Court File and Parties

COURT FILE NO.: CR-20-18 DATE: 2023-04-11

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – Teigan Seabrook Accused/Applicant

COUNSEL: J. Recoskie, for the Crown J. Greenwood, for the Complainant C. Boubalos and A. Bigioni, for the Applicant

HEARD at Gore Bay by Zoom: March 17, 2023

BEFORE: A. D. KURKE J.

Decision on ss. 276/278.94 Application: Stage 2

[1] The applicant has applied pursuant to ss. 276 and 278.93 of the Criminal Code for a hearing under s. 278.94 or Stage 2 with respect to prior sexual activity of the complainant. He is charged on an indictment alleging the sexual assault and forcible confinement of the complainant on June 23, 2020, contrary to ss. 271 and 279(2) of the Criminal Code. The jury trial of this matter is set to begin later this month.

[2] The applicant seeks to adduce evidence and to cross-examine the complainant about sexual encounters or communications between them that are not the charged offences. These include:

a. Communication between the applicant and the complainant a short time before the complainant’s attendance at the applicant’s location and the sexual assault that allegedly followed. During that communication, the complainant alleges that the applicant threatened to expose sexual activity that the complainant had engaged in on an earlier occasion over the FaceTime platform (the “FaceTime interlude”) if she did not visit him;

b. Prior sexual contact during a single evening between the applicant and the complainant on or around October/November 2019 and referenced in the complainant’s statement to police.

[3] The Crown also applies to adduce evidence from the complainant about the FaceTime sexual activity from the complainant’s communication with the accused.

[4] In my Stage 1 ruling, I held that the application was granted in part, and that there would be a Stage 2 s. 278.94 hearing with respect to the FaceTime interlude, the prior sexual contact in October/November 2019, and an incident involving prior sexual contact with the complainant alleged on behalf of the applicant from February 2020, as capable of being admissible. I dismissed that part of the application with respect to adducing evidence or questioning the complainant concerning her views about or use of contraception on any occasion prior to June 23, 2020, as incapable of being admissible at trial.

[5] On March 3, 2023, the defence notified the court that the applicant was abandoning his request to adduce evidence concerning the alleged February 2020 sexual contact and would rely for Stage 2 on the evidentiary record filed to date.

[6] It must be noted that evidence relating to anything that the applicant might say has only been offered in the information and belief affidavit of Sujung Lee. Given my ruling and the applicant’s abandonment of the February 2020 incident, it appears that the applicant will assert at trial that the sexual contact between himself and the complainant on June 23, 2020 was consensual. He would also testify to sexual contact with the complainant in October 2019 at a Halloween party, involving sexual intercourse with the complainant.

The FaceTime interlude

[7] The Crown’s application to adduce evidence concerning the FaceTime interlude described by the complainant in her statement to police is granted, on consent of the parties and the complainant, through her counsel on this issue.

[8] The complainant explained to police, concerning events leading up to the alleged sexual assault, that the accused had contacted her and invited her to engage in sexual activity with him and another male who was with him (“MB”). The complainant had declined, but the accused allegedly told her, “If you don’t come I will expose you for the FaceTime you did for me”. The complainant told the officer that she had previously engaged in consensual activity involving the accused on FaceTime and became worried that he might have recorded it. She therefore went to his home because she was “scared … that I was going to get exposed for whatever I did … a few months ago.” The complainant offered no details of what took place on FaceTime.

[9] The Crown will be permitted to adduce from the complainant evidence about the FaceTime interlude sufficient to describe its general contours and the part that it played in the complainant’s decision-making process in visiting the accused on June 23, 2020.

[10] The defence may question the complainant concerning her communication with the accused before her visit and cross-examine about the FaceTime interlude in the same areas as the Crown. Neither Crown nor defence may question the complainant concerning details about what took place during the FaceTime interlude, as the details would not advance the interests of justice, would not assist in arriving at a just determination of the case, would encourage the jury’s use of discriminatory beliefs in their fact-finding, and would be prejudicial to the complainant’s personal dignity and right of privacy.

The October incident

[11] The complainant also described to her interviewer what happened when she visited the applicant. MB was with him. The complainant described the applicant and MB handling her. They were both touching her or pulling down her pants, and she told them “no,” but they continued until the complainant became “fed up.” Both men wanted sex from the complainant. She told them that she would “do something if you just leave me alone.” She then describes that:

“. . . And I – I didn’t want – I didn’t want to have sex with someone I didn’t already have sex because I – my mom told – did my mom tell you I had a one – No? I had a one night with [the applicant]. I had sex with him before but that was in November. Not – Yeah, November – October or November. Around that time.” . . . . .

