DELIVERED ORALLY and MADE COURT EXHIBIT: January 12, 2021

COURT FILE NO.: CR-18-4290

DATE: 20210112

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. J-P G.L.

BEFORE: Justice C. M. Bondy

COUNSEL: Nick Bazylko, Counsel for the Crown

Elizabeth Craig, Counsel for the Defendant

Kevin Shannon, Counsel for the Complainant

HEARD: December 15, 2020

BEFORE: Justice C. M. Bondy

RESTRICTION on publication

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the persons described in this judgment as a complainant may not be published, broadcasted or transmitted in any manner.

Ruling on section 276(1) Application

A. INTRODUCTION

[1] The accused, J-P G.L. (“Mr. L.”), is charged with having sexually assaulted the complainant, C. D. (“Ms. D.” or “the complainant”), on or about October 20, 2016 contrary to section 271 of the Criminal Code, R.S.C. 1985, c. C-46.

[2] This is a decision and reasons for the decision related to an application by the Crown to admit evidence of the complainant’s past sexual history notwithstanding the provisions of section 276(1) of the Criminal Code.

[3] According to the application filed on her behalf, the complainant would prefer the evidence of her sexual history/orientation to be admitted.

B. THE APPLICATION

[4] At the heart of the Crown’s application is the proposition that because the complainant:

“is of a homosexual orientation, and that she had never had vaginal, oral or anal intercourse with any man before October 20, 2016. On October 20, 2016, Ms. D. did not consent to have any sexual intercourse either vaginal or anal with the respondent mainly based on her sexual orientation.”

[5] In support of that proposition, the Crown’s application originally sought to lead evidence from the complainant that she:

a. is of homosexual orientation;

b. has a girlfriend in the Philippines whom she loves; and

c. was a virgin (from a traditional heterosexual perspective) prior to October 20, 2016 and had never had sexual intercourse with any male in the past.

[6] The Crown’s proposed reliance upon the complainant’s prior sexual inactivity with males and resulting virginity (from a traditional heterosexual perspective) was abandoned at the commencement of the hearing.

[7] At para. 11 of the application, the Crown asserts that it is not attempting to tender sexual orientation for either of the twin myths but rather:

“the Crown is arguing that based on her sexual orientation, which is homosexual, the complainant is more believable when she said that she did not consent to vaginal or anal intercourse on October 20, 2016”.

[8] The language of section 276(1) is at the heart of that assertion. The Crown maintains that the section only applies to evidence which demonstrates that a complainant is “more likely to have consented” and “less worthy of belief.” The Crown, however, is proposing the converse which is that the complainant is “less likely to have consented” and “more worthy of belief” as is the case here.

[9] Prior to the proceeding and upon reviewing the Crown’s application, I concluded that referencing the complainant’s statements to the police was intended to buttress the complainant’s anticipated evidence as to her homosexuality and/or virginity. When I raised this conclusion, the Crown candidly acknowledged that the statements would have no probative value as to the truthfulness of the complainant’s testimony in court.

C. ANALYSIS

1) Does the evidence sought to be introduced offend section 277 of the Criminal Code?

[10] Defence counsel took the position that the evidence ought to be excluded on the basis of the provisions of section 277 of the Criminal Code.

[11] That section excludes “evidence of sexual reputation, whether general or specific that is proposed to be proffered for purposes of challenging or supporting the credibility of the complainant.”

[12] I do not find an individual’s sexual orientation in isolation to be evidence of sexual reputation. As a result, I agree with the Crown’s submission that section 277 does not apply to the circumstances.

2) Does the evidence sought to be introduced relate to sexual activity?

[13] “Section 276 applies to all sexual activity, whether with the accused or with someone else. It also applies to non-consensual as well as consensual sexual activity….”: see R. v. Darrach, 2000 SCC 46, [2000] S.C.J. No. 46, at para. 33. As said above, the Crown seeks to rely upon the complainant’s sexual history to demonstrate that, as a result of that history, she is less likely to have consented to sex with the accused and more likely to be truthful in her denial of consent to that sex.

