SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CR-20-017 (Owen Sound)
DATE: 20210428
RE: Henry Fryday, applicant
AND:
Her Majesty, respondent
COUNSEL: Danielle Landry, for the applicant
Andrea Camilletti, for the Crown
Jill Gamble, for the complainant
HEARD: By video conference, April 7, 2021
BEFORE: Chown J.
By court order under s. 486.4 of the Criminal Code, any evidence that could identify the complainant must not be published, broadcast or transmitted in any way.
Ruling and Reasons on s. 276(2) application
[1] The applicant seeks a determination under s. 276(2) that he may give evidence and his counsel may cross examine the complainant at trial about a conversation by text message that the applicant and the complainant were having in the hour immediately before the alleged sexual assault. The conversation by text message was sexual in nature.
[2] The applicant intends to advance defences of consent and honest but mistaken belief in communicated consent.
Facts
[3] The synopsis of the police interview of the complainant says in part (this is a verbatim excerpt):
• She met him on the dating app Tinder
• She wasn’t overly comfortable with the online dating so she deleted the app
• He found her on Facebook and private messaged her. They continued talking on Facebook and then he gave her his cell phone number to text.
• Initially the talk they had was casual. Approximately 1 hour before they met, his questions became sexual.
• Says she wasn’t opposed to having sex, she just thought they would get to know one another a bit. Says if they did have sex, she thought it would be mutual, not what happened.
• Says she didn’t consent, says she said “no”
• She doesn’t have any text messages, she deleted those.
• But she has the Facebook Messages
• Says they had only been talking for two weeks
• He was supposed to come over at 9:00, so she kept texting him
• She described the sexual questions he asked: what her favourite position was, if she liked to roll-play. She told him she had never done that.
• Says he was only at her apartment for 20 minutes (total time) before he left
• Says when he arrived they barely spoke. She said to him “sorry my apartment is messy” and he said “well its about to get messier” and he took the toothpick out of his mouth.
• Says he never asked her directly (by text) whether she wanted to have sex that night
[4] The Facebook Messenger messages that the parties exchanged are available and have been included in the application record. The applicant is not, at this time, seeking a determination under s. 276(2) regarding the Facebook Messenger messages. The current application is limited to the text messages during the one-hour period before the applicant and the complainant met and engaged in the sexual activity that forms the subject-matter of the charge.
[5] The Facebook Messenger messages show that on November 12, 2019, the applicant and the complainant agreed to get together at the complainant’s residence. The applicant gave his cell phone number to the complainant. The last Facebook Messenger message from the complainant indicates that she would text the applicant.
[6] The applicant’s affidavit in support of the motion states:
I did not keep copies of the text messages that the complainant and I exchanged but I remember texting her later that night about an hour before I went over to her house. I remember that within the hour before I arrived at her apartment, that our conversation was sexual in nature. I arrived at her apartment, at approximately midnight.
Given that our conversation was sexual in nature right before I arrived at her apartment, and given the time of night when I arrived, I thought we both knew we were going to engage in sexual intercourse.
[7] The applicant’s affidavit further states that when he arrived, the complainant was laying on the bed and asked him to join her there, and that they both removed their own clothes, started kissing each other and touched each other before having sexual intercourse.
[8] The applicant was cross examined for the hearing. He was inarticulate and his testimony was halting. He did not recall much about the text messages. He initially testified that there was nothing about the text messages that he specifically remembered. He remembered that the complainant stated she wanted to cuddle, but this was part of the Facebook Messenger messages, which he acknowledged might not have been part of the text messages. He remembered texting with the complainant about “sexual stuff” but he admitted that he had no memory of any specifics.
[9] On direct questioning, he recalled asking the complainant her favourite sexual position. He did not remember asking her if she liked to role play but did remember asking about foreplay. He could not recall whether they talked about foreplay in the text messages in the hour before. He admitted that it would be difficult for him to remember what they were talking about in terms of his expectations that night. He did recall her telling him by text message that her apartment was unlocked, and he could come in. He remembered walking up the stairs to her bachelor apartment and she was already on the bed.
