Court File and Parties

Court File No.: 126/19 Date: 2021/02/23 Superior Court of Justice – Ontario

Re: Her Majesty the Queen, Respondent G.G., Applicant

Before: George J.

Counsel: Brad Greenshields, for Accused/Applicant Christopher Heron, for Crown/Respondent

Heard: February 11, 2021

Restriction on Publication

By court order made under s. 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

Endorsement

[1] The Applicant, G.G., is charged on a two-count Indictment. It is alleged that he sexually assaulted, and touched for a sexual purpose, E.B., who at the time was under the age of 16. His trial is scheduled to commence on June 28, 2021.

[2] This is the Applicant’s motion. He seeks direction on whether ss. 276 and 278.93 of the Criminal Code of Canada apply to the proposed impeachment of E.B. based on her July 23, 2020 statement to the police.

[3] E.B. is the granddaughter of the Applicant’s common law partner. E.B. says the Applicant sexually assaulted her. She has provided statements to the police and testified at the Applicant’s preliminary hearing. Here is a summary of each of her statements:

September 15, 2017 – This is E.B.’s first statement to the police. She was 10 years old. At the time this statement was provided, the police were already investigating allegations that the Applicant had sexually assaulted E.B.’s sister, C.B. When asked about her relationship with the Applicant, E.B. advised that he was “really nice”, and that “nothing about him bothered her, was weird, or bugged her”. I am told that C.B. gave her police statement about a week prior.

April 4, 2018 – In E.B.’s second statement to the police, and after confirming that she understood the difference between the truth and a lie, she advised that “G.G. did this twice to [her]”, going on to describe two incidents of sexual activity. One of the alleged incidents occurred in Florida; the other in Ontario at the Applicant’s residence where he resided with E.B.’s grandmother (which is what gives rise to both counts on the Indictment). The Applicant was subsequently charged with the matters now before the court. Of particular note is E.B.’s fairly definitive indication that there were no other alleged incidents involving the Applicant. I am told that E.B. acknowledged having spoken to C.B. before this statement and that her sister urged her to come forward and speak about her allegations.

Preliminary Hearing Testimony (March 28, 2019) – Now 12 years old, E.B. testified that she had reviewed her prior statements beforehand, and that she had only one change to make which was she now recalled where she was seated in the Applicant’s vehicle (which she initially could not recall). As to why she decided to come forward, she indicated that “I thought I should get out the truth ‘cause I didn’t want to hide it anymore”. There was also this exchange during E.B.’s cross-examination:

Q. Okay. And so – now, this is now – this about seven months after [C.B.] said something and you heard about [C.B.] saying something, right? A. Yes. Q. Okay. So, how is it that when – when it came did something else happen that made you want to say something to [C.B.]? A. No, just the fact that she already told and she made it through and so I thought maybe I could too.

January 23, 2020 – In E.B.’s third statement to the Police (she is now 13), she offers information that she had not previously reported to the police nor testified to at the preliminary hearing. This is her exchange with the officer:

Q. Okay. So I just want to make clear that we’re not talking about what you’ve already told me, um, the only thing I need to know is when you tell me these things is if it relates to, um, what you did tell me already. Okay. Um, so what that means is anything new that wasn’t mentioned before is what we’re going to talk about today. Okay. Um, so the first question I have is why you didn’t mention it the first time? Why didn’t you mention what you have to tell me today the first time? A. And it happened more than twice. I said twice because I didn’t think that it was believable because [C.B.] only had it happen twice. Q. Okay. So, you thought that it wouldn’t be believable. And why would you think that? A. I don’t know, I just thought that it wouldn’t make sense if somebody would do it like so many times that I don’t even know the number because it’s been every single time I’ve been at my grandmother’s when she used to go somewhere.

[4] In this statement E.B. gives differing accounts as to when and over what period of time these allegations occurred. She said that “maybe” they happened when she was 10 to 10.5 years old, and that it began “ever since I met him, which I was about two or three or something”. She also mentioned other unspecified incidents, indicating that at “one time I was like around four or five and then another time I was like six and then like I was 10, and I’m pretty sure the first one I was seven”. She described two incidents in particular but could not specify a date or even a year, as well as other incidents when her grandmother was away from the home.

[5] Subsequently, and after a judicial pretrial, the Crown advised that it would not be relying upon any of the allegations made on January 23. That is, the Crown is proceeding on the single incident (at the Applicant’s home) described by E.B. in her second statement.

[6] The Applicant’s position is that the s. 276 regime has no application. The Crown disagrees taking the view that a s. 276 application is required. This motion seeks an answer to that question.

[7] The Applicant’s position is two-fold. First, he submits that upon a plain reading of s. 276 it is clear an application is not required. And second, he argues that the legislative purpose behind the s. 276 regime was never intended to capture a situation like this. He puts it this way at paras. 34 to 37 of his Factum:

34. The s. 276 regime aims to fulfill the truth-seeking function of the trial by eradicating myth-based stereotypical reasoning that, by reason of prior sexual activity, a complainant is more likely to have consented, or is less worthy of belief. The applicant does not seek to have the court draw inferences of any kind from the factual occurrence of sexual activity involving the complainant.
35. For statements of the history and purpose of the s. 276 provisions, see: R. v. Barton, 2019 SCC 33, para. 58 per Moldaver J., and see R. v. L.S., 2017 ONCA 685, para. 79, per Doherty J.A. The applicant submits none of these animating purposes are engaged in the applicant’s case.
36. The applicant does not seek to present evidence of E.B.’s sexual history. The applicant instead seeks to present a full and comprehensive picture of E.B.’s testimonial history in making full answer and defence.
37. The “evidentiary filter” of s. 276 applies to evidence that the complainant has engaged in sexual activity other than the subject-matter of the charge. It does not apply as a filter to the consideration of inconsistent statements by the complainant about the very sexual activity being alleged and defended against.

