COURT FILE NO.: CR-17-70000095 CR-22-10000398
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
J.C.
Applicant
E. Evans, for the respondent
C. Rudnicki, for the applicant
G. McLaughlin, for the complainant
HEARD: July 28, 2022
REASONS FOR DECISION
RULING
(Application Pursuant to sections 276, 278.93 and 278.94 of the Criminal Code)
1J.C. is charged with sexual assault and extortion. At his trial, he wishes to adduce certain evidence of sexual activity on the part of the complainant other than that which forms the subject matter of the charge and has accordingly brought an application pursuant to ss. 276, 278.93 and 278.94 of the Criminal Code.1 This is an unusual s. 276 application which raises issues relating to the doctrine of issue estoppel and the law surrounding the admissibility of evidence of discreditable conduct.
2This will be J.C.’s second trial on these charges. He was initially convicted of them following an earlier judge-alone trial, but was acquitted of a second sexual assault charge as well as a charge of voyeurism. The convictions were set aside following a successful appeal. There was no appeal of the acquittals.
3At the first trial, the complainant testified that J.C. made a sexual video of her and that she did not consent to the sexual activity in the video or the making of it. She testified that the applicant then threatened to post the video on the internet unless she had sex with him. Because of the threat, she had sex with him on several occasions and was also coerced by him to have sex with his friends. The trial judge at the first trial was not satisfied beyond a reasonable doubt that the complainant did not consent to the sexual activity in the video, or that it was made surreptitiously, and accordingly acquitted J.C. of voyeurism and one count of sexual assault. The trial judge was satisfied that J.C. threatened to post the video unless the complainant had sex with him and accordingly convicted him of extortion and sexual assault. As noted, those convictions were set aside on appeal.
4J.C. applies to have three categories of evidence admitted. First, despite J.C.’s acquittal, both he and the Crown wish to have the complainant testify that the sexual activity in the video was not consensual. They both agree that the jury should be told of the acquittal at the first trial, and J.C. goes further and submits that the jury should be instructed that it is bound to conclude that the complainant’s evidence that the sexual activity was not consensual was false. Second, J.C. wishes to adduce evidence of earlier consensual sexual encounters between him and the complainant in support of a defence of honest but mistaken belief in communicated consent. Third, he wishes to cross-examine the complainant on her allegation that she was coerced into having sex with his friends. Although no charges are based on that allegation, he wishes to expose inconsistencies in the complainant’s evidence.
5I have concluded as follows:
(1) The complainant’s evidence about non-consensual activity during the making of the video is inadmissible by virtue of both the doctrine of issue estoppel and because it is evidence of discreditable conduct whose prejudicial effect outweighs its probative value. As a result, the s. 276 issue does not arise.
(2) The evidence of earlier consensual sexual encounters between J.C. and the complainant is of marginal relevance and does not meet the requirements of s. 276.
(3) The complainant’s evidence with respect to sexual activity with J.C.’s friends is relevant to her credibility and admissible.
The following reasons explain these conclusions.
I. EVIDENCE
A. Evidence at the First Trial
(i) The Relationship Between the Parties
6The applicant, J.C., and the complainant, H.D., met in 2014 and became friends. They would periodically get together at the applicant’s apartment, discuss music, and smoke marijuana. Although neither considered themselves to be in an exclusive relationship, they did have consensual sexual relations on occasion. They ceased having contact in the fall of 2014 when the complainant began a relationship with another man.
7The complainant resumed having contact with the applicant in late 2014. She testified at the first trial that she did so because she thought he could help her find work in the entertainment industry, but she did not want to resume the sexual relationship.
(ii) The Making of the Video
8On January 22, 2014, the complainant went to the applicant’s apartment. While she was there, the applicant made a video recording of her naked from the waist up, lying on a bed and masturbating. The video includes close-ups of the complainant’s genitalia and the applicant touching her there with his hand. On several occasions, she complies with his requests to perform certain actions of a sexual nature. The video ends after 51 seconds because the camera’s battery was depleted. It was common ground that there was further sexual activity, including intercourse, after the video ended.
