Court File and Parties

Court File No.: CR-21-10000259 Date: 2023-03-28 Ontario Superior Court of Justice

Between: His Majesty The King And: Habtamu Kebede

Before: S.A.Q. Akhtar J.

Counsel: A. Harnett and E. Vandersanden, for the Crown Z. Puil, for Mr. Kebede

Heard: 24-28 January 2023

Ruling on Section 276 of the Criminal Code

Factual Background and Overview

Introduction

[1] The applicant, Habtamu Kebede, is charged with one count of sexual assault. The allegations stem from events that occurred on 4 October 2019 when Mr. Kebede is alleged to have forced sexual intercourse on the complainant against her will. He seeks to cross-examine the complainant on three separate items of evidence, all of which involve sexual activity or communication.

[2] Section 276 of the Criminal Code requires a voir-dire to be held when the defence seeks to cross-examine a complainant on any sexual activity which does not form part of the subject matter of the charge.

[3] The defence argues that since the subject of questioning involves the complainant’s first meeting with Mr. Kebede on the night of the allegations, s. 276 cannot apply because these events form part of the subject matter of the charge. The Crown, on the other hand, relying on the Supreme Court of Canada’s recent decision in R. v. J.J., 2022 SCC 28, submits that any sexual activity outside the parameters of the actus reus of the offence must be subject to s. 276 scrutiny.

[4] At the end of oral submissions, I granted the application in part. I indicated that written reasons would follow in due course and they are produced herein.

The Allegations

[5] On 26 September 2019, the complainant, a Texan native, arrived in Toronto with her ex-husband and youngest daughter to attend her elder daughter’s wedding. All three stayed at an Airbnb in downtown Toronto located close to the Bloor Street Bar and Grill (“the Bar”), the establishment where the complainant would meet Mr. Kebede.

[6] On 4 October 2019, after spending the day in the city and meeting family, the complainant went to the Bar to have some drinks. She arrived around 10:30 p.m. and began drinking. At around midnight, Mr. Kebede entered the Bar and sat beside her. They engaged in conversation, became friendly, and took “selfies” with each other.

[7] Towards the end of the night, both left the Bar to find a place where they could smoke marihuana, as the applicant had previously revealed that he had a bag of “weed” with him. The two went to a nearby park where they smoked a joint and continued to talk.

[8] When they had finished, the complainant, who had a number of social engagements later that day, told the applicant that she needed to return to her Airbnb. As they began to make their way out of the park, the applicant grabbed the complainant’s arm, and led her to a trail in the park. He pushed the complainant to the ground, held her down and said “this is gonna happen” before removing her clothing and raping her. When they heard voices nearby, the applicant told the complainant that there were gang members nearby and that she must remain silent for her own safety.

[9] After he had finished his assault, the complainant asked the applicant to take her back to the Bar. After getting dressed, both of them walked back to her Airbnb where he left.

[10] When the complainant entered the residence, she saw her ex-husband on the stairs but said nothing about the assault and went to bed.

[11] Although she had originally resolved to remain silent in order to avoid disrupting her daughter’s wedding, the complainant realised she had to report the incident. After informing her ex-husband, she contacted the police.

The Application

[12] The applicant seeks to adduce and cross-examine the complainant upon aspects of her interactions with Mr. Kebede at the Bar. The evidence can be classified into two separate groups: first, the complainant’s utterances, and second, her actions at the Bar.

[13] The subject matter of the application comprises of the following:

1. The complainant told the applicant that she had never previously had sex with a Black man;
2. The complainant said that it had been “a while” since she had sex;
3. The complainant told the applicant that she wanted to go somewhere with the applicant and “have fun”;
4. Video evidence showing the complainant’s interactions at the Bloor Street Bar and Grill in which she can be seen “engaging in physically flirtatious behaviour” with the applicant; and
5. The complainant kissing Mr. Kebede good night after he accompanied her back to her Airbnb.

Legal Principles

Section 276 of the Criminal Code

[14] Section 276 of the Criminal Code reads as follows:

276(1) In proceedings in respect of an offence under section 151, 152, 153, 153.1 or 155, 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.

Conditions for admissibility (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.

Factors that judge must consider (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. Interpretation (4) For the purpose of this section, sexual activity includes any communication made for a sexual purpose or whose content is of a sexual nature.

