COURT FILE NO.: G987-01/18
G987-02/18
DATE: 20210818
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
– and –
Todd Thornbury
James Burton
R. Griffin, for the Crown
M. Macchia for the Respondent Thornbury R. Gemmill for the Respondent Burton
HEARD: August 13, 2021
RESTRICTION ON PUBLICATION
There is an order banning publication of any information identifying the complainant in this proceeding.
Reasons for Decision re Timing of the s. 276 Application
Relief Sought
- By this application the Applicant, Todd Thornbury seeks an Order that the Applicant’s section 276(2) application be adjudicated following the in-chief evidence of the complainant.
Background Facts Provided re Timing Application
(Note: All facts contained herein were obtained from the Notice of Application and the oral submissions of counsel. No affidavit was filed in support of the Application re timing by either the Applicant or the Crown).
The complainant alleges that in 2004, she was sexually assaulted by Todd Thornbury and James Burton.
The complainant disclosed the alleged sexual assault on July 5, 2018, in New Brunswick, and is the sole Crown witness at the upcoming trial.
At the date of her police statement (July 5, 2018), the complainant alleged that “Todd Thornbury was my boyfriend at that time. At the time, he and I had a relationship on and off for a few years and Jamie was just my friend. But Todd’s cousin.” (Notice of Application, para 3, citing Complainant’s Video Taped Statement to Police, July 5, 2018).
At the preliminary inquiry, the complainant testified that she and James Burton were dating for eight to ten years – between 1994/1996 to 2004. She testified that their relationship was on and off. The complainant also testified that she knew the Applicants since they were teenagers. (Notice of Application, para 4, citing Evidence of the Complainant at the Preliminary Inquiry, X, p. 34, l. 25-30).
The Notice of Application asserts that “the Applicant whole-heartedly disputes the complainant’s version of events and intends to file a section 276(2) application in order to adduce evidence of the complainant’s prior intimate relationship with Todd Thornbury only”. (Notice of Application, para 5).
The Notice of Application also asserts that it is “Thornbury’s contention that this application, ought to be addressed following the in-chief evidence of the complainant which will allow the Applicant’s to make full answer and defence, and will allow for more fulsome cross-examination.” (Notice of Application, para 6).
The Notice of Application further asserts that as the complainant is the sole witness to the historical sexual assault allegation, the Applicant should not be forced to provide evidence to the Crown and consequently, the complainant, in advance of her testimony at trial. (Notice of Application, para 7).
Finally, at the commencement of the hearing, both Thornbury and Burton re-elected their mode of trial to judge alone and counsel for the Applicant advised that the evidence sought to be introduced was not in the form of a record.
The Issue
- The sole issue to be determined at this time is whether it is “in the interests of justice” to allow the Applicant to bring the s. 276 (2) application mid-trial, following the in-chief evidence of the complainant, and not “at least seven days” previously, which in the present case, as the complainant is the sole Crown witness, equates to “at least seven days” prior to the commencement of the trial.
The Law and Analysis
The Procedure Under s. 276
Section 276 (1) of the Criminal Code prohibits the introduction of evidence of the complainant’s past sexual history, whether with the accused, or with any other person to support the inference that the complainant was more likely to have consented to the sexual activity or that she is less worthy of belief.
Section 276 (2) of the Criminal Code, prohibits evidence 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, 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;
(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.
- In determining whether evidence is admissible under s. 276 (2), the judge shall take into account:
(a) the interests of justice, including the right of the accused to make 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 form 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 every individual to personal security and to the full protection of the law; and
(h) any other factor that the judge considers relevant.
For the purposes of s. 276, “sexual activity” includes any communication made for a sexual purpose.
The procedure for determining a s. 276 application is found at s. 278.93 and 278.04 of the Code and is as follows:
278.93 (1) Application may be made to the judge for a hearing under 278.94 to determine whether evidence is admissible under s. 276(2).
(2) An application 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 the clerk of the court.
(3) The judge shall consider the application with the jury and public excluded.
(4) If the judge is satisfied that the application was made in accordance with subsection (2), that a copy of the application was given to the prosecutor and the clerk of the court at least seven days previously, or any shorter interval the judge may allow in the interests of justice and that the evidence is sought to be adduced is capable of being admissible under s. 276(2), the judge shall grant the application and hold a hearing under s. 278.94 to determine whether the evidence is admissible under s. 276(2).
- The sole issue before me is whether it is “in the interests of justice” to allow the Applicant to bring the s. 276 (2) application mid-trial, following the in-chief evidence of the complainant, and not “at least seven days” previously. For this reason, I have not reproduced s. 278.94 (which is Phase Two of the enquiry).
The Historical Background of s. 276
Section 276 of the Criminal Code was enacted to remove any discriminatory beliefs in the fact-finding process that a complainant was more likely to consent based on her past sexual history.
The history of s. 276 has been summarized by numerous judges but is most aptly summarized by the Supreme Court of Canada in R. v. Goldfinch, 2019 SCC 38, [2019] S.C.J. No. 38, at paras 33 to 27.
In summary, s. 276 was enacted to ensure trial fairness and to bar evidence of a complainant’s previous sexual activity tendered to support the twin myths as such evidence is not probative of consent or credibility and can severely distort the trial process.
In barring such inferences, s. 276 affirms the equality and dignity rights of complainants and aims to encourage reporting of sexual assault (Bill C-49). (See Goldfinch, supra, at para 43).
In determining an application under s. 276, the court is required to consider a number of factors including the accused’s right to make full answer and defence, the need to remove discriminatory beliefs or biases from the fact-finding process, potential prejudice to the complainant’s dignity and privacy, and the right of every individual to the full protection and benefit of the law. (See Goldfinch, supra, para 50).
