Court File and Parties

COURT FILE NO.: CR-23-10000729-0000 DATE: 20241206 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

IAN SCOTT MCKELLAR Applicant – and – HIS MAJESTY THE KING Respondent

Counsel: Michael Juskey, for the Applicant Arjun Rudra, for the Crown

– and – B.H. Respondent / Complainant Gabrielle McLaughlin, for the Complainant

HEARD: December 2, 2024

Pinto J.

AN ORDER HAS BEEN MADE PURSUANT TO SS. 486.4(1) OF THE CRIMINAL CODE DIRECTING THAT ANY INFORMATION THAT COULD IDENTIFY THE COMPLAINANT SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR TRANSMITTED IN ANY WAY.

SECTION 276 STAGE 2 RULING

Overview

[1] This is my ruling with respect to Stage 2 of the applicant’s section 276 application. After hearing the applicant’s evidence and counsel submissions, I allowed the application with written reasons to follows. These are those reasons.

[2] The applicant is charged with sexually assaulting the complainant on October 17, 2022, contrary to section 271 of the Criminal Code.

[3] Section 278.93 of the Criminal Code provides for a two-stage procedure for the consideration of s. 276 applications. At Stage 1, I determined that the evidence sought to be adduced was capable of being admissible under subsection 276(2): R. v. McKellar, 2024 ONSC 5786.

[4] At Stage 2, an evidentiary hearing was conducted before me in accordance with s. 278.94 of the Criminal Code. Mr. McKellar was cross-examined on the affidavit he prepared dated September 24, 2024, and complainant’s counsel appeared and made submissions.

[5] A trial is set to commence on January 6, 2025. For the purposes of Stage 2, I have treated the trial as proceeding before a judge and jury.

[6] The applicant seeks to adduce evidence of prior or other sexual activity, specifically evidence of his prior relationship with the complainant, and evidence of “morning after” sex which is said to have occurred at around 11:00 a.m. the morning after the 4:00 a.m. sexual activity that is the subject matter of the criminal charge.

[7] Under section 276 of the Criminal Code, the evidence of the complainant’s prior sexual activity is only admissible if: (a) it does not engage the “twin myths” identified in s. 276(1), namely, that a complainant is more likely to have consented to the sexual activity in question, or is generally less worthy of belief because of that prior sexual activity; and (b) it satisfies the requirements for admissibility identified in s. 276(2), in that (i) it must be relevant to an issue at trial; (ii) it must be of specific instances of sexual activity; and (iii) it must have significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

[8] Section 276(3) of the Criminal Code requires the judge making the determination of admissibility to consider a number of factors. A s. 276 application must set out “detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial.”

[9] For the reasons that follow, I grant the application subject to my comments in this ruling.

The applicant and complainant’s evidence

The applicant’s evidence

[10] The applicant provided an affidavit in support of his s. 276 application. He was also cross-examined on his affidavit by the Crown at the Stage 2 hearing.

[11] The applicant stated that he met the complainant at university in Halifax in 2013 and that they were in an intimate relationship for approximately 18 months. Their relationship ended in October 2014.

[12] In September 2022, they reconnected in Toronto which led to a meeting for dinner and drinks on October 16, 2022. The applicant met the complainant at her residence at about 3:00 p.m. They consumed alcohol and went to a restaurant for dinner and drinks at approximately 8:00 p.m. They returned to the complainant’s residence and continued to drink and listen to music. They also consumed a marijuana edible. At around 3:00 a.m., the applicant asked the complainant if he could stay over for the night as he did not feel comfortable driving after consuming alcohol. She agreed.

[13] At around 4:00 a.m. on October 17, 2022, the applicant and complainant went to bed fully clothed. They had consensual sex which involved the applicant penetrating the complainant digitally and with his penis. At some point, he noticed that a small decorative pillow had fallen onto the complainant’s face. The applicant immediately stopped having sexual intercourse with the complainant, removed the pillow, and asked the complainant if she was awake. The complainant did not respond and the applicant went to sleep. He did not ejaculate at any point during this “first” sexual interaction.

