COURT FILE NO.: CR-21-879

DATE: 2021-12-14

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Her Majesty the Queen v. M.A.

BEFORE: Stribopoulos J.

COUNSEL: Ms. S. Saunders for the Crown / Respondent Mr. A. Patel for the Complainant / Respondent Mr. Mr. S. O’Neil for the Accused / Applicant

HEARD: October 20, 2021

ENDORSEMENT

Section 276 Application – Stage Two Ruling

Introduction

[1] Mr. A. faces charges of assault (seven counts), uttering a death threat (two counts), and sexual assault (three counts), each involving the same complainant; his estranged wife.

[2] These are the court’s reasons concerning an application by the accused, under section 276(2) of the Criminal Code, R.S.C., 1985, c. C-46, to elicit evidence at trial that the complainant has engaged in sexual activity other than the sexual activity that forms the subject matter of the charges.

The Application in Context

[3] The complainant alleges that Mr. A. sexually assaulted her sometime between October 1, 2018, and October 31, 2018. She further alleges that he did so again a second time, on July 1, 2019, and then a third and final time, on August 6, 2019.

[4] At his trial, Mr. A. wants to elicit evidence that near the end of their marriage the complainant was having an affair. If permitted to do so, Mr. A. wishes to cross-examine the complainant about the affair and testify about it during his evidence. More specifically, Mr. A. wants to elicit the following evidence. That on December 30, 2017, the complainant went out for the evening and told him that she was attending a work function. However, he learnt from one of her co-workers that there was no work function that evening. Given this, he concluded that she was having an affair and confronted her about it the very next day. The complainant denied that she was having an affair, but Mr. A. did not believe her. As a result, within days, he stopped sharing a bedroom with the complainant. After that, Mr. A. maintains that he and the complainant never again had a sexual relationship of any kind, consensual or otherwise. According to Mr. A., the complainant ultimately admitted the affair to him.

[5] In October 2018, Mr. A. moved out of the family home. The parties were involved in family court proceedings. Eventually, Mr. A. moved back into the residence after the court made an interim order granting him sole custody of the couple’s two children and exclusive possession of the matrimonial home. The complainant contacted the police and reported her allegations only after the family court issued its interim order concerning the children and the home.

[6] To a certain extent, Mr. A.’s belief that the complainant was unfaithful to him also features in her account of his allegedly abusive behaviour. According to the complainant, after they started living separate and apart, while still in the same residence, Mr. A. would call her and ask whether "you are sleeping with that person?" And, she claims, he would also accuse her of sleeping with her boss and her clients.

[7] The complainant also claims that in October 2018, after he had moved out, Mr. A. came back to the residence. While there, she alleges he forced intercourse upon her. As that took place, she says that Mr. A. angrily questioned her, saying things like: "How did he fuck you?" And other similarly lewd questions about her sexual activities with another man.

[8] At trial, the Crown intends to elicit evidence from the complainant concerning the comments she attributes to Mr. A. during the sexual assault she alleges in October 2018, statements which suggest he believed she was having a sexual relationship with another man. The Crown submits that those comments are inextricably interwoven with the complainant’s account of that sexual assault. In testifying about that incident, argues the Crown, the complainant must be permitted to describe what the accused said to her. To be sure, that evidence will reveal that the accused believed the complainant had been unfaithful.

[9] In ruling on Mr. A.’s application under s. 278.93(1) of the Criminal Code, the court concluded that evidence that the complainant was having an “affair” would undoubtedly imply that she was engaging in sexual activity other than that which is the subject matter of the charges. Accordingly, the court concluded that the proposed evidence engaged section 276 of the Code, and therefore, its admissibility turns on an application of sections 276(2) and 276(3).

Positions of the Parties

[10] On behalf of Mr. A., Mr. O’Neil submits that the proposed evidence is admissible. He argues that the evidence is essential to placing Mr. A.’s account of the relevant events in context. Without it, he argues, the jury could conclude that Mr. A.'s evidence that he did not have a sexual relationship of any kind with the complainant as of January 2018, even though they were still married and living under the same roof, would seem improbable. That could result in the jury unfairly discounting Mr. A.'s evidence, contends Mr. O'Neil.

