ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
R.A.
Respondent
Ryan Mullins, for the Applicant
Arif Hussain, for R.A.
HEARD: October 1, 2020, by Zoom videoconference
Publication of Any Information tending to reveal the identity of the Complainant Herein is Prohibited under s.486.4 of the Criminal Code of Canada
RULING
Re: The Admissibility of Complainant’s Prior Sexual Activity
MCSWEENEY J.
1R.A. is charged with, on August 31, 2019: (a) assaulting A.D., contrary to section 266 of the Criminal Code; and (b) with sexually assaulting A.D. with a weapon, to wit: a key, contrary to section 272(1)(a) of the Criminal Code.
2The Applicant Crown brings an application for an order permitting it to ask the complainant at trial about other sexual activity with R.A., pursuant to R. v. Seaboyer.
3The Applicant submits that the other sexual activity evidence is critical to the narrative of events and the opportunity to commit the alleged assault with a weapon in the manner in which it was allegedly committed.
4R.A. filed no materials as he does not oppose the application nor the admission of the proposed evidence. In fact, had the Crown not filed a Seaboyer application, R.A.’s counsel advised that he would have returned a s. 276 application seeking to adduce the same evidence.
Facts:
5The following is a summary of the evidence relevant for the purpose of this application.
6The Crown anticipates, based on the complainant’s statements to police and on her testimony at the preliminary hearing in this matter, that A.D. will testify to the following:
a. R.A. and A.D. were intimate partners at the time of the alleged offences. Their relationship was rocky at the time they met on August 31, 2019.
b. In the late evening on August 31, 2019, they were alone together in A.D.’s car in a parking lot in an industrial area. They were in the back seat of the car, talking about their relationship, had removed clothing, and had engaged in consensual sexual intercourse.
c. The parties then continued talking. A.D. still had her clothes off. She told R.A. something to which he responded angrily, started yelling, slapped her with his hand, then grabbed her by the hair and hit her head against the car. He then reached into the front seat of the car, took his keys and pushed a key into her vagina.
Law and Analysis:
7The Crown must bring an application to admit the proposed evidence to comply with the Supreme Court of Canada’s decisions regarding admissibility of evidence of other sexual activity including R. v. Barton, 2019 SCC 33. The Crown
today relies on Barton and two other decisions: R. v. G.L. 2021 ONSC 271 and
R. v. Boyle 2019 ONCJ 516.
8Moldaver J. in Barton describes the analytical framework as follows:
First, s. 276(1), which confirms the irrelevance of the “twin myths”, is categorical in nature and applies irrespective of which party has led the prior sexual activity evidence. … Moving to s. 276(2), while it is true that this provision applies only in respect of “evidence . . . adduced by or on behalf of the accused”, the common law principles articulated in Seaboyer speak to the general admissibility of prior sexual activity evidence. Given that the reasoning dangers inherent in prior sexual activity evidence are potentially present regardless of which party adduces the evidence, trial judges should follow this Court’s guidance in Seaboyer to determine the admissibility of Crown-led prior sexual activity evidence in a voir dire. [at paragraph 80]
9The law is therefore clear that while the Crown is not subject to the procedural requirements of sections 276.1 and 276.2 when it seeks to adduce evidence of other sexual activity, it is subject to s. 276(1)’s prohibition on twin myth reasoning and must also abide by the common law principles articulated in R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577.
10The applicable principles as set out in the Seaboyer decision at paragraph 101 are as follows:
- On a trial for a sexual offence, evidence that the complainant has engaged in consensual sexual conduct on other occasions (including past sexual conduct with the accused) is not admissible solely to support the inference that the complainant is by reason of such conduct:
(a) more likely to have consented to the sexual conduct at issue in the trial;
(b) less worthy of belief as a witness.
- Evidence of consensual sexual conduct on the part of the complainant may be admissible for purposes other than an inference relating to the consent or credibility of the complainant where it possesses probative value on an issue in the trial and where that probative value is not substantially outweighed by the danger of unfair prejudice flowing from the evidence.
11The Crown seeks to adduce the evidence of consensual sexual activity between R.A. and A.D. which took place just prior to the alleged assaults, as an inextricable part of
the narrative of the allegations and as relevant information about the opportunity to commit the alleged sexual assault with a weapon in the manner in which it was allegedly committed. In particular, the proposed evidence explains the narrative context in which the complainant was unclothed at the time of the alleged sexual assault.
12I agree with the parties that the proposed evidentiary use of this evidence does not open the door to twin myths reasoning that, by virtue of the that sexual activity, the complainant is more likely to have consented to the activity in question or is generally less worthy of belief.
13I have considered the direction of the Supreme Court in Seaboyer:
First, the judge must assess with a high degree of sensitivity whether the evidence proffered by the defence meets the test of demonstrating a degree of relevance which outweighs the damages and disadvantages presented by the admission of such evidence. The examples presented earlier suggest that while cases where such evidence will carry sufficient probative value will exist, they will be exceptional. The trial judge must ensure that evidence is tendered for a legitimate purpose, and that it logically supports a defence. [at para. 99]
14In this context, where the evidence is tendered by the Crown, I must assess whether the proffered evidence possesses a degree of relevance which outweighs the damages and disadvantages presented by the admission of such evidence, keeping in mind that while cases where such evidence will carry sufficient probative value will exist, they will be exceptional. I must be satisfied that the evidence is tendered for a legitimate purpose, and that it logically supports the evidentiary proposition put forward.
15I am satisfied that evidence that the complainant in this case had, at the time of the alleged offence, consented to sexual activity immediately prior to the assault and sexual assault alleged, is admissible as part of the narrative.
16As further stated in Seaboyer:
The trial judge's second responsibility will be to take special care to ensure that, in the exceptional case where circumstances demand that such evidence be permitted, the jury is fully and properly instructed as to its appropriate use. The
jurors must be cautioned that they should not draw impermissible inferences from evidence of previous sexual activity. While such evidence may be tendered for a purpose logically probative of the defence to be presented, it may be important to remind jurors that they not allow the allegations of past sexual activity to lead them to the view that the complainant is less worthy of belief, or was more likely to have consented for that reason. It is hoped that a sensitive and responsive exercise of discretion by the judiciary will reduce and even eliminate the concerns which provoked legislation such as s. 276, while at the same time preserving the right of an accused to a fair trial. [at para. 100]
17Having considered the analytical framework, the parties’ positions and submissions, I conclude that the Crown may ask the complainant at trial about consensual sexual activity immediately prior to the alleged sexual assault for the limited purpose of providing a narrative as to how she came to be undressed at the time of the alleged sexual assault with a weapon, specifically the vaginal penetration with a key.
18While I am advised that this trial will be heard by judge alone, the limited use of this evidence must be clearly defined. The other sexual activity evidence about which the Crown is permitted to ask A.D., for the limited purpose stated, is sexual activity while in her car with R.A. on the evening of August 31, 2019, just prior to the alleged offences. This evidence may not be used for an impermissible propensity purpose.
19I find that, admitted in this manner for this narrow purpose, the probative value of the proposed evidence outweighs any potential prejudices.
20The application is therefore granted.
MCSWEENEY J.
Released: October 1, 2021
R. v. R.A., 2021 ONSC 6531 COURT FILE NO.: CR-21-652
DATE: 20211001
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
R.A.
RULING SEABOYER APPLICATION
MCSWEENEY J.
Released: October 1, 2021