[8] I want to address each of the Applicant’s points in turn. First, he focuses on the fact he does not seek to prove that E.B. has engaged in sexual activity, characterizing this as an attempt to “establish that E.B.’s ever-evolving allegations of sexual activity with the applicant are false, and that E.B.’s testimony is neither credible nor reliable”. This, on the one hand, makes perfect sense, especially here as I accept Applicant counsel’s assertion that that is their intention. On the other hand, no accused is ever going to admit that their true purpose in seeking to cross-examine on prior sexual history is to establish either or both of the twin myths – that the complainant is either less worthy of belief or more likely to have consented. That is, in almost every case, at least in my experience, an accused does what the Applicant is doing here: attempt to cast it as a question of credibility.

[9] In other words, the issue is never solely what the accused’s intentions are in proposing to introduce this type of evidence; it is also the risk of misuse.

[10] Second, the ‘plain reading’ point the Applicant attempts to make arguably works against him. While he does reproduce ss. 276(1) and (2) at pgs. 7 and 8 of his Factum, he fails to cite, what on these facts would also be a fairly important provision - s. 276(4) – which provides that:

(4) For the purpose of this section, sexual activity includes any communication made for a sexual purpose or whose content is of a sexual nature.

[11] This sub-section would seem to capture the content of the January 23 statement.

[12] The problem I am having is this. Notwithstanding my concerns with what appear to be the two central tenets of the Applicant’s position – that upon a plain reading of s. 276, cross-examination on the January 23 statement is not captured; and that given the accused’s intention (which is to challenge credibility and not establish prior sexual activity) s. 276 does not apply – the Crown’s position still feels overly rigid and out of touch with the overall context and circumstances surrounding this particular investigation. That is to say, we cannot lose sight of the fact that what we are talking about here is one police investigation, involving E.B. and one accused (the Applicant), with E.B. alleging that the Applicant sexually assaulted her, which led to charges, which led to a preliminary hearing and, in the aftermath of that hearing, the very same complainant providing another statement, about this same accused, indicating that he sexually assaulted her on other occasions during, generally speaking, the same time frame, again within the context of the same investigation. Think about that for a minute. The Crown is arguing that scrutiny of what the complainant said on January 23, 2020, after the preliminary hearing, about sexual allegations against the same person she just testified against, is presumptively off-limits and inadmissible unless filtered through the evidentiary screening provision that is s. 276. That cannot be the case.

[13] Consider the two hypothetical scenarios highlighted by Applicant counsel. First, what if E.B. had not provided her January 23, 2020 statement but described these new allegations for the first time while testifying at the trial. Had that been the evolution of disclosure, there is no doubt that the Applicant would be permitted to cross-examine her on that point without the need for a mid-trial s. 276 application.

[14] What if E.B. had only provided one statement to the police, and within that statement gave conflicting accounts, one being she was never sexually assaulted, then that she was but that it only happened once, and then that it had occurred every time she and the Applicant were alone together. Surely the Applicant would be permitted broad leeway to cross-examine on the entirety of that statement without the need for a s. 276 application.

[15] The Crown argues that by addressing this motion for directions I run the risk of prematurely engaging s. 276 without affording the complainant the right to participate. I suppose this is true in the sense the complainant is not with us and did not provide input on this motion, but that is neither here nor there. I have not engaged s. 276. I have found, after hearing from counsel and after reviewing their materials, that s. 276 does not apply and that an application is not required. Which necessarily means that the statutory requirements of s. 276 do not have to be complied with. Had I decided otherwise, the complainant would have been notified and she would have been invited to attend on the s. 276 motion. But I did not.

[16] For these reasons, the Applicant is permitted to cross-examine the complainant on her January 23, 2020 statement without the need to serve and file a s. 276 application.

[17] Each party seeks additional ancillary orders. The Applicant asks for an order that these motion materials not be provided to the complainant E.B., or her counsel, as it would prejudice his right to make full answer and defence. The Crown asks that I permit it to introduce this evidence in examination-in-chief, or alternatively, during re-examination.

[18] First, the Crown would clearly be permitted to address this on re-examination should the January 23 statement be raised during cross. I do not think an order is necessary as its right to do so is patently obvious. To the question of whether it should be permitted to pre-emptively raise this in direct examination, while I tend to agree with the defence, I am inclined to simply leave this for now and address it when and if the Crown asks the question and at the point defence counsel rises to object. The problem I am having is, on the one hand and in the normal course there is nothing wrong with counsel pre-emptively addressing an inconsistency in the evidence of one of their witnesses. This happens all of the time and there is no general rule prohibiting it. On the other hand, the Crown has, to this point, taken the position that this is not an inconsistency but rather incremental disclosure which might alter the analysis. Not to mention the fact that what we are talking about here is uncharged criminal behaviour which, while certainly fair game on cross for impeachment purposes (if an inconsistency can be established), cannot be introduced as part of the Crown’s case if the purpose is to bolster the conduct alleged within the Indictment. Simply put, I need to hear more from counsel on this but will leave it until the need arises.

[19] Second, while I am prepared to make an order that would prevent the materials on this motion (including the Notice of Motion and Applicant’s Factum) from being provided to the complainant and/or her counsel, that is the extent of it. There is no need to do anything beyond that. When it comes to disclosure and witness interaction, both counsel are well aware of their ethical obligations, and I am certain that if defence counsel identifies a need to question the complainant on what she knew about this motion and when she learned it, they will explore that. For clarity, however, I make no order that prevents the Crown from speaking to the complainant about her January 23 statement, as of course she has the right to review all of her statements and the transcript of her preliminary hearing evidence.

Justice Jonathon C. George Date: February 23, 2021