9At the first trial, it was the Crown’s theory that the complainant did not have the capacity to consent to this sexual contact because she was intoxicated. The Crown relied on the complainant’s testimony about how she was feeling at the time and her lack of memory of the incident. The applicant testified that all of the activity, including the making of the video, was consensual. These events gave rise to charges of sexual assault and voyeurism.
(iii) The Alleged Extortion
10The complainant testified that the same day as the video was made or perhaps a few days later, the applicant played the video for her and told her that he would post it on the Internet unless she continued to have sex with him. According to her, this discussion happened only once. She may have asked him to delete the video on other occasions, but could not recall exactly. According to the complainant, her memory of the events was affected by the fact that she was addicted to cocaine and ketamine at the time. The threat to post the video was the basis for the extortion charge.
11The applicant denied that he had ever threatened to post the video on the internet. He admitted that she had asked him to delete it and that he had declined to do so, but maintained that this was because he wished to retain it for his own private viewing.
(iv) The Alleged Sexual Assaults After the Video Was Made
12The complainant testified that she had sex with the applicant on several occasions after the video was made. She did so only because he had threatened to post the video and did not consent. This formed the basis of a sexual assault charge.
13The applicant testified that as was his usual practice, he always ascertained that the complainant was consenting prior to engaging in any sexual activity with her and on each occasion, she communicated to him through words and gestures that she was consenting.
(v) Sexual Activity With the Applicant’s Friends
14At the first trial, the complainant testified that the applicant coerced her into having sex with his friends by threatening to post the video unless she did so. The applicant denied having any knowledge of sexual activity between the complainant and his friends.
B. The Outcome of the First Trial
(i) Sexual Assault and Voyeurism
15The first trial proceeded before Quigley J. (“the first trial judge”) without a jury in June 2018. He delivered reasons on September 20, 2018, which are reported as R. v. J.C., 2018 ONSC 5547.
16At the trial, the Crown took the position that the complainant did not have the capacity to consent on January 25, 2015, so the sexual activity constituted a sexual assault. As well, because the complainant did not have the capacity to consent, the video was in effect made surreptitiously and the applicant was therefore guilty of voyeurism.
17The first trial judge acquitted the applicant on these two counts for the following reasons (at paras. 100-102):
However, notwithstanding those submissions, I am simply not sure whether there was an absence of consent or an absence of capacity relative to counts one and two. I do not reject the complainant’s evidence on this issue. I do not doubt the sincerity of her testimony, and as well, I do not specifically believe J.C.’s evidence relative to these events. But I find, given all of the evidence, that I cannot be certain beyond a reasonable doubt that H.D.’s sexual relations with J.C. on January 22, 2015 were not consensual.
H.D. claims in her evidence that she blacked out and woke up later only half dressed and had no knowledge of what transpired during the period of her alleged incapacity, and that she did not consent, either to have sex with J.C. that night, or to permit him to videotape her. However, I am unable to reconcile and accept that particular evidence as reliable in the context of the evidence as a whole, and in particular, the appearance of active and willing participation in the sex acts depicted on the 51-second video recording.
I do not accept or believe all of J.C.’s evidence, as I will discuss later in these reasons, but I do accept that his evidence on these two counts could reasonably be true. As such, whether it is on the basis of the second or the third test in W.(D.) [1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742], combined with my finding that the statutory requirements have not been met to establish the voyeurism charge, J.C. will be acquitted on counts one and two.
(ii) Extortion and Sexual Assault
18With respect to the remaining counts, the first trial judge rejected the applicant’s evidence for various reasons and accepted the complainant’s evidence. He found that the applicant had threatened to post the video and had thereby coerced the complainant into having sex with him without her consent. As a result, he convicted the applicant of extortion and sexual assault. The first trial judge made no findings with respect to the complainant’s assertion that she had been coerced into having sex with the applicant’s friends.
C. The Appeal
19The applicant appealed his convictions. In reasons reported as R. v. J.C., 2021 ONCA 131, 401 C.C.C. (3d) 131, the Court of Appeal (Juriansz, Tulloch and Paciocco JJ.A.) concluded that the first trial judge had erred in the manner in which he assessed the evidence of the witnesses. The Court set aside the convictions and ordered a new trial on one count of sexual assault and extortion. The acquittals on the other sexual assault and voyeurism charges were unaffected as the Crown had not appealed those.
