CITATION: R. v. BCM, 2021 ONSC 7489

COURT FILE NO.: CR-2-30000118-0000

DATE: 20211112

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

BCM

Applicant

Jason Gorda, for the Crown

J. Sidky Butler, for the Accused

HEARD: November 9 and 10, 2021

Allen J.

REASONS FOR DECISION

(Application under Section 276 of the Criminal Code on Other Sexual Conduct)

PUBLICATION RESTRICTION NOTICE

An Order restricting publication in this proceeding was made pursuant to section on 486.4 the Criminal Code. Any information that could identify the Complainant shall not be published in any document, broadcast or transmission.

TEMPORARY SUSPENSION OF THE COURT

[1] This application was heard and decided during the COVID-19 pandemic under the direction of the Chief Justice of the Ontario Superior Court of Justice’s decision to suspend regular court operations, effective March 16, 2020. It was decided that cases involving urgent matters that can be decided on written materials or on consent and not requiring a courtroom would be conducted by teleconference or videoconference. It has since been decided that some proceedings would be held in courtrooms as fully in person proceedings while others would be held as hybrid proceedings with some participants attending in court and others remotely by Zoom video.

[2] The parties agreed to this trial proceeding fully by videoconference. A registrar and court monitor were present to maintain the court record. The judge, witnesses and counsel attended remotely by videoconference. Witnesses testified under affirmations to tell the truth. Materials were delivered and filed with the court via the CaseLines platform and by email and were shared over Zoom.

BACKGROUND TO APPLICATION

[3] On the first day of trial, the defence sought to bring an application under s. 276 on the sufficiency of their application to admit other sexual conduct and on the admissibility of the evidence. This is not in compliance with the requirement under s. 278.93(4) that notice of the application be given to the Crown and court seven days before trial. The court and Crown were therefore not aware of the application in advance.

[4] I heard submissions from counsel and considered the potential significance of the evidence sought to be admitted and allowed the application to be heard in the interests of justice as permitted under s. 278.94(4). The parties provided submissions under sections 276 and 278.93 of the Criminal Code. I ordered the hearings to be held in camera as provided by sections 278.93(3) and 278.94(1) and the record of the hearings to be sealed to protect the privacy of the intimate personal information of the complainant and to secure the integrity of the court.

BASIC FACTUAL OVERVIEW

[5] The accused, BCM, is charged with sexual exploitation, incest, possession of child pornography, making child pornography, sexual assault causing bodily harm and uttering a threat to cause bodily harm. The allegation is that the perpetrator of the offences is the complainant’s, BM’s, father.

[6] The other sexual conduct revolves around the issues of pregnancy and the paternity of a child born to BM in XXXXXXXX, 2019. BM is currently 21 years old. The offences were allegedly committed between April 1, 2014 and December 28, 2014 and between October 22, 2016 and June 30, 2018. BM alleges the initial conduct involved BCM touching intimate parts of her body when she was 14 years old. She was 16 years old when other alleged sexual assaults that are the subject matter of the charges began. The allegation is that, at age 17, BM became pregnant with her father’s child. The defence disputes paternity.

[7] BM provided a videotaped statement to the police on December 27, 2018. The Crown sought under s. 715.1 of the Criminal Code to have BM’s statement admitted as an exception to the hearsay rule governing prior consistent statements.

[8] The defence conceded that the application meets the statutory requirements being that: BM was under 18 years at the time of the offence; the video recording describes the acts complained of; the complainant adopts the contents of the recording while testifying and is available for cross-examination and; the recording was made within a reasonable time after the alleged offence. The Crown anticipated that BM would adopt the contents of her videotaped statement.

[9] The trial commenced with BM in attendance as the Crown played in its entirety the police videotape recording in court. It was after the videotaped statement was played that the defence first raised the request to bring a s. 276 application.

THE LEGAL FRAMEWORK

[10] It is well-founded that other sexual activity of a complainant generally has no relevance in a criminal trial involving sexual offences. The legislature and judiciary have recognized that this type of evidence has historically been used to discredit complainants based on myths and stereotypes.

[11] Section 276 of the Criminal Code sets up a framework of tests by which to scrutinize the proposed areas of inquiry to prevent unnecessary and humiliating intrusions into the sexual history of complainants. Recent decisions of the Supreme Court of Canada have confirmed the danger and impropriety of allowing previous sexual activity into evidence: [R. v. Barton, [2019] SCC 33 (S.C.C.); R. v. Goldfinch, 2019 SCC 38, [2019] S.C.J. No. 38 (S.C.C.); and R. v. R.V. 2019 SCC 41, [2019] S.C.J No. 41 (S.C.C.)].

[12] Section 276(1) of the Criminal Code prohibits the proffering of other sexual activity when it is used to support either of the two twin myths, those being that the complainant: (a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or (b) is less worthy of belief. The myths are prohibited not only as a matter of social policy but also as a matter of the myths being based on “false logic.”: [R. v. Barton, at para. 60]. Such evidence is not admissible to support an inference that, by reason of the sexual nature of the activity, the complainant is not trustworthy.

[13] A two-step process is contemplated under the framework. The first step is governed by section 278.93(2) of the Criminal Code and requires that the applicant meet the minimum requirements for an application to admit the other sexual conduct. If that step is satisfied, a hearing may be held in accordance with the provisions set out in s. 278.94 to determine whether the evidence is admissible at trial.

