COURT FILE NO.: CR-19-166 DATE: 2021 02 25
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen – and – C.M. Accused/Applicant
Counsel: Ms. C. Eastwood, for the Crown/Respondent Ms. J. Khou, for the Accused/Applicant Mr. B. Neil, for the Complainant
HEARD: February 23, 2021
REASONS FOR DECISION – DEFENCE SECTION 276 CCC APPLICATION
Conlan J.
I. Introduction
The Charge
1C.M. is charged with one count – that he sexually assaulted X.Y. (not the complainant’s actual initials), contrary to section 271 of the Criminal Code (“CCC”).
The Trial
2The trial, judge-alone via Zoom, is set to commence in just a few days, on Monday, March 1, 2021, thus, these reasons are less thorough than they otherwise might have been.
The Consent Orders
3Apart from the within section 276 CCC Application, this Court, on consent,
(i) grants the Crown’s Application under section 486.1(1) CCC and section 486.2(1) CCC (testimonial aids for the complainant at trial); and
(ii) grants the Crown’s Application to declare as voluntary and admissible at trial the accused’s police statement; and
(iii) acknowledges that the parties have resolved, without the need for a Court Order, the Application by the Defence regarding alleged prior consistent statement evidence.
Further, with regard to the section 276 CCC Application, on consent, this Court, in addition to the publication ban already in place, orders, under sections 278.93(3), 278.94(1), and 278.95(1) CCC, that the Application shall be heard with the public excluded, and the Application itself is the subject of a publication ban, and the record of the Application shall be sealed and not unsealed without a further order of a court of competent jurisdiction.
4These reasons comply with the publication bans in place and may, therefore, be published as they are.
5In addition, this Court orders, on consent, that Mr. Neil shall be appointed as independent counsel for X.Y. for the purposes of the section 276 CCC Application: subsections 278.94(2) and (3) CCC.
The Defence Application
6C.M. applies, under section 276 CCC, to have this Court rule as admissible at trial certain items that everyone agrees constitute alleged prior sexual activity on the part of the complainant:
(i) a photograph sent by X.Y. to C.M. a little more than two months before the alleged offence date; and
(ii) an alleged conversation between the accused and the complainant about two months before the alleged offence date, during which the complainant stated that she enjoyed being physically restrained during sexual activity; and
(iii) alleged incidents of sexual activity between the parties in the two months prior to the alleged offence date, during which the accused would routinely restrain the complainant’s hands above her head when they were kissing; and
(iv) an alleged conversation between the parties the night before the alleged offence date, during which they talked about having sex the next day.
The Positions of the Crown and the Complainant on the Defence Application
7The Crown concedes the admissibility at trial of the said photograph, as does the complainant. The Crown concedes, further, that the Application in its entirety meets the initial threshold stage of necessitating a hearing. Otherwise, the Crown opposes the Application. The complainant does not concede the passing of the initial threshold stage, but everyone agrees that the complainant has no standing at that stage in any event. Aside from the photograph, the complainant opposes the Application.
The Voir Dire
8Just one witness testified at the voir dire, which lasted about one-half day including submissions. That was C.M., who was cross-examined by both Crown and the complainant’s counsel. Just two Exhibits were filed – C.M.’s affidavit in support of the Application, and that of his mother. The relevance of the latter is limited to it speaking about the accused’s “communication disability”.
9On the return date of the Application, this Court ruled that a hearing was warranted, in other words that the initial threshold stage had been met: section 278.93(4) CCC. This Court reserved its decision at stage two.
II. Analysis
The Relevant Provisions of the CCC
10Set out below are those legislative provisions that are most germane to the within Application: sections 276(1) through (4), and 278.93(1), (2), and (4), and 278.94(4) CCC.
276 (1) In proceedings in respect of an offence under section 151, 152, 153, 153.1 or 155, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, 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.
(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.
(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.
(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.
278.93 (1) Application may be made to the judge, provincial court judge or justice by or on behalf of the accused for a hearing under section 278.94 to determine whether evidence is admissible under subsection 276(2) or 278.92(2).