II. ANALYSIS
A. Section 276 of the Criminal Code – Overview
20Section 276(1) of the Criminal Code provides that in proceedings involving sexual or related offences, evidence that the complainant engaged in sexual activity other than that which forms the subject matter of the charge is not admissible to support an inference that the complainant (a) is more likely to have consented to the sexual activity that does form the basis for the charge; or (b) is less worthy of belief. These two illegitimate inferences, often referred to as “the twin myths,” have a long history of creating unfairness to complainants in sexual assault trials and the provision is designed to address this: R. v. Goldfinch, 2019 SCC 38, 380 C.C.C. (3d) 1, at paras. 34-37; 43-46; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 60.
21To ensure that the evidence of other sexual activity is not used for a prohibited purpose, s. 276(2) makes such evidence presumptively inadmissible, but recognizes that it may be admissible for some purposes: Barton, at para. 61-62. To have the evidence admitted, a defendant must establish that the requirements of s. 276(2) have been met, namely, that that the evidence
(a) is of specific instances of sexual activity;
(b) is relevant to an issue at trial; and
(c) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
22Section 276(3) requires the court to consider the following factors in determining whether the requirements of s. 276(2) have been established:
(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.
23Ultimately, s. 276 requires the court to balance competing interests. That balancing exercise was described in Goldfinch, at para. 69:
The final step in the s. 276 analysis requires judges to balance the probative value of proposed evidence against the danger of prejudice to the proper administration of justice, taking into account the factors set out in s. 276(3). Both considerations must receive heightened attention as “[the test] ... serves to direct judges to the serious ramifications of the use of evidence of prior sexual activity for all parties” (Darrach, [2000 SCC 46, [2000] 2 S.C.R. 443] at para. 40). Balancing the s. 276(3) factors ultimately depends on the nature of the evidence being adduced and the factual matrix of the case.
24Section 276 does not affect other statutory or common law rules of admissibility. Evidence that is inadmissible for another reason does not become admissible because the requirements of s. 276 have been met.
B. The Complainant’s Evidence About the Making of the Video
(i) Overview
25The applicant’s retrial is set to proceed before a jury. It remains the Crown’s theory that the applicant committed extortion by threatening to post the video of him and the complainant engaged in sexual activity unless she agreed to further sexual activity with him. As a result, the parties agree that the jury will have to hear evidence about the existence of the video.
26The difficulty arises with respect to what the jury can be told about how the video came to exist. If permitted, the complainant would testify that the sexual activity in the video was not consensual. However, it would clearly not be open to the jury to find the applicant guilty based on this evidence, even if it is accepted, because he has already been tried and acquitted of this charge.
27Counsel for the applicant takes the position that the complainant should be permitted to testify that the sexual activity in the video was not consensual. However, he submits that the doctrine of issue estoppel requires that the jurors be instructed that her evidence on this point has been rejected at another trial and that it is not open to them to find otherwise. As a result, the jury is duty-bound to find that the complainant is either mistaken or lying about her lack of consent. The jury may then use this finding when assessing her evidence on the remaining counts.
28The Crown agrees that the complainant should be permitted to testify that the sexual activity in the video was not consensual and agrees that the jury should be told that the applicant was tried and acquitted on the count of sexual assault relating to this evidence. However, the Crown disagrees that the jury should be instructed that the complainant must be found to be mistaken or lying about not consenting to the sexual activity while the video was being made. This is because the first trial judge “accepted the complainant’s evidence on this point … [and] accepted that she had not lied, but that she did not recall consenting due to her altered state of consciousness.”2 The Crown agrees that the jury should be given a limiting instruction to the effect that it cannot use the complainant’s evidence about the sexual activity in the video to conclude that it is more likely that the applicant committed the sexual assaults he is charged with.