[14] The framework sets out minimum requirements that must be met for an application to be brought. Section 278.93(2) requires that an application to adduce evidence of other sexual activity must:

• be made in writing;

• set out detailed particulars of the evidence;

• set out the relevance of the evidence to an issue at trial; and

• be provided to the prosecutor and to the clerk of the court.

[15] The defence filed a written application containing an affidavit by BCM, attaching the transcript of the videotaped police statement. The defence identified the area of prior sexual conduct, being the sexual relationship between BM and her boyfriend at the relevant time and identified the relevance of the conduct to the sexual assault and the paternity issues. As noted, the defence did not provide proper notice.

[16] The Supreme Court of Canada addresses the matter of the defence’s obligation to give notice to the Crown and complainant in bringing a s. 276 application and held: “… 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.”: [R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, at para. 55, (S.C.C.)].

[17] Cases go both ways on whether the first and second steps should be heard on the same day or consecutively without a space in time between them as held in R. v. T.P.S., 2019 NSSC 48, at para. 33, (N.S.S.C.) or be held as discrete and separate hearings as in R. v. Boyle, 2019 ONCJ 11, at para. 10, (Ont. C.J.) and R. v. Barakat, 2019 ONCJ, at paras. 5-7, (Ont. C.J.).

[18] I am more partial to the reasoning set out by the Ontario Court of Justice which acknowledges the implications of the December 2018 amendments on the procedural framework set by sections 276 and 278 of the Criminal Code. I agree with the Ontario Court of Justice that the approach of addressing both steps at the same time is no longer feasible in view of recent changes to the legislation which under sections 278.94(2) and 278.94(3) provide that the complainant is entitled to be represented by counsel and make submissions at the second step.

[19] R. v. R.V. presses the need for rigorous criteria to be satisfied for other sexual activity to be admitted, criteria that will ensure that the evidence does not undermine the integrity of the trial or the complainant’s dignity and privacy: R. v. R.V., at para. [33].

[20] Sections 276(2) and 276(3) provide a set of criteria to evaluate the admissibility of evidence of other sexual activity. The statutory preconditions for admissibility are set down under s. 276(2) which require it be shown that the proposed area of evidence:

a) is not being adduced for the purpose of supporting the twin myths;

b) is relevant to an issue at trial;

c) is of a specific instance or 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.

[21] Evidence that fails to meet each of the requirements will be excluded.

APPLICATION OF THE FRAMEWORK

[22] At step one, I found that the application met three of the four minimum requirements for an application. The application is in writing, it set out the details of the particulars of the evidence and set out the relevance of the evidence to an issue at trial. But the defence did not provide the application to the Crown and the court seven days before trial as required by s. 278.93(4). As noted earlier, in view of the potential significance of the evidence, I relied on the exception provided under s. 278.93(4) that the notice period may be waived if it is in the interests of justice which includes considering the right of the accused to make a full answer and defence.

[23] I, therefore, allowed the matter to proceed to an admissibility hearing. In view of the provisions that allow a complainant to consult with counsel and make submissions at the admissibility hearing, I recessed the trial for a day or so to allow for this.

[24] BM decided she wished to consult with counsel and to have counsel attend on her behalf to make submissions on admissibility. I signed an Order to Appoint Counsel under s. 278.94 allowing Kelley Bryan to represent BM pursuant to sections 276 and 278.94. The Crown furnished Ms. Bryan with the defence’s application materials including the transcript of the videotaped police statement.

[25] The Crown conceded the admissibility of the other sexual conduct. There is precedent for evidence about pregnancy being an acceptable area of cross-examination in particular circumstances. The Supreme Court of Canada has held that the accused may be permitted to cross-examine the complainant about other sexual activity that could have resulted in the pregnancy: [R. v. R.V., at paras. 56 – 57 and paras. 66 and 70; R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] S.C.J. No. 62, at pp. 614 and p. 682, (S.C.C.)]. I accept that the pregnancy is an acceptable area of cross-examination in the case before me.

[26] Defence counsel drafted proposed questions which were discussed with the Crown and then presented to Ms. Bryan and the court. Ms. Bryan made submissions at the admissibility hearing on the proposed questions. Following the parties’ and Ms. Bryan’s submissions, I agreed with the final draft of the areas of questioning to be allowed as follows:

a) the name of boyfriend;

b) how long they have been dating;

c) whether the boyfriend visited BM at her home at XX Antrim Crescent, unit XXX;

d) whether she was sexually active with her boyfriend in April and May 2018;

e) if BM and her boyfriend had sexual intercourse, whether they had unprotected sexual intercourse during that period;

f) whether BM informed her boyfriend of her pregnancy.

[27] The parties were cautioned that cross-examination must be strictly circumscribed to the narrow areas sought to be adduced by the permitted questions. Care must assiduously be taken to ensure that questioning does not stray into areas that would undermine the integrity of the trial and BM’s dignity and privacy.

DISPOSITION

[28] The Application to admit evidence is allowed.

Allen J.

Released: November 12, 2021

CITATION: R. v. BCM, 2021 ONSC 7489

COURT FILE NO.: CR-2-30000118-0000

DATE: 20211112

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

BCM

Applicant

REASONS FOR DECISION

(Application under Section 276 of the Criminal Code on Other Sexual Conduct)

Allen J.

Released: November 12, 2021