COURT FILE NO.: 19-RA 18033
DATE: 20210430
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
R.I.
Defendant
Julien Lalande, for the Crown
Marc-André Lavigne, for the Defendant
HEARD: In writing
ruling on applicability of section 276
Roger J.
Restriction on Publication
An Order was made under section 486.4 of the Criminal Code of Canada that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way. This decision does not refer to the complainant or witnesses by name and may be published.
Background
[1] The accused is charged with sexual offences (sexual assault under s. 271, sexual interference under s. 151, and invitation to sexual touching under s. 152) on two young complainants, from January 2013 to December 2018. The two young complainants are now 14 and 12 years old.
[2] The accused denies all allegations. The trial is scheduled for October 2021. In preparation for this trial, the accused seeks a ruling to determine whether his lawyer will be allowed to cross-examine one of the young complainants concerning her prior viewing of pornography.
[3] At the accused’s preliminary inquiry and without having conducted a hearing pursuant to s. 276, counsel for the accused asked questions of the young complainant relating to whether she knew what pornography was, whether she had watched it before on her cell phone and laptop, and whether she had then seen naked men and women having sex (R. v. Kuzmich, 2020 ONCA 359, 388 C.C.C. (3d) 243 would apply if s. 276 is applicable).
[4] The accused argues that such questioning is not subject to s. 276 of the Criminal Code because it is not evidence that the complainant engaged in sexual activity either with the accused or with any other person. He wishes to argue that this evidence is relevant and necessary to his defence.
Issues
[5] The issues on this application include whether viewing pornography is a “sexual activity” for the purpose of s. 276 of the Criminal Code, and, consequently, whether the section is applicable.
Analysis
[6] Section 276 reads, in part:
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 …
[7] To be admissible, evidence that a complainant engaged in sexual activity, as provided above, must not only escape the exclusion of s. 276(1), it must also meet the conditions for admissibility stipulated at s. 276(2).
[8] The accused argues that s. 276 is not applicable to the private viewing of pornography.
[9] The accused states that s. 276 specifically refers to “sexual activity”, and therefore that it was not intended to apply to sexual inactivity, such as the private viewing of pornography. He also argues that sexual activity implies involvement with another participant, which is absent when one watches pornography alone on his or her electronic device or in magazines. The accused contends that pursuant to this interpretation, courts have determined that watching pornographic material, by itself, does not fall within s. 276. He relies on decisions to support his interpretation of s. 276 and relies more specifically on R. v. S.A., 2015 ONSC 6942, paras. 18 - 19 and R. v. T. B., 2018 ABPC 193, paras. 14 -15 in support of his argument that s. 276 is inapplicable to the solitary viewing of pornography. The accused also argues that through its submissions, the Crown is essentially asking the court to read out of s. 276 the words “whether with the accused or with any other person”. That by specifically adding these words, Parliament intended the involvement of another participant, and that the impact of technology, argued by the Crown, is also irrelevant to extend the application of s. 276 to the viewing of pornography.
[10] In S.A., the court concluded that s. 276 was not applicable to the viewing of pornography. It found that a “more reasonable conclusion is that Parliament enacted this section and specifically added the words with the accused or with any other person to mean that such sexual activity would have the involvement of another participant” In T. B., the court also found that “any use by the Complainant alone of pornography does not fall within the parameters of s 276”.
[11] However, a more recent Ontario decision has taken a broader view of the application of s. 276, as it relates to the private viewing of pornography. As well, recent decisions of the Supreme Court outline the purpose of that section, relevant to how it should be interpreted.
[12] In R. v. Barton, 2019 SCC 33, at para. 71, the Supreme Court reiterates how statutory provisions should be interpreted:
71 The modern approach to statutory interpretation provides that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (E. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87, as cited in Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21).
[13] In assessing the object of s. 276 and the intention of Parliament, I outline what follows.
[14] The original version of s. 276, enacted in 1982, contained a narrower scope of sexual activity:
- (1) In proceedings in respect of an offence under section 271, 272 or 273, no evidence shall be adduced by or on behalf of the accused concerning the sexual activity of the complainant with any person other than the accused unless….
[15] In R. v. Seaboyer; R. v. Gayme, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, the Supreme Court commented on the narrow scope of the sexual activity in the above section. A broader version, which now also contemplates sexual activity with the accused was included in amendments to the section in 1992.