29Counsel for the complainant submits that admitting the evidence would require very complicated and potentially confusing jury instructions. She submits that the safer course would be to file an agreed statement of fact (“ASF”) stating that the video exists without the jury hearing evidence as to how it came to be made.
(ii) The Doctrine of Issue Estoppel
(a) The Doctrine
30The doctrine of issue estoppel arises out of the broader doctrine of res judicata (literally “a matter decided”) and provides that a factual issue that is decided in one proceeding must be accepted and cannot be relitigated in another proceeding unless the earlier decision is set aside on appeal. The purpose of the doctrine is to ensure fairness to the accused, avoid inconsistent verdicts and maintain the principle of finality: R. v. Mahalingam, 2008 SCC 63, [2008] 3 S.C.R. 316, at paras. 2, 38. In the criminal context, there are three requirements that must be met for the doctrine to apply.
31First, the issue must have been decided in favour of the accused in the prior proceeding, that is, the finding must be logically necessary to the verdict of acquittal: Mahalingam, at para. 53; R. v. Punko, 2012 SCC 39, [2012] 2 S.C.R. 396, at paras. 7-8. This is a factual issue which the defence bears the onus of establishing: Mahalingam, at paras. 26, 52. Whether the issue was resolved in the accused’s favour on the basis of a positive factual finding or a reasonable doubt does not matter for the purposes of the doctrine: Mahalingam, at paras. 22-23, 28; R. v. Grdic, [1985] S.C.R. 810, at p. 825.
32Second, the determination of the issue must be final. Issues determined at trial are final, unless set aside on appeal: Mahalingam, at para. 55.
33Third, there must be mutuality, that is, the parties must be the same in both the earlier and the subsequent proceedings: Mahalingam, at para. 56.
34The doctrine of issue estoppel clearly applies in this case. The issue of whether the complainant consented to sexual activity with the applicant at the time the video was made was clearly decided in his favour at the first trial. The applicant’s identity was not in issue, nor was there any issue that there had been sexual contact between him and the complainant (which the video conclusively demonstrated). The only issue at the first trial was whether the complainant had consented. The first trial judge was not satisfied beyond a reasonable doubt that she had not.
35The other two requirements for the application of the doctrine are also met. As there was no appeal of the acquittal, the first trial judge’s findings are final, and the parties to both proceedings, J.C. and the Crown, are the same.
36What follows from the conclusion that issue estoppel applies in this case? Ordinarily, an application of the doctrine leads to the result that “the Crown is estopped from leading evidence which is inconsistent with findings made in a previous trial”: Mahalingam, at para. 26. However, that is not what the applicant is seeking. He wants the Crown to be able to lead evidence inconsistent with findings made at the previous trial so that he can use the finding at the previous trial to attack the complainant’s credibility.
37In my view, there are several reasons why despite the positions of the parties, the Crown should not be permitted to lead evidence that the complainant did not consent to the sexual activity in the video.
(b) No Residual Discretion
38First, there is binding authority to the effect that once the requirements for the application of the doctrine are met, it must be applied. The court has no residual discretion to decline to apply the doctrine: R. v. Thompson, 2014 ONCA 43, 305 C.C.C. (3d) 218, at paras. 81-80; Regina v. Wright, [1965] O.R. 337 (C.A.), at pp. 340-341.
(c) The Doctrine is a Shield, Not a Sword
39Second, the applicant is seeking to use the doctrine of issue estoppel as a sword rather than a shield: Almrei v. Canada (Attorney General), 2011 ONSC 1719, 233 C.R.R. (2d) 217, at para. 6; Saskatoon Credit Union Ltd. v. Central Park Enterprises Ltd. (1987), 1988 CanLII 2941 (BC SC), 47 D.L.R. (4th) 431 (B.C.S.C.), at para. 20. That is not the intended purpose of the doctrine. It exists to protect the accused from having to defend himself in relation to issues that have already been decided in his favour, not to give him an advantage in subsequent proceedings.
(d) Can the Doctrine Be Waived?
40It could be argued that the applicant should be entitled to waive the protection afforded by the doctrine. However, it not clear that this is what the applicant wishes to do. At most, he seeks only a partial waiver in that he wants the protection of the doctrine insofar as it precludes the jury from deciding the issue against him, but not insofar as it would prevent the Crown from leading the evidence.
