COURT FILE NO.: CR-19-10000444-0000
DATE: 2020-11-05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
L.F.
COUNSEL:
Emma Evans, for the Crown
Rebecca Meredith, for L.F.
HEARD: October 8, 2020
R.F. GOLDSTEIN J.
REASONS FOR JUDGMENT ON MOTION FOR DIRECTIONS
[1] It is well-settled that where an accused person at a sexual assault trial wishes to call evidence of prior sexual activity by the complainant, he or she must make an application to the trial judge for permission to do so. A voir dire must be held. As a result of amendments to the Criminal Code, the complainant is entitled to be present at the voir dire, and to be represented by counsel.
[2] Two questions arise. First, what if it is the Crown that wishes to call evidence of a lack of prior sexual activity by a complainant? Can the Crown do that? Second, is the complainant entitled to be present and represented by counsel at the voir dire? These are the questions on this motion for directions.
[3] On October 8, 2020 I indicated that I would answer the first question yes, and second question no, with reasons to follow. These are my reasons.
BACKGROUND
[4] L.F., the accused, is a friend of the complainant’s family. The Crown alleges that L.F. sexually assaulted complainant, M.H., between June and September of 2018. M.H. was 14 when the assaults started and 15 when they ended. The Crown alleges that the sexual assaults consisted of touching M.H.’s breasts, digital penetration, fellatio and eventually intercourse. In September 2018 M.H. disclosed the assaults. A nurse at the SCAN (Suspected Child Abuse and Neglect) Unit at the Hospital For Sick Children in Toronto examined M.H. on September 28, 2018. M.H. told the nurse that she had never been sexually active except for L.F.’s assaults. The nurse examined M.H. The nurse observed an injury to M.H.’s hymen. That injury is apparently indicative of healed trauma caused by penetration.
[5] The police charged L.F. with sexual assault on M.H. The police also charged L.F. with sexual assault on another child. At the preliminary inquiry M.H. testified that the first time she had ever seen a penis was when L.F. sexually assaulted her.
[6] The Crown proposes to introduce the evidence of the SCAN nurse and M.H. into evidence by way of an Agreed Statement of Facts. The purpose of the evidence is to show a lack of prior sexual activity. The Crown concedes that a voir dire is required before that evidence can be called. Although L.F. does not dispute the admissibility of the evidence, the Court must still perform the gate-keeper function.
ISSUES AND ANALYSIS
[7] The essence of a sexual assault trial is the allegation that an accused person engaged in sexual activity with the complainant, and that the complainant did not consent. Evidence of that sexual activity is, obviously, admissible at a sexual assault trial. Evidence that the complainant engaged in any other sexual activity for the purpose of showing that she was more likely to consent, or that she is less worthy of belief – evidence that is referred to as the “twin myths” – is inadmissible under any circumstances: s. 276(1); s. 276(2) of the Criminal Code.
[8] Sometimes an accused person may wish to call evidence of sexual activity by the complainant, either with the accused or with someone else. That evidence is presumptively inadmissible. The evidence may be admitted, however, where it is not for the purpose of advancing one of the “twin myths”; it is relevant to an issue at trial; it is a specific instance of sexual activity; and the evidence has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice: s. 276(2) of the Criminal Code. The admissibility of the evidence must be determined on a voir dire.
[9] A complainant is entitled to standing at the voir dire: Criminal Code s. 278.94. That section was enacted in 2018. Where an accused person wishes to call evidence of other sexual activity by the complainant, the complainant is entitled to be represented by counsel and to make submissions.
[10] The issues in this case, therefore, are:
• Can the Crown introduce evidence of a lack of prior sexual activity by the complainant?
• Does a complainant have standing at a voir dire to determine the admissibility of evidence of prior sexual activity (or inactivity) led by the Crown?
(a) Can the Crown introduce evidence of a lack of prior sexual activity by the complainant?