The ability of the accused to make full answer and defence was dealt with at length by the Supreme Court in R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443. More particularly, Gonthier, J. speaking for the Court noted as follows at para 55:
Section 276 does not require the accused to make premature or inappropriate disclosure to the Crown…the accused is not forced to embark upon the process under s. 276 at all…if the defence is going to raise the complainant’s prior sexual activity, it cannot be done in such a way as to surprise the complainant. The right to make full answer and defence does not include the right to defend by ambush. The Crown as well as the Court must get the detailed affidavit one week before the voire dire, according to s. 276.1(4)(b), in part to allow the Crown to consult with the complainant. The Crown can oppose the admission of evidence of sexual activity if it does not meet the criteria in s. 276. Neither the accused’s s. 11(c) right not to be compelled to testify against himself nor his 11 (d) right to be presumed innocent are violated by the affidavit requirement. This is borne out by the way in which the admissibility procedure operates.
In Goldfinch, the Supreme Court noted that the procedural safeguards that are inherent in the s. 276 regime reflect the fact that sexual assault prosecutions require heightened attention to the general principle that no party should be allowed to distort the process by producing irrelevant evidence. (See Goldfinch, supra, at para 55).
In Goldfinch, much of the evidence that came out was adduced during the Crown’s examination of the complainant and its’ cross-examination of Goldfinch. This evidence would not have adduced by the Crown but for the accused’s s. 276 application, which the Court concluded should not have been granted by the trial judge.
The result in Goldfinch, was that at trial, the Crown led evidence of prior sexual activity. Such evidence would not have been Crown-led or admissible (as per R. v. Barton, 2019 SCC 33) without a s. 276 application.
In the current case, the Applicant seeks to delay the filing of his application materials until following the conclusion of the complainant’s in-chief testimony. The Applicant asserts that he should not be forced to provide evidence to the Crown and the complainant in advance of her testimony at trial.
This position puts the Crown in a particularly awkward position. The Crown has no ability to properly prepare the complainant for trial as evidence of the complainant’s prior intimate relationship with Mr. Thornbury is presumptively inadmissible pursuant to s. 276 of the Code.
If, in the present case, I permit the Applicant to delay the s. 276 application, on the basis of a bare bones Notice of Application, the net result may be that the Crown is forced to seek indiscriminate information from the complainant regarding her prior intimate relationship with Mr. Thornbury, which information may never otherwise be relevant or compellable.
It is my view, that such an approach, may require the Crown in certain instances to seek otherwise impermissible information from complainants in the course of trial preparation on a routine basis, to ensure that they have completed their trial preparation due diligence.
It is my further view, that such an approach, for the most part, defeats the spirit and intention of s. 276, and effectively strips bare the protection currently afforded by s. 276 and the prevailing case law.
As noted in Goldfinch, balancing the probative value of proposed evidence against the danger of prejudice to the proper administration of justice, ultimately depends on the nature of the evidence being adduced and the factual matrix of the case. It will depend, in part, on how important the evidence is to the accused’s right to make full answer and defence. (See Goldfinch, supra, para 69).
In support of the proposition that the Applicant is entitled to delay the s. 276 application, on the basis of the accused’s right to make full answer and defence, the Applicant relied upon several recent cases, including R. v. A.M. [2020] O.J. No. 3263, and R. v. X.C. [2020] ONSC 410. Having reviewed and considered both decisions, I am of the view that these cases are entirely distinguishable.
In particular, both Justice Dawe in R. v. X.C. and Justice Christie in R. v. A.M., dealt with applications containing records which had been disclosed to the court prior to the s. 276 timing decisions being rendered. As such, in both cases, the particular reasons for the delay were made evident to the Court. This is not the case in the present application.
In the present application, I have been provided with a bare bones statement contained in a Notice of Application that the application ought to be addressed following the in-chief evidence to allow the Applicants’ to make full answer and defence and to allow for more fulsome cross-examination.
I am compelled to consider “the interests of justice” in determining whether to allow the Applicant’s request to have the s. 276 application heard following the in-chief evidence of the complainant.
As noted by Justice Karakatsanis in Goldfinch at para 37 (citations omitted),
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. Even hard-fought battles to stop sexual assault in the workplace remain ongoing. As time passes, our understanding of the profound impact sexual violence can have on a victim’s physical and mental health only deepens. 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…The harm caused by sexual assault, and society’s biased reactions to the harm, are not relics of a bygone Victorian era.
To grant the within application based on a bare bones statement contained in a Notice of Application would undoubtedly invite the same kind of mischief that Parliament sought to address in enacting s. 276 of the Code.
Having considered the issue, and the nature of the request made by the Applicant, and the stated reasoning for the requested delay, I find that in the particular circumstances of this case, it would not be in the interests of justice to allow the application.
The application to delay the s. 276 application until following the completion of the evidence in chief of the complainant is dismissed.
In the event the Applicant seeks to bring a s. 276 application, time has been set aside for Phase One (September 24, 2021) and Phase Two (if necessary) October 7, 2021.
It is to be noted that that any future ruling made regarding the proposed s. 276 application (Phase One and/or Phase Two) may be subject to further re-consideration, if appropriate. As noted by Justice Moldaver in R. v. Harris, 1997 CanLII 6317 (ON CA), [1997] OJ No. 3560 (CA), experience suggests that as the trial progresses, issues raised at the outset may be brought into sharper focus as the evidence unfolds. In such circumstances, requests for re-consideration, may be appropriate, and if appropriate, rulings may be re-considered.
Justice S. J. Woodley