R. v. Gill, 2011 ONCJ 345

COURT FILE No.: 11-7664 Citation: R. v. Gill , 2011 ONCJ 345 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN Respondent — AND — JASPINDERPAL GILL Applicant Before Justice S.R. Clark Ruling under s.276(2) of the Criminal Code re Evidence of Prior and Subsequent Sexual Activity between the Complainant and the Applicant/Defendant Application heard on May 30, 2011 Ruling Released on June 13, 2011 Ms. Sonya Andersen…………………………………………………………………………… for the Crown Mr.

William Murray………………………….……….….for the Applicant/Defendant Jaspinderpal Gill CLARK J.: 1:0 INTRODUCTION [ 1 ] The applicant/defendant (hereinafter referred to as “the defendant”) is charged with the offences of dangerous driving, and uttering by telephone a threat to cause death, with an offence date of January 8 th , 2009. These two charges are not the subject of this application. However, he is also charged that during a 42-day period ending on or about January 5, 2009, he committed a sexual assault, and unlawfully confined the complainant, J.P..

He is further charged that during a 10-day period ending on or about January 9, 2009, he committed an assault on the same complainant. [ 2 ] This matter was originally scheduled as a preliminary hearing, to have commenced on May 30, 2011. However, defence counsel advised the Crown in advance, that this matter would proceed as a trial, having regard to the fact that the defendant is presently in custody. [ 3 ] The Crown has proceeded by indictment. [ 4 ] The defendant has pleaded not guilty to all charges. [ 5 ] At the commencement of the trial, defence counsel, Mr.

Murray, advised the Court that he would be bringing an application, pursuant to s.276(2) of the Criminal Code , seeking to adduce evidence of prior and subsequent sexual activity between the complainant and the defendant. Counsel has submitted an Application Record, Factum, and Book of Authorities in support of this application. [ 6 ] The Crown opposes the application.

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SUMMARY OF THE EVIDENCE [ 7 ] At tab 3 of the Application Record, the defendant has sworn an affidavit, dated May 20, 2011. The Crown sought to cross-examine him on same. [ 8 ] A

summary of the defendant’s affidavit is as follows: 1. His defence will be that the complainant has consented to all sexual activity between them, and that she has fabricated the allegations of sexual assault because he refused to support her when she became pregnant and had an abortion, and because he owed her money because she paid for damage to three automobiles she rented for him.

Furthermore, he submits that the complainant has fabricated her allegations against him because he told her parents and brother that she became pregnant and had an abortion, and she did not want to admit to her parents that she had had consensual sex with him. The parties met in November, 2006 and dated through to March, 2007. They dated again commencing in September, 2008 and began a sexual relationship. In September, 2008 she allowed him to operate a car that had been provided to her by her father’s mechanic. The defendant had an accident in the car resulting in significant damage.

The complainant told him that the damage was not covered by insurance and that she had to pay for it. In October, 2008, she rented another automobile for him. He had an accident in this car as well. There was significant damage. The complainant told him that the damage was not covered by insurance and that she had to pay for it. Subsequently, in November 2008 she rented a van for him so that he could drive to visit a friend in Houston, Texas. He was involved in an accident resulting in damage to this vehicle as well, for which the complainant told him that she had to pay.

Between September, 2008 and January, 2009 they engaged in sexual relations on average three times per week and sometimes more often. At the end of October, or early November 2008, she told him that she was pregnant and was going to have an abortion. She asked him for $140.00 to help pay for it and asked him to go with her to a clinic for the procedure. He refused and she became upset with him. The parties continued their intimate relationship in early November, 2008. The complainant continued to live with her family while the defendant lived with friends. The parties would have sex in a car.

The would park in locations where they would not be seen by passers-by. They engaged in sex in the back seat of either the complainant’s car or the car operated by the defendant. There were several locations where they often parked. One particular location was near Bovaird Drive and Airport Road. Another was near Sheridan College. Each time they had sex, the defendant submits that it was fully consensual. In October and early November, 2008, the complainant began to ask him for money to pay for the damage to the vehicles.