[11] Further, Mr. O’Neil submits, only permitting evidence concerning Mr. A.’s belief that the complainant was having an affair would be insufficient. Without evidence regarding the basis for his belief, there is a danger that the jury will perceive Mr. A. as being unreasonable and incredible. Accordingly, Mr. O’Neil argues, Mr. A. must be permitted to elicit evidence concerning the affair so that he can make full answer and defence to the charges.

[12] On behalf of the Crown, Ms. Saunders submits that evidence concerning the affair is inadmissible. She argues the evidence is not relevant to any material issue at trial. After all, notes Ms. Saunders, there is no dispute between Mr. A. and the complainant that during the relevant period, despite still being married, their relationship was effectively at an end. Whether that was because the complainant was having an extramarital affair furnishes nothing probative of any of the material issues in this case, Ms. Saunders argues.

[13] Further, Ms. Saunders submits, evidence that the complainant was having an affair risks the jury using that evidence to engage in the very sort of reasoning which section 276(1)(b) specifically prohibits. That is, that because the complainant engaged in sexual activity with someone other than Mr. A. while the two were still married, she is less deserving of belief.

[14] In any event, argues Ms. Saunders, even if the proposed evidence is somehow relevant, its probative value is substantially outweighed by its prejudicial effect. The proposed evidence would be invasive of the complainant’s privacy and do little more than shame her. At the same time, valuable court time would be consumed litigating whether the complainant had an affair, thereby distracting the jury from the real issue in this case; whether Mr. A. sexually assaulted the complainant, as she alleges.

[15] On behalf of the complainant, Mr. Patel adopts the Crown’s submissions. He also makes several additional submissions. First, he argues that Mr. A. can simply explain that his sexual relationship with the complainant ended in January 2018 because of a breakdown in their marriage, and he questions what probative value would be added by permitting evidence of the affair.

[16] Second, he argues that evidence concerning the affair risks the jury reasoning that the complainant is more likely to have consented to sexual activity with the accused, a line of reasoning that is prohibited by section 276(1)(a).

[17] Third, he notes that the complainant denies having an affair, which means permitting the proposed evidence will involve adjudicating an issue that is entirely collateral to the real issues in this case.

[18] Fourth, Mr. Patel argues that the proposed evidence fails to satisfy the essential precondition that “it is of specific instances of sexual activity”: Criminal Code, s. 276(2)(c). As such, he argues, it comes closer to being sexual reputation evidence, which is absolutely barred by section 277 of the Criminal Code.

[19] Finally, Mr. Patel argues that when the minimal probative value of the evidence is weighed against its obvious prejudicial effect to the complainant’s privacy and dignity, and society’s interest in encouraging the reporting of sexual offences, the evidence cannot be said to have significant probative value that is not substantially outweighed by its prejudicial effect.

Law and Analysis

[20] At trial, the accused wants to cross-examine the complainant and testify concerning matters that engage the prohibition on adducing evidence that the complainant has engaged in sexual activity other than the sexual activity that forms the subject matter of the charge: Criminal Code, s. 276(2).

[21] The proposed evidence must satisfy the preconditions found in section 276 of the Criminal Code to be admissible. That section requires that the accused’s right to make full answer and defence be balanced with the dangers that such evidence may pose to the complainant’s privacy and dignity and the integrity of the trial process: R. v. R.V., 2019 SCC 41, at para. 32.

[22] In R.V., the Supreme Court provided a concise overview of how the first three subsections in section 276 work together to achieve the provision’s objectives, with Karakatsanis J. explaining, at paras. 44-45:

Section 276(1) sets out an absolute bar against introducing evidence for the purpose of drawing twin-myth inferences. …

If … evidence that the complainant has engaged in sexual activity is to be adduced for another purpose, it is presumptively inadmissible unless the accused satisfies s. 276(2)(a) and (b) by identifying specific instances of sexual activity, relevant to an issue at trial. Where the accused applies to cross-examine the complainant about her sexual history to challenge Crown-led evidence, the analysis will often turn on the balancing exercise mandated by s. 276(2)(c). This third step involves weighing the factors set out in s. 276(3) to determine whether the probative value of the cross-examination is significant enough to substantially outweigh the dangers of prejudice to the proper administration of justice. This provision requires judges to determine the permissible scope of cross-examination in light of the competing rights of the accused and the complainant and the other interests set out in s. 276(3). Where the right to full answer and defence requires some cross-examination, judges should tailor their rulings to best safeguard the other interests protected by s. 276(3).

