Court File and Parties

Court File No.: CJ101266 Date: 2023/05/09

Ontario Superior Court of Justice

Between: His Majesty The King – and – Donald McCarthy

Counsel: B. Schnell, for the Crown J. Drexler, for the Accused K. Van Drunen, for the Complainant, R. P - G

Heard In Camera: April 24, 2023

Before: The Honourable Justice M. J. Valente

Warning: Subject to any further order by a court of competent jurisdiction, an order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity, shall not be published in any document or broadcast in any way pursuant to s. 486.4 of the Criminal Code of Canada.

In Camera Ruling on Application Pursuant to Section 276 of the Criminal Code, R.S.C. 1985, c. C-46

Overview of The Evidence

[1] Mr. McCarthy, the applicant, is charged with having sexually assaulted the complaint, R. P – G, while she was asleep in her bed on the evening of July 3, 2020. The trial in this matter is scheduled to proceed on today’s date, May 8, 2023, before a jury.

[2] On February 17, 2023, for oral reasons given, and on consent of the Crown and the complaint, I granted the applicant’s request for a hearing pursuant to s. 278.94 of the Criminal Code, R.S.C. 1985, c. C-46 (the ‘Code’) to consider the admissibility of certain evidence governed by s. 276 of the Code.

[3] The evidence of the complainant is that Mr. McCarthy attended her apartment to sell her some cocaine. They had socialized and used cocaine together before July 3, 2020.

[4] On July 3, 2020 they socialized throughout the day and once again used cocaine together. Later in the evening, the complainant’s friend, E., also socialized with Mr. McCarthy and the complainant. By approximately 10:30 pm, the complainant was tired and fell asleep in her bed while Mr. McCarthy was alone in the apartment’s living room. At approximately midnight, the complainant awoke to find that she had been sexually assaulted. The complainant has no memory of what took place because she was asleep during the alleged encounter.

[5] The complainant is Indigenous and has a learning disability.

[6] In this application, Mr. McCarthy seeks to adduce evidence of other sexual activity. This other sexual activity was described by the complainant in her preparatory meeting with the Crown in May 2022.

[7] Firstly, she advised the Crown when Mr. McCarthy first attended at her apartment to sell her cocaine, she realized she did not have sufficient money to pay the agreed $50.00 cost for the cocaine. She had only $25.00. As a result, she offered Mr. McCarthy the $25.00, oral sex and a promise to pay the balance later. Mr. McCarthy agreed. The applicant and the complainant not only had consensual sex but spoke of having sex again depending on how the complainant’s seized back felt later that day. I refer sometimes to this described other sexual activity as the “Earlier Encounter Evidence”.

[8] Secondly, the complainant advised the Crown in her preparatory meeting that she was in an open relationship with her friend, E., and that Mr. McCarthy had asked the complainant on two occasions to have a threesome with her and E. I sometimes refer to this other sexual activity as the “Threesome Evidence”.

Positions of The Parties

[9] The applicant argues that the proposed evidence respecting the Earlier Encounter Evidence and the Threesome Evidence is the be led for purposes unconnected to the prohibited purposes described in s. 276(1) of the Code. Rather the applicant submits that the proposed evidence is relevant to testing the complainant’s creditability.

[10] The basis of Mr. McCarthy’s position is that in her earlier statement to police on July 5, 2020, the complainant made no mention of either the Earlier Encounter Evidence or the Threesome Evidence. The applicant submits that the complainant’s earlier statement to the police gives the impression that there was nothing sexual between she and the applicant and that he was merely an acquaintance from whom she purchased cocaine. According to the complainant’s police statement one is led to believe that not only was the sexual activity non-consensual, but it was also completely unexpected. It is Mr. McCarty’s position that because there is both a material omission and contradiction in the complainant’s two statements, the door is open for the complainant to be cross examined on her prior inconsistent statements.

[11] While the general creditability of the complainant is not a basis upon which to permit evidence of other sexual activity, evidence which may undermine the complainant’s creditability on a central point may be relevant to the determination of the issues at trial. Here, Mr. McCarthy asserts that given the complainant has provided inconsistent statements regarding the central issue of the nature of the parties’ sexual relationship, the inconsistencies are probative of the issue of creditability, and therefore, relevant to the issue of the complainant’s consent to the alleged sexual act.

[12] It is also the applicant’s submission that the probative value of the Earlier Encounter Evidence and Threesome Evidence is not substantially outweighed by the risk of prejudice to the administration of justice because the proposed evidence is necessary for him to make full answer and defence. Finally, it is Mr. McCarthy’s position that any prejudice to the complainant’s personal dignity and privacy is also minimized given that the proposed evidence is reflected in the Crown disclosure.