He agreed but insisted that she show him receipts for having paid the damages, because he believed it should have been covered by insurance. On one occasion in particular in October, 2008, the parties drove to Bovaird and Airport Road after hours and parked. They talked in the front seat and began to argue about him paying her money. He could not pay her at the time because he did not have any and he did not believe that she had actually paid for damage to the vehicles. Once the parties stopped arguing they got out of the car and got into the back seat to have sex.

The complainant would get in the back seat first to loosen her clothing while he smoked a cigarette outside the car. After this he would get in the car and the parties would engage in foreplay and then have sex. When they did so, the complainant was sitting upright in the back passenger seat. They would move the front passenger seat as far forward as possible. This scenario was repeated several times in October, 2008 at several locations. The parties would argue over money. The complainant would then say that she did not care about the money, after which time they would get into the back seat and have sex.

In November, 2008, they continued to argue and would then make up and then have sex. This same scenario occurred on several occasions in November, 2008. Also in November, the complainant rented a Dodge Caravan for him to drive. They both went to Houston Texas with a friend of his. They were gone for three days. When they arrived back in Toronto, they stayed in a hotel in Scarborough. The complainant’s father found out where they were and came to get her. When he arrived he was furious with the defendant because the complainant had gone with him.

The defendant had an accident in the Dodge Caravan after returning from Houston Texas. The complainant again told him that the damage was not covered by insurance and that he owed her more money for this damage. In November and December, 2008 they continued their sexual relationship, although the complainant remained angry with him because of the trouble she was receiving from her father after taking the trip to Houston. The defendant had not paid her much money for the damage to the vehicles. In January, 2009 he spoke with the complainant’s mother who was yelling at him.

At this time he told her that the complainant had become pregnant and had an abortion. Later that evening, the complainant attended a police station and gave an interview alleging that he had tried to run her over in a car. The complainant told the police that they had only been involved in an intimate relationship for three or four weeks commencing in November, 2008. During this interview, she made no allegation of assault or sexual assault.

A day later, on January 9, 2009, the complainant returned to the police station and gave a recorded interview resulting in the charges of sexual assault and forcible confinement being laid. She told the police in her statement that she could not tell her parents about these incidents because the defendant blackmailed her to have sex with him. She also told the police that she could not tell her parents about any incidents of assault because he had threatened to tell her parents that she had become pregnant and had an abortion.

In mid-February, 2009 the defendant’s uncle spoke with the complainant’s father about the circumstances. Approximately two weeks later on March 1, 2009, the complainant attended at a police station in York Region alleging that he had assaulted her in Markham on or about January 9, 2009. Notwithstanding the charges that he was now facing, the complainant and he continued their intimate relationship in September 2009, and from December 2009 to February 2010, and from July to September, 2010. Their behaviour in these intimate relations followed the same pattern.

The complainant told the defendant that she had caused the charges to be laid against him to teach him a lesson and that she wanted to ensure that there was no chance of him working in the law enforcement industry. The defendant was studying the police foundations course at the time. The relationship between the parties ended on September 3 rd , 2010. The defendant was arrested after meeting her in Markham, Ontario. The complainant’s friend called her brother and told him that the parties were together.

He then called the police who attended and arrested him near the complainant’s car. [ 9 ] In his oral evidence, the defendant substantially corroborated the information provided in his sworn affidavit. The essence of his evidence and his cross-examination is as follows: He described the pattern of sexual behaviour between them. They would have sexual relations approximately three to four times a week, mostly in vehicles. One of their chosen locations was outside a factory in the Bovaird Drive and Airport Road area. The complainant would usually do the driving.

They would talk for a short period of time and then have sex. The pattern would usually be that they would argue, then have something to eat and then have sex. He described that it was usually quite causal. He would go outside the car for a cigarette while she rearranged the seats and got undressed. After they had sexual relations, she would then drive him home. Their encounters would usually last for approximately 1 to 1 ½ hours. In or around October and November, 2008 she told him that she needed approximately $140.00 or $150.00 to obtain an abortion. He thought that she was lying to him.

He refused to help her. She

became upset with him. The intimate relationship continued from October to December, 2008. The pattern remained the same. Theywould go to the remote factory area. They would often go to Tim Horton’s first. They would talk and argue about money and the issue of who was putting more effort into the relationship. He indicated that he was arrested on or around January 22nd, 2009. He did not receivebail until April 1, 2009. After this, he did not talk to her for a few months. However, in July and August, they continued their relationshipagain until September or October.