3) The purpose of section 276

[14] “The main purpose of the legislation is to abolish the old common law rules which permitted evidence of the complainant's sexual conduct which was of little probative value and calculated to mislead the jury.”: see R. v. Seaboyer; R. v. Gayme, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, at p. 604. Prior to Seaboyer, “Evidence that the complainant had relations with the accused and others was routinely presented (and accepted by judges and juries) as tending to make it more likely that the complainant had consented to the alleged assault and as undermining her credibility generally. These inferences were based not on facts, but on the myths that unchaste women were more likely to consent to intercourse and in any event, were less worthy of belief. These twin myths are now discredited”: see Seaboyer, at p. 604. The “sexual history evidence excluded by s. 276 of the Criminal Code is mostly irrelevant and, moreover, so prejudicial that its exclusion both at common law and under the Canadian Charter of Rights and Freedoms is mandated”: see Seaboyer, at p. 711.

4) Does section 276 apply to the Crown?

[15] While s. 276(2) applies only to evidence “adduced by or on behalf of the accused,” s. 276(1) applies to Crown-led evidence of a complainant’s sexual history: see R. v. R.V., 2019 SCC 41, [2019] S.C.J. No. 41, at para. 78; citing Barton, 2019 SCC 33, [2019] SCC 33, 376 C.C.C. (3d) 1], at para. 80.

5) Does section 276 apply for the use to which the Crown seeks to introduce the evidence?

[16] As said above, the Crown suggests that section 276(1) only applies to evidence which demonstrates that a complainant is “more likely to have consented” and “less worthy of belief” and not the converse, which is that the complainant is “less likely to have consented” and “more worthy of belief,” as is the case here.

[17] I disagree with that conclusion. A finding by this court that an individual who identifies as homosexual is, as a result of that identity, less likely to have consented to sex with a heterosexual would logically require a conclusion by me that an individual who identifies as homosexual is more likely to have consented to sex with another who also identifies as homosexual. I find that to be propensity reasoning which section 276 seeks to exclude.

[18] Even if I am wrong, the law is well settled that the common law principles articulated in Seaboyer would apply: see R. v. Goldfinch, 2019 SCC 38, [2019] S.C.J. No. 38, at para. 142; and Barton, at para. 80; and R.V., at para. 78. It follows that “the judge must still weigh [the evidence’s] probative value against its prejudicial effect to determine its admissibility.”: see Darrach, at para. 38

[19] Said another way, regardless of which party proposes to introduce evidence as to a complainant’s sexual history, “the trial judge must guard against twin-myth reasoning as well as prejudice to the complainant, the trial process and the administration of justice.”: see R.V., at para. 78.

[20] At the heart of that reasoning is the truth-seeking function of the court. In Goldfinch, at para. 1., Karakatsanis J. noted that such evidence tends to undermine this truth-seeking function.

6) The case law relied upon by the Crown

a) R. v. Morden, [1991 CanLII 5766 (BC CA)](https://www.canlii.org/en/bc/bcca/doc/1991/1991canlii5766/1991canlii5766.html), [1991] B.C.J. No. 3624

[21] This is a decision of the British Columbia Court of Appeal released in 1991. In directing a new trial, the British Columbia Court of Appeal quoted excerpts from the trial transcript in which the complainant stated that her sexual relationship with the accused had ended because she was not interested in men and because he was possessive.