(2) An application referred to in subsection (1) must be made in writing, setting out detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial, and a copy of the application must be given to the prosecutor and to the clerk of the court.
(4) If the judge, provincial court judge or justice is satisfied that the application was made in accordance with subsection (2), that a copy of the application was given to the prosecutor and to the clerk of the court at least seven days previously, or any shorter interval that the judge, provincial court judge or justice may allow in the interests of justice and that the evidence sought to be adduced is capable of being admissible under subsection 276(2), the judge, provincial court judge or justice shall grant the application and hold a hearing under section 278.94 to determine whether the evidence is admissible under subsection 276(2) or 278.92(2).
278.94 (4) At the conclusion of the hearing, the judge, provincial court judge or justice shall determine whether the evidence, or any part of it, is admissible under subsection 276(2) or 278.92(2) and shall provide reasons for that determination, and
(a) if not all of the evidence is to be admitted, the reasons must state the part of the evidence that is to be admitted;
(b) the reasons must state the factors referred to in subsection 276(3) or 278.92(3) that affected the determination; and
(c) if all or any part of the evidence is to be admitted, the reasons must state the manner in which that evidence is expected to be relevant to an issue at trial.
The Burden and the Standard of Proof
11It is important to step back and consider carefully the wording of section 276 CCC. In my opinion, the words clearly signal that evidence of a complainant’s prior sexual activity is generally inadmissible. In fact, it is presumptively inadmissible. Subsections (1) and (2), read together, make that point. Not only is there an absolute bar to the admission of such evidence to support an inference that, because of the other sexual activity, the complainant is more likely to have consented to the sexual activity that is the subject matter of the charge or that s/he is less worthy of belief, but in addition such evidence is inadmissible unless certain findings are made by the presiding judge or justice.
12The burden rests on C.M. to persuade this Court, on a balance of probabilities, that the conditions for admissibility have been met. That means all of them listed under section 276(2) CCC.
The Photograph
13I agree that the said photograph is admissible at trial. First, it does not run afoul of the prohibitions set out in section 276(1) CCC. Second, it meets the conditions for admissibility outlined in section 276(2)(b) through (d) CCC – it is directly relevant to whether the complainant was being truthful to the police when she spoke about the existence or not of any such photograph, and it is of a very specific instance of sexual activity, and, having regard to the factors delineated in section 276(3) CCC, its fairly high probative value substantially outweighs any limited danger of prejudice to the proper administration of justice. In fact, I see no risk of prejudice at all but for some potential embarrassment to X.Y. in knowing that the direct trial participants, including the trial judge, will see her wearing what looks like underwear [section 276(3)(f) CCC].
14Thus, this Court rules that the said photograph is admissible at trial.
The Remaining Portions of the Application
15All three counsel were succinct and delivered highly competent submissions on this Application; I am grateful for that. Unfortunately for C.M., however ironic it may sound, his lawyer’s thoroughness and his own evidence, especially that given orally, defeat the rest of his Application.
16By his lawyer’s thoroughness, I am referring primarily to the factum filed on behalf of the accused. I accept all of the following submissions made on behalf of C.M. as taken from these paragraphs of that factum, reproduced below: 30 and 31 (the meaning of relevance), 32 through 35 (the defence of honest but mistaken belief in consent), 36 through 39 (the availability of that defence in cases where the complainant and the accused give diametrically opposed versions of what happened), and 40 through 42 (the air of reality test). There are other submissions made on behalf of the accused that I accept as well, but the below references are sufficient to dispose of the balance of the Application.
The proposed evidence must be relevant. A piece of evidence is relevant if, as a matter of common sense and human experience, it makes a fact which is at issue in the case more or less likely.
This is not a high test. Evidence can be relevant even if it is not enough on its own to convince a court that a particular thing or event did or did not occur. However, if the proposed evidence would not make a fact at issue more or less likely, even to a small degree, it is not relevant.