[23] The required analysis is highly fact driven. As a result, when considering admissibility under section 276, the court must “carefully scrutinize the potential evidence.”: R.V., at para. 36. I turn to consider each of the preconditions for admissibility contained in section 276(2), given the basis for Mr. A.'s application and the circumstances of this case.

• Section 276(2)(a):

[24] Evidence that the complainant has engaged in sexual activity other than the sexual activity that forms the subject matter of the charge(s) is not admissible to support certain prohibited inferences (the “twin-myths”). Specifically, either an inference that because of the sexual nature of that activity, the complainant is more likely to have consented to the sexual activity that forms the subject matter of the charge (s. 276(1)(a)) or is less worthy of belief (s. 276(1)(b)). I am satisfied that the accused is not seeking to elicit evidence concerning the affair to support either of these prohibited inferences.

[25] First, it is not the position of the defence that because the complainant had an affair, she is more likely to have consented to sexual activity with the accused on the occasions that are the subject matter of the charges. Instead, the accused cites the affair as the reason why he did not have a sexual relationship of any kind with the complainant during the period when she alleges he sexually assaulted her. In other words, the accused is not asserting consent as a defence to the charges.

[26] Second, it is not the position of the defence that because of the affair the complainant is less deserving of belief. In other words, the defence does not seek to lead evidence of the affair to support the impermissible inference that the complainant is not credible because she is “unchaste”: R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, at p. 604.

[27] Although in opposing the admission of the evidence, both Ms. Saunders and Mr. Patel argued that the evidence, if admitted, could be used by the jury to engage in prohibited twin-myths reasoning, that is true of all evidence that a complainant engaged in sexual activity other than the sexual activity that forms the subject matter of the charge(s).

[28] In assessing admissibility, the question is not whether the evidence could potentially be put to some improper use. Instead, the absolute bar on admissibility under section 276(1) only reaches those situations where advancing a prohibited inference is the very purpose for which the defence seeks to introduce sexual activity evidence.

[29] Accordingly, section 276(1) of the Criminal Code does not bar the admission of the proposed evidence.

• Section 276(2)(b):

[30] To be admissible, the proposed evidence must be relevant to an issue at trial. The central issue at this trial will undoubtedly be the credibility of the complainant and the accused. To find Mr. A. guilty the jury will need to believe the complainant and, at the same time, disbelieve him and conclude that his evidence does not give rise to a reasonable doubt.

[31] Accordingly, the court must decide whether evidence of the affair is relevant (has some bearing as a matter of logic and common sense) on the credibility of either the accused or the complainant in the specific context of this case: see R. v. Ansari, 2015 ONCA 575, at paras. 102-104.

[32] The accused denies having any sexual contact with the complainant during the period when she alleges that he sexually assaulted her on three separate occasions. The accused's proposed evidence that, as of December 30, 2017, he came to believe the complainant was having an affair and stopped having a sexual relationship with her of any kind is relevant to the credibility of his account. As a matter of logic and common sense, the jury could reason that if Mr. A. believed the complainant was having an affair, he might be disinclined to have any sexual contact with her. Additionally, his basis for forming that belief could have some bearing on his credibility. After all, the stronger the foundation for his belief, the more likely it would be to inform his behaviour.

[33] In contrast, I am not satisfied that whether the complainant had an affair is in any way relevant to her credibility. To be sure, an extramarital affair ordinarily involves an element of deception. However, people have affairs for various reasons that are personal and idiosyncratic to their specific relationship. Therefore, it does not follow as a matter of logic and common sense that a person who has an affair is deceptive by nature and that their credibility is inherently suspect. Reasoning in that way would seem antiquated, unreasonable, and unjustified.

[34] If the opposite were true, then family litigation would become bogged down with allegations of infidelity because, if borne out, it would be relevant to the alleged adulterer’s credibility as a witness. That courts do not admit such evidence in family cases reflects that we have come to recognize that infidelity is not at all relevant to a witness’s credibility. Beyond that, to use the evidence to draw an adverse inference against the complainant’s credibility would seem to come very close to engaging in the very sort of discredited reasoning prohibited by section 276(1)(b) of the Criminal Code.

