

b) The evidence contradicts the complainant’s statement that the complainant and himself were just friends;

c) The incident in Section D is important to Mr. Cole’s defence in that it shows that in the past, when the complainant had chosen not to have sex with him, he had stopped. It “demonstrates”, according to Mr. Cole’s lawyer, that “the applicant is aware that ‘no means no’”.

d) The complainant had a motive to lie that Mr. Cole sexually assaulted her because she feared that Andre would break up his relationship with her, if he found out that she had sex voluntarily with Mr. Cole.

e) The incident in Section F is proximate in time to the allegations before the court and therefore does not form the subject of the charge in s. 276. Alternatively, this incident, which the complainant described while testifying in the preliminary hearing as a “raunchy” video, contradicts the complainant’s testimony that the two were just friends. The video proves that the complainant was sexually interested in Mr. Cole.

CROWN’S POSITION

[13] The Crown submits that the incidents which Mr. Cole seeks to adduce at trial all engage the “twin myths” set out in s. 276 of the Code. They can be described as “other sexual activity that does not form the subject matter of the charge.” As such they are inadmissible and are not relevant to the issue whether the complainant consented to the acts of sexual assault that forms the subject of the charge. Neither are they relevant to the central question of whether Mr. Cole “believed that the complainant communicated consent to engage in the sexual activity in question”: see R. v. Darrach, 2000 SCC 46, at para. 59.

THE LAW

[14] Section 276(1) of the Code essentially provides that:

…evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant

(a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or

(b) is less worthy of belief.

[15] Sections 276(2) provides that:

(2) In proceedings in respect of an offence referred to in subsection (1), evidence shall not be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94, that the evidence

(a) is not being adduced for the purpose of supporting an inference described in subsection (1);

(b) is relevant to an issue at trial; and

(c) is of specific instances of sexual activity; and

(d) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

[16] Section 276 prohibits “all discriminatory generalizations” about a complainant’s credibility and disposition to consent”: see R. v. Darrach, 2000 SCC 46, at para. 24; R. v. D.K., 2020 ONCA 79, at para. 52; R. v. Barton¸ 2019 SCC 33, at para. 60.

[17] Section 276(2) provides that evidence of prior sexual activity that does not form the subject of the charge may be admissible where the evidence a) is not being adduced for the purpose of supporting the twin myths; b) is relevant to an issue at trial; c) is of a specific instance or instances of sexual activity and d) “has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice”.

[18] Section 276 expressly prohibits the admission of evidence of other sexual activity for the purpose of suggesting that the complainant was more likely to have consented to the sexual activity in question or that she is less worthy of belief: see s. 276(1); R. v. R.V., 2019 SCC 41, at paras. 36, 44.

[19] Asserting that evidence of other sexual activity is relevant to the issue of consent will engage the first prohibited myth that because of the consent to past sexual activity, the victim more likely consented to the sexual activity that forms the subject matter of the charge: R. v. G.G., 2015 ONSC 5321, at para. 31; R. v. D.K., 2020 ONCA 79, at paras. 55-59; R. v. L.S., 2017 ONCA 685, at paras. 88, 97; R. v. MacMillion, [2019] O.J. No. 6270, at para. 23. Consent must be contemporaneously given for each instance of sexual activity. Evidence of other sexual activity will rarely be relevant to establish consent: see Darrach, at para. 58; R. v. Goldfinch, 2019 SCC 39, at para. 56; R. v. Dadson, 2018 ONSC 4823, at para. 139.

[20] In Goldfinch, the Supreme Court of Canada stated at para. 60 that, “it is difficult to conceive of a clear instance of twin myth reasoning than the proposition that because the complainant had “at some point” consented to be intimate with the accused, it was “more probable” that she would have done so again”.

APPLICATION OF THE LAW TO THE ANTICIPATED EVIDENCE

Incident A

[21] This incident involves Mr. Cole telling the complainant that “you’re too pretty to be leaning on that dirty wall”. The complainant allegedly asked Mr. Cole to walk her to where she was going and the two willingly exchanged phone numbers. Mr. Cole seeks to adduce this evidence to support his position that their relationship had sexual overtones.

[22] In my view, this interaction, on its own, does not support Mr. Cole’s contention that his relationship with the complainant had sexual overtones. Neither complimenting the complainant about her appearance, exchanging telephone numbers or the complainant asking Mr. Cole to accompany her, either individually or together, has sexual overtones. To that extent, I fail to see how s. 276 is engaged if the complainant is questioned about how she met Mr. Cole. To that extent, it is not necessary for Mr. Cole to bring a s. 276 application for the admission of this evidence. It does not, in my view, engage the “twin myths” in question.

Incidents B, C and D

[23] Incidents B, C and D involve incidents which appear to have been sexual in nature. The first involves phone conversations and messages which, Mr. Cole claims, were “playful and sexual” in nature. The two, he maintains, talked openly about sex and the complainant was allegedly flirtatious with him. The second involved the complainant allegedly brushing her hand against Mr. Cole’s nipple and grasping his penis through his clothes while the third, allegedly involved Mr. Cole getting on top of the complainant, touching her beast over her clothes and touching her vagina area. The complainant allegedly giggled when this happened and made a suggestive comment to Mr. Cole that she did not wish to do that, yet.