[22] I make two observations regarding this decision. The first is that the current law recognizes that the probative value of the nature of a prior relationship is either limited or of no use as to the issue of consent: see Goldfinch, at para. 70. The second is that the British Columbia Court of Appeal quotes Seaboyer, in which the Supreme Court of Canada notes, at p. 634, that even when such evidence may be tendered for a purpose logically probative of an issue at trial, the triers of fact “should not draw impermissible inferences from evidence of previous sexual activity.”

b) R. v. Chauhan, [2014 ONSC 5557](https://www.minicounsel.ca/scj/2014/5557)

[23] This was a decision of the Ontario Superior Court of Justice by Thorburn J. (as she then was). The complainant did not have a memory of the events in question. Relating to memory loss, the court notes, at para. 52, “Courts can infer a decision not to consent where there is direct evidence that the complainant was extremely intoxicated while the sexual touching occurred and there is other evidence that the complainant would not have consented.” In other words, in the absence of direct evidence as to the issue of consent, the court resorted to circumstantial evidence. Without resort to circumstantial evidence in such cases, it would be extraordinarily difficult to convict a sexual predator who took advantage of an individual who is either extremely intoxicated or otherwise physically or mentally unable to consent.

c) R. v. LeBlanc, [2011 CMAC 4](https://www.canlii.org/en/ca/cmac/doc/2011/2011cmac4/2011cmac4.html), [2011] C.M.A.J. No. 4

[24] This was a decision of the Court Martial Appeal Court of Canada released in 2011. The complainant identified as gay. Mistaken belief in consent was the fundamental issue in that case. The defence sought to introduce a statement made by the complainant to the accused to the effect that she had slept with a man before, albeit a long time ago. The Court Martial Appeal Court found that the complainant’s evidence had significant relevance to the issue before the court. The evidence was that the accused knew that she was gay, yet persisted in forcing sexual relations with her, resulting in her statement about prior sexual relations with men being relevent. As a result, a new trial was ordered.

[25] The case was not focused on whether the evidence as to sexual orientation ought to have been admitted in the first place. Rather, the issue was, once it had been introduced, its impact on the defence of mistaken belief and the trial judge’s order to exclude the evidence of complainant’s prior sexual relations with men.

7) Does the evidence sought to be introduced have significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice?

a) Introduction

[26] I begin with the observation that the Crown should refrain from commenting on a complainant's prior sexual history unless necessary, given the important objectives underlying s. 276: see Barton, at para. 68. As was articulated in Seaboyer, at p. 711:

In summary, sexual history evidence excluded by s. 276 of the Criminal Code is mostly irrelevant and, moreover, so prejudicial that its exclusion both at common law and under the Canadian Charter of Rights and Freedoms is mandated.

[27] The term “significant probative value” serves to exclude evidence of a trifling relevance: see Darrach, at para. 41.

b) The proposed use of the evidence

[28] I reiterate, the Crown’s application asserts, at para. 11 that it is not attempting to tender sexual orientation for either of the twin myths; but, rather

“the Crown is arguing that based on her sexual orientation, which is homosexual, the complainant is more believable when she said that she did not consent to vaginal or anal intercourse on October 20, 2016”.

[29] As said above, at the application, Crown counsel argues that the complainant

“is of a homosexual orientation, and that she had never had vaginal, oral or anal intercourse with any man before October 20, 2016. On October 20, 2016, Ms. D. did not consent to have any sexual intercourse either vaginal or anal with the respondent mainly based on her sexual orientation.”

[30] In other words, the proposed purpose of the evidence is to support the inference that, due to the complainant’s homosexuality, she is less likely to have consented to the sex engaged in by the parties.

[31] I find that purpose necessarily embraces propensity reasoning. Propensity reasoning is at the heart of the twin myths reasoning. It also misapprehends the nature of consent.

c) Probative value and Propensity reasoning

[32] As said above, I specifically reject the Crown proposition that the complainant was “less likely to have consented” and “more worthy of belief.” The Crown sought to propose the converse of the notion that because section 276(1) and the articulation of the twin myths in Seaboyer referred to evidence of sexual activity that implies that the complainant was “more likely to have consented” to the sexual activity or was “less worthy of belief.”

