R. v. Acti, 2021 ONSC 4314

COURT FILE NO.: CR-18-70000054-0000

DATE: 20210615

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

PERRY ACTI

Applicant

K. Hebert, for the Crown

B. Petrouchinova, for Mr. Acti

D. Way, for the complainant

HEARD: June 11, 2021.

RULING (Section 276 of the Criminal Code)

SCHRECK J.:

1Perry Acti is charged with sexual assault with a weapon, forcible confinement and break and enter and has elected to be tried in this court by a judge without a jury. He has applied, pursuant to s. 276(2) of the Criminal Code, for leave to adduce evidence of sexual activity between him and the complainant that does not form part of the subject matter of the charge.¹ For the reasons that follow, the application is dismissed.

I. FACTS

A. The Complainant’s Account

2The complainant’s version of events, as outlined in her statement to the police and her evidence at the preliminary inquiry, is as follows. On June 14, 2017, she met the applicant at a coffee shop in Toronto, where he agreed to sell her $40 worth of crystal methamphetamine. They went to her apartment, where she paid him the $40. However, he provided her with more than $40 worth of drugs. She told him that she did not want it and that she would not engage in sexual activity with him in exchange for drugs.

3The applicant and the complainant spent the next 10 to 12 hours together at her apartment consuming drugs. According to the complainant, the applicant told her that he was “horny” and persistently asked her to engage in sexual activity with her, which she refused to do. She described him as engaging in “tactics” that demonstrated that sexual activity was his “end game.” At one point, he kissed her without her consent. Eventually, she told him to leave, which he did.

4On the morning of June 16, 2017, the complainant was sleeping in her apartment when the applicant entered. He was able to do so because she had forgotten to lock the door. He picked up a folding knife that was on the floor and demanded that she have sex with him to pay for the extra drugs he had given her two days earlier. She told him that she did not want to have sex with him. She tried to leave the apartment, but he prevented her from doing so by blocking her with his body. Eventually, she acquiesced to having sexual intercourse with him, but did not consent.

5After the applicant left, the complainant called a friend and told her what had happened. The friend then contacted the police.

B. The Applicant’s Version of Events

6The applicant swore an affidavit in support of his application. If he elects to testify at his trial, he would if permitted say that the complainant had consensual sexual intercourse with him in exchange for drugs on both June 14 and June 16, 2017.

II. ANALYSIS

A. Counsel’s Submissions

7At the hearing of the application, counsel for the applicant advanced various arguments for why the evidence of sexual activity on June 14, 2017 was admissible. One reason was to rebut the complainant’s testimony that the applicant had been persistently making unwanted sexual advances to her on June 14 and had kissed her without her consent, which would constitute a separate act of sexual assault.

8During the course of the submissions, I asked Crown counsel whether she intended to elicit evidence from the complainant about the applicant’s persistent unwanted sexual advances and assaultive behaviour on June 14. She advised me that she had not yet made a decision in this regard.

9Counsel for the complainant took the position that if the Crown did not lead evidence of the applicant’s unwanted sexual advances on June 14, his evidence of sexual activity on that date was inadmissible. However, she accepted that if the Crown did lead the evidence, it would be open to the applicant to put forth his own version of events, that is, that his sexual advances were not unwanted and that they in fact had consensual sexual relations.

10Following the morning recess, Crown counsel advised the court that she would not be leading evidence of the applicant’s unwanted sexual advances on June 14. Counsel for the applicant accepts that as a result of the Crown’s position, she no longer has a sufficient basis for her application to succeed.

B. Conclusions

11I agree with counsel for the applicant that if the Crown does not lead evidence that the applicant engaged in unwanted sexual advances towards the complainant on June 14, then any evidence from the defence about the complainant’s sexual activity on that date would not meet the test for admissibility in s. 276(2) of the Criminal Code.

12I also agree with counsel for the complainant that if the Crown were to lead evidence of unwanted sexual advances by the applicant on June 14, this would open the door to the applicant leading evidence that there was consensual sexual activity between them on that date. Otherwise, the applicant would be left in the position of being unable to rebut evidence that his behaviour on June 14 was consistent with him having sexually assaulted the complainant on June 16. This would unduly compromise his right to make full answer and defence.

13To be clear, the evidence would not be admissible to show that because the complainant consented to sexual activity on June 14, she was therefore more likely to have consented on June 16. That is clearly a prohibited line of reasoning: R. v. Goldfinch, 2019 SCC 38, at para. 4. It would, however, be relevant and admissible for the purpose of rebutting evidence led by the Crown: R. v. Harris (1997), 1997 6317 (ON CA), 118 C.C.C. (3d) 498 (Ont. C.A.), at paras. 41-42; R. v. Straker, 2020 ONSC 7807, at para. 10.

III. DISPOSITION

14Based on counsel for the applicant’s concession in light of the clarification of the Crown’s position, the application is dismissed. In the event that the complainant does give evidence about the applicant’s unwanted sexual advances towards her on June 14, 2017, it would be open to the applicant to renew this application. While it is my view that proposed evidence would be admissible in these circumstances, it will be for the trial judge to make the ultimate decision.

Footnotes

1. 1I heard this application as a case management judge appointed pursuant to s. 551.1 of the Criminal Code.