COURT FILE NO.: CR-19-0000000443
DATE: 20201117
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
David Butt, for the complainant
HEARD at Toronto: November 13, 2020
REASONS FOR DECISION – s. 278.94 hearing
(Subject to publication ban of any information that might identify the complainant or a witness pursuant to s. 486.4 of the Criminal Code)
[1] The applicant Mr. C.R. is charged with sexual assault. The trial is currently scheduled to be heard before a judge alone on November 23, 2020. The applicant made an application pursuant to s. 276(2) of the Criminal Code for a hearing to determine the admissibility of certain evidence regarding the relationship between himself and the complainant after the incident giving rise to the complaint. On September 9, 2020, I issued reasons granting the application for a hearing to be held and gave directions for the giving of notice and the holding of the hearing pursuant to s. 278.94. I shall not repeat those reasons here where much of the background and some of the reasoning underlying my ruling here are to be found.
[2] Prior to the hearing before me, Mr. C.R. filed his own affidavit replacing the “information and belief” affidavit originally filed on his behalf in support of this application and omitting much of the objectionable and potentially twin-myth pursuing evidence contained in the original application.
[3] The incident giving rise to the charge faced by Mr. C.R. occurred in October 2010. There are two diametrically opposite accounts of the incident itself but a number of points of intersection when it comes to the subsequent relationship between the complainant and the accused.
[4] The complainant gave evidence in a police statement and at the preliminary inquiry that describes the incident in significant detail and the description is clearly one of a forceful sexual assault. The complainant admitted in her initial statement that a friendship subsequently grew between them that still later evolved into a sexual relationship all of which came to an end on her initiative six or seven months after the incident. She described in some detail her motives for entering into this subsequent relationship and her motives for ending it. It cannot be assumed that she will repeat all aspects of her police statement regarding the subsequent relationship when she testifies at trial – from Mr. Beaudoin’s submissions I consider it unlikely that she will be invited to do so.
[5] The accused describes the incident giving rise to the charges as the beginning of an intimate sexual relationship that began the night of the incident and deepened and continued romantically until approximately September of the following year. His affidavit contains significant levels of detail about where and when the various sexual encounters between them occurred.
[6] The accused was not cross-examined on his affidavit as the complainant and the Crown both advanced the position that the evidence sought to be adduced regarding the sexual nature of the relationship between the parties after the incident is not relevant and inevitably runs afoul of the “twin myth” reasoning proscribed by s. 276(1) of the Criminal Code.
Issues to be discussed
[7] My task on this application requires me to consider the four conditions to admissibility of such evidence stipulated in s. 276(2) of the Criminal Code namely:
(a) Is the evidence being adduced for the purpose of supporting a forbidden inference?
(b) Is the evidence relevant to an issue at trial?
(c) Is the evidence of specific instances of sexual activity? and
(d) Does the evidence have significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice?
[8] Pursuant to s. 278.94(4) and (5), I am required to give reasons stating what parts if any of the proposed evidence is to be admissible at trial, the manner in which the evidence is expected to be admissible and the factors considered affecting my determination. My reasons are to form part of the record of the proceeding for purposes of the trial.
Analysis and discussion
(a) Is the evidence being adduced for the purpose of supporting a forbidden inference?
[9] In my reasons given on Part I of this application, I reviewed the parallels between this case and that of R. v. L.S., 2017 ONCA 685. In my view, the evidence the applicant seeks to introduce is permissible relationship evidence and is neither aimed nor at material risk of being misused to support an inference forbidden by s. 276 of the Criminal Code.
[10] In L.S., the evidence sought to be introduced addressed the nature of the relationship itself – i.e. a sexual and indeed spousal relationship – and the claim that the relationship was effectively a continuum both before and after the alleged sexual assault. The details of particular encounters were not proposed to be adduced. The accused sought to argue that the relationship itself continued unchanged after the alleged sexual assault as if nothing had happened because, on the accused’s version of events, nothing in fact did happen. In that case, the unchanged nature of the relationship after the alleged sexual assault was intended to be referred to in support of the credibility of the narrative of the accused.