The Jurisprudence

[15] 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.

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

[17] 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.

[18] 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.

[19] 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… its admission should be subject to particular scrutiny” bearing in mind the inherently prejudicial character of such evidence.

[20] 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 considering 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.

Is the Evidence Subject to Section 276 Scrutiny?

[21] There are two stages involved in the s. 276 analysis.

[22] Under Stage One, the judge must determine whether the proposed evidence is capable of being admissible under the test set out in s. 276(2). If not, the application ends. If the evidence overcomes that threshold, the application proceeds to “Stage Two” where it must be determined whether the proposed evidence meets the statutory criteria set out in s. 276(2) as defined by the factors listed in s. 276(3): J.J., at paras. 23-28.

[23] The applicant argues that none of the material sought to be adduced is subject to s. 276 scrutiny as the utterances and conduct captured on video are part of the same transaction that constitutes “the subject matter of the charge”. The Crown disagrees and says that recent caselaw now confines “the subject matter of the charge” to the actus reus of the offence.

[24] I agree that item 3 listed above - the comment that the complainant wanted to go somewhere with the applicant to have fun - would not fall within s. 276 as it is not evidence of sexual activity and is an expression, by the complainant, that she wishes to continue to spend time with the applicant.

[25] The question of whether the other items fall within the purview of s. 276 is more controversial.

[26] There are cases that have taken the view that sexual activity occurring close in time to the allegations do not require a s. 276 application: R. v. Akumu, 2017 BCSC 403 at paras. 6 and 9; R. v. Ekhtiari, 2019 ONCJ 774, at paras. 14 and 26; R. v. X.C., 2020 ONSC 410 at paras. 35-36, 42, and 54; R. v. Cole, 2020 ONSC 6239, at paras. 35-43; R. v. H.S.S., 2020 BCPC 196 at paras. 29, 63-64; R. v. Lovequist, 2020 ABQB 464 at paras. 14 and 16.

[27] The applicant places particular reliance on the comments of Dawe J. in X.C., at para. 38:

In my view, "sexual activity", in the form of both sexual acts and communications about sexual acts, can properly be considered to "form the subject matter of the charge" if it is part of the "transaction" that is captured by the charge, even if the "sexual activity" in question is not in itself an element of the charged offence. For instance, a complainant may allege that what began as a consensual sexual encounter became non-consensual when the complainant withdrew consent, or when the defendant performed some specific sexual act to which the complainant did not consent. In this situation, I do not believe the defendant is obliged to bring a s. 276 application in order to adduce evidence of the consensual sexual activity that immediately preceded or followed the activity that the complainant alleges was non-consensual. As MacLeod J. noted in R. v. Lennox, 2019 ONSC 3844, [2019] O.J. No. 3246 at para. 25, in this situation “[a]t some point parsing each moment in a sequence of events and defining it as a separate activity becomes ridiculous.” While consensual sexual acts that occur in close proximity to allegedly non-consensual acts may not be part of the “offence” in a sexual assault case, they nevertheless form part of the transaction – the series of connected occurrences – that constitutes the “subject matter of the charge.

[28] The difficulty with X.C. is that it pre-dates J.J. where the Court appeared to broaden the scope of s. 267 by narrowing the definition of “the subject matter of the charge”. At paras. 66-67, the majority stated:

It is helpful to clarify why evidence of an explicit sexual nature that relates to the subject matter of the charge may be caught by the record screening regime even if it is not s. 276 evidence. In addition to creating the record screening regime for private records, Bill C-51 also added s. 276(4), which specifies that sexual activity "includes any communication made for a sexual purpose or whose content is of a sexual nature". This provision applies to sexual activity other than the sexual activity that forms the subject matter of the charge (s. 276(2)). Any communication regarding such sexual activity would fall within the s. 276 regime.

[29] Accordingly, the only records of an explicit sexual nature that could be subject to the record screening regime outside of the s. 276 context would be records pertaining to the complainant, in the possession or control of the accused, that relate to the sexual activity which forms the subject matter of the charge. For clarity, "subject matter of the charge" refers to the components of the actus reus of the specific charge that the Crown must prove at trial. These types of records are likely to engage the complainant's reasonable expectation of privacy under the content and context framework described above. [Emphasis added]

[30] In R. v. McKnight, 2022 ABCA 251, the court sought to reconcile these conflicting views. It concluded that evidence which was not part of the actus reus of the offence but “integrally connected” to the offence could, in certain cases, be the “subject matter of the charge”. However, the determination of this issue depended entirely on the facts of each case.