[10] On re-examination, when asked what it was that made him think he and the complainant were going to have sex when he arrived, he said, haltingly, that it was the time of night and how they talked about cuddling.
The Parties’ Positions
[11] Ms. Gamble on behalf of the complainant argues the applicant was assuming the complainant wanted to have sex and the text messages at most go only to implied consent, which is not a defence. She argued that it is only the specifics of what was discussed that could provide an air of reality to the defence of honest but mistaken belief in communicated consent. The argument that the applicant was entitled to infer consent from being invited over with an arrival time of midnight is nothing more than a stereotype and is twin myth reasoning. She argues that the general nature of the applicant’s evidence about the text messages undermines the evidentiary value of the text messages. Consent to cuddling does not in any way amount to consent to what ultimately occurred. The applicant could not even remember what was communicated so he will not be able to say how the text messages influenced his mind to support the mistake defence.
[12] Ms. Camilletti on behalf of the Crown further developed the argument that the text messages are irrelevant. She said that the evidence does not establish a link between the text messages and what the parties expected to happen. She argued that on this basis, the text messages are not relevant to the applicant’s state of mind and will not assist the trier of fact in any way. She further argues that the text messages do not raise an issue of credibility. Unlike in R v. Lennox, [2019] O.J. No. 3246, discussed below, the stories of the complainant and the applicant align. The applicant’s evidence regarding the text messages does not contradict the complainant’s evidence.
[13] Ms. Landry on behalf of the applicant acknowledges that the applicant’s evidence is vague and that he does not recall much detail of the content of the text messages. However, she says this does not matter. She says the fact that messages were sexual in nature and made so close in time to the alleged assault is enough to make them relevant and important to the defence. She says they are part of the narrative of the events in question. Without the text messages, the story starts with the applicant arriving at the complainant’s residence and with sexual activity being completely unanticipated. Ms. Landry argues that the text messages help explain and corroborate the applicant’s version of events. She argues that the messages are highly relevant to the main issue at trial: what was in the mind of both parties in terms of consent.
[14] It appears from the synopsis that the complainant may have a better recollection of the text messages and Ms. Landry argues that the applicant should be allowed elicit the details that the complainant has. Otherwise, the applicant’s character may be impugned in that the story starts without reference to the communication that was happening right before. It will seem like the sexual activity was completely out of nowhere. She does not argue that the communication in the hour before is useful in establishing the complainant’s consent but argues that it corroborates the applicant’s version of the events and helps explain what was in his mind at the time.
[15] Ms. Landry further argues the text messages are not a separate instance of sexual activity within the meaning of s. 276, but rather they are part of the sexual activity that forms the subject-matter of the charge. The applicant has confined his application to the one-hour period before the applicant and the complainant met. This time frame aligns with the complainant’s statement that, “Approximately 1 hour before they met, his questions [in his texts] became sexual.”
Procedural Requirements
[16] There is no dispute that, to date, this application has complied with the procedures set out in sections 278.93 and 278.94.
Analysis
Is s. 276 engaged?
[17] Section 276(1) only proscribes evidence “that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge.”
[18] As several cases have recognized, it can be difficult to parse “past sexual activity” and “the sexual activity that forms the subject-matter of the charge.” However, it is at times necessary to draw the distinction. In this case, I agree with Ms. Landry that the texting that took place within the hour before the alleged assault is part of the sexual activity that forms the subject-matter of the charge. As such, s. 276 is not engaged.
[19] In coming to this decision, I have been guided by several recent cases with similar features: R. v. Lennox, supra; R v. Cole, 2020 ONSC 6239; R. v. MacMillan, 2019 ONSC 6018; R. v. H.S.S., 2020 BCPC 196; and R. v. Paulette, 2020 NWTTC 13.