[14] When the applicant woke up the next morning, he felt uncomfortable about what had transpired earlier so he asked the complainant, “did you fall asleep?” She asked the applicant what he meant and he told her that they were having sexual intercourse and at some point she fell asleep. The complainant responded that she would have known if they were having sex. The applicant replied that they were having sex and that, “now you are making me feel like a creep.” The complainant further responded, “well, you brought it up.” The applicant apologized and they proceeded to discuss other topics while lying in bed together.

[15] The applicant and respondent engaged in a further consensual sexual encounter at approximately 11:00 a.m. on October 17, 2022. The applicant did not use a condom and ejaculated inside the complainant’s vagina during this “second interaction.”

The complainant’s allegations

[16] The complainant reported to the police that, on or about October 17, 2022, she met up with her ex-boyfriend, the applicant. Other than a brief occasion, two weeks prior to the incident, the complainant and the applicant had not seen each other for approximately 7 years.

[17] The complainant alleges that she and the applicant met up at the complainant’s residence in Toronto at around 3:30 p.m. on October 16, 2022. They shared a bottle of wine. They went to a restaurant and had more drinks. They returned to the complainant’s residence where they shared a second bottle of wine and another alcoholic beverage.

[18] The complainant told the police that the applicant told her that he could not drive home and asked if he could sleep over at her place. She agreed. At approximately 4:00 a.m., the two got into the complainant’s bed fully clothed. The parties went to sleep apart from each other.

[19] Sometime later, the complainant awoke to the sensation of her eyelashes rubbing against her pillow. Her pants were off and her legs were spread apart. The complainant could feel the applicant penetrating her with his penis and fingers. She fell back asleep.

[20] Sometime later, the complainant woke again, this time to the feeling of the accused digitally rubbing her vagina. She then fell asleep again.

[21] At approximately 11:00 a.m. the complainant awoke. She observed the applicant fully naked, and her sweatpants were removed. She asked the applicant where her sweatpants were and he responded, “were you fully asleep?”

[22] The complainant went to the bathroom to inspect herself and observed semen in her vaginal area. The applicant left the complainant’s residence at around 11:00 a.m. or 12 noon.

The Applicant’s Position

[23] The applicant confirmed that notwithstanding the reality that the parties were in an intimate relationship for several months while at university in Halifax in 2014, he was content to adduce evidence that the parties knew each other from university and that they reconnected in 2022. He also confirmed that he was no longer seeking to adduce evidence about the parties’ prior relationship for the purpose of mounting a defence of honest but mistaken belief in communicated consent.

[24] Additionally, the applicant sought to adduce evidence in respect of the “morning after” consensual sex that purportedly occurred at approximately 11:00 a.m. on the morning of October 17, 2022. The applicant claims that this second sexual interaction where he ejaculated inside the complainant is why she found semen discharge in her vaginal area. The applicant denies that the discharge arose from the parties’ earlier sexual activity at around 4:00 a.m. since he did not ejaculate on that occasion.

[25] The applicant submits that the areas of proposed evidence do not engage “twin-myth” thinking. The applicant’s revised position means that he does not plan to question the complainant about intimate activity during their time in university; and with respect to the “morning after” sex, the evidence is critical to him explaining that he did not continue to have sexual intercourse with the complainant, or ejaculate into her once he realized that she may have fallen asleep. The applicant calls this the “lynchpin” of his case, without which, he would have no defence.

[26] Finally, the applicant submits that the complainant’s failure to report the “morning after” sex goes to her credibility.

The Crown’s Position

[27] With the applicant only seeking to establish that the parties had known each other previously when they reconnected in 2022, the Crown does not object to this aspect of the proposed evidence.

[28] However, the Crown continues to oppose the applicant adducing evidence of the parties’ “morning after” sex. The Crown contends that whether a complainant has had sex in the past or future in relation to an alleged sexual assault is irrelevant to the issue of consent for the sexual activity under consideration. The Crown states that it is unknown what the complainant will say about the purported “morning after” sex. It may be that the complainant will agree that it happened. However, that is neither here nor there in respect of whether the applicant failed to obtain the complainant’s consent for the earlier sexual activity. Relatedly, since this is not a case where the complainant has affirmatively denied that she had post-assault sexual activity, evidence of the morning after sex is not relevant to her credibility.