[35] Finally, it is noteworthy that the accused’s belief that the complainant was having an affair appears closely interwoven with at least some of her allegations. When it comes to the sexual assault alleged in October 2018, the complainant attributes comments to the accused that suggest he believed she was having an affair. As part of its case, the Crown intends to elicit evidence from the complainant concerning those comments. As a result, the accused’s belief that the complainant was having an affair is stitched into the fabric of the complainant’s allegations. Therefore, evidence concerning the accused’s belief that the complainant was having an affair unavoidably forms part of the narrative in this case.

• Section 276(2)(c):

[36] Under section 276(2)(c), to be admissible, the evidence must be “of specific instances of sexual activity.”

[37] With all due respect to Mr. Patel, I do not think the proposed evidence fails to satisfy the specificity requirement in section 276(2)(c). As the Supreme Court explained in R.V., section 276 “does not always require an accused to come before the court armed with names, dates and locations … the degree of specificity required depends on the circumstances of the case, the nature of the sexual activity that the accused seeks to adduce and the use to be made of that evidence.”: R.V., at para. 49.

[38] In the circumstances, the proposed evidence meets the specificity requirement. The accused’s evidence that as of December 30, 2017, he came to believe that the complainant was having an affair and therefore stopped having a sexual relationship of any kind with her is, in the circumstances, sufficiently specific. Ultimately, whether the complainant was having an affair, with whom, the nature of her liaisons, and the like, would not appear at all relevant. The accused’s inability to furnish evidence of such entirely irrelevant details hardly can count against the admissibility of the evidence in the circumstances.

[39] The proposed evidence does not involve an effort by the accused to embark on some wide-ranging exploration of the complainant’s sexual history. I am satisfied that the proposed evidence is sufficiently specific and directly tied to the complainant’s allegations that there will be no element of surprise for either the Crown or the complainant: see R.V., at para. 48. As a result, the proposed evidence meets the specificity requirement.

• Section 276(2)(d):

[40] Finally, to be admissible, the evidence must have significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. In making that assessment, the court must consider the factors enumerated in section 276(3).

[41] As noted, for reasons already explained, evidence that the accused believed the complainant was having an affair is relevant to his credibility and inextricably interwoven with the complainant’s account of at least one of the alleged sexual assaults.

[42] As it concerns the accused’s credibility, the evidence will assist in explaining and contextualizing his testimony that he had no interest in having sexual contact with the complainant of any kind during the period that she alleges he sexually assaulted her. Without evidence that the accused believed the complainant was having an affair, his denial of any sexual interest in the complainant may seem less than plausible and, therefore, not credible.

[43] Nor, in my view, would evidence that the marriage had ended and that the accused was no longer interested in having sexual contact with the complainant be an adequate substitute for evidence that he believed she was having an affair. After all, marital relationships can have their ups and downs. Married couples that separate can sometimes reconcile and rekindle their sexual relationship. Evidence that the accused believed the complainant was having an affair provides a more compelling explanation for his claim that he was not interested in having sexual contact of any kind with her during the relevant time frame.

[44] Therefore, I am satisfied that evidence that the accused believed the complainant was having an affair has significant probative value in this case.

[45] In contrast, although the basis for the accused’s belief that the complainant was having an affair arguably meets the low threshold for relevance, I am far from convinced that exploring the reason he came to that conclusion has significant probative value. No doubt, the stronger the basis for the accused’s belief that the complainant was having an affair, the more likely it would be to inform his behaviour. Nevertheless, especially probative is his evidence that he was not sexually interested in the complainant because he believed she was having an affair. Why he came to that conclusion appears to be far less significant to the probative value of the potential evidence.

[46] Having considered the probative value of the proposed evidence, I turn next to consider its potential prejudicial effect, mindful of the specific factors enumerated in section 276(3).

[47] First, I am satisfied that the proposed evidence, at least as it concerns the accused’s belief that the complainant was having an affair, is essential to the accused’s ability to make full answer and defence to the charges and help ensure a just determination of the case: Criminal Code, s. 276(3)(a). Without the proposed evidence, there is a danger that the jury could unfairly discount the accused’s evidence, which would hardly be keeping with the interests of justice.

[48] Second, I am mindful that permitting the proposed evidence could have a negative impact on the reporting of sexual offences: Criminal Code, s. 276(3)(b). After all, few people would relish having highly personal and sensitive information, like whether they were unfaithful to their spouse, the subject of testimony in a public courtroom. That possibility, along with the prospect of being cross-examined on such matters, could undoubtedly discourage a great many victims of sexual violence from coming forward to make a complaint. It could understandably cause them to question whether it is worth it.