[11] This case is slightly different from L.S. in that it is the changed nature of the relationship that the accused wishes to establish here. Prior to the incident, there was no sexual relationship between the parties. The accused wishes to establish that a romantic sexual relationship began the night of the incident and continued to flourish and grow for a period of many months thereafter consistent with the evidence of the accused that nothing non-consensual happened at the outset.
[12] There is of course the ever-present risk of “relationship” evidence being introduced as a sort of Trojan Horse to apply forbidden myth reasoning by a different name. That risk is not a material one here, and not only because the trial is proceeding on a judge-alone basis.
[13] The sexual activity at issue here all occurred after the incident in question. Its relevance is not to infer the likelihood of consent on a prior occasion by reason of consensual sex on a different occasion. Rather, it is introduced to establish the core nature of the relationship in question in order to assess the conflicting accounts of the incident in their full and complete context. Stripped of that context, the defence narrative would lack coherence and a trier of fact seeking to assess the credibility of that narrative would lack the tools to do so.
[14] It is no answer to say, as the Crown suggests, that sufficient evidence to permit the trier of fact to infer the sexual nature of the relationship through other means may be led. Indeed, as I outlined in my earlier reasons, evidence leading to that probable inference emerged in perfectly proper questioning of the complainant at the preliminary inquiry without much difficulty and without any need to make an application under s. 276 of the Criminal Code. That is a distinction without a difference and would simply require the defence to do indirectly and ambiguously what it seeks permission to do directly via this application.
[15] In my view, this is not a case similar to R. v. Goldfinch, 2019 SCC 38. In Goldfinch there was no particular dispute about the nature of the underlying relationship between the complainant and the accused. In this case, based upon my review of the proposed evidence of the accused and the evidence already given by the applicant, the applicant appears to characterize the relationship that developed as being subsequent, developing only after a clear break of some weeks and only gradually evolving into a sexual relationship with that last aspect of the relationship being relatively late-evolving and relatively infrequent. The accused by way of contrast has described an intimate romantic relationship that began with the night of the incident and persisted in a continuous manner consistent with a romantic sexual relationship for almost a year. There is thus considerable disagreement about the very nature of their relationship.
[16] The applicant cited the recent case of R. v. W.M., 2019 ONSC 6797 where Davies J. permitted relationship evidence to be adduced given conflicting evidence of the nature of the relationship itself but drew the line at evidence of details of particular sexual encounters on occasions other than the one in question. I find the reasoning in W.M. to be persuasive and propose to rule in substantially the same way. It is notable that in L.S., specific instances of individual sexual encounters were also not found to be relevant so much as the overall characterization of the relationship itself.
[17] It is entirely possible to adduce evidence of the nature of a relationship without delving into the particulars of this or that sexual encounter. In the words of Davies J. in W.M., (at para. 24), “[q]uestions about whether, how often and why“ the complainant and the accused met thereafter are permissible “so long as they do not reference any specific sexual activity they engaged in.”
[18] The accused can be given liberty to paint an accurate picture of the relationship itself without any necessity of diving into the deep weeds of this or that sexual encounter. While I cannot foresee with precision exactly how the evidence will unfold at trial, the sexual nature of the relationship that developed is not challenged by the complainant. It would be pointless for me to attempt to anticipate every twist and turn that may occur within the dynamic of a trial. That is something best left to the trial judge hearing the evidence as it comes in.
[19] The Crown objected that the complainant should not have to explain why she chose to engage in a sexual relationship with the accused after the brutal sexual assault she described occurring on the night of the incident. Nothing in my ruling obliges her to do so. She is not required to explain why she participated in a romantic sexual relationship. There is no reason why the nature of the relationship cannot be explored in chief or in cross-examination without examining her private underlying motives. Once again, these are matters that can adequately addressed by careful Crown questioning in chief and where necessary through the intervention of the trial judge.
