Garth's Case — Sexual Assault — Section 276 Ruling

Between
Her Majesty the Queen, and
Garth P.

Ontario Court of Justice
Toronto, Ontario
Judge Moore

Ruling Re Complainant's Sexual History:  16 September 2008
(43 paras.)

¶ 1     J.C. MOORE J. (orally):  This is a ruling pursuant to 276 of the Criminal Code. Mr. Garth P. is before me facing a charge:

¶ 2     It is alleged that he, on the 13th day of October in the year 2007 in the City of Toronto did commit a sexual assault on Cherry Q., contrary to the Criminal Code.

¶ 3     The Crown proceeded by way of indictment.

¶ 4     The Defendant waived his right and opportunity to have a Preliminary Hearing and elected to be tried before me in the Ontario Court of Justice. He has entered a plea "not guilty" to the single count.

¶ 5     The act complained of is alleged to consist of an act of sexual intercourse, taking place between the Complainant and the Defendant, on or about the 12th or 13th day of October, 2007.

¶ 6     Prior to the trial, Mr. Penney, on behalf of the Defendant filed an Application seeking permission to cross-examine the Complainant with respect to her prior sexual activity with the Defendant. That cross-examination is precluded, is prohibited, for the most part, unless of course it is raised, somehow, by the Complainant herself, or by the Crown, unless the Defendant obtains permission from the Court enabling that to be done. That would follow as a result of a proper application being filed with the Court and the Court granting permission for the application to proceed.

¶ 7     In this instance, based on the application that was filed with the Court, Ms Young, on behalf of the Crown, concedes, in her notice of response, and I would have found so in any event, at least based on the information that's been provided to the Court, that the requirements of section 276.1(2) as to the form and content of the application were met. Therefore, we proceed onto the next stage, which would be pursuant to section 276.2 in order to ascertain whether or not the evidence which is being placed before the Court on the application is to be introduced at the trial proper, and form, if Defence wishes to do so, the subject matter of some of the cross-examination of the Complainant pursuant to section 276.2.

¶ 8     Ms Young, again on behalf of the Crown, concedes that, pursuant to section 276.2(a) that there are specific instances of sexual activity being alleged and that that requirement or criteria has been met. However, Ms Young submits that the criteria that must be met pursuant to subsection (b) and (c) have not been met. She submits that the evidence which the Defence wishes to bring out by way of cross-examination is not relevant to an issue at trial. She also submits that it has not been shown that such evidence has specific probative value that is not substantially out-weighed by the danger of prejudice to the proper administration of justice.

¶ 9     Ms Young, seeks a Ruling that when those criteria are combined with the eight factors that are outline under section 276(3) of the Code, that the application should be dismissed and the Defence not be allowed to cross-examine the Complainant on the prior sexual activity with the Defendant, as outlined in the application, and in particular, his affidavit, which has been filed with the Court.

¶ 10     Mr. Penney has included with his application a factum and relevant case law. There is really no need of Ms Young to do the same. The law, the principles and philosophy are well-known. It's just dealing with the specific facts of this case which are really in issue here.

¶ 11     One of the obvious points here, of course, is that this is a trial before a judge alone. There is no jury involvement here. Another thing to keep in mind is the fact that what is being alleged here is prior sexual activity between the Defendant and the Complainant. There is no attempt to cross-examine or elicit evidence from the Complainant with respect to her relationship with anybody but the Defendant, here.

¶ 12     Another key thing to keep in mind is the subject matter of the charge is very, very serious, and a true invasion and intrusion of a person's dignity and self worth, and the allegations, themselves, are very serious. And what is sought to cross-examine the Complainant with respect to are incidents that are alleged to have occurred between the two of them, that although if done without consent are a very serious invasion of a persons dignity and privacy and so on. However, they are not as serious as the allegations that are the subject matter of the charge.

¶ 13     The issue as to whether or not Counsel should be permitted to cross-examine the Complainant about prior sexual activity has to obviously include at least three components:

¶ 14     (One): The position of the complainant in all of this, especially keeping in mind the nature of the allegations.

¶ 15     (Two) The Defendant, who of course is charged with a very serious criminal offence, and his liberty is at stake.

¶ 16     (Three) And the state, itself.

¶ 17     On this application/voir dire, I am not deciding upon the guilt or innocence of the Defendant. I am only deciding whether or not certain evidence should be admissible on the trial proper. And I may very well, if I allow the evidence in at the trial, decide in the end that I find, as a fact, that the prior incidents never occurred. That's always a possibility, even if the Defence is permitted to cross-examine the Complainant with respect to prior incidents.

¶ 18     The issues at the trial, that have been explained to me, and appear to be obvious from the evidence tendered so far, and the position taken by Counsel, are one of consent, or lack thereof, and to a lesser extent, perhaps, one of honest, but mistaken belief.

¶ 19     I have reviewed the cases that have been provided to me, so I am aware of what the present state of the law is, and the obvious reasoning that is developed in the case law, and also by way of legislation, is that the twin myths theories are not to be applied in trials of this nature.

¶20     The so-called "twin myths" are simply that because one consented in the past, doesn't mean that one consented this time. And secondly, that simply because one has indulged in sexual activity in the past, with the present Defendant, or other people, that that doesn't mean that the person is less credible and/or is less of a character, or is any less believable or any less of a person, than a person who has not indulged in prior sexual activity.

¶ 21     So the Defence has to show that the evidence would be relevant to issues at trial.

¶ 22     It would seem to me that in this case, again, having heard from the Complainant, and having heard submissions, and being aware of the content of the application, and also keeping in mind that we are sitting without a jury here, and there is not the inherent dangers that one faces when conducting a jury trial, that in this particular case, the relationship between the two parties is important, for me to understand, or attempt to understand what went on, on the night of October 12th, and 13th, 2007.

