Court File and Parties

COURT FILE NO.: CR-20-10000033-0000 DATE: 20220428 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – UBAIDULLAH PATEL

Counsel: Emma Evans, for the Crown Dawne Waye, for the Complainant C Rishma Gupta for Patel

HEARD: 31 March 2022

Ruling on Section 276 Application

AKHTAR J.

Factual Background and Overview

[1] Ubaidullah Patel stands charged with numerous counts of sexual assault, sexual interference, invitation to sexual touching, and exposing his genitals to a person under the age of 16 years for a sexual purpose contrary to sections 271, 151, 152 and 173(2) of the Criminal Code, R.S.C. 1985, c. C-46. He applies, pursuant to s. 276 of the Criminal Code, to cross-examine the complainant, C, about a prior incident that occurred a month before C disclosed the allegations to his mother.

[2] The events forming the subject matter of the charge are alleged to have taken place between 4 August 2017 and 22 December 2017.

[3] C, then aged 14 years, attended the Islamic Society of Toronto (IST), his chosen place of worship, for various events, including the IST’s youth programmes. The applicant was a senior student who had been asked by C’s father to mentor C in his studies.

[4] According to C, the applicant sexually assaulted him on five different occasions between 4 August 2017 and 22 December 2017.

[5] These assaults are summarised as follows:

• On 4 August 2017, C was being driven home by the applicant who, en route, parked his van near the IST building and tried to force C to perform fellatio on him. When C refused, the applicant attempted to remove C’s pants and as C resisted, the applicant digitally touched his anus through his clothing.
• On an unknown date in this time period, the applicant promised that if C performed oral sex on him, C would be able to smoke shisha with him on a yacht. When C declined, the applicant threw him on a bed and hugged him before C pushed him away.
• On another unknown date at the IST, the applicant told C he would give him cigarettes if C performed fellatio on him. After C refused, the applicant groped his buttocks as he left the area.
• On another evening at the IST, the applicant called C into one of the guest rooms and exposed himself, telling C to look at his penis. C looked away and left the room.
• On 22 December 2017, C was told to attend to the guest room by the applicant to finish praying. He did so but asked a friend to accompany him for safety reasons. Once inside the room, the applicant told C’s friend to leave and, after he did so, the applicant threw C against a wall and touched his penis through his clothing. When C attempted to free himself, the applicant again threw him against the wall before leaving.

[6] Sometime at the end of December 2017, C’s mother observed him to be crying and upset. When she asked what was wrong, C told her of the assaults, which were reported to the police on 5 January 2018.

The Section 276 Application

[7] As part of his defence, the applicant seeks to cross-examine C on an incident that took place approximately one month prior to C disclosing the allegations to his mother.

[8] On the s. 276 voir-dire, the applicant provided an affidavit from his brother, Hammad Patel, who recalled that on the evening of 24 November 2017 he and the applicant attended the IST and discovered C viewing pornographic material on his mobile phone. According to Hammad, C had his pants pulled up to his waist and he could see C’s hand moving inside his pants and around the crotch area.

[9] Hammad believed that C was masturbating whilst viewing the material on his phone. When the applicant asked C what he was doing, Hammad testified that C pleaded with the applicant to remain silent about what he had seen because “my dad will kick my ass”. The applicant told C that he would be going to the Iman of the IST but C swore that there would be no repeat of his conduct. The applicant responded by advising C to “repent” and C agreed.

Legal Principles

Section 276 of the Criminal Code

276 (1) In proceedings in respect of an offence under section 151, 152, 153, 155 or 159, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, 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.

(2) In proceedings in respect of an offence referred to in subsection (1), evidence shall not be adduced by or on behalf of the accused 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, provincial court judge or justice 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; and

(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.

(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account

(a) the interests of justice, including the right of the accused to make a 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 from 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 of every individual to personal security and to the full protection and benefit of the law; and

(h) any other factor that the judge, provincial court judge or justice considers relevant.

The Jurisprudence

[10] It is now recognised that a complainant’s prior sexual activity has little or no role to play in a criminal trial. Historically, this type of evidence would result in a trial of the complainant rather than that of the accused: R. v. R.V., 2019 SCC 41, [2019] 3 S.C.R. 237, at para. 33; R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at para. 33. In R. v. Seaboyer, [1991] 2 S.C.R. 577, the Supreme Court of Canada re-appraised the use of prior sexual activity in criminal trials when declaring the so-called “rape shield” laws in existence at the time unconstitutional.

[11] Since then, Parliament and the common law have refined the principles relating to the admission of prior sexual history.