In [R. v. Barakat, 2019 ONSC 705], Justice Doody wrote the following at para 24-25:
The concept of relevance is the basis of the first issue – that the “twin myths” are not a proper basis on which to admit evidence. A woman who has had sex on other occasions is not more likely to consent to the sexual act which is charged. A woman who has had sex on other occasions is not more likely to lie. So a court cannot hear evidence about her having sex on other occasions to establish either of those things.
But evidence that a Complainant has had sex on other occasions may be relevant on a trial of a sexual assault charge. It may be relevant to show a non-sexual pattern of conduct. It may be relevant to show that the Complainant has said something on another occasion which is not the same as what she testified to at trial, which may make it more likely that her evidence at trial is not correct. Evidence of that statement would be admissible even if it was about sexual activity. It may be relevant to show that certain injuries the Complainant says were caused by the defendant were, in fact, caused by a sexual encounter with another person on another occasion. ([R. v. S.(T.), 2012 ONSC 6244]). It is impossible to list all possible examples of evidence involving other sexual activity of the Complainant which could be relevant. Generally, however, evidence of other sexual activity is relevant if the evidence is of something related to the sexual activity which is relevant, and which cannot be put before the court without the sexual activity itself being put before the Court.
The mens rea of sexual assault contains two elements: intention to touch and knowing of, or being reckless of, or willfully blind to, a lack of consent on the part of the person touched.
The accused may challenge the Crown’s evidence of mens rea by asserting an honest but mistaken belief in consent.
Evidence of the Complainant’s sexual activity on other occasions is almost never relevant to the issue of whether she consented to the specific sexual activity which is the basis of the charge. However, evidence of other sexual activity of the Complainant is sometimes relevant to the issue of whether the Applicant believed that the Complainant consented.
In order to advance, the defence of “honest belief in consent”, the Applicant is required to advance some evidence, which, if believed, would allow a court to form a reasonable doubt about whether the Applicant knew that the Complainant was not consenting. (Ewanchuk, para. 56). Usually under such circumstances, there must be some evidence that the Applicant believed that the Complainant consented.
The Crown may argue that the two stories are so diametrically opposed that there can be no air of reality to the defence of mistaken belief in consent. However, the fact that the Complainant and Applicant are giving diametrically opposed versions of the events does not preclude the defence of an honest but mistakenly held belief in consent having an air of reality. In [R. v. Osolin, [1993] 4 S.C.R. 595], the Court held that while the defence would rarely arise in that situation, it was not logically impossible for a jury to accept parts of the two witnesses’ testimonies.
The Supreme Court of Canada in [R. v. Park, [1995] 2 S.C.R. 836] at para 25, explains that the question is not whether two stories are so diametrically opposed that there can be no air of reality to the defence of mistaken belief in consent for such an approach ignores the presence of other factors, such as corroborative evidence, which may justify putting the defence of honest mistake to the jury.
In [R. v. Park], the Supreme Court explains that we must bear in mind that neither the version of the facts given by the Complainant nor that given by the Applicant is necessarily a full and complete account of what actually took place. As such, a jury may decide not to believe certain parts of each person’s testimony. The Court writes at para. 25:
[…] The question is whether, in the absence of other evidence lending an air of reality to the defence of honest mistake, a reasonable jury could cobble together some of the Complainant’s evidence and some of the accused’s evidence to produce a sufficient basis for such a defence. Would the acceptance of one version necessarily involve the rejection of the other? Put another way, is it realistically possible for a properly instructed jury, acting judiciously, to splice some of each person’s evidence with respect to the encounter, and settle upon a reasonable coherent set of facts, supported by the evidence, that is capable of sustaining the defence of mistaken belief in consent? If the stories cannot realistically be spliced in such a manner, then the issue really is purely one of credibility – of consent or no consent – and the defence of mistaken belief in consent should not be put to the jury.
The Supreme Court further explains in [R. v. Park] that when the complainant and the accused give similar versions of facts, and the only material contradiction is in their interpretation of what happened, then the defence of honest but mistaken belief in consent should generally be put to the jury, except in cases where the accused’s conduct demonstrates recklessness or willful blindness to the absence of consent.