[29] In the alternative, the Crown’s position is that if the court is inclined to admit evidence of “morning sex” at trial, then I should adopt the suggestion made by complainant’s counsel that the defence should be limited to asking a single question of the complainant along the lines of “did you have sexual intercourse in the morning?” The Crown reasons that, if the complainant answers no, then there is no point in asking the complainant more questions. If she answers yes, then there is also no point in further questions as the applicant would be entitled to advance the theory that the ejaculate that the complainant found when she went to the bathroom came from the “morning after” sex.

The Complainant’s Position

[30] The complainant is aligned with the Crown that the evidence sought to be adduced is irrelevant and that it risks the trier of fact engaging in “twin myth reasoning.” The complainant put it this way in her factum:

[21] Any probative value of the other sexual evidence is outweighed by the prejudicial effects and the impact on the administration of justice. Particularly, the other sexual evidence is irrelevant and would distort rather than promote the truth-finding role of the trial with respect to the offences at hand. The other sexual evidence would serve to present the complainant as less credible and more likely to have consented to the sexual activity that forms the basis of the charge. In turn, this would support twin-myth reasoning which the law aims to prevent.

[31] In the alternative, the complainant concedes that if the sought after evidence about “morning sex” is used to explain the presence of ejaculate, the court may find that it must be put to the complainant under the rule in Browne v. Dunn. If so, the complainant submits that the issue is of very little probative value and, it is anticipated, the complainant will refute that “morning after” sex happened at all.

[32] The complainant proposes the following resolution in her factum:

[44] Even if or when the complainant denies the morning-after sexual activity, the bell cannot be unrung for the jury. This is why, in the event that this Honourable Court sees fit to allow a limited cross-examination of the complainant on the subject, I ask that the jury instructions be used as needed to clarify the limits of the evidence.

[45] As the applicant is obliged to put his case to the complainant (per Browne v. Dunn), I concede that it may be necessary for the applicant to ask the simple and single question to the complainant of whether the alleged morning-after sex occurred.

[33] The complainant objects to being questioned about the “morning after” sex on the basis that it goes to her credibility or reliability. That she did not mention the “morning after” sex in her police statement has nothing to do with whether she consented to nighttime sex that forms the basis of the charges against the applicant.

Discussion

[34] At Stage 2 of this application, two issues need to be resolved:

(a) Is the previous university relationship between the applicant and complainant admissible at trial under s. 276 and, if so, how should such evidence be entered at trial?

(b) Is the evidence of “morning after” sex admissible at trial and, if so, what directions should govern its admissibility?

The University Relationship

[35] [21] The first issue can be dealt with summarily. The parties agree that the trier of fact can be told that when the parties reconnected in 2022, they knew each other from having attended university together in 2013/14. I direct that the parties proceed by way of an Agreed Statement of Fact (ASF) concerning this evidence. Subject to any different ruling by the trial judge, I do not permit the applicant to raise or pursue any line of questioning that he and the complainant were in an intimate relationship at university.

The “Morning After” Sex

[36] With respect to the evidence of “morning after” sex, I understand the defence argument to be that if the only evidence that the trier of fact hears is that the parties had sex at 4:00 a.m. and that the next morning the complainant found semen in her vaginal area, the only reasonable inference would be that the applicant ejaculated during the 4:00 a.m. sex. That inference would tend to affirm the Crown narrative that the applicant had sex with the complainant when she was asleep and therefore without her consent. While it is still possible for the applicant to have had non-consensual sex with the complainant at 4:00 a.m. without ejaculating, I find that the defence narrative would be significantly compromised without the evidence of the “morning after” sex.

[37] I acknowledge that the danger of allowing the applicant to introduce evidence of the “morning after” sex is that it could lead the trier of fact to reason that if the complainant had consensual “morning after” sex, she must have consented to the previous sexual activity since no complainant who was sexually assaulted would still consent to having sex only a few hours later. This may very well be a myth.