[11] The Criminal Code is silent on whether the Crown must make an application where it wishes to refer to a complainant’s prior sexual history. Section 276(1) indicates that “twin myth” evidence is barred altogether. Section 276(2) states only that other evidence of prior sexual activity by the complainant “shall not be adduced by or on behalf of the accused”.
[12] There is no question, however, at common law that where the Crown wishes to refer to a complainant’s prior sexual history it must make an application: R. v. Barton, 2018 SCC 33, 376 CCC (3d) 1 at para. 80. The reason is slightly convoluted. The first “rape shield” law was enacted in 1982. In it, s. 276 simply prohibited all reference to a complainant’s prior sexual activity. The Supreme Court of Canada struck down the law as simply too broad: R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, 66 CCC (3d) 321. The Court then set out common law principles at paras. 99-106 for dealing with prior sexual activity. Those principles were largely enacted into new sections of the Criminal Code. The Court subsequently found those sections to be constitutional: R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443.
[13] The Court in Barton at para. 80 held that the common law principles set out in Seaboyer apply to a Crown application regarding a complainant’s prior sexual activity. The Crown must apply to admit the proposed evidence of prior sexual activity, and the trial judge must assess the proposed evidence in his or her gate-keeper role.
[14] But what about a lack of sexual activity? That question was before the Supreme Court of Canada in R. v. R.V., 2019 SCC 41, 378 CCC (3d) 193. The complainant, who was 15 at the time, went to the doctor complaining of abdominal cramps and nausea. She told the doctor that she had not been sexually active. A urine test revealed that she was pregnant. The complainant then disclosed to the doctor that R.V. had assaulted her. The doctor then disclosed the assault to the Children’s Aid Society, who in turn contacted the police. Upon learning that she was pregnant the complainant terminated the pregnancy. The clinic disposed of the fetal remains, making a DNA test impossible. The complainant told the police that R.V. had assaulted her, and that she had been a virgin prior to the assault. At R.V.’s sexual assault trial, the trial judge permitted the Crown to ask the complainant whether she was a virgin. The trial judge refused to allow any defence cross-examination. The trial judge convicted R.V. The Court of Appeal overturned the conviction.
[15] The Supreme Court held a trial judge is still required to vet the admissibility of evidence of a lack of sexuality. Karakatsanis J. stated for the majority at paras. 81-82:
Whether sexual inactivity is captured by either s. 276 or the Seaboyer principles is not directly at issue before this Court… I agree with Paciocco J.A. that it would be incongruous to hold that the statement "I am a virgin" does not engage s. 276 while an answer to the contrary would clearly be a reference to sexual activity: para. 79.
Nonetheless, questions regarding when the complainant ceased to be a virgin undoubtedly fell within the ambit of s. 276 and the Seaboyer principles. In this case, the Crown presumably sought to confirm that the complainant had not engaged in sexual activity during the timeframe when conception could have occurred. How the Crown intended to adduce this evidence -- and whether discussion of her activity on September 2nd, well beyond the conception timeframe, was necessary -- should have been evaluated in advance and considered alongside R.V.'s s. 276 application.
[16] The proposed Crown evidence must, therefore, be vetted pursuant to the common law principles set out in Seaboyer and codified in s. 276(2) and (3) of the Criminal Code.
[17] Section 276(2) of the Criminal Code states:
(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.
[18] Section 276(3) of the Criminal Code states:
(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account
(a) the interests of justice, including the right of the accused to make a full answer and defence;
(b) society’s interest in encouraging the reporting of sexual assault offences;
(c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;
(d) the need to remove from the fact-finding process any discriminatory belief or bias;
(e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;
(f) the potential prejudice to the complainant’s personal dignity and right of privacy;
(g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and
(h) any other factor that the judge, provincial court judge or justice considers relevant.
[19] In vetting the evidence in this case, I find that the evidence of lack of sexual activity does not engage either of the “twin myth” issues, is evidence of a specific instance of sexual activity, and is obviously relevant to an issue at trial.