Belief that the complainant was consenting to the sexual activity, which is the basis of the charge, is not a defence if the Applicant did not take reasonable steps in the circumstances known to him at the time to ascertain that the Complainant was consenting.
The Supreme Court in [R. v. Park] at para 30, explains that it is possible to say that there is no reality to a particular defence, and therefore no need to put it to the jury, under the following circumstances:
a. the totality of the evidence for the accused is incapable of amounting to the defence being sought; or
b. the totality of the evidence for the accused is clearly, logically inconsistent with the totality of the evidence which is not materially in dispute.
- A court may conclude as a matter of law that there is no air of reality to a particular defence if the accused’s case simply does not support it.
17Defence counsel has thoroughly and accurately set out the law, but the application of those legal principles to our facts is where Ms. Khou and I differ.
18By his own evidence, I am referring primarily to what C.M. told Mr. Neil during the voir dire. The accused was clear and unequivocal in his evidence that,
(i) he knew that he could not rely upon the alleged discussion between the complainant and him the night before the alleged offence date; he needed more to establish consent; and
(ii) thus, on the alleged offence date, he specifically asked the complainant about that alleged earlier discussion, and she replied “I’m not sure”, which he understood to mean that she was not consenting to further sexual activity or at least that she had not yet communicated that she was consenting; and
(iii) so he then asked “can I put it in” or words to that effect, meaning his penis inside her vagina, to which she replied “I’m not sure”, which again he understood to mean that she was not consenting to further sexual activity or at least that she had not yet communicated that she was consenting; and
(iv) so he was careful to ask again “can I put it in” or words to that effect, to which she replied “okay”, which was to him a clear expression of her consent to having sexual intercourse with him.
19The Crown does not argue, nor does counsel for the complainant, that the word “okay”, if true, could not constitute communicated consent on the part of X.Y. Further, the accused does not argue that the above version of events is not drastically different from what is alleged by the complainant.
20In my view, there is simply no air of reality to the defence of honest but mistaken belief in consent. I concur with Ms. Eastwood, for the Crown, when she submitted orally that the accused’s own evidence on the voir dire only solidified that the central issue for trial is that of consent. The evidence of the accused, summarized above, separates this case from the circumstances where the defence of honest but mistaken belief in consent has any chance of success. Those circumstances are typically where the evidence does not point to something actively communicated by the complainant which the accused took to be affirmative and clear consent but rather describes a situation where the complainant was silent, or passive, or ambiguous, and the enquiry then becomes whether the accused took reasonable steps to ascertain that the complainant was consenting. [R. v. I.A.D., 2021 ONCA 110].
21In I.A.D., supra, a very recent decision of the Court of Appeal for Ontario (released just this week), the facts of that case disclose how both defences, actual consent and honest but mistaken belief in consent, could have been live issues at trial. Not in our case, however, in light of the evidence adduced on the voir dire.
22Here, in my opinion, we are dealing with consent or no consent. Either the complainant said “okay” or she did not. More accurately, the question is whether the trier of fact will have a reasonable doubt in that regard.
23Hence, the alleged discussion the night before is not admissible because it has no relevance to the real live defence – consent. In other words, that evidence is not at all necessary to be admitted at trial in order for the accused to make full answer and defence.
24The effect is not to straightjacket the accused or to impair his absolute right to defend himself by raising every argument that deserves to be raised; rather the effect is merely to do what has always been the law – to allow only those defences that have an air of reality to them to be raised. At the same time, the effect is to respect the privacy and the dignity of the complainant.
25I reject, further, any argument that the said alleged discussion the night before is admissible for any other purpose, such as narrative. Frankly, trial judges have grown rather weary of this “narrative” business, whether at the instance of the prosecution or the defence. It is usually, I dare say, a “catch-all” when nothing else seems to fit. And that often means it has no merit. Respectfully, it has no merit here. I could have heard C.M.’s testimony about what he says happened on the date in question, including his reference to the alleged prior night’s discussion, without knowing the details of that discussion and without jeopardizing one bit the coherence of his evidence and/or the potency of his defence – that the complainant clearly consented, through words, to the sexual activity.
