Court File and Parties

COURT FILE NO.: CR-23-70000502 DATE: 2024-09-11 ONTARIO SUPERIOR COURT OF JUSTICE

Between:

HIS MAJESTY THE KING – and – A.D. Defendant

Counsel: David Spence, for the Crown Brad Greenshields, for the Defendant

HEARD: July 12, 2024

Restriction on Publication

Pursuant to s. 486.4(1) of the Criminal Code, information that may identify the persons described in this judgment as the complainant may not be published, broadcast or transmitted in any manner.

P.T. SUGUNASIRI J.

Reasons for Decision on Section 276 Stage 2 Application

[1] The Applicant and Complainant are cousins. The Complainant alleges that in April of 1991, when she was 12 years old, the Applicant, aged 21, sexually assaulted her and got her pregnant. The doctor who confirmed the pregnancy reported the matter to the Children’s Aid Society (“CAS”). The pregnancy was terminated on May 28, 1991. After speaking with the CAS and police, no charge was laid. At the time, the Complainant described the intercourse with the Applicant as consensual. the Toronto Police Service (“TPS”) and CAS closed their files, and the Applicant was sent to a religious school in India until she returned at age 18.

[2] On November 19, 2022, the Complainant attended 55 Division of the TPS to provide a videotaped statement about the penetrative sexual assault by AD and other sexual assaults committed by the Applicant’s three brothers, aged 19, 23, and 28 years old at the time. The alleged assaults by the brothers occurred when she was eight or nine but might have also been ongoing until the alleged penetrative assault by AD. The Complainant alleges that one brother touched her genitals under her clothes and showed her how to rub his penis to ejaculation. Another brother allegedly required her to rub his penis to ejaculation, but did not touch her. She alleges that the third brother, who taught her the Quran, tried to kiss her, and grope her breasts above her clothing. The Complainant alleges that only the Applicant penetrated her vagina with his penis.

[3] The Crown and Defence also have the CAS record. In that statement, the Complainant first denied any sexual contact, but then advised that she had sexual intercourse with the Applicant, describing the relationship as falling in love. No action was taken in 1991 by the authorities because there was no evidence of coercion or abuse (a criteria that is contrary to s. 150.1(1) of the Criminal Code that 12-year-olds are not legally capable of consenting to sexual activity with a 21-year-old).

[4] The Applicant applies to cross-examine the Complainant on five baselines of inquiry:

i. The complainant’s understanding of the types of sexual activity capable of causing pregnancy;

ii. Her initial denial of any sexual activity with anyone at the time of her pregnancy;

iii. Her non-disclosure of her allegedly regular sexual activities with her cousins M.H.D., A.Y.D. and R.D., which allegations were not reported to the authorities until the Complainant’s 2022 statement;

iv. The nature and circumstances of the alleged sexual activities with M.H.D., A.Y.D., and R.D.; and

v. Whether she engaged in sexual activity capable of causing pregnancy with anyone other than A.D. within the relevant time.

[5] A.D. seeks to explore these lines of inquiry as part of an “organic” good faith cross-examination contemplated in the dissenting judgments of Brown J. and Rowe J. in the similar case of R. v. R.V., 2019 SCC 41, at paras. 115, 119, and 122. The Crown opposes lines of inquiry iii and iv. The Complainant opposes lines of inquiry i, iii, and iv, and seeks to limit the scope of what can be asked under lines of inquiry ii and v.

[6] For the brief reasons that follow, I agree with the Crown and Complainant’s position and do not allow questioning about the non-disclosure of the alleged assaults by M.H.D., A.Y.D., and R.D., nor questions about the nature and circumstances of those assaults. After establishing with the Complainant what sexual activities could cause pregnancy, A.D. is permitted to ask whether any of those alleged assaults could have caused pregnancy. A.D. is also permitted to ask whether the Complainant was subject to any other sexual activity by an undisclosed person in April of 1991 that could have caused pregnancy. A.D. is permitted to probe a bit further into whether she might have been subject to sexual activity in April of 1991 that could cause pregnancy by anyone else who told her not to tell, but the extent of that probing is subject to the parameters set by the trial judge.

[7] The relevant provisions of the Criminal Code are:

Evidence of complainant’s sexual activity

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.

A.D. can establish with the Complainant what sexual activity can cause pregnancy

[8] The thrust of A.D.’s position is that to make full answer and defence, he should be entitled to challenge the anticipated evidence that the Complainant’s documented pregnancy and termination was a result of a penetrative sexual assault perpetrated by A.D. To do so, he needs to be able to explore the details of the other sexual assaults alleged to have happened in or around the same period (April of 1991), as well as any unreported activities with anyone else during that time period.

[9] I agree that the first step is to establish with the Complainant what sexual activity can cause pregnancy. To be clear, it does not matter what the Complainant thinks causes pregnancy. It is what in fact can cause pregnancy – circumstances one would think can be agreed upon by Crown and defence. This inquiry is relevant, does not engage or invite the twin myths of s. 276(1), and does not prejudice the Complainant reputationally or otherwise: R.V., supra at paras. 56-59.

A.D. can inquire about the initial denial of sexual activity with anyone at the time of her pregnancy

[10] Both the Crown and Complainant’s counsel agree that this is a relevant line of inquiry, subject to the limitation on the scope of questioning about the other alleged sexual assaults by A.D.’s three brothers (see my ruling below on this issue) and any other restrictions placed by the trial judge as the cross-examination unfolds.