[20] In Lennox, deleted explicit text messages were part of the evidence regarding how the complainant and the accused came to be alone in the supply room of the plaintiff’s employer where the alleged assault took place. The accused said he was “explicitly invited to come to the workplace over lunch and the communication leading up to that had referenced the possibility of ‘fooling around’ in the supply room.” There was a credibility issue because the stories of the accused and the complainant did not align. Justice McLeod did not decide that the text communications were part of the sexual activity that forms the subject-matter of the charge. He said at para. 25 to 26 it was a “grey area” and this was “not the case to resolve this issue”:
There is a grey area about the application of s. 276 which arises from the dual requirement that evidence cannot be introduced that the “complainant has engaged in sexual activity other than the sexual activity that forms the subject matter of the charge”. To engage s. 276 the communication must be sexual activity and it must be sexual activity other than the activity in question. At some point parsing each moment in a sequence of events and defining it as a separate activity becomes ridiculous.
To take an obvious example, it is the evidence of the accused that the complainant met him on the street, embraced him, kissed him passionately and then led him to the supply room in her empty work place. There he says she kissed, him, unbuttoned his shirt and then unzipped his pants. No one is suggesting that each of the elements in this sequence of events is other sexual activity subject to a s. 276 analysis. This is not the case to resolve this issue but there is some question about how connected or disconnected in time communication would have to be to constitute other sexual activity. [Emphasis added.]
[21] Because he decided the messages were admissible after a full s. 276 analysis, Justice McLeod did not need to do the “parsing” he described.
[22] In Cole, in “the hours preceding the alleged sexual assault,” the complainant showed the accused sexually explicit photos and a “raunchy” video of herself. Justice André said at para. 43:
This incident cannot be clinically, and in my view, artificially separated from the sexual assault that forms the subject of the charge. To make full answer and defence Mr. Cole is entitled to challenge the complainant’s version of events. He is entitled, as part of his defence that the complainant consented to the sexual activity, to put to her that she voluntarily showed him a sexually suggestive video as a prelude to the alleged impugned act. It will be up to the jury to decide what weight, if any, it should place on this evidence.
[23] Justice André referred with approval to a case that is not currently on and which I have not been able to find, R. v. X.C., 2020 ONSC 410, where it was held:
I do not believe the defendant is obliged to bring a s. 276 application in order to adduce evidence of the consensual sexual activity that immediately preceded or followed the activity that the complainant alleges was non-consensual.
He also referred to R. v. Akumu, 2017 BCSC 403, where the court noted at para. 9 that:
s. 276 does not really contemplate a minute by minute or hour by hour temporal change in sexual activity. I agree with the Crown that the transaction that forms the subject matter of the charges applies to the whole factual nexus of the events in question.
[24] In MacMillan, 2019 ONSC 6018, Justice Dambrot did not allow evidence of sexually charged communications that took place hours before the alleged assault, but did allow evidence of conversations that took place immediately prior to and during the sexual activity that formed the subject matter of the alleged assault.
[25] In Paulette, the accused alleged that 4½ hours prior to the alleged sexual assault, the complainant mouthed the words, “I want to f--- you.” Justice Malakoe found that this utterance was not part of the offence but was admissible after a full s. 276 analysis.
[26] In H.S.S., the accused and the complainant were schoolmates. Over a four-day period, they exchanged sexually explicit text messages in which they developed a plan to meet in a washroom to engage in sexual activity. Justice Chen said that the messages “should not be characterized as separate instances of prior sexual activity unrelated to the subject-matter of the charge.” Justice Chen said the messages were relevant to the parties’ state of mind at the time of the offence. “Accordingly, they must also be evidence of the sexual activity that forms the subject-matter of the charge.”