26Neither is the said alleged discussion the night before necessary to admit into evidence at trial in order to enable the accused to challenge the credibility of X.Y. on her supposed assertions to the police that her rendezvous with C.M. on the alleged offence date was purely “random” and that he somehow lured her to his place for sex. Even if the complainant has made those assertions, which is in some dispute among counsel, there is nothing preventing or limiting Ms. Khou from challenging them at trial. She may suggest, for example, in cross-examination of X.Y., that the complainant knew full well that she and C.M. discussed or had a plan to meet on the offence date, and thus it is plainly untrue that their encounter was by accident or was “random”. The details of the alleged prior night’s discussion about sex are not a necessary ingredient of that attack in cross-examination, nor are they relevant to a suggestion, for example, that X.Y. went willingly to the accused’s place for whatever reason that defence counsel wants to suggest.
27In summary, the alleged prior night’s discussion about sex is inadmissible at trial.
28That leaves the admissibility at trial of the first alleged discussion between the parties, during which X.Y. made comments about a liking for being restrained during sexual activity, and the alleged sexual activity between the parties leading up to the date in question, during which the accused would restrain the complainant’s hands during kissing.
29I agree with Mr. Neil that the whole issue about physical restraint is a “red herring”. First, physical restraint is not an essential element of the offence of sexual assault, and thus its primary relevance, even if testified to by X.Y. at trial and even if found as a fact by the trial judge, goes to sentencing. We do not grant section 276 applications, however, because the proposed tendered evidence may have some relevance to a potentially aggravating factor on sentencing if the accused is found guilty. Second, it is nonsensical that C.M. needs/ought to be able to raise the issue of alleged prior physical restraint of X.Y. during kissing, including her initial alleged comment that she likes it, when his evidence during the voir dire was that he did not physically restrain the complainant during the sexual intercourse, which act constitutes the alleged sexual assault. One has nothing to do with the other. Third, there is no evidence before this Court that would give rise to any air of reality to a suggestion that X.Y., on the alleged offence date, consented to having her hands and arms forcibly held during vaginal penetration, or even that C.M. honestly but mistakenly believed that she was consenting to that, and thus I fail to see the probative value of the proposed evidence.
30As to whether the proffered evidence is relevant to the credibility of the complainant, I simply do not see it. If she says at trial that C.M. forcibly confined her during the sexual activity on the date in question, including during the vaginal intercourse, then she can be vigorously challenged on that, but the proposed evidence does nothing to make her assertion more or less likely to be true. Holding a person’s hands above her head while kissing her is a far cry from restraining her hands while forcing a penis into her vagina.
31Remember, all pretrial rulings, including the ones made herein, are susceptible to being revisited depending on the actual evidence at trial. Thus, for example, if it turns out that X.Y. blurts out at trial that she never had her hands restrained by the accused during any sort of sexual contact between them in the past, including kissing, then the Defence will undoubtedly request the opportunity to readdress the admissibility of the earlier alleged restraint evidence.
32This Court will ensure that the trial is fair to all of the participants, and that includes C.M.’s right to make full answer and defence.
Conclusion
33For all of the above reasons, except for the issue of the photograph which is ruled to be admissible at trial, the Defence section 276 Application is dismissed.
34Succinctly put, in my view, not one of the factors listed in section 276(3) CCC weighs in favour of the admission of the proposed evidence. Further, at a minimum, two of the conditions for admissibility have not been met in that the proposed evidence is not relevant to an issue at trial [section 276(2)(b) CCC] and the proposed evidence does not have significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice [section 276(2)(d) CCC]. And those are precisely the chief considerations that Parliament has directed judges to include as required content of their reasons for decision on this type of application – section 278.94(4) CCC.
35I wish to thank, again, all three counsel for their assistance in this matter.
(“ Original signed by ”)
Conlan J.
Released: February 25, 2021