“I had sex with [the applicant] before and so I thought, oh, okay. Since they’re not going to leave me alone – they’re not going to leave me alone, I’ll have sex with the person I already had sex with because I didn’t want another person inside of me.”

[12] The earlier incident spoken of by the complainant appears to align with that described on behalf of the applicant as taking place in October 2019 at a Halloween party. Accordingly, I will term this the “October incident”.

[13] Later in her statement to police, the complainant explained that she did not want MB to have sex with her on June 23, 2020. At various points during the complainant’s visit, MB was apparently out of the picture. The complainant told the officer:

“If [MB] joined in I would’ve been uh uh because like I was, like because like I said, I’d had sex with [the applicant] before and so I felt more comfortable – I still feel like I was kind of – I – I didn’t say no but I still – I was forced – I still feel like I was forced because I – I wouldn’t have even been there if I was not blackmailed into being there.”

[14] The defence argues that the October incident is relevant to the complainant’s subjective state of mind during the incident on June 23, 2020. On the defence interpretation, the complainant explained to police that her “previous sexual relations with [the applicant] meant that she preferred to have sex with him rather than the co-accused.”

[15] On the defence argument, the complainant’s “comfort” level with the applicant must be explored to get at her real feelings about consent. As the evidence about the complainant’s comfort level emanates from her, unsolicited, in her statement to police, the defence argues that it does not involve stereotypical reasoning. Rather, it is based on “evidence” and serves a legitimate purpose other than a twin myth, in that it seeks to explore the complainant’s comfort, which may be one ingredient towards calling into question her claim that she did not consent.

[16] On this argument, the complainant’s comfort, not her consent, is the reason for adducing evidence about the prior sexual encounter. The defence submits that it should be permitted to ask: “Once the other male was out of the way, you were more comfortable with [the applicant]?” The reason that she was more comfortable must be able to be explored: “you were comfortable to engage in intercourse with [the applicant] because you had done so on a prior occasion.”

[17] The defence submits that the ability to question the complainant about her “comfort” with the applicant is essential to his fair trial interest, and that the inability to raise the October incident will cripple the defence. Although the complainant speaks of her level of comfort having sex with the applicant in the context of a choice between having sex with the applicant or MB when she wanted sex with neither, the defence submits that exploration of this issue may elucidate the consent issue. The defence proposes that a mid-trial instruction to the jury and a final instruction can limit any misuse of the evidence and prevent twin-myth reasoning.

Section 276

[18] The goal of s. 276 of the Criminal Code is to limit or eliminate wide-ranging and intrusive inquiries into the complainant’s sexual history that can distort the trial process and put the complainant on trial: R. v. R.V., 2019 SCC 41, at para. 33; R. v. Goldfinch, 2019 SCC 38, at para. 33. Section 276 carries out its purpose by prohibiting discriminatory generalizations and stereotypical reasoning about a complainant’s credibility and disposition to consent as matters of false logic: R. v. Barton, 2019 SCC 33, at para. 60.

[19] Section 276 of the Criminal Code starts from the proposition that in a proceeding involving an allegation of sexual assault, as here:

(1) … evidence that the complainant has engaged in sexual activity … 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.

These two forbidden inferences in s. 276(1)(a) and (b) are often referred to as the “twin myths.” Section 276(2)(a) reiterates that for admissibility, it must be shown that the proposed evidence “is not being adduced for the purpose of supporting an inference described in subsection (1)”.

[20] In terms of stereotypical reasoning that does not involve at least the first of the twin myths, courts have drawn a distinction between the use by the trier of fact of stereotypical reasoning in making factual determinations, and reliance on the specific facts in a case to lead to evidence-based conclusions. The former constitutes legal error, while the latter is permitted: R. v. J.C., 2021 ONCA 131, at paras. 69-70; R. v. Kiss, 2018 ONCA 184, at paras. 101-102; R. v. Slatter, 2018 ONCA 962, at paras. 112-115; R. v. Quartey, 2018 SCC 59. In s. 276 of the Criminal Code, Parliament appears to have chosen a more comprehensive method for determining admissibility in the circumstances of cases involving the twin myths.