[31] At para. 258, the Court made the following comments about evidence of sexual activity occurring close in time to the offence:

Not all such evidence is exempt as a category from s 276 because "proximate sexual activity" is not a category of evidence. Sexual activity occurring "at a proximate time" is a relative term and a question of degree. Sexual activity which is "integrally connected" to the alleged offence may come closer to capturing this idea, however such activity in no way needs to be synonymous with all a complainant's sexual activity with an accused occurring on the same night as the alleged offence. Whether such sexual activity is a part of or integrally connected to the specific charge is highly case-dependent, as it is "necessarily a fact-driven exercise": Comin at paras 46-47. For that reason, we see no necessary conflict between the cases which exempt certain "proximate" sexual activity from s 276 and those which do not.

[32] I agree with the Alberta Court of Appeal that “proximate sexual activity” may not be the best way to define the evidence exempt from the s. 276 protocol.

[33] What should be remembered is that in R. v. Ewanchuk, 1999 SCC 711, [1999] 1 S.C.R. 330, one of the Court’s ground-breaking cases on consent in sexual assault, Major J. discussed the evidentiary parameters open to an accused seeking to raise a reasonable doubt at para. 29:

While the complainant's testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trial judge, or jury, in light of all the evidence. It is open to the accused to claim that the complainant's words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place. If, however, as occurred in this case, the trial judge believes the complainant that she subjectively did not consent, the Crown has discharged its obligation to prove the absence of consent. [Emphasis added]

[34] In my view, the Court’s pronouncement that evidence that forms the subject matter of the charge is limited to “the components of the actus reus of the offence” should be read as including any evidence forming the surrounding circumstances, both before and after the incident, and/or that which directly links to the actus reus of the offence. That evidence need not immediately precede the allegations or, as per the court in McKnight, arise on the same day as the offence.

[35] As noted in McKnight, the question of whether the activity has a direct link to the actus reus must be resolved in a contextual fashion. For example, if a complainant tells police that she had no interest in the accused but he asserts that she told him that she wanted to have sex with him the day prior to the assault and made specific arrangements to meet up with him for that purpose, this would be exempt from the requirements of s. 276. Of course, such an utterance would not mean, on its own, that the complainant had consented to the actual sexual act. Consent may be withdrawn at any stage prior to, and during, acts of sexual activity. However, a jury must be able to consider this utterance in the entirety of the evidence with a specific instruction to that effect.

[36] Under this rubric, the activity captured on video in the Bar would be exempt from s. 276 scrutiny because it would be part of the surrounding circumstances which directly led to the commission of the actus reus of the offence. Similarly, the kiss which occurred at the Airbnb just before Mr. Kebede left would also fall into this description and be outside the mandatory requirements of s. 276. [1] Such evidence would, of course, always be subject to the conventional rule of evidence which when sought to be led by the defence requires the prejudicial effect of the evidence to substantially outweigh its probative value.

[37] Notwithstanding these comments, due to the recency of the pronouncements in J.J. and the current lack of appellate guidance, I find that it is preferable to act out of an abundance of caution, and proceed with a s. 276 analysis.

Stage One

[38] I find the utterances alleging the complainant told the applicant that she had never had sex with a Black man and that she had not had sex recently are not capable of admission under the criteria set out in s. 276(3) of the Code. The defence being advanced is one of consent. I see no relevance or materiality that these statements can provide to this defence.

[39] These utterances cannot be used to imply consent. It would be impermissible to use the complainant’s utterance that she had never had sex with a Black man to show that one of the reasons she had consented was because the applicant was Black.

[40] There is also significant prejudice in making consent an issue based on the complainant’s race-based sexual preferences.

[41] It is also unclear what might occur in response to the suggestion that the complainant had made such a comment. If, for example, she denied making this comment because she stated that she had prior sexual experiences with Black men, the complainant’s sexual history would become the focus of her testimony. The complainant’s sexual history is the very thing that the law has striven so long to ensure has no place in a sexual assault trial.