[24] I lump these incidents together given that Mr. Cole’s counsel submits that these incidents are of a sexual nature and that if true, they directly contradict the complainant’s repeated assertion during her preliminary hearing testimony that she and Mr. Cole were just friends and that this anticipated evidence directly contradicts the complainant’s version of events. He submits that cross-examining the complainant is not only important to Mr. Cole’s right to make full answer and defence, it would not engage the twin myths.

[25] In support of his position, counsel for Mr. Cole relies on cases where appellate courts have ruled that a trial judge’s failure to admit evidence of a prior sexual encounter between an accused and a complainant, in appropriate circumstances, constituted reversible error.

[26] For example, in R. v. Harris, 1997 CanLII 6317 (ON CA), [1997] O.J. No. 3560, a complainant described her relationship with the accused as a platonic one, that there had been nothing of a sexual nature between them and that she had made it known to the accused that she was not interested in a sexual relationship. That explained why she was shocked when the accused broached the subject of sex after they returned to their hotel room: at para. 44. The trial judge refused the accused’s application to call evidence regarding an earlier sexual encounter with the complainant on the ground that “that is precisely the kind of evidence of previous unchaste character, that formerly bedeviled our courts in sexual cases and that s. 276 was intended to regulate strictly”: at para. 31.

[27] The Court of Appeal demurred. Moldaver J.A. noted at para. 42 that:

By testifying as she did, the complainant placed the nature of her relationship with the appellant in issue. Accordingly, in order to be able to make full answer and defence, the appellant was entitled to lead evidence designed to rebut the complainant’s testimony.

[28] Moldaver, J.A. noted further at para. 43 that, “In my view, the proposed evidence of the Tuesday night incident falls squarely within this category because it served to rebut the complainant’s assertion that she and the appellant had not engaged in sexual conduct prior to the weekend of March 4th”.

[29] Similarly, the court noted in R. v. Temertzo Olou, 2002 CanLII 2852 (ON SC), [2002] O.J. No. 4951 (SCJ), at para. 27, relying on R. v. M.M. (1999), 1999 CanLII 15063 (ON SC), O.J. No. 3943 (SCJ), that evidence of prior sexual activity between the parties was admitted because the development of the relationship between the parties was necessary to provide context, without which the alleged sexual assault would be assessed in a vacuum and the testimony of the accused in support of his position that the contact was consensual would appear improbable.

[30] Similarly in R. v. Goldfinch, 2019 SCC 38, [2019] S.C.J. No. 38, at para. 123, the Supreme Court of Canada noted the following:

A jury’s determination of which witness to find credible is a holistic exercise that involves assessing the plausibility and coherence of a given witness’ testimony throughout the course of the trial. Withholding the sexual nature of Mr. Goldfinch’s relationship with the complainant could have had an adverse impact on the jury’s assessment of Mr. Goldfinch’s credibility, potentially infringing upon his right to make full answer and defence.

[31] The Crown takes the position that these cases do not apply because the complainant never denied that she engaged in any of the activities or incidents Mr. Cole has described. However, at the very minimum, the complainant’s testimony conveys the impression that the two were merely friends and had no type of sexual connection or interaction. Indeed, the complainant testified during the preliminary hearing in this matter that she used to go to Mr. Cole’s house and “nothing used to happen”. While the complainant may insist that Mr. Cole is not being truthful about their past relationship, he is entitled to test her credibility by challenging her characterization of that relationship.

[32] A jury can be cautioned about the limited use of this evidence but to deprive Mr. Cole of an opportunity to challenge the complainant’s testimony would gravely impact his ability to make full answer and defence to the charge. To that extent, s. 276 of the Code is not engaged if Mr. Cole seeks to cross-examine the complainant about these incidents rather than suggesting that on account of these alleged acts, she consented to the sexual activity that forms the subject of the charge or is less worthy of belief on account of them. Additionally, a jury would have to be cautioned about the permissible and impermissible uses of this evidence of alleged prior sexual activity. The jury would have to be cautioned that evidence of consent to past sexual activity does not constitute evidence that the victim was more likely to have consented to the sexual activity that forms the subject matter of the charge or it was more probable that she would have consented to the sexual act alleged. Furthermore, the jury would have to be cautioned that consent must be contemporaneously given for each instance of sexual activity. Additionally, evidence that on a prior occasion, the accused stopped when the complainant said “no” to his sexual advances, cannot be used as evidence that he did not sexually assault the complainant as alleged in the indictment.

Incident E

[33] The applicant stated that the complainant told him that she feared that her boyfriend would end his relationship with her if he believed that she had been unfaithful to him.