[27] After reviewing and comparing these cases, I have concluded the text messages in question here are part of the sexual activity that forms the subject matter of the charge. In my view:
a. The proximity in time is important. It is plausible that the text messages would have influenced the applicant’s state of mind.
b. Ms. Landry is correct that the story will have an unnatural beginning if the evidence of the text messages is excluded, and this may act unfairly to the applicant in that it might have an adverse impact on his credibility.
c. Asking the that the witnesses excise the sexual content of the text messages during their testimony could create practical difficulties. The text messages were deleted by both the complainant and the applicant. The applicant’s memory of the text messages was limited but was refreshed when he was specifically directed to whether the sexual positions that the complainant liked were mentioned. It can be anticipated that the evidence about the messages will be imprecise and that some of the messages are relevant to the narrative but have no sexual content. Asking the complainant and the applicant not to mention the sexual content may create a distorted picture.
Narrative does not suffice
[28] I acknowledge that my reasoning in (b.) above is partially undermined by R. v. Goldfinch, 2019 SCC 38 and wish to address this.
[29] In Goldfinch, Justice Karakatsanis said at para. 64: “General arguments that the sexual nature of a relationship is relevant to context, narrative or credibility will not suffice to bring the evidence within the purview of s. 276(2).” Justice Moldaver said at para. 119:
… there is a risk that sexual activity evidence may be used, whether consciously or not, to “contextualize” a complainant’s testimony that she did not consent to the sexual activity in question through twin-myth reasoning: because the complainant consented in the past (the “context”), it is more likely that she consented this time as well. This is, of course, precisely the sort of stereotypical reasoning s. 276(1) sought to banish from the courtroom. Yet without a clear and precise identification of the specific purpose for which sexual activity evidence is sought to be introduced, this sort of reasoning can all too easily infiltrate the courtroom through the Trojan horse of “context”.
[30] Ms. Landry’s argument evoked the dissenting decision of Justice Brown which held at para. 194, that without the “friends with benefits” evidence:
[the accused’s] actions (including his words and gestures) will have appeared to have arisen out of nowhere, creating a completely misleading impression on the jury. His right to make full answer and defence would be reduced to painting a picture of himself as (at best) crude and reckless, or (at worst) predatory.
[31] However, Justice Brown’s views were rejected by the majority.
Fundamental to the coherence of defence narrative
[32] With that said, the majority decision in Goldfinch also acknowledges at para. 66 that, at times, evidence of prior sexual activity between the complainant and the accused can be “fundamental to the coherence of the defence narrative.” She referred to R. v. Temertzoglou, 2002 2852 (ONSC) and R. v. M. (M.), 1999 15063 (ON SC), [1999] O.J. No. 3943, 29 C.R. (5th) 85 (Ont. S.C.J.) as examples where such evidence was “not merely helpful context.” Justice Karakatsanis did not suggest these cases were wrongly decided.
[33] In M.(M.), Justice Langdon admitted evidence of sexual activity and “sexual talk” spanning over a year before the alleged assault. Justice Langdon said at para. 30:
If I exclude the proposed testimony, then I, as trier of fact, will be asked to believe that the conversation and warm gestures, the suggestion of a threesome and ultimately the allegedly consensual acts, arose on the sudden without any contextual basis between two persons who were virtual strangers.
[34] In Temertzoglou, Justice Fuerst admitted evidence of prior sexual activity between the complainant and the accused because, among other reasons, it showed:
the development of a relationship between the parties which is more than platonic, notwithstanding an age difference that might otherwise engender a presumption against the defence [see para. 17].
[35] Further, Justice Moldaver’s decision at para. 123 of Goldfinch acknowledges the possibility that the “friends with benefits” evidence might have been properly admitted if a more detailed application record had raised the possibility that withholding the evidence might have made the accused’s actions seem bizarre or even menacing. Justice Moldaver also said:
A jury’s determination of which witness to find credible is a holistic exercise that involves assessing the plausibility and coherence of a given witness’ testimony throughout the course of the trial. Withholding the sexual nature of Mr. Goldfinch’s relationship with the complainant could have had an adverse impact on the jury’s assessment of Mr. Goldfinch’s credibility, potentially infringing upon his right to make full answer and defence.