[13] The Crown takes the position that the complainant’s omission of the Earlier Encounter Evidence and Threesome Evidence in the police statement does not impact on her creditability. She was specifically told by the interviewing officer to address specifically the sexual assault at issue and not to mention any prior sexual activity. The complainant did so and there is nothing inconsistent with respect to the complainant’s statements regarding the alleged sexual assault. The Crown also submits that the proposed evidence has minimal probative value and whatever value it does have, is substantially outweighed by the prejudicial effect of the Earlier Encounter Evidence and Threesome Evidence. In particular, the Crown submits that the Earlier Encounter Evidence invokes the second twin myth that the complainant is less credible because of her prior sexual history. Finally, the Crown argues that the proposed evidence is an unwarranted significant intrusion that goes to the core of the complainant’s personal dignity and right to privacy.

[14] As counsel to the complainant, Ms. Van Drunen argues with Crown counsel that both the Earlier Encounter Evidence and the Threesome Evidence are not admissible because it is not probative given the specific direction of the investigating officer to the complainant at her July, 2020 interview.

[15] Apart from the proposed evidence potentially causing the jury to engage in the second of the twin myth reasoning, complainant’s counsel argues that the Threesome Evidence may arose sentiments of prejudice in certain members of the jury despite the significant recent human rights gains for the LGBTQ+ community in Canada.

[16] Having said that, speaking solely on behalf of the complainant, Ms. Van Drunen advised the court that her client wishes to testify to the Earlier Encounter Evidence because if she is directed not to address this proposed evidence, she is fearful that she will become nervous and thereby increase the possibility of being unable to explain in detail and with accuracy her version of the events of July 3, 2020.

Analysis

[17] To be admissible, the proposed evidence of other sexual activity must meet the criteria set out in s. 276 of the Code. Those criteria, stipulated in s. 276(2), may be paraphrased as follows:

a) That the evidence is not being adduced for the purpose of supporting an inference that the complainant is more likely to have consented or is less worthy of belief; b) That the evidence is relevant to an issue at trial; c) That the evidence is of a specific instance of sexual activity; and d) That the evidence has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

[18] The first of these criteria prohibits the use of evidence to support either of the “twin myths” enumerated in s. 276(1). I am satisfied that the applicant disclaims any intention to use the evidence to suggest that the complainant was more likely to have consented to the alleged sexual activity on the evening of July 3, 2020. He acknowledges that consent must be communicated at the time of the sexual activity in question and that whatever was communicated between the participants in advance, cannot constitute evidence of consent at the relevant time. Secondly, I accept that the proposed evidence is not tendered for the purpose of demonstrating that the complainant is less worthy of belief because she engaged in prior sexual activity, including the complainant’s alleged earlier conversation with the applicant when they discussed consensual sex in the future. I accept that the applicant takes the position that the evidence in question contains prior inconsistent statements which he intends to use to impeach the credibility of the complainant, and therefore, is not a prohibited purpose.

[19] To my mind the fundamental question in assessing the admissibility of the proposed evidence is whether that evidence contains prior inconsistent statements and is relevant to an issue at trial?

[20] In R v. Goldfinch, 2019 SCC 38 (‘Goldfinch’), the Supreme Court of Canada clarified that the “mere assurances that [relationship evidence] will not be used for [twin-myth] purposes are insufficient” (at para 46). What is more, “[b]are assurances that such evidence will be relevant to context, narrative on credibility cannot satisfy s. 276(2)…the accused must propose a use of the evidence that does not invoke the twin-myth reasoning” (at para 56). While the majority judgment in Goldfinch acknowledged that “a relationship may provide relevant context quite apart from sexual activity…it is critical that the relevance of the sexual nature of the relationship to an issue at trial be identified with precision” (at para 57).

[21] The Court, in Goldfinch, reviewed a “number of examples of how evidence of previous sexual activity between an accused and a complainant may be relevant to an issue at trial”, and therefore, potentially admissible (at para 61). These examples include:

a) When the accused relies on the defence of honest but mistaken belief in communicated consent; b) In the rare circumstances where the sexual aspect of the relationship between the accused and the complainant provides context for the trier of fact to properly understand and access the evidence; and c) When the complainant has offered inconsistent statements regarding the very existence of a sexual relationship with the accused.

[22] In my opinion, there is no inconsistency between the complainant’s police statement and statement provided to the Crown. I have reached this conclusion because of the very specific instruction provided to the complainant by the investigating officer prior to her statement. That instruction was to focus solely on the alleged assault and to treat any prior sexual activity as irrelevant. Specifically, Sergeant Shipp, as the investigating officer, directed the complainant as follows;

Sergeant Shipp: And I just wanna reiterate, while we’re being recorded as well, that any of your sexual history isn’t relevant and I don’t want you to get into that, okay? We’re just interested in what happened in the incident, okay? Do you understand all that? Complainant: Yes

[23] The fact that the investigating officer suggested to the complainant that she may wish to provide “a little bit of background information to understand…what might have happened” does not undermine the very specific and direct instruction provided to her. In July, 2020 she was instructed to describe the sexual assault at issue and not to address any prior sexual activity. She followed that instruction. When one compares her description of the alleged assault given to the investigating officer with that description provided to the Crown some two years later, there is no inconsistency in the two statements.