[21] Among preconditions to admissibility of evidence of prior sexual activity set out in s. 276(2), the evidence must: (s. 276(2)(b)) be relevant to an issue at trial, and (s. 276(2)(d)) have significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. Section 276(2)(b) requires that the evidence be of specific instances of sexual activity, which is not an issue here.

[22] Relevance does not only relate to establishing or refuting facts in issue. Relevant evidence has “some tendency” to make the existence or non-existence of a material fact more or less likely. Significant probative value may be found in evidence that has more than “trifling relevance” and is capable of leaving the jury with a reasonable doubt in the context of all of the evidence: R. v. L.S., 2017 ONCA 685, at paras. 86-90. However, the use of the enhanced expressions “significant probative value” and “substantially outweigh” requires a more nuanced or qualitative assessment of competing interests: the capacity to prove a fact, and trial fairness: R. v. M.T., 2012 ONCA 511, at para. 43.

[23] Section 276(3) sets out a variety of factors for a court to weigh in determining admissibility. These factors look towards a balance among the fair trial rights of an accused person, the need to minimize prejudicial reasoning in the fact-finding process and encourage just determinations of a case, and the importance of promoting the dignity and fair treatment of complainants in the prosecution of sexual allegations.

Analysis

[24] The starting point for this analysis must be the relevance of this evidence to an issue at trial. The Stage 1 determination that the evidence is capable of being admitted does not dictate its final admissibility in Stage 2 (see s. 278.93(4) and s. 278.94(4)).

[25] The evidence before the court is that the complainant felt more comfortable having sex with the applicant rather than MB, because at least she had already had sex with the applicant, though she wanted sex with neither. How relevant is this to an issue at trial?

[26] The defence argues that it is the fact that the reasoning will be grounded in evidence that will emanate from the complainant – the “I was more comfortable with the applicant” – that makes questioning of the complainant about her prior sexual contact with the applicant logical, and not stereotypical. However, the reason for the complainant’s preference for sexual involvement with the accused rather than MB is not itself directly relevant to any issue in this case. The issue in the case is whether the complainant consented to sexual activity with the applicant, not why she preferred the applicant to MB in a no-win situation. This heading of relevance is trifling, though that does not foreclose the question of admissibility.

[27] The defence argues that it is not bound by the complainant’s construction of the issue. Perhaps the complainant’s explanation to police is masking the complainant’s true sentiment, a sentiment that the defence must be permitted to explore, as it may call into question the complainant’s assertion that she did not consent.

[28] So the defence suggests that it should be able to ask the complainant, “once MB was out of the way, you were more comfortable with the applicant?” In other words, it might be suggested to the complainant that her comfort related to her shyness at MB’s presence as voyeur or potential participant. A further proposed question would involve asking the complainant, “you felt comfortable engaging in intercourse with the applicant because you had done so on a prior occasion?” Although this looks startlingly like the myth forbidden by s. 276(1)(a), the defence submits that the term “comfortable” is not “consent”, and, as it emanates from the complainant, it does not involve twin-myth or stereotypical reasoning.

[29] Such cross-examination, it is submitted, might cause the complainant to give ground on her claimed meaning of “comfort” and thereby assist the case for the defence. Therefore, the other proposed relevance of questioning the complainant about being “comfortable” and about the October incident is the possibility of raising doubt on the issue of consent. Such relevance is, at best, speculative.

[30] We move next to s. 276(2)(d), which I find useful to reconsider here. Is the probative value of this evidence “significant”, and not “substantially outweighed by the danger of prejudice to the proper administration of justice”? In terms of the factors in s. 276(3), this inquiry directly implicates s. 276(3)(a), (d), and (e). It goes to the interests of justice and the right to make a full answer and defence, whether admission of the evidence will assist in a just determination of the case, and the need to remove discriminatory beliefs from the fact-finding process.

[31] During the argument of this application, even the defence acknowledged that “this is a fine line we are treading.” The focus on the complainant being “comfortable” with the accused is closely related to her prior sexual involvement with him. As the complainant expressed it, her comfort related directly to prior vaginal intercourse with the accused, as opposed to her lack of such prior experience with MB. For the complainant to explain “comfort” as she intended it, if she remains consistent with her statement to police, she can only answer by discussing her prior sexual involvement with the applicant. But in that circumstance, her “comfort” becomes virtually indistinguishable from consent because of that prior consensual sexual involvement.