[12] The current procedure set out in s. 276 of the Criminal Code maintains a bar on “twin myth” reasoning: the inference that because of their prior sexual activity a complainant is more likely to have consented or is less worthy of belief.

[13] Although an accused has the right to make full answer and defence, they do not have the right “to have procedures crafted that take only his interests into account. Still less is he entitled to procedures that would distort the truth-seeking function of a trial by permitting irrelevant and prejudicial material at trial”: R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R., 443, at para. 24.

[14] In Goldfinch, at para. 36, the Court reiterated the preamble to the 1992 bill that introduced the modern s. 276: “the Parliament of Canada believes that at trials of sexual offences, evidence of the complainant's sexual history is rarely relevant and that its admission should be subject to particular scrutiny bearing in mind the inherently prejudicial character of such evidence”.

[15] As such, the right to cross-examine is not unlimited. Section 276(3) of the Code ensures that an accused’s right to question a complainant must be assessed taking into account all of the factors set out in that subsection: R.V., at paras. 40-41. In cases where cross-examination on prior sexual activity is permitted, the questioning must be tightly controlled and, in certain cases, it might be appropriate to approve the wording of the questions: R.V., at paras. 8 and 73. Alternatively, a court might require the use of agreed statements of fact to ensure that evidence of prior sexual activity stays within proper bounds: Goldfinch, at para. 98.

Analysis

[16] When considering the criteria contained in ss. 276(2) and (3), I find that the applicant is clearly not adducing the evidence to support an inference that C was more likely to have consented to the sexual activity which forms the subject matter of the charge or that he is less worthy of belief simply by committing the acts alleged by the applicant. It is also clear that the applicant wishes to cross-examine on this one specific instance of sexual activity.

[17] The issue in this case is whether the event described by Hammad Patel is relevant to an issue at trial and whether it has significant probative value that is not substantially outweighed by its prejudicial effect.

[18] The applicant argues that his discovery of C’s behaviour in the IST caused C to concoct a fictitious account of sexual abuse. The applicant says that C was well aware that masturbating in a place of worship was a serious breach of the IST’s moral conduct and behaviour. C believed that if the applicant divulged what he had seen C would suffer very serious consequences. In order to prevent this, C acted to pre-empt any revelation from the applicant.

[19] The applicant submits that without this evidence a trier of fact will be deprived of significant probative evidence which demonstrates C’s motive to fabricate. This, says the applicant, is the central thrust of his defence.

[20] On the other hand, the Crown argues there is no link between the alleged discovery of C in the IST and his disclosure of the allegations. Ms. Evans, for the Crown, submits the evidence shows that C did not report the applicant’s sexual abuse until one month later and there was no reason for him to do so because the applicant had not told anyone that he had seen C masturbating in the IST. Accordingly, there was no motive to fabricate the allegations.

[21] Counsel for C, Ms. Waye, also argues that relevance is significantly diluted because the report did not occur immediately after the incident on 24 November 2017 but a month later thereby diminishing any link between the two events.

[22] I disagree. The existence of motive is clearly a relevant issue at trial. Nor do I agree that a month delay between the events weakens its relevance. Assuming its truth, the applicant can realistically argue that despite the lapse in time of reporting, C may well have continued to fear that the applicant could either reveal or let slip what he had seen.

[23] It may well be that a trier of fact ultimately finds that the delay between the 24 November incident and the reporting is too remote to affect C’s reliability as a witness just as it may be that the trier of fact ultimately rejects the 24 November incident as untrue. However, that is not a matter for this court to decide on the application. Assuming its truth, there is a significant probative value to the evidence.

[24] Balancing the factors set out in s. 276(3), I also find that denying the admission of the evidence would significantly impact the applicant’s right to make full answer and defence and that there is a reasonable prospect that the evidence, if believed will assist in allowing a trier of fact to arrive at a just determination in the case.

[25] Ms. Waye argues that cross-examination on the subject would unduly arouse sentiments of prejudice or hostility towards C because of the religious setting in which the actions took place. I cannot agree.

[26] Juries are presumed to follow a trial judge’s instructions on the law. The trial judge hearing this case would invariably direct the jury as to the proper permissible use of the evidence and strongly caution the jury on the need to apply the law with impartiality, avoid sympathy, prejudice or hostility and discard any stereotypical notions.

[27] Whilst I do not deny that there may be some prejudicial effect, I find that it does not substantially outweigh the significant probative value of the evidence.

[28] The applicant will therefore be permitted to cross-examine on the 24 November 2017 incident. However, the cross-examination is limited to that incident only. The applicant cannot inquire into any other instances where C may have viewed pornographic material or engaged in masturbation or any other sexual activity.

Akhtar J.

Released: 28 April 2022