41In any event, protection of the accused is only one of the purposes of issue estoppel. It has other purposes that go beyond the interests of the accused. As explained in Mahalingam, at para. 45, issue estoppel protects “the integrity and coherence of the justice system as a whole.” This protection is not the applicant’s to waive.
42The doctrine also protects “the related institutional values of judicial finality and economy,” which are “essential to preserving confidence in the justice system”: Mahalingam, at para. 46. This is also something which the applicant cannot waive.
(e) The Doctrine as Evidence
43The applicant’s proposal involves treating the result at the first trial as a form of evidence akin to an admission that is binding on the jury. There is no precedent for this. Juries are routinely instructed that the evidence at a trial consists only of (1) the testimony of the witnesses; (2) exhibits; and (3) admissions: Hon. D. Watt, Watt’s Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015), at pp. 274-275 (“Final 17: Evidence Defined”). With respect to the first two, it is up to the jury whether to accept or reject the evidence. With respect to the third category, admissions, jurors are usually instructed that they “must take what [counsel] have agreed on as facts in this case”: Watt, at p. 275. However, it has been suggested that this instruction may overstate the legal effect of an admission because it is in fact open to the jury to reject it: Hon. S.C. Hill, D.M. Tanovich and L.P. Strezos, McWilliams’ Canadian Criminal Evidence, 5th ed. (Toronto: Thomson Reuters, 2022), at §25.9. If admissions are not binding on a jury, then it is difficult to see how findings by another trier of fact at another trial could be.
(iii) Evidence of Discreditable Conduct
(a) The Crown’s Position
44The Crown submits that the complainant should be permitted to testify that she did not consent to the sexual activity in the video and that it should be open to the jury to accept her evidence on this point. The Crown accepts that the jurors should be told about the earlier acquittal, but not that they are bound by the first trial judge’s conclusions. The Crown submits that the jury should be given a limiting instruction with respect to this evidence similar to what would be given if it were admitted as similar fact evidence.
45There are several reasons why I cannot accept the Crown’s submission. First, as outlined earlier, the doctrine of issue estoppel clearly prohibits the Crown from adducing the evidence. The doctrine cannot be waived by the defence, let alone the Crown.
46Second, the complainant’s evidence that the applicant had sex with her against her will during the making of the video is obviously evidence of discreditable conduct and, as such, prima facie inadmissible unless its probative value outweighs its prejudicial effect: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 31-34. The Crown accepts this, but submits that the evidence has probative value because it is necessary to the narrative and that any prejudicial effect can be cured by a limiting instruction.
(b) Probative Value
47In my view, the probative value of the evidence is minimal. The Ontario Court of Appeal has cautioned against allowing vague concepts such as “narrative” to serve as a substitute for a careful assessment of how presumptively inadmissible evidence will legitimately assist the trier of fact: R. v. Z.W.C., 2021 ONCA 116, 155 O.R. (3d) 129, at para. 122; R. v. Borel, 2021 ONCA 16; 153 O.R. (3d) 672, at para. 48. To prove the extortion charge, the Crown must prove that the applicant had a video of the complainant having sex (which is not in dispute) and that he threatened to post it on the internet. The Crown does not have to prove that the sexual activity in the video was not consensual. The applicant would be no less guilty of extortion if he had threatened to post a consensual sexual video.
(c) Prejudicial Effect
48With respect to prejudice, I am far from persuaded that a sufficient limiting instruction is possible. The jurors would be told that the applicant was acquitted of sexually assaulting the complainant but that it was open to them to nonetheless conclude that he did so, although if they did so conclude it was not open to them to convict him on that basis or to conclude that it was more likely that he sexually assaulted the same complainant on other occasions. Even if such a limiting instruction would prevent the jury from using the evidence to infer bad character, which is sometimes referred to as “moral prejudice”, it does not address what is referred to as “reasoning prejudice,” that is, the danger that the evidence will cause “potential confusion and distraction of the jury”: Handy, at para. 100.