[49] Third, I am mindful of the need to remove discriminatory beliefs or biases from the trial process: Criminal Code, s. 276(3)(c). To be sure, there is at least a danger that the jury could use evidence concerning the affair to engage in impermissible twin-myths reasoning. For example, if the jury concluded that the complainant had an affair, they could improperly reason that she is less deserving of belief because of that. However, an appropriate instruction can inform the jury of the limited purpose for which the evidence was received and caution them against using it for an impermissible purpose.

[50] Fourth, I am mindful of the potential risk of evidence concerning the affair unduly arousing sentiments of prejudice, sympathy, or hostility in the jury: Criminal Code, s. 276(3)(e). That said, infidelity no longer attracts the widespread enmity it once did, so I find it hard to imagine in a contemporary context that evidence of an affair would serve to inflame the jury's passions or distract them from engaging in a reasoned analysis of the evidence.

[51] Fifth, there is the potential prejudice to the complainant’s personal dignity and right of privacy: Criminal Code, s. 276(3)(f). These are important considerations in the circumstances of this specific application. Again, it is hard to imagine anything more personal than an extramarital affair. For most people, airing such intimately private information in a public courtroom could prove humiliating. In the circumstances, the potential impact on the complainant’s dignity is somewhat obvious.

[52] Sixth, and closely related, is the impact on the complainant’s personal security: Criminal Code, s. 276(3)(g). There is a close connection between an individual’s privacy and their personal security. To permit highly invasive questioning that intrudes on the most intimate details of a witness’s personal life cannot help but have a negative effect on the psychological well-being of the person affected.

[53] Finally, I am also mindful that, at least when it comes to the evidence concerning the basis for the accused’s belief that the complainant was having an affair, there is a considerable risk that an inordinate amount of time could be spent at trial exploring an issue that is only marginally relevant to the central issues in this case. After all, the most important part of the evidence, from the standpoint of the accused, is that he believed the complainant was having an affair. In my view, although marginally relevant, the reasons why he came to form that belief would introduce a time-consuming and distracting side issue into this case: whether the complainant was, in fact, having an affair.

[54] After carefully considering the probative value of the proposed evidence and its potential prejudicial effect, I am of the view that evidence that the accused believed the complainant was having an affair is admissible. Its probative value substantially outweighs any prejudicial effect. In contrast, evidence as to whether the complainant was, in fact, unfaithful during the marriage is not admissible. Ultimately, the probative value of that evidence is marginal, at best, and its admission would undoubtedly occasion significant prejudice to the proper administration of justice.

Conclusion

[55] For all these reasons, the application is allowed, in part.

[56] The Crown and the defence shall be permitted to elicit evidence from the complainant concerning the accused’s belief that she was having an affair. For example, the Crown may lead evidence from the complainant concerning statements she attributes to the accused suggesting that he believed she was having an affair. That may include the statements she claims he made during the sexual assault she alleges in October 2018.

[57] However, the Crown shall not be permitted to elicit evidence from the complainant concerning whether she was or was not having an affair. Instead, should the Crown choose to ask the complainant about anything the accused said to her suggesting he believed she was having an affair, the court will intervene and explain to the jury:

Members of the Jury, ultimately, this case is not about whether the complainant did or did not have an affair. Who was the better or more faithful spouse is irrelevant to the issues you must decide. So, accordingly, the court has ruled that we are not going to get into whether the complainant was having an affair. That said, the court has ruled that, at least to the extent that the accused came to believe the complainant was having an affair, that is something that you should hear about because it is his position that it informed his actions afterwards.

[58] Similarly, the accused shall be permitted to testify that he came to believe the complainant was having an affair, and he may provide evidence regarding when he formed that belief. However, the accused shall not be permitted to explain why he came to that conclusion. Instead, should he testify that he came to believe the complainant was having an affair, the court will intervene at that point and provide the same instruction just detailed.

[59] Finally, in its charge to the jury, the court will explain why evidence concerning the accused’s belief that the complainant was having an affair was admitted and instruct the jury on how it can and cannot use that evidence. That will include specifically cautioning the jury that it cannot use the evidence to engage in prohibited twin-myths reasoning.

Justice J. Stribopoulos

Released: December 14, 2021