[36] I conclude that my reasoning here appropriate. It is correct to be concerned that exclusion of the evidence would lead to the story having an unnatural and distorted beginning. This, in combination with the immediate temporal proximity of the text messages, supports my conclusion that the text messages are part of the sexual activity that forms the subject-matter of the charge. Thus, s. 276 is not engaged by the evidence.
Applying s. 276
[37] In the event I am wrong about s. 276 not being engaged, I have reached the conclusion that the evidence satisfies the requirements for admissibility in s. 276(2) and (3). I have reached this conclusion with some hesitation brought on by Ms. Gamble’s and Ms. Camiletti’s argument about the failure of the applicant to connect the text messages to his state of mind.
Section 276(2)(b)
[38] I will review each subsection of s. 276(2) but will start out of order with s. 276(2)(b) and the question of relevance.
[39] I agree with Ms. Landry’s submission that the applicant’s state of mind will be a central consideration at trial. As indicated, the applicant intends to raise the defence of mistaken belief in communicated consent.
[40] In R. v. Darrach, [2000] S.C.R. 443, Justice Gonthier held at para. 59:
Section 276 is most often used in attempts to substantiate claims of an honest but mistaken belief in consent. To make out the defence, the accused must show that “he believed that the complainant communicated consent to engage in the sexual activity in question” (Ewanchuk, [1999 711 (SCC), [1999] 1 SCR 330] at para. 46 (emphasis in original)). To establish that the complainant’s prior sexual activity is relevant to his mistaken belief during the alleged assault, the accused must provide some evidence of what he believed at the time of the alleged assault. This is necessary for the trial judge to be able to assess the relevance of the evidence in accordance with the statute. It is an essential part of the legislative scheme which provides a means by which the accused may establish the relevance of the evidence he chooses to put forward. [Emphasis added.]
[41] In addition, in R. v. Barton, 2019 SCC 33, Justice Moldaver said at para. 93:
Focusing on the accused’s honest but mistaken belief in the communication of consent has practical consequences. Most significantly, in seeking to rely on the complainant’s prior sexual activities in support of a defence of honest but mistaken belief in communicated consent, the accused must be able to explain how and why that evidence informed his honest but mistaken belief that she communicated consent to the sexual activity in question at the time it occurred
[42] Here, the applicant has provided affidavit evidence as follows:
I thought that the complainant was consenting to the sexual activity we had after I arrived at her apartment. I thought this because she was laying on the bed when I arrived and asked for me to join her there. We then both removed our own clothes, starting [sic] kissing each other and touched each other before having sexual intercourse. The complainant did not say “no” or “stop” to me at any time during the sexual activity, or say or do anything else to make me think that she was not consenting.
[43] As Ms. Gamble and Ms. Camiletti argued, he does not connect the text messages evidence to what he “thought.” The same is true of the evidence in his cross examination, where he in fact admitted he was unable to provide any specifics about what he and the complainant agreed to do that night or what she was interested in doing that night.
[44] As indicated above, however, in his affidavit he did say:
Given that our conversation was sexual in nature right before I arrived at her apartment, and given the time of night when I arrived, I thought we both knew we were going to engage in sexual intercourse.
[45] This does to some extent connect the text messages and his state of mind.
[46] The Supreme Court’s comment in Darrach, supra, that “the accused must provide some evidence of what he believed at the time of the alleged assault” mandates only “some” evidence. This suggests the bar should be set low for the extent of evidence required for this defence to be in play in a s. 276 application.
[47] I have indicated that the applicant is inarticulate, and his evidence was halting. However, his defence of honest but mistaken belief in communicated consent need not rest solely on his evidence. The application seeks permission to adduce evidence about the text messages not only from the applicant but also by way of cross examination of the complainant.