[24] The applicant urges me to ignore the investigating officer’s instruction to the complainant in assessing whether the two statements are inconsistent. He argues it is open to the complainant to explain to the jury why she limited her police statement to a description of the alleged sexual assault itself and allow the jury to assess the complainant’s credibility. I disagree. The investigating officer’s instruction frames the parameters of the complainant’s statement, and without it, the statement is without the specific context in which it was provided.

[25] The ‘omissions’ and ‘contradictions’ between the two statements, as the applicant would describe them, are explained by the investigating officer’s direction, and therefore, are not relevant in my opinion. They cannot impact on the question of whether the complainant consented or was capable of consenting to the sexual activity at issue but only serve to distract from those central issues.

[26] I am also reminded by the Supreme Court of Canada’s statement in R v. Darrach, 2020 SCC 46, that “evidence of prior sexual activity will rarely be relevant to support a denial that sexual activity took place or to establish consent” (para 58).

[27] Furthermore, attacks on the general credibility of a complainant are not permitted by s. 276 of the Code. As Justice Milantetti held in R v. Valdey, [2009] O. J. No. 59 (S.C.J), at para. 9, “an accused person is not entitled to cross-examine the complainant on his or her other sexual activity to obtain denials, which the applicant would then seek to disprove.” An attack on the general credibility of a complainant is not permitted because such an attack offends the collateral fact rule. In my opinion, each of the Earlier Encounter Evidence and the Threesome Evidence are collateral facts; neither are relevant to matters which must be proved for the determination of the Crown’s case against Mr. McCarthy (see R v. B(A. R.) (1998), 41 O.R. (3d) 361 (C. A.)). As the Newfoundland Court of Appeal aptly said in R v. S. B. [2016] N. J. 158; aff’d 2017 SCC 16:

It is a fundamental error to view s. 276 as a means to do an “end run” around the collateral fact rule; it is a misuse of s. 276 to utilize it to put before a jury evidence of other sexual activity that would not be admissible under the common law rules of evidence, including the collateral fact rule (at para. 27).

[28] The Supreme Court of Canada in Goldfinch explained that the “specific instances” requirement of s. 276(2) will be met by indicating “the parties to the relationship, the nature of that relationship and the relevant time period” (at para 54).

[29] While I am satisfied that the proposed evidence may indeed meet the third requirement of s. 276(2), I am not convinced on the balance of probabilities that the Earlier Encounter Evidence and the Threesome Evidence have significant probative value that is not substantially outweighed by the danger of prejudice to the proper administrative of justice. In reaching this conclusion, I have considered, as I must pursuant to the instruction of the Code and the Supreme Court of Canada in Goldfinch (at para 69), the factors set out in s. 276(3).

[30] Because the complainant wishes to testify to the Earlier Encounter Evidence for the reasons previously stated, it is my view that the proposed use of this evidence will not discourage the reporting of sexual assault offences, does not deny the complainant the protection of the law and does not do damage to the complainant’s personal dignity or right of privacy. The same cannot be said, however, for the Threesome Evidence. I have already found that this evidence is not only irrelevant to the issues at trial, but in addition, it is opinion that it is particularly private and an unwarranted intrusion that goes to the core of the complainant’s dignity and privacy.

[31] Given my finding that both the Earlier Encounter Evidence and the Threesome Evidence are not germane to an issue at trial, I am not concerned that their exclusion will have a negative impact on the applicant’s right to make full answer and defence. For the same reason, I have not satisfied that the proposed evidence will have a reasonable prospect of providing assistance in arriving at a just determination of the case.

[32] On the other hand, I am of the view that the proposed evidence risks arousing sentiments of prejudice and discriminatory belief or bias that cannot be adequately addressed with a jury instruction. Sexual history evidence always carries a potential of prejudice and discriminatory inferences but particularly so in this case where the complainant is Indigenous. Notwithstanding significant advances made, the unfortunate reality is that some members of our non-Indigenous Canadian society continue to adhere to ill founded and negative beliefs and bias about the founding peoples of this country. The Supreme Court of Canada in Barton acknowledged that “Indigenous people are the target of hurtful biases, stereotypes, and assumptions, including stereotypes about credibility, worthiness, and criminal propensity, to name just a few” (at para 199). My concern of unwarranted sentiments of prejudice being aroused in the jury is increased with the proposed introduction of the Threesome Evidence. The reality is that certain among us maintain very conservative views about sexual morality and view negatively those with a liberal sexual lifestyle.

[33] In my opinion, the very prospect of these biases and prejudices create a significant risk of reasoning prejudice and increase the risk of the jury straying into the second prohibited myth. Specifically, that the complainant is less worthy of belief that she did not consent to the subject sexual activity because she had previously consented to oral sex with Mr. McCarthy, was in an “open relationship” with friend, E., and discussed with the applicant the prospect of future consensual sex.

[34] For all of these reasons, I find that the proposed evidence does not have significant probative value and, in the alternative, any probative value that it may have, is substantially outweighed by the danger of prejudice to the proper administrative of justice.

Conclusion

[35] Accordingly, the relief sought by the applicant is dismissed.

M.J. Valente J.

Released: May 9, 2023