[16] In 2019, Parliament passed Bill C-51, which provides that communications for a sexual purpose are sexual activity within the meaning of s. 276:
276 (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.
[17] The purposes of s.276 were earlier explained in Seaboyer at paras. 23 - 27:
23 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. …
24 Three subsidiary purposes of such legislation may be discerned. The first, and the one most pressed before us, was the preservation of the integrity of the trial by eliminating evidence which has little or no probative force but which unduly prejudices the judge or jury against the complainant. If we accept, as we must, that the purpose of the criminal trial is to get at the truth in order to convict the guilty and acquit the innocent, then it follows that irrelevant evidence which may mislead the jury should be eliminated in so far as possible. There is no doubt that evidence of the complainant’s sexual activities has often had this effect. Empirical studies in the United States suggest that juries often misused evidence of unchastity and improperly considered “victim-precipitating” conduct, such as going to a bar or getting into a car with the defendant, to “penalize” those complainants who did not fit the stereotype of the “good woman” either by convicting the defendant of a lesser charge or by acquitting the defendant: H. Galvin, “Shielding Rape Victims in the State and Federal Courts: A Proposal for the Second Decade” (1986), 70 Minn. L. Rev. 763, at p. 796. It follows that society has a legitimate interest in attempting to eliminate such evidence.
25 The second rationale cited in support of rape-shield legislation is that it encourages the reporting of crime. Despite the fact that the statistics do not demonstrate with any certainty that reporting of sexual offences has increased in Canada as a consequence of rape-shield provisions, I accept that it is a legitimate legislative goal to attempt to encourage such reporting by eliminating to the greatest extent possible those elements of the trial which cause embarrassment or discomfort to the complainant. …
26 A third and related reason sometimes offered for rape-shield legislation is protection of the witness’s privacy. This is really the private aspect upon which the social interest in encouraging the reporting of sexual offences is based. In addition to furthering reporting, our system of justice has an interest in preventing unnecessary invasion of witnesses' privacy.
27 The goals of the legislation -- the avoidance of unprobative and misleading evidence, the encouraging of reporting and the protection of the security and privacy of the witnesses -- conform to our fundamental conceptions of justice.
[18] More recently, commenting about the object of s. 276, Barton reminds us that the fundamental objectives of the s. 276 regime include protecting the integrity of the trial by excluding irrelevant and misleading evidence, protecting the accused’s right to a fair trial, and encouraging the reporting of sexual offences by protecting the security and privacy of complainants. The Supreme Court in Barton said that giving “the s. 276 regime a broad, generous interpretation that does not unduly restrict the regime’s scope of application would best achieve these objects” (at para. 74).
[19] As well, R. v. Goldfinch, 2019 SCC 38, 380 C.C.C. (3d) 1 provides information about the intention of Parliament. It reviews the history and purpose of s. 276. It says, as we know, that historically, no limits were placed on adducing evidence of a complainant’s prior sexual activities. As it mentions at para. 33, such evidence was routinely used “to malign” the character of the complainant, distort the trial process, and undermine the ability of the criminal justice system to effectively and fairly try sexual allegations … Subjecting the complainant to humiliating or prolonged examination and exploiting assumptions about “communication, dress, revenge, marriage, prior sexual history, therapy, lack of resistance and delayed disclosure” was commonplace”.
[20] Goldfinch says that the “mischief Parliament sought to address in enacting s. 276 remains with us today. Sexual assault is still among the most highly gendered and underreported crimes” (para. 37). The Supreme Court reminds us that sexual violence can have a profound and long-lasting impact on its victims. That “Parliament enacted s. 276 to address concrete social prejudices that affect trial fairness as well as the concrete harms caused to the victims of sexual assault.” That it is “against this backdrop that s. 276 must be interpreted and applied”. And that s. 276 “protects the integrity of the trial process by striking a balance between the dignity and privacy of complainants and the right of accused persons to make full answer and defence” (paras. 38 and 39).
[21] Goldfinch also states this at para. 48:
Taken as a whole, s. 276 seeks to protect the privacy of complainants, encourage the reporting of sexual offences and exclude evidence which fuels propensity reasoning. In pursuit of these goals, s. 276(2) presumptively bars evidence of the complainant’s previous sexual activity.
[22] As indicated at the outset of my analysis, whether s. 276 is applicable to the private viewing of pornography was more recently addressed by one of my colleagues in R. v. D.M., 2019 ONSC 3895. At paras. 24 to 26 in D.M., Boswell J. decided that S.A., referred to above at paragraphs 9 and 10 and relied upon by the accused in support of his argument, was wrongly decided.