A.D. cannot inquire about the Complainant’s non-disclosure of the alleged sexual assaults by A.D.’s brothers until 2022

[11] A.D. has not identified what trial issue this line of questioning is relevant to, or why it is necessary for A.D. to make full answer and defence to the allegations against him in this case (as opposed to the case against his brothers). What significant probative value is there that substantially outweighs the danger of prejudice – that being the impermissible inference that the Complainant is less worthy of belief about this alleged assault because she did not report other alleged assaults? We know that this type of general attack on credibility is not permitted by s. 276: R. v. Reid, 2014 ONSC 1795, at para. 22. A.D. has not pointed to what purpose the inquiry serves, let alone its significant probative value.

[12] I agree with the Crown and the Complainant that the proposed line of inquiry also offends the collateral fact rule. The fact of not disclosing other alleged assaults by other people does not advance the resolution of a matter arising from this indictment against A.D. The defence cannot impeach the Complainant’s credibility by questioning her on the veracity of her allegations against others, unless A.D. can establish that those allegations are false: R. v. M.T., 2012 ONCA 511, at paras. 49 and 50. There is no such argument or evidence of this here.

A.D. cannot inquire about the nature and circumstances of the alleged sexual assaults by the brothers

[13] In A.D.’s factum, defence counsel writes at para. 16:

(…) Unlike R.V., this applicant is backed by significantly more than a denial, and/or a complainant who has categorically denied any sexual activity – with any person – other than her allegations against the accused. To the contrary, on the complainant’s account, she was sexually active with multiple men during the period in question (…)

This, A.D. argues, supports a good faith basis for questioning her on the sexual activities with A.D.’s brothers.

[14] Defence counsel is legally trained and understands that 12-year-olds are not legally capable of consenting to sexual activity let alone with men who are 19, 21, 23, and 28. Any sexual activities with them, if proved, are without consent and are therefore assaults against her. To frame these alleged assaults against the Complainant as her being “sexually active with multiple men” demonstrates the significant risk to the Complainant of a lay jury, not versed in the legal age of consent, engaging in improper moral reasoning and judgment of her. In the circumstances of the Complainant, who is a Sunni Muslim woman, and in the context of the alleged response of her parents and community to the alleged events that took place, there is also a significant risk to her personal dignity as a member of that community and at large.

[15] A.D. has not adequately argued how delving into the nature and circumstances of these alleged sexual assaults is probative of any issue at this trial let alone significantly probative to substantially outweigh the prejudice that I have described above. Evidence of sexual assaults by others does not support A.D.’s defence that the assault did not occur at all: R. v. Darrach, 2000 SCC 46, at para. 58. There are other ways to explore the Complainant’s version of events or to test whether she is protecting someone, including a person not named in an indictment. Defence counsel can ask about her personal relationships with the brothers, her feelings towards them, loyalties she may have had voluntarily or otherwise, and explore any motives to protect any one of them or anyone else. This does not require delving into the details of the nature and circumstances of what occurred, beyond exploring whether any of it could cause pregnancy. The Complainant’s evidence will be that only A.D. assaulted her with penetration. The defence could explore whether she might have confused the brothers without detailing the nature and circumstances of the specific sexual acts alleged to have been done by them.

[16] This takes me to the fifth proposed line of inquiry.

A.D. is permitted to question whether any of the alleged sexual assaults committed by A.D.’s brothers could lead to pregnancy

[17] There is no evidence whatsoever that anything alleged to have been done by the brothers comes close to activity that could lead to pregnancy. There is no evidence whatsoever that there was a “boyfriend” in the picture. Defence counsel concedes that when talking about being in love and consensual sexual intercourse, the 12-year-old Complainant was only talking about A.D.

[18] However, I agree with defence counsel that an appropriate balancing of A.D.’s right to make full answer and defence and the interests in s. 276(3) is to permit defence counsel to ask the Complainant whether any of the sexual acts allegedly done to her by the brothers were ones that could cause pregnancy (with that category of acts having already been explored in line of inquiry #1). This is relevant to the Crown’s proposed link between the pregnancy and A.D.’s alleged assault, and A.D.’s defence that he had no contact with the Complainant whatsoever. As in R.V., this inquiry shall be limited and the defence cannot interrogate the Complainant further on her answer.

[19] Similarly, the defence can ask whether the Complainant was subject to any other sexual activity by any unnamed person in April of 1991 that could have caused a pregnancy. To balance A.D.’s ability to make full answer and defence with the considerations in s. 276(3), A.D. can probe a little further into any response the Complainant gives. For example, if she testifies that there is no one else, A.D. can probe a bit further on the basis that the Complainant was initially reluctant to disclose the alleged sexual assault by A.D. There is also evidence on the record that she in the past has been asked not to speak of sexual activity that she was subject to. Within this context, there may be some permissible areas of questioning that should either be established at the start of trial or managed as the questions unfold. Any questioning shall always respect the Complainant’s dignity and privacy, especially in the words defence counsel uses to ask the questions. The defence is not permitted to use the term “sexually active” when asking about any sexual activity, given that the Complainant was under the legal age of consent in April of 1991.

[20] In sum, the defence may pursue the following lines of inquiry:

a. Establish with the Complainant what sexual activity can cause pregnancy;

b. Questions about the Complainant’s initial denial of any sexual activity with anyone at the time of pregnancy (in 1991) but without venturing into the topic of the non-disclosure of the alleged sexual assaults by the brothers until 2022;

c. Ask whether any of the alleged sexual assaults by the three brothers that are alleged to have occurred in April of 1991 fall into the category of what could cause pregnancy, with no follow up questions;

d. Ask whether any sexual assaults or sexual actions by any unnamed person in April of 1991 could have caused pregnancy with permissible follow up questions subject to restriction by the trial judge ahead of time, or as the evidence unfolds.

P.T. Sugunasiri J. Released: September 11, 2024