¶ 23     It may very well be that Ms CHERRY Q., if confronted and cross-examined, may acknowledge that one, or more, of these events occurred, but has an explanation and would say that:

¶ 24     "... Well, yeah. I consented to kissing or fondling, but when I had enough I said: 'No,' and that was the end of it ... "

¶ 25     Or, she may deny that these occurred, altogether. And whether or not they had indulged in any sexual activity in the past, cannot be used by me and would not be used by me, in order to conclude that: "Simply because she consented in the past, she consented on the night in question."

¶ 26     But what it would assist me in doing is, assessing his evidence, which I am obliged to do, especially in cases of this nature, over the whole issue of consent. And especially, I believe, it has to be somewhat relevant here, in this case, simply because she, at least in her examination-in-chief, says that she has no knowledge or memory or recollection of what happened on the night in question. And at least at this point in time, I don't know what evidence is going to be adduced to show what her level of sobriety or intoxication is. There is some evidence that there has been some drinking, but so far there doesn't seem to be evidence adduced on behalf of the Crown to suggest that she was so intoxicated that she was incapable of giving her consent.

¶ 27     All that we have before us at this point in time is that she had consumed alcohol, and her evidence said:

¶ 28     "... I don't remember what happened. I have no recollection ... "

¶ 29     So it seems to me that the circumstances of prior incidents between the two of them, whether it consists of where an alleged incident occurred, how it occurred, how much alcohol was involved, how little alcohol, what transpired, it seems to me, that kind of evidence is certainly relevant to whether or not his Defence that she consented is a viable Defence, or not. And I understand the concept that it's a subjective test, when it comes down to the issue of consent.

¶ 30     However, I don't think you can deal, especially in this particular case, in isolation, with the issue of consent by only hearing about the night in question. And that also goes to the second Defence that's being proffered, about the honest and mistaken belief.

¶ 31     Surely, what has gone on before, between the two of them, is relevant to his whether or not what occurred on the night in question was an honest but mistaken belief. And again, it's not a situation that it is alleged that he met her on the night in question, that she's a total stranger, and that it was just good luck that they end up in bed together.

¶ 32     I think you have to understand the context — have to put that night in the context of the relationship in assessing, if we get that far, about his honest but mistaken belief, if by the end of the trial the issue of consent is really not a viable Defence here.

¶ 33     Ms Young has, I think quite properly, and quite fairly, gone over the factors to be considered, and what should be considered more, in light of the Defence, or the Defendant, as opposed to the Complainant here. And it would seem to me that, as far as the interests of justice are concerned, and the right of a defendant to make full answer and defence that that's a paramount consideration. And I think the Defendant is entitled, and should be able to present to the Court that type of evidence to get a better picture of the relationship between the two people. And to exclude that, or preclude him from doing that, in this case, would impact on his ability and right to make full answer and defence.

¶ 34     With respect to the second factor, about society's interest in encouraging the reporting of sexual assault offences, again I think one of the factors I have to take into consideration here is, having viewed the Complainant she, and I am not holding this against her, but she has gone through part of the process already. She has called up friends, at the very beginning, and told them. She contacted the police, told them. She has made a video statement. She presented her testimony, examination-in-chief with very little difficulty.

¶ 35     And the incidents over which the cross-examination is sought to be taken is again less intrusive, and less serious than the charges that are before the Court, that are the subject matter of the charge. And again, it may be uncomfortable for the Complainant to have to be subjected to cross-examination about prior incidents but they may very well have occurred. That hasn't been decided upon yet, and that's part of the relationship between the two of them.

¶ 36      And with respect to the third factor, in my mind, the evidence that would be, or could be adduced as a result of cross-examination would in fact better enable me to make a just determination of this case, in specifically in deciding upon the guilt or innocence of the Defendant.

¶ 37     With respect to the fourth factor, I can say for certainty that I am very well aware of the twin myth problem, and am able to distinguish between how evidence is to be used and I would never, ever, decide simply because a person in the past has consented to a certain type of activity that that person consented to it on the night in question. And in no way would it ever impact, in my mind, on the person's character or credibility. And again, sometimes with a jury, it's more difficult with a jury - to be assured that that's going to happen. We don't have a jury here.

¶ 38     That also goes for the fifth factor.

¶ 39     Again, with respect to the sixth factor, the potential prejudice to the Complainant's personal dignity and right of privacy, it goes without saying, that for a Complainant to take the stand in this type of case is very difficult to begin with. It's very difficult for the Complainant to initially go to the police and give a statement to the police and go to the hospital. And the last thing anybody wants is for the Complainant to go through that, and then be subjected to cross-examination on the witness stand, without any parameters, and have to put her whole personal life on trial.

¶ 40     But again, I think this is a situation, and when one looks at the type of questioning and the incidents about which Defence wants to cross-examine her, especially when they only relate to her and the Defendant, that factor would not weigh against, in this case, no allowing the cross-examination.

¶ 41     And again, with respect to number seven, I think that pertains to both the Complainant and the Defendant. Both have to be protected. And the specific incidents have been outlined, and if the application is allowed, there would be limitations placed on the cross-examination, and it only relate to the specific allegations that have been put forth in the application.

¶ 42     And the Complainant in this case has been given the full benefit and protection of the law, and I believe that her personal integrity and security has been, and is being, guarded. And the Defendant, as well, has to be afforded the same protection and security.

¶ 43     So taking all of that into consideration, I find that the Defence has shown cause as to why the Complainant should be allowed to be cross-examined with respect to the specific incidents of sexual activity between her and the Defendant and therefore the application is granted.

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