[20] My ruling is that details of particular sexual encounters are not admissible following the reasoning in L.S. and W.M. It is the fact of the sexual nature of their relationship that is relevant and not the details of any particular encounter. This broad ruling may need modification or adjustment depending upon how the evidence comes in.
[21] A very experienced trial judge has been assigned to hear this case. Nothing in my ruling can or should be taken as tying her hands in any way when it comes to dealing with developments as the trial unfolds. Exercising her gate-keeper function, the trial judge has all the tools necessary to ensure the fairness of the trial, proper respect for the fundamental principles underlying s. 276 of the Criminal Code and to prevent collateral issues from overtaking the fundamental purpose of the trial.
(b) Is the evidence relevant to an issue at trial?
[22] I shall not repeat here what I have already written on this subject in relation to the Part I application or in the preceding section in relation to the relevance of the evidence. I shall summarize my findings here only. Evidence of the nature of the relationship between the complainant and the accused following the incident, including its sexual nature, has clear relevance to the following issues at trial:
a. The conflicting evidence of the complainant and the accused as to the true nature of their relationship;
b. The coherence and credibility of the defence narrative of a continuous relationship that began the night of the alleged incident and continued to develop without a break consistent with nothing violent having happened;
c. The credibility of the complainant’s evidence of what occurred the night of the incident; and
d. The existence of an animus of the complainant against the accused and a possible motive or reason to lie.
[23] The same cannot be said in relation to evidence of the details of particular sexual encounters between them which are neither relevant nor admissible based on the evidence as presently foreseen.
(c) Is the evidence of specific instances of sexual activity?
[24] I dealt with this issue in my reasons given on Part I of this application and find no reason to expand upon them here. L.S. has confirmed that evidence of a relationship itself is capable of satisfying this requirement and I am following that guidance.
(d) Does the evidence have significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice?
[25] In my view, the evidence the defence seeks to adduce goes to the core of the right to make full answer and defence. The accused and the complainant have advanced two fundamentally different narratives and the nature of the relationship described by each goes to the core of the difference between them. The trier of fact will have to assess the credibility of those narratives. Depriving the defence of the ability to place the full context of the relationship before a trial judge who will have to judge the credibility of each places him at a fundamental disadvantage. His story cannot be properly assessed out of its context or if the trier of fact is required to read between the lines to determine what is really being said.
[26] Given the judge-alone trial scheduled, there is simply no material risk that such evidence would be misused contrary to s. 276(1) of the Criminal Code.
[27] On the other hand, the prejudicial impact of the evidence in question can readily be mitigated. The details of the various sexual encounters between the accused and the complainant (other than the incident itself) are not what is relevant – the nature of the relationship is. The Crown’s fear that the complainant will be compelled to explain her motives in entering into a relationship with the accused is, in my view, a straw man. It is the nature of her relationship with him that is relevant. That relationship was thoroughly explored as to all but its underlying romantic and sexual character at the preliminary inquiry without running afoul of s. 276. The incremental impact of acknowledging the sexual nature of that relationship – something that was a fairly obvious inference from the evidence adduced at the preliminary inquiry at all events –need not involve any material prejudice to the complainant if restricted to relationship evidence as that term was described by Doherty J.A. in L.S.
[28] The balancing of interests required by s. 276(3) of the Criminal Code weighs heavily in favour of the defence providing common-sense safeguards and limits on the evidence sought to be adduced are put in place.
Disposition
[29] I order that counsel for the accused shall be permitted to adduce evidence to establish that the accused and the complainant were involved in an intimate sexual relationship following the incident for a period of months. The details of any particular sexual encounter engaged in during the course of that relationship are neither relevant nor admissible. The trial judge shall of course have the full discretion to adjust this ruling as a function of the evidence that is actually adduced.
[30] This evidence shall be admissible to provide the necessary context for Mr. C.R.’s version of the evidence and for the purpose of challenging the complainant’s credibility and the reliability of her evidence including whether she has some reason or motive to lie.
S.F. Dunphy J.
Date: November 17, 2020