[23] The issue in D.M. was similar, whether defence counsel needed to bring a s. 276 application prior to questioning the complainant about a history of watching pornographic videos on the internet. In D.M., Justice Boswell reviewed the S.A. decision. As indicated above, he concluded that it was plainly wrong. He indicates this at para. 18:
18 R. v. S.A. is a decision of a judge of concurrent jurisdiction to this court. The horizontal convention of precedent provides that, while not strictly binding, relevant decisions of the same level of court should be followed as a matter of judicial comity, unless there are compelling reasons that justify departing from the earlier ruling.
[24] Justice Boswell outlines that one of the central aspirations of s. 276 is the preservation of the dignity and privacy of sexual assault complainants, that this is required to address the under-reporting of sexual assaults which is a significant problem in our society, and that it is fostered by a concern among victims of sexual abuse that they will be re-victimized during the trial process. He states, at paras. 23 - 26:
23 Evidence that a complainant has a history of watching pornographic material on the internet, or enjoys reading sexually explicit materials, or fantasizes about particular types of sexual activity is evidence of an intensely private nature. The tendering of such evidence may or may not tend to encourage impermissible reasoning. But at the very least, it has a tendency to embarrass the complainant and to intrude upon his or her personal dignity and right to privacy. Before such evidence is tendered, it must not only be relevant, but it must, in my view, survive s. 276 scrutiny. Section 276 is designed to ensure that there are cogent reasons that support the introduction of such evidence and to ensure that a costs/benefits analysis favours admission.
24 Justice Del Frate focused his attention on the language of s. 276 that specifically refers to sexual activity, “whether with the accused or another person”. In my view, this language is intended to reflect the fact that the section is not restricted to prior sexual activity between the complainant and the accused person. It does not exclude from its ambit sexual activity that occurs without another participant. Indeed, there may be a good many members of Canadian society whose history of sexual activity involves, predominantly, activity of an individual nature. Those individuals are, in my view, just as entitled to the protections afforded by s. 276 as anyone else.
25 It has been said that there is but one “golden rule” of statutory interpretation, specifically that the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament: see Re Rizzo v. Rizzo Shoes Ltd., 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27 at para. 21. In my view, considering the reasoning behind the introduction of s. 276 and its core purposes, limiting its application to sexual activity that occurs with another person is too restrictive an interpretation.
26 For the foregoing reasons, I concluded that defence counsel could not question W.C. about his history of accessing pornographic websites, if any, in the absence of a successful application under s. 276 of the Criminal Code. Counsel elected not to pursue such an application.
[25] As indicated in Barton, in order to best achieve its objectives, s. 276 must be interpreted broadly and generously, in a manner that does not unduly restrict the regime’s scope of application. It should be clear from the above analysis, that the intent of Parliament and one of the driving objectives of s. 276 include the preservation of the dignity and privacy of sexual assault complainants. Indeed, what the section aims to avoid is stated in Goldfinch. What it aims to avoid includes subjecting the complainant to “assumptions about communication, dress, revenge, marriage, prior sexual history, therapy, lack of resistance and delayed disclosure”. As is apparent, some of these enumerated items only involve the complainant, and do not involve the accused or any other person. Some do not involve an activity, but rather constitute something closer to inactivity. However, to the extent that it relates to a complainant’s prior sexual activity, each has the potential of embarrassing and undermining the dignity and privacy of sexual assault complainants.
[26] I therefore agree with Boswell J. that the language in s. 276 “whether with the accused or with any other person” was not intended to be restrictive, and agree that the proper interpretation of s. 276 does not exclude sexual activity that occurs without another participant or that is more in the realm of inactivity.
[27] Consequently, I agree with Boswell J. that the protection afforded by the section equally applies to sexual activity and sexual inactivity, of an individual nature, such as the private viewing of pornography, because questions about this may just as well impact the dignity and privacy of sexual assault complainants.
[28] As a result, I find that s. 276 is applicable to the private viewing of pornography and, therefore, that evidence of the complainant’s viewing of pornography is not admissible unless s. 276 (2) is complied with.
Mr. Justice Pierre E. Roger
Released: April 30, 2021
COURT FILE NO.: 19-RA 18033
DATE: 20210430
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
R.I.
Defendant
ruling on applicability of section 276
Roger J.
Released: April 30, 2021