[42] The same reasoning applies to the utterances in which the complainant told the applicant that she had not had sex “for a while”. These utterances cannot be used to show that simply because the complainant had been sexually inactive for a period of time, she was more likely to have consented to sex with the applicant. Similar prejudicial risks apply if the complainant has to deny the fact that she had been celibate in response to this suggestion.

[43] I would add that even if these utterances were exempt from s. 276, I would not permit cross-examination on them because, for the reasons described, their prejudicial effect substantially outweighs any probative value.

[44] Accordingly, these utterances fail the Stage One test.

[45] I take a different view with respect to interactions captured on the Bloor Street Bar and Grill video.

[46] The defence point to the complainant’s police statement given on 6 October 2019 where she was asked whether there was “any type of intimacy” between herself and the applicant prior to the assault. The complainant replied unequivocally that there had been no intimate acts. When asked by the interviewing officer followed up by asking if there was any “kissing, hand holding, anything like that?”, the complainant responded that the applicant tried to kiss her when he was raping her.

[47] When asked to clarify if she had kissed the applicant or held his hand prior to the assault, the complainant said “I don't think I did. I mean if I did like touch him or grab his hand, I was probably like falling over or something.”

[48] This evidence is clearly capable of passing the Stage One test as it is relevant to the complainant’s credibility regarding her account of events to the police.

[49] I also find that the proposed testimony of Mr. Kebede that he and the complainant kissed each other goodbye when he last saw her at her Airbnb is capable of admission under Stage One. If believed, it could demonstrate that, contrary to the complainant’s assertions, she and Mr. Kebede parted on good terms.

Stage Two

[50] Under Stage Two, I am required to determine whether the evidence sought to be adduced is relevant, of a specific instance, and has significant probative value not substantially outweighed by its prejudicial effect to the administration of justice.

[51] The evidence upon which the defence seeks to question the complainant on occurs very close to the time of the allegations and is being adduced for a specific purpose: to contradict the complainant on her prior statement to the police that there had been no “intimacy” or “touching”.

[52] The defence argues that when the 6 October 2019 statement is read as a whole, the complainant sought to portray a version of events distancing herself from Mr. Kebede and leaving the impression that she had no interest in being particularly friendly with him. The events on the video recordings, say the defence, are a complete rebuttal to that position.

[53] I agree. This case centres on the credibility of the complainant’s allegations with her word pitted against that of Mr. Kebede. He is entitled to fully challenge the complainant’s truthfulness and reliability. The video evidence, if admitted, could provide a powerful refutation of those claims if a jury believed that what they saw on screen was contrary to what the complainant had previously told the police.

[54] I find that Mr. Kebede’s right to make a full answer and defence, and the need to ensure the jury arrive at a just determination of the case, weighs in favour of admission. I also find that the activity seen on the video recordings does not have the potential to arouse inflammatory or prejudicial sentiments amongst the jury. The actions captured on screen do not invade the complainant’s right to privacy. Indeed, they are actions carried out in a bar in full view of other customers and are acts that, at their very highest, amount to acting in a friendly and flirtatious manner.

[55] For these reasons, I find that the defence has satisfied the requirements of s. 276 of the Code.

[56] I take the same view with respect to the incident where Mr. Kebede would describe kissing the complainant goodbye when he last saw her at the Airbnb. This is relevant because Mr. Kebede seeks to show that far from any bad feeling being present at the conclusion of their encounter, both he and the complainant parted on good terms. Again, this is hardly evidence that would inflame hostility or prejudice within the jury and is a necessary part of Mr. Kebede’s defence.

[57] Accordingly, I would also find it to be admissible.

[58] For these reasons, the video recordings and the evidence that Mr. Kebede and the complainant kissed each other before he left are admissible under the requirements of s. 276 of the Code.

S.A.Q. Akhtar J. Released: 28 March 2023

COURT FILE NO.: CR-21-10000259 DATE: 20230328 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – HABTAMU KEBEDE

REASONS FOR JUDGMENT S.A.Q. Akhtar J.

[1] This ruling applies to an item of evidence that only became an issue during the cross-examination of the complainant because the defence omitted to include it in their s. 276 application.