Court File and Parties

COURT FILE NO.: CR-22-50000532-0000 DATE: 2023-07-21 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – R. G.

Counsel: Stuart Rothman, for the Crown Sabrina Shillingford, for Mr. G.

HEARD: May 26, 2023

RESTRICTION ON PUBLICATION: 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proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4(1) of the Criminal Code of Canada. This ban does not apply to publication of these reasons in law reports nor to a discussion of the underlying legal principles in other publications.

R.F. GOLDSTEIN J.

Reasons for Judgment on Stage 2 S. 276 Application

[1] The Crown alleges that the accused sexually touched his stepdaughter, the complainant, on 15-20 occasions between July 2009 and March 2013. The complainant was 5 to 9 years old. The sexual activity occurred at the complainant’s home on Kipling Avenue when the mother was out. The complainant, her mother, and her two younger twin siblings lived together. The Crown also alleges that between March 2013 and July 2015 the accused sexually touched the complainant at the complainant’s home on Albion Road. The complainant was 9 to 11 years old.

[2] The Crown alleges that the sexual touching occurred in the mother’s bedroom. The accused would “spoon” the complainant. He would fondle and caress the complainant’s chest, buttocks, stomach, and vagina, over her clothing. Sometimes he would rub her chest under her clothing. Each incident lasted for 5-10 minutes.

[3] In May 2021 the complainant disclosed the sexual touching to her mother. She eventually went to the police. The police charged the accused with two counts of sexual interference. His trial is set for October 10, 2023.

[4] The Crown applies to introduce evidence of other sexual activity by the complainant. The complainant told the police that when she and her stepbrother – the accused’s son – were younger, the stepbrother would “dry-hump” her on several occasions. The stepbrother also told the police that he and the complainant about the sexual activity. His father, the accused, learned about the “dry humping”. Instead of disciplining the stepbrother, the accused allegedly told his son: “I don’t blame you. I would put the fuck on her too.”

[5] The Crown wishes to introduce the accused’s comment at his trial as discreditable conduct evidence: R. v. Handy, 2002 SCC 56.

[6] Before the Crown can bring a discreditable conduct application, however, it must bring a voir dire so that a judge can vet the other sexual activity: R. v. Goldfinch, 2019 SCC 38 at para. 14. Although the Crown is not strictly subject to the procedure in s. 276 of the Criminal Code, as the defence would be, Goldfinch, along with R. v. Barton, 2019 SCC 33 and R. v. R.V., 2019 SCC 41, makes it clear that the trial judge nonetheless has a gatekeeping function to prevent the harms that s. 276 is meant to address. These harms are the potential for “twin myth” reasoning, unwarranted intrusions into privacy, and the potential for distraction through the introduction of irrelevant evidence. The common law principles, later codified in a revised s. 276(2), are set out in R. v. Seaboyer, [1991] 2 S.C.R. 577, at paras. 99 to 106. Paragraph 106 of that case summarizes the principles:

1. On a trial for a sexual offence, evidence that the complainant has engaged in consensual sexual conduct on other occasions (including past sexual conduct with the accused) is not admissible solely to support the inference that the complainant is by reason of such conduct: (a) more likely to have consented to the sexual conduct at issue in the trial; (b) less worthy of belief as a witness.

2. Evidence of consensual sexual conduct on the part of the complainant may be admissible for purposes other than an inference relating to the consent or credibility of the complainant, where it possesses probative value on an issue in the trial and where that probative value is not substantially outweighed by the danger of unfair prejudice flowing from the evidence. By way of illustration only, and not by way of limitation, the following are examples of admissible evidence: (A) Evidence of specific instances of sexual conduct tending to prove that the person other than the accused caused the physical consequences of the rape alleged by the prosecution; (B) Evidence of sexual conduct tending to prove bias or motive to fabricate on the part of the complainant; (C) Evidence of prior sexual conduct, known to the accused at the time of the act charged, tending to prove that the accused believed that the complainant was consenting to the act charged (without laying down absolute rules, normally one would expect some proximity in time between the conduct that is alleged to have given rise to an honest belief and the conduct charged); (D) Evidence of prior sexual conduct which meets the requirements for the reception of similar act evidence, bearing in mind that such evidence cannot be used illegitimately merely to show that the complainant consented or is an unreliable witness; (E) Evidence tending to rebut proof introduced by the prosecution regarding the complainant's sexual conduct;

3. Before evidence of consensual sexual conduct on the part of a victim is received, it must be established on a voir dire (which may be held in camera) by affidavit or the testimony of the accused or third parties, that the proposed use of the evidence of other sexual conduct is legitimate.

4. Where evidence that the complainant has engaged in sexual conduct on other occasions is admitted on a jury trial, the Judge should warn the jury against inferring from the evidence of the conduct itself, either that the complainant might have consented to the act alleged, or that the complainant is less worthy of credit.

[7] Section 276 of the Criminal Code now states:

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.

(2) In proceedings in respect of an offence referred to in subsection (1), evidence shall not be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94, that the evidence (a) is not being adduced for the purpose of supporting an inference described in subsection (1); (b) is relevant to an issue at trial; and (c) is of specific instances of sexual activity; and (d) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account (a) the interests of justice, including the right of the accused to make a full answer and defence; (b) society’s interest in encouraging the reporting of sexual assault offences; (c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case; (d) the need to remove from the fact-finding process any discriminatory belief or bias; (e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury; (f) the potential prejudice to the complainant’s personal dignity and right of privacy; (g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and (h) any other factor that the judge, provincial court judge or justice considers relevant.

(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.

[8] I find a that the evidence is not being introduced for either “twin myth” reason: that the complainant was more likely to have consented to sexual activity; or, that she is less worthy of belief. Given the age of the complainant, consent cannot be a live issue in any event. I also find, when I balance the common law factors (and have regard to the factors set out in s. 276(3)) that the evidence should be admitted, at least at this stage.

[9] The proposed evidence is clearly relevant to two issues at trial: the state of mind of the accused and whether he committed the actus reus of the offence. Relevance is a relational concept. It is the relation between the evidence and the proposition that the prosecution wishes to prove: R. v. Luciano, 2011 ONCA 89. The Crown wishes to prove that the accused was sexually attracted to the complainant, which goes to whether he committed the crime as well as to motive. Without the proposed evidence of other sexual activity the comment would have no context. The jury would be left to speculate about the origins of the comment. The comment, therefore, has probative value.

[10] I find that the probative value of the proposed evidence outweighs the prejudicial effect. It will be up to the trial judge to instruct the jury as to the proper use that can be made of the evidence: R.V. at para. 72.

[11] It is unclear whether a complainant has standing on a Crown voir dire involving other sexual activity. In this case, the Crown contacted counsel for the complainant at the behest of the pre-trial judge. Complainant’s counsel communicated that the complainant did not seek standing and also did not object to the introduction of the evidence. Whether the complainant has standing on a Crown voir dire involving other sexual activity is not something that I am required to decide on this application.

[12] The Crown’s application is granted. The accused’s comment is provisionally admissible. The Crown is still required to bring a separate discreditable conduct application.

R.F. Goldstein J. Released: July 21, 2023