[20] When I balance the factors set out in s. 276(3), I agree with both counsel that the evidence should be admitted. The evidence will likely assist the trier of fact. I am also persuaded that because the evidence will go in by way of an agreed statement of facts and that M.H. will not be cross-examined on that evidence the prejudice to her dignity and privacy will be limited. I am mindful that defence counsel does not object to the admissibility of the evidence. That said, it is still my role as gatekeeper to independently make a determination. A judge is not bound by the agreement of counsel. I am mindful as well that the complainant is not represented at this hearing, which leads me to the next question.
(b) Does a complainant have standing at a voir dire to determine the admissibility of evidence of prior sexual activity (or inactivity) led by the Crown?
[21] As I have already mentioned, a complainant has standing to make submissions and be represented by counsel where it is the accused person who wishes to adduce evidence of the complainant’s prior sexual activity.
[22] But what is the situation where it is the Crown that wishes to lead the evidence of prior sexual activity or inactivity? Does the complainant have standing at the voir dire? In my view, the answer is no.
[23] When Parliament amended the Criminal Code after Seaboyer and again in 2018 it did not make the s. 276 regime applicable to the Crown. As I have mentioned, Crown applications continue to be governed by the common law as set out in Seaboyer: R. v. Goldfinch, 2019 SCC 38, 380 C.C.C. (3d) 1 at para. 142; Barton at para. 80. When Parliament amended the s. 276 regime in 2018 it granted a complainant standing in the specific circumstances of applications by an accused person. Barton, Goldfinch and R.V. all considered the question of Crown-led evidence of prior sexual activity (or inactivity). All three noted that a voir dire is required when the Crown seeks to lead evidence of prior sexual activity (or inactivity). None of those cases contemplated that a complainant would have standing at the voir dire. The issue of standing was not squarely before the Court, but it is also true that the Court was giving guidance to trial judges dealing with the issue.
[24] In my respectful view, it is understandable that Parliament did not grant automatic standing and that the Supreme Court has not laid down a rule where the Crown seeks to introduce evidence of prior sexual activity or lack of sexual activity. As we all know, sexual assault trials can be highly fraught. Complainants and accused are often former partners, friends, and acquaintances. Emotions can, understandably, run very high. A trial often involves an accused person, through counsel, directly challenging the complainant’s credibility and truthfulness. Proposed evidence of prior sexual activity engages the most private and intimate kind of details. Parliament determined that it would be unfair if a complainant were denied a say in a hearing that was all about their alleged prior sexual activity where the accused seeks to introduce the evidence.
[25] The situation is not the same where it is the Crown that wishes to introduce evidence of prior sexual activity (or inactivity). Such instances will be considerably rarer than those where an accused person wishes to call such evidence. It is true that the interests of the Crown and the complainant may not fully align, since Crown counsel does not represent the complainant more than Crown counsel represents any other victim of crime. The interests of the Crown and the complainant, however, are not adversarial. The complainant is a Crown witness, usually the key Crown witness. Usually the evidence is something that the complainant herself has disclosed. It is also less likely that the Crown – as opposed to the accused – would seek to call evidence that would seriously prejudice the dignity and privacy of a complainant. In other words, the fairness concerns at the heart of giving a complainant standing are less compelling where the Crown wishes to call the evidence.
[26] I do not wish to be taken as saying that a complainant can never have standing where the Crown seeks to introduce evidence of prior sexual activity or inactivity. I think a trial judge, in the exercise of his or her trial management function, could order that the complainant be given the opportunity to make submissions in a particular case, although I think that such cases would be rare.
Released: November 5, 2020
COURT FILE NO.: CR-19-10000444-0000
DATE: 2020-11-05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
L.F.
REASONS FOR JUDGMENT ON MOTION FOR DIRECTIONS
R.F. Goldstein J.