49Furthermore, it is not clear to me what the jury should be told about what use, if any, could be made of the prior acquittal. As a general rule, credibility findings by another trier of fact are irrelevant: R. v. Ghorvei (1999), 1999 CanLII 19941 (ON CA), 46 O.R. (3d) 63 (C.A.), at para. 31; Bruff-Murphy v. Gunawardena, 2017 ONCA 502, 138 O.R. (3d) 584, at para. 32.
50While the first trial judge’s findings were made in the context of the same prosecution, it is doubtful that the evidence at the second trial will be exactly the same as the evidence at the first trial. It would obviously be inappropriate to give the jury a transcript of the first trial so it could determine whether the evidence was similar enough to warrant accepting the first trial judge’s conclusions, so it is unclear how the jury could be instructed to account for possible differences in the evidence.
51Furthermore, the Court of Appeal found error in the first trial judge’s credibility assessments with respect to both the applicant and the complainant: J.C. (C.A.), at paras. 75-89; 93-98. I do not see how the potential effect of these errors could be explained to the jury to ensure that it took them into account in weighing the first trial judge’s conclusions.
52It is clear from the foregoing that even if appropriate instructions could somehow be fashioned, they would create exactly the type of confusion and distraction that animated the concerns about “reasoning prejudice” outlined in Handy.
53I recognize that the applicant does not object to the evidence being admitted and in fact wishes it. Nonetheless, “there is a duty on the trial judge to exclude inadmissible evidence even though adduced by counsel for the accused or not objected to….”: R. v. D.(L.E.), 1989 CanLII 74 (SCC), [1989] 2 S.C.R. 111, at pp. 127-128; R. v. Michaud, 2011 NBCA 74, 376 N.B.R. (2d) 70, at para. 30.
54For these reasons, the evidence of non-consensual sexual contact between the applicant and the complainant prior to the conduct giving rise to the charges is inadmissible quite apart from the operation of the doctrine of issue estoppel.
(iv) How the Evidence Can be Used
55Based on the foregoing, the complainant’s testimony that the sexual activity in the video was not consensual is inadmissible. As a result, the issue of whether it meets the requirements of s. 276 of the Code does not arise.
56The jury will have to learn of the existence of the video. In my view, this could be accomplished through an ASF outlining the existence of the video and a general description of its contents. The jurors could be instructed that there is no evidence as to the provenance of the video and that they should not speculate in this regard.
57The Crown submits that it is necessary for the jury to view the video. Counsel for the applicant takes the position that it is not necessary, and counsel for the complainant vigorously objects to it being played. In my view, allowing the jury to see the video would be deeply injurious to the complainant’s privacy and dignity and is unnecessary for a resolution of the central factual issue which must be determined in relation to it, which is whether the applicant threatened to post it on the internet. As a result, the Crown may not play the video at trial.
C. Evidence of the Complainant’s Consent on Earlier Occasions
(i) Overview
58As described earlier, there was a consensual sexual relationship between the applicant and the complainant prior to the creation of the video. At the first trial, the applicant testified that during each sexual encounter with the complainant, he would ascertain her consent at each stage of the encounter as the sexual activity between them progressed. It was his evidence that he did this on every occasion on which there was sexual contact between them, including the time the video was made and each time thereafter.
59At the second trial, the applicant’s position will be that the complainant consented to all of the sexual activity. However, he also wishes to rely on the defence of honest but mistaken belief in communicated consent based on a theory that although he had never threatened to post the video on the internet, the complainant mistakenly believed that he would do so unless she had sex with him. As a result, while she was not subjectively consenting, he justifiably believed that she was. The Crown agrees that there would be an air of reality to the defence of honest but mistaken belief in communicated consent on this basis.
60In support of the defence of honest but mistaken belief in communicated consent, the applicant seeks to adduce evidence of his earlier consensual sexual activity with the complainant “to illustrate how the complainant previously communicated consent to him,” which he submits is relevant to a defence of honest but mistaken belief in consent.