[38] Still, I am prepared to find the evidence of “morning after” sex capable of being admissible at trial because:

(i) it is relevant to an issue at trial, the issue being whether the semen found by the complainant came from the sexual activity at 4:00 a.m. or the “morning sex” at 11:00 a.m., which in turn relates to whether the applicant had sex with the complainant when she was sleeping;

(ii) it is of a specific instance of sexual activity, namely the “morning after” sex; and

(iii) it has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice, since the trier of fact could find that the semen came from the “morning after” sex and not from the earlier sexual activity, and that could create a reasonable doubt about whether the applicant continued to have sex with the complainant when she was sleeping.

[39] Considering the factors under s. 276(3) of the Criminal Code, particularly the right of the accused to make full answer and defence, I am persuaded that the evidence of “morning after” sex falls into one of the recognized exceptions to the general inadmissibility of other sex evidence because the evidence goes to “the fundamental coherence of the defence narrative”: R. v. T.W.W., 2024 SCC 19, 437 C.C.C. (3d) 1, citing Goldfinch, at paras. 63 and 65-66.

Should the applicant be limited to asking just one question of the complainant?

[40] I disagree that the applicant should be limited to asking just one question of the complainant along the lines of whether the “morning after” sex happened. Of course, if the answer is “yes”, I do not anticipate that the applicant needs to go into further detail as the applicant would likely be in a position to argue that the ejaculate that the complainant found when she went to the bathroom came from that “morning after” sex, rather than the earlier nighttime sexual activity. Still, even if the complainant’s answer was “yes”, I would imagine that the applicant would want to establish that he was not wearing a condom to be able to advance his defence. So, simply asking just one question will not suffice.

[41] Conversely, if the complainant answers “no” – meaning that she disagrees that they had sex in the morning, I do not see how leaving the evidence so polarized would be of assistance to the trier of fact. Having ruled that the “morning after” sex evidence is admissible, it seems artificial to then limit the questions about it to just one. Still, this does not mean that it then becomes “open season” for the applicant to cross-examine the complainant about the details of the “morning after” sex. This risks putting the complainant on trial about the “morning after” sex, when it is the applicant who is on trial concerning the earlier nighttime sexual activity.

[42] In striking the appropriate balance, I provide the following directions. I would leave the rest to the trial judge’s discretion.

[43] The admissibility of the evidence concerning “morning after” sex turns on the question of whether the applicant’s ejaculate came from the morning sexual activity or whether it came from the late-night sexual activity. Questions that stray from that focus are inadmissible.

[44] Whether the complainant answers “yes” or “no” to the question of whether she engaged in “morning after” sex, the applicant shall focus his questions on the source of the ejaculate including whether he wore a condom, and whether if he was wearing a condom, it may have slipped off. The applicant shall not focus on the details of the “morning after” sex that do not relate to the source of the ejaculate. For example, the question of whether the applicant and complainant had oral sex prior to vaginal sex seems irrelevant and therefore inadmissible.

[45] The applicant is not permitted to raise the issue of the “morning after” sex to impugn the credibility and reliability of the complainant generally because she omitted to mention the “morning after” sexual activity in her police statement. In my view, to do so, risks the trier of fact improperly reasoning as follows:

The complainant had consensual sex in the morning at about 11 a.m. with the applicant. She failed to tell the police that and there is no mention of “morning after” sex in her police statement. The complainant cannot be trusted when she says she was sexually assaulted in the night because she did not tell you the truth about the “morning after” sex.

[46] The problem with this reasoning is that it links the credibility of the complainant about the “other sexual activity” to her credibility about the sexual activity that is the basis of the charge. The reasoning comes perilously close to arguing that, since the couple had consensual sex in the morning, it is likely the case that they also had consensual sex the previous night. This would, indeed, represent twin-myth reasoning since it is entirely possible that the complainant and applicant had consensual “morning after” sex, but that they did not have consensual sex the previous night.

[47] Accordingly, the only part of the “morning after” sex issue that I find admissible is the point about whether the morning sex was the source of the ejaculate that the complainant found in her vaginal area in the morning.

[48] Finally, my admissibility ruling is premised, in part, on the understanding that the trial judge will mitigate any improper inferences that arise from the admission of “other sexual activity” evidence through the provision of mid-trial and/or final jury instructions as the trial judge sees fit.

Conclusion

[49] The application is allowed for the reasons provided.

Pinto J.

Released: December 6, 2024