[34] In my view, this line of question does not engage s. 276 of the Code. It is entirely appropriate for the applicant to put to the complainant that this was a motive for her to fabricate the allegations. Questioning the complainant about her state of mind when the allegations were made does not run the risk of reasoning based on the twin myths that underlies s. 276. The source of the information the complainant allegedly received is irrelevant. What is important is whether she believed that Andre would end their relationship if he found out that the complainant had allegedly been unfaithful to him. It is her state of mind that is in issue, not the source of any information that she may have received from a third party. Cross-examining the complainant about whether she believed, at the time she lodged a complaint with the police, that her boyfriend would dump her if he believed that she had been unfaithful to him, is important to Mr. Cole’s defence. In my view, this line of question would not engage s. 276 of the Code.

Incident F

[35] This section relates to the allegation that the complainant showed the applicant a video of her dancing with virtually no clothes on and showed him sexually explicit photos prior to the alleged sexual assault. The Crown opposes the admission of this evidence because it engages the twin myths set out in s. 276.

[36] During her testimony in the preliminary hearing, the complainant testified that prior to the alleged sexual assault, she showed Mr. Cole a “raunchy video” after he asked her to send it to him. She testified that after showing him the video, Mr. Cole made “advances” to her and ultimately sexually assaulted her.

[37] Does this showing of a “raunchy” video come under s. 276(2) of the Code, which applies to sexual activity other than the sexual activity that forms the subject matter of the charge? (emphasis added). An answer to this question is significant in that if the showing of a video is considered to be part of the subject matter of the charge then the prohibition in s. 276 does not bar the cross-examination of the complainant on this incident.

THE LAW

[38] In this regard, the Ontario Court of Appeal noted in R. v. T.(M.), 2012 ONCA 511, 289 C.C.C. (3d) 115, [2012] O.J. No. 3418, at para. 34 that:

The admissibility rules of s. 276 apply only where the evidence proposed for admission is of extrinsic sexual activity on the part of the complainant.

[39] Furthermore, in R. v. Akumu, 2017 BCSC 403, 2017 CarswellBC 2361, the court noted at para. 9 that, “s. 276 does not really contemplate a minute by minutes or hour by hour temporal change in sexual activity. I agree with the Crown that the transaction that forms the subject matter of the charges applies to the whole factual nexus of the events in question.”

[40] Additionally, in R. v. Lennox, 2091 ONSC 3844, 2019 CarswellOnt 10051, W.C.B. (2d) 630, Justice MacLeod held that:

25 There is a grey area about the application of s. 276 which arises from the dual requirement that evidence cannot be introduced that the “complainant has engaged in sexual activity other than the sexual activity that forms the subject matter of the charge”. To engage s. 276 the communication must be sexual activity and it must be sexual activity other than the activity in question. At some point parsing each moment in a sequence of events and defining it as a separate activity becomes ridiculous.

26 To take an obvious example, it is the evidence of the accused that the complainant met him on the street, embraced him, kissed him passionately and then led him to the supply room in her empty work place. There he says she kissed, him, unbuttoned his shirt and then unzipped his pants. No one is suggesting that each of the elements in this sequence of events is other sexual activity subject to a s. 276 analysis. This is not the case to resolve this issue but there is some question about how connected or disconnected in time communication would have to be to constitute other sexual activity.

[41] Finally, the court noted in R. v. X.C., 2020 ONSC 410, at para. 38, that:

In my view, “sexual activity”, in the form of both sexual acts and communications about sexual acts, can properly be considered to “form the subject matter of the charge” if it is part of the “transaction” that is captured by the charge, even if the “sexual activity” in question is not in itself an element of the charged offence. For instance, a complainant may allege that what began as a consensual sexual encounter became non-consensual when the complainant withdrew consent, or when the defendant performed some specific sexual act to which the complainant did not consent. In this situation, I do not believe the defendant is obliged to bring a s. 276 application in order to adduce evidence of the consensual sexual activity that immediately preceded or followed the activity that the complainant alleges was non-consensual. (emphasis added)

APPLICATION OF THE LAW TO THE FACTS

[42] The complainant testified that prior to being sexually assaulted, she showed Mr. Cole, at his request, a “raunchy” video. She testified that he subsequently assaulted her. The defence position is that the complainant voluntarily showed him this video.

[43] This incident cannot be clinically, and in my view, artificially separated from the sexual assault that forms the subject of the charge. To make full answer and defence Mr. Cole is entitled to challenge the complainant’s version of events. He is entitled, as part of his defence that the complainant consented to the sexual activity, to put to her that she voluntarily showed him a sexually suggestive video as a prelude to the alleged impugned act. It will be up to the jury to decide what weight, if any, it should place on this evidence.

CONCLUSION

[44] For the above reasons, the application is granted and the evidence admitted, subject to the caveats I have expressed regarding the instructions to the jury concerning the permissible and impermissible uses of the evidence.

André J.

Released: October 15, 2020

COURT FILE NO.: CR-18-1301-00

DATE: 2020 10 15

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

ROYDEL COLE

RULING ON

APPLICATION

André J.

Released: October 15, 2020