(ii) The Necessity of the Evidence
61The difficulty with the applicant’s submission is that there is nothing in the record before this court to suggest that his belief that the complainant was consenting was in any way informed by her behaviour in earlier sexual encounters. The applicant did not file an affidavit on this application and instead relied on the transcript from his first trial, where he gave the following testimony about the steps he took to ascertain the complainant’s consent:
I believe it was consensual, for one, because before we proceed I generally ask what she wants to do, and if she says she want to you [sic], have foreplay or have sex, I take that as consent. When I engage in, I initiate, it’s never, you know, straight to it, it’s I would kiss her, engage in that way and if she reciprocates, you know, then we kind of start making out and then we go from there. Right? If she didn’t reciprocate from the very beginning, then I wouldn’t proceed, but there was never an instance where, you know, I went to kiss her and she never reciprocated.3
Later in his testimony, the applicant clarified that he always ascertained consent in this way.4
62Given the Crown’s concession that there is an air of reality to the defence of honest but mistaken belief in communicated consent, if the applicant’s evidence on this point is accepted by the jury, then he would be entitled to an acquittal. Evidence about prior consensual sexual contact where he ascertained consent in this same way adds nothing to his evidence except through the line of reasoning prohibited by s. 276(1)(a) of the Code that the complainant’s consent on past occasions makes it more likely that she consented to the sexual activity that forms the subject matter of the charge.
63Even if the impugned evidence is not used to support the inference prohibited by s. 276(1)(a), s. 276(2)(b) requires the applicant to establish that the evidence is relevant and s. 276(2)(d) requires that it “has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice” based on consideration of the factors enumerated in s. 276(3). The nature of that balancing was explained by Karakatsanis J. in Goldfinch, at para. 69:
Balancing the s. 276(3) factors 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. For example, the relative value of sexual history evidence will be significantly reduced if the accused can advance a particular theory without referring to that history. [Emphasis added and in original].
... In my view, to satisfy the relevance requirement under s. 276(2)(b), the accused must demonstrate that the evidence goes to a legitimate aspect of his defence and is integral to his ability to make full answer and defence. This requires that the accused be able to identify specific facts or issues relating to his defence that can be properly understood and resolved by the trier of fact only if reference is made to the sexual activity evidence in question. In articulating these specific facts or issues, simply citing the need to provide greater “context” or a fuller “narrative” will not suffice. Indeed, if this were enough to justify the admission of sexual activity evidence, then the s. 276 regime would be reduced to a mere statutory speed bump along the way to admission. [Emphasis added].
In this case, the applicant’s evidence in support of the defence of honest but mistaken belief in communicated consent can be properly understood without reference to prior incidents on which the complainant communicated her consent.
(iii) R. v. Goldfinch
64The applicant relies on the following portion of Goldfinch, at para. 62:
Prior sexual activity may be particularly relevant to a defence of honest but mistaken belief in communicated consent (Seaboyer, [1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577] at pp. 613-16; Darrach, at para. 59; Barton, at paras. 91 et seq.). However, an honest but mistaken belief cannot simply rest upon evidence that a person consented at “some point” in the past: that would be twin-myth reasoning. By definition, the defence must rely upon evidence of how the complainant previously communicated consent so that the accused can adequately support a belief that consent was expressed.
65I do not read this portion of Goldfinch as stating that evidence of how a complainant previously communicated consent will always be admissible where the defence of honest but mistaken belief in communicated consent is raised. Whether such evidence is admissible will depend on the facts of the particular case and whether it is necessary for a proper understanding of the evidence supporting the defence. Where the complainant is said to have communicated consent in an unambiguous and clearly understandable way, evidence of prior occasions on which consent was given will usually be irrelevant.
66The situation may be different where there is evidence that the consent was communicated in some manner where evidence of prior incidents is necessary to make the communication understandable to the trier of fact. For example, in R. v. D.B., 2020 ONCJ 579, evidence of prior sexual activity was admitted to support the accused’s evidence that he believed that the complainant rocking her hips back and forth and pressing her buttocks against him signified consent to sexual activity. Similarly, in R. v. D.S., 2021 NLSC 69, there was evidence that the accused and the complainant had in the past engaged in role-playing during which they pretended that consensual sex was not consensual. The case at bar is different in that the applicant’s evidence of how the complainant consented is clear, straightforward and understandable.