[32] In its baldest form, it is apparent that the complainant’s comfort with the applicant will be pointed to as a proxy for consent and can only involve the jury in forbidden reasoning. If the complainant’s comfort with the applicant was related to her earlier act of consensual sexual intercourse with him, and her comfort with the applicant made consent more likely, then the October incident made the complainant’s consent more likely. The only difference between this thought process and the one forbidden by s. 276(1)(a) is the interposition of a mechanism for the formation of consent during the incident charged, in the form of the “comfort” the complainant felt with the applicant. And that comfort, as explained by the complainant, is really only relevant to the disagreeable options that she felt she had between sex with the applicant or with MB.

[33] While the defence should have the right to explore appropriate issues relating to the complainant’s consent, to do so based on the complainant’s explanation of her “comfort” with the applicant, in the no-win scenario in which she found herself, will raise the prejudice of forbidden reasoning in aid of the defence theory that the complainant’s “comfort” was actually full-bore consent.

[34] I can only conclude that the probative value of the evidence is slight or speculative, and the danger of prejudice, in the form of an obvious but highly inaccurate equation here between “comfortableness” and consent, is extreme. In balancing the relevant factors, evidence about the complainant being “more comfortable” with the applicant and about the October incident does not satisfy the precondition in s. 276(2)(d).

[35] Nor can any jury instruction fix this problem. What will a jury do when told in one breath that they can use the complainant’s “comfort” with the applicant because of the October incident to determine the issue of her consent, but in the next breath that they must not reason that because the complainant consented in the past she again consented on June 23, 2020? Whatever it is that the jury makes of such a confusing instruction, there will be good reason to doubt that this evidence “will assist in arriving at a just determination of the case” (s. 276(3)(c)).

[36] The applicant’s right to make a full answer and defence (s. 276(2)(a)), does not include the right to rely on discriminatory beliefs or biases (s. 276(3)(d)). The interests of justice do not include pursuing a line of questioning that must implicate and encourage forbidden reasoning.

[37] And what of the complainant’s right to personal security and the protection of the law (s. 276(3)(g)) and her personal dignity? What effect on society’s interest in encouraging the reporting of sexual assault allegations?

[38] It must be recalled, after all, that the complainant never stated that she was comfortable having sex with the applicant on June 23, 2020. As she explained it, caught in a no-win situation the complainant indicated a preference to sex with a previous sexual partner over a new one as the lesser of two evils. Through cross-examination about her “actual” meaning, the defence hopes, in its pursuit of an acquittal, to recast this explanation as a form of consent to sex with the applicant.

[39] Such a strategy, if successful, can reasonably make the subject of such an examination feel that the trial process has been distorted and that she has been put on trial rather than the applicant. There is the serious potential for prejudice to the complainant’s personal dignity by implying that the October incident with the applicant would render her “comfortable” with finding herself in the situation that presented itself on June 23, 2020 (s. 276(3)(f)). A potential complainant who reads about what went on in this case might well choose not to undergo such an ordeal by choosing not to report an allegation of sexual assault (s. 276(3)(b)).

[40] The applicant put forward no evidence from himself at this hearing, so I do not know much about what he would say concerning June 23, 2020. Nevertheless, even without the October incident and the complainant’s “comfort”, the applicant still has remaining to him a powerful tool for cross-examining the complainant. She gave a lengthy statement to police, which has been fully transcribed, and most of which can still be used for testing her evidence. In addition, if the applicant chooses, he can offer evidence that contradicts the complainant’s claims on the issue of consent, among other things. I am satisfied, in all of the circumstances of this case, that the right of the applicant to offer a full answer and defence (s. 276(3)(a)) will not be compromised if the applicant is not permitted to question the complainant about or use evidence relating to the October incident.

Conclusion

[41] For the above reasons, the Crown will be permitted to adduce evidence about the FaceTime interlude and the part that it played in the complainant’s decision to visit the applicant on June 23, 2020. The defence may cross-examine on those areas. Neither party may delve into details about what took place on FaceTime.

[42] The application by the applicant to adduce evidence about the October 2019 incident and the related area of the complainant’s “comfort” with the applicant is dismissed. If the defence intends to cross-examine the complainant in a manner that could reasonably be anticipated to cause the complainant to speak about those areas, it will first bring such questioning to the attention of the court for direction. Discussions of this issue will take place in the absence of the jury.

[43] This ruling may be revisited, if necessary, during the course of the trial if circumstances dictate that it must be reconsidered.

The Honourable Mr. Justice A.D. Kurke Released: April 11, 2023