[33] That is because at the heart of the prohibition against twin myth reasoning is the lack of probative value in propensity reasoning. In this case, the Crown’s position relies upon stereotypical notions about what it means to be homosexual, heterosexual, or any sexual orientation or gender identity.

[34] I can take judicial notice that the notion of a social system of gender binary has been rejected by our society. That is because our society recognizes that rigid and restrictive systems of categorization are inappropriate. Our societal values also recognize that sexual orientation and gender identity can be fluid and not fixed. It follows that stereotypical homosexual, heterosexual, or any other sexual preference or sexual identity, which purport reliably predict whether an individual was more likely to have consented to a particular sexual activity, flies in the face of those societal values. That result would be simply replacing one stereotype with another and promote propensity reasoning.

[35] In the result, I find the probative value of the use of evidence which Crown seeks to introduce to be at the low end of the scale or trifling.

d) The nature of consent

[36] I reiterate, the Crown’s proposition also misapprehends the nature of consent.

[37] “The absence of consent… is subjective and determined by reference to the complainant's subjective internal state of mind towards the touching, at the time it occurred”: see R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 SCR 330, at para. 26; R. v. Jensen (1996), 1996 CanLII 1237 (ON CA), 106 C.C.C. (3d) 430 (Ont. C.A.), at pp. 437-38, aff'd 1997 CanLII 368 (SCC), [1997] 1 S.C.R. 304; R. v. Park, 1995 CanLII 104 (SCC), [1995] 2 S.C.R. 836, at p. 850, per L'Heureux-Dubé J.; and D. Stuart, Canadian Criminal Law (3rd ed. 1995), at p. 513. Said another way, the issue is the internal state of mind of the complainant at the time the touching occurred, not prior consent or lack of consent with that individual or another individual at previous points in time will.

e) The logical extension of the Crown’s argument

[38] As said above, the logical extension of the Crown’s argument is that if at some future date the complainant is sexually assaulted by a female homosexual, the defence in that case would be at liberty to call similar evidence to support the conclusion that the complainant was more likely to have consented to sexual activity in that case. That result clearly offends principles relied upon in Seaboyer.

f) Potential prejudice including the interests of justice, including the right of the accused to make a full answer and defence

[39] I begin with the observation that, at para. 12 of the Crown’s brief, the Crown states that prejudice is nonexistent in this case; “the mere fact that the accused is more likely to be convicted of this evidence is accepted by the trial judge does not make the evidence prejudicial”. While I agree with the Crown’s conclusion that an increased likelihood of conviction is not in itself prejudicial, I disagree with its conclusion as to the nature of prejudice to be considered by the court.

[40] It seems to me the prejudice relates to the ability of an accused to make full answer and defence and, also, to trial fairness and the confidence of the public in the administration of justice.

[41] As said above, propensity reasoning has a significant negative impact on the truth finding function of the court and accordingly creates prejudice across the entire spectrum.

g) Conclusion as to the Crown’s Application

[42] For all the above reasons, I find that the issue of the complainant’s sexual orientation is not admissible for the purposes proposed by the Crown.

h) Sections 278.94 and 278.95

[43] Section 278.94 provides that the public shall be excluded from a hearing under subsection 276(2). Subsection 278.95 provides a publication ban in any application made under section 278.93 which is also limited in scope to section 276(2). In other words, those provisions do not apply to hearings held on a Crown application, which are governed only by section 276(1).

[44] It seems to me the same interests are engaged whether it is a Crown or defence application. As a result, I found it curious that once the Supreme Court had delivered its judgement in Barton, those sections had not been amended to provide the same protection to complainants regardless of who brought the application.

[45] While it is clear that such an amendment would make the law more consistent, it was not clear, on the limited record before me, whether that result is a product of oversight or there are other factors in play that I am unaware of.

D. ORDER

[46] The Crown’s application is dismissed.

Original Signed by “Justice C.M. Bondy”

Christopher M. Bondy

Justice

Date: Delivered orally on January 12, 2020