(iv) Conclusion
67Based on the foregoing, even if the evidence is not being relied on to support an impermissible inference, I am not persuaded that it has sufficient probative value to meet the requirements of s. 276.
D. The Complainant’s Evidence About Sexual Activity With the Applicant’s Friends
(i) Overview
68In her statement to the police, the complainant stated that the applicant coerced her into having sex with his friends by threatening to post the video if she did not. She also testified about this at the first trial without objection from the defence on the basis that it was relevant to the extortion charge. The applicant denied telling the complainant to have sex with his friends and any knowledge that she had done so. The first trial judge made no findings with respect to this evidence: J.C. (S.C.J.), at para. 113, FN 9.
69The Crown does not intend to adduce this evidence at the retrial. However, counsel for the applicant wishes to cross-examine the complainant with respect to it in order to expose inconsistencies between her testimony and her statement to the police. The applicant takes the position that there were significant inconsistencies with respect to the number of friends she had sex with and her descriptions of them. The Crown does not object to this evidence being adduced for this purpose. Counsel for the complainant submits that the evidence is inadmissible.
(ii) Applicability of Section 276
70The complainant’s evidence about having sex with the applicant’s friends relates to the extortion charge. While extortion is not an offence enumerated in s. 276(1) of the Criminal Code, given the complainant’s evidence that she was coerced through extortion into having sex with the applicant’s friends, it is clear that sexual assault “has some connection to the offence charged” and the s. 276 regime therefore applies: Barton, at para. 76.
(iii) Relevance to Credibility
71In my view, this evidence is admissible. The complainant’s testimony about having sex with the applicant’s friends in inextricably linked to her testimony in support of the extortion charge in that she states that he threatened to post the video in order to coerce her to have sex with not only him, but his friends as well.
72The apparent inconsistences in the complainant’s account are directly relevant to her credibility: Barton, at para. 65; R. v. Crosby, 1995 CanLII 107 (SCC), [1995] 2 S.C.R. 912, at paras. 9-11. If the inconsistencies lead the jury to reject the complainant’s evidence about having sex with the applicant’s friends, this may well impact on her credibility with respect to being coerced to have sex with the applicant.
73This case turns entirely on an assessment of the credibility of the applicant and the complainant. There were no other witnesses at the first trial, and there was no independent evidence confirming or refuting the testimony of either of them. In these circumstances, evidence that relates to the complainant’s credibility is critical to the applicant’s ability to make full answer and defence.
74Given the complainant’s evidence that her sexual activity with the applicant’s friends was coerced, the danger that the jury will infer consent to sex with the applicant from consent on prior occasions (the first “twin myth”) is attenuated, as is the danger that the jury will draw conclusions about her credibility based solely on the fact that she engaged in sexual activity with others (the second “twin myth”). Any danger of improper reasoning that does exist can be addressed through a limiting instruction.
(iv) Conclusion
75The alleged inconsistencies in the complainant’s evidence relate to the number of the applicant’s friends she had sex with and her description of them. It is not necessary for the complainant to be cross-examined with respect to any details of any sexual activity, nor should the applicant be permitted to do so. In my view, if the cross-examination is circumscribed in this way, the probative value of the evidence is significant and substantially outweighs its prejudicial effect.
III. DISPOSITION
76The application to admit the complainant’s evidence about sexual activity with the applicant’s friends is granted. The remainder of the application is dismissed.
Justice P.A. Schreck
Released: September 1, 2022
COURT FILE NO.: CR-17-70000095 CR-22-10000398
DATE: 20220901
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
J.C.
REASONS FOR DECISION
P.A. Schreck J.
Released: September 1, 2022
Footnotes
- I heard this application as a case management judge appointed pursuant to s. 551.1(1) of the Criminal Code.
- Crown Respondent’s Factum, para. 77.
- Transcript – June 19, 20 and 21, 2018, p. 250, ll.9-18.
- Transcript – June 19, 20 and 21, 2018, p. 303, ll.17-24.