[48] The New Brunswick Court of Appeal held in R. v. Simoes, 2020 NBCA 73 that the defence of honest but mistaken belief in communicated consent can even be raised where the accused does not testify. This is consistent with in R. v. Park, 1995 104 (SCC), [1995] 2 S.C.R. 836 at para. 44 (cited with approval by Justice Moldaver in in R. v. Barton, supra, at para. 91), where Justice L’Heureux-Dubé said that the principal considerations that are relevant to the defence of honest but mistaken belief in communicated consent are:
(1) the complainant’s actual communicative behaviour, and (2) the totality of the admissible and relevant evidence explaining how the accused perceived that behaviour to communicate consent. Everything else is ancillary. [Emphasis added.]
[49] In practical terms, it may be difficult for accused persons to make out this defence if they don’t testify or if the accused is inarticulate. However, an accused should not be required to make out the defence before being permitted to advance evidence to support it.
[50] I agree with Ms. Landry’s argument that the text messages are relevant to the applicant’s state of mind. Thus s. 276(2)(b) is satisfied.
Section 276(2)(a)
[51] The defence does not seek to adduce the text messages evidence for the purpose of supporting an inference that is improperly based in the twin myths. Specifically, the evidence is not intended to show that it is more likely that the complainant consented to the sexual activity that forms the subject matter of the charge or that she is less worthy of belief. Rather, the evidence the defence seeks to adduce the evidence to support an inference that the applicant’s state of mind may have been such that he was expecting the complainant to consent to sexual activity. Thus s. 276(2)(a) is satisfied.
Section 276(2)(c)
[52] Assuming my conclusion above that the text messages are part of the sexual activity that forms the subject-matter of the charge is incorrect, then the text messages themselves are the specific instances of sexual activity within the meaning of s. 276(4). Section 276(2)(c) is satisfied.
Section 276(2)(d)
[53] With respect to section 276(2)(d), the text message evidence has “significant probative value,” when bearing in mind the Supreme Court’s guidance on interpretation of this phrase (Darrach, supra, at para. 38 to 41).
[54] The most apparent danger to the proper administration of justice is the risk that improper reasoning based on the twin myths will infect the analysis of consent if the text messages are admitted in evidence. With proper instruction (in this case self instruction because the accused has elected trial by judge alone), the court will be able to make the appropriate proper but limited use of the evidence. In my view, the danger of prejudice to the proper administration of justice does not substantially outweigh the probative value of the evidence.
[55] Section 276(2)(d) is satisfied.
Section 276(3)
[56] Turning now to the factors referred to in s. 276(3) that have affected the determination of the admissibility of the text messages evidence, (a) and (c), are significantly engaged in this case. There is a real risk of unfairness to the applicant if the text messages are excluded, in that the story would have an unnatural and distorted beginning.
[57] The potential prejudice to the complainant’s personal dignity and right of privacy is significant because at the time she engaged in the text messaging with the applicant, she had good reason to expect those messages would remain private. The intrusion is significant, and this weighs heavily under (f) and (g), but as Justice McLeod said in Lennox at para. 28, it “is not in the same category as evidence of other sexual activity on a completely different occasion” and it “is directly related to the narrative.” If counsel can agree upon an agreed statement of facts with respect to the text messages, that will assist in reducing this intrusion. If not, the way the evidence is adduced at trial can, to some extent, be controlled to limit the impact to the complainant’s personal dignity.
[58] With respect to (b), society’s interest in encouraging the reporting of sexual assault, I anticipate that reasonable people would expect the events between the parties in the lead up to the alleged assault is essential evidence for the court. I do not think this ruling will be significantly discouraging.
[59] As this will be a non-jury trial, with proper self-instruction, (d) is less of a concern, and (e) does not apply.
Disposition
[60] In result, the application is granted.
“Justice R. Chown”
Date: April 28, 2021