They stopped seeing one another for a short period of time and then continued again for Novemberand December 2009 and January and February of 2010, at which time he was then charged with threatening death. Subsequently theysaw one another again from July until September 2010 at which time he was arrested again. He testified that the assault and threateningcharges are not unfounded however he denied the sexual assault charges.

He claims that the complainant told him that if he was onlycharged with offences other than sexual assault he would likely have been out of custody within two months however, this is not whather family wanted. The complainant’s parents were angry because he took her to Texas. Furthermore, he testified that she wanted to ruinhis chances of having a career in law enforcement. On cross-examination he testified that the sexual relations between them were always consensual. When the complainant told him thatshe was pregnant, at first he did not believe her. She told him this after they had just had an argument.

This is why he told her that hewasn’t prepared to help her. He believed that she just wanted attention. He testified that he did pay her money at the end of the month onoccasion for the rental of these other vehicles. He restated that even after she had gone to the police to report these allegations, theycontinued to see one another and they still remained sexually intimate. Although he knew that he would never be with her again as apartner, because, as he stated, she put him in jail for something he didn’t do, they still went out together and attended movies, went todinner and continued their sexual relations.

He believed that she would purposely start arguments which caused him to tell her that hewould not pay her for any damages to the vehicles. He acknowledged that telling her parents that she had become pregnant and that shehad had an abortion was a mistake on his part, however he blurted it out in the moment. It is his view that this is the reason why he wasultimately charged by her. 3:0 THE POSITONS OF THE PARTIES 3:1 The Defence [10] Mr.

Murray submits that the evidence is relevant to the issue of proving bias or motive to fabricate on the part of thecomplainant that she is the victim of sexual assaults, having engaged in sexual conduct not approved of by her parents. [11] He further submits that the evidence has significant probative value, which is not substantially outweighed by the dangerof prejudice to the proper administration of justice. [12] Furthermore, he submits that the evidence is of a specific nature.

Although the “twin myths” protected by s.276(1) shouldbe respected, in that evidence of previous sexual activity by the complainant should not be admissible to support the inference that she issomehow more likely to have consented to the sexual activity in issue, or that she should be less worthy of belief, sub-section (2)provides that this type of evidence shall not be adduced unless it is determined that the evidence is of specific instances of sexualactivity, and is relevant to an issue at trial, and that it has significant probative value that is not substantially outweighed by the danger ofprejudice to the proper administration of justice. [13] Sub-section (3) sets out the factors to be taken into account in determining the admissibility of evidence under sub-section(2).

The Court shall take into account the following: (

a) the interests of justice, including the right of the accused to make full answer and defence; (

b) society’s interest in encouraging 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 Court considers relevant. [14] Mr. Murray submits that it was only the intention of Parliament to exclude certain inferences from the sexual nature ofthe activity, however, it should not exclude potentially relevant features such as a pattern of sexual conduct between the parties. [15] He also submits that it is important that the Court hear evidence of prior sexual conduct between the parties tending toprove the complainant’s bias or motive to fabricate.

While he concedes that evidence of the nature and frequency of sexual relationsbetween the parties would not normally advance the motive to fabricate defence, such circumstances might arise in the context of apoisoned or acrimonious relationship. This proposition is set out in the case of R.v. Crosby, (SCC), [1995] 2 SCR 912at para. 15. [16] This evidence is necessary for the defendant to make full answer and defence, and is relevant to the issue of thecomplainant’s motive to fabricate for the following reasons:

1. Complaints were made to the police well after the dates in which the incidents are alleged to have occurred and after the complainant had reason to be upset with the defendant because of his contact with her family and because he owed her money. 2. The complainant stated that she could not tell her father about any of the incidents of assault or sexual assault by the defendant. 3. The complainant stated that the defendant threatened to tell her parents about her pregnancy and abortion. 4.

Circumstances surrounding specific incidents of sexual activity suggest a calm deliberation and consent to sexual activity. [ 17 ] Therefore, Mr.

Murray submits that it is not the sexual nature of the activity that is particularly relevant, but rather, a repetitive pattern of conduct inconsistent with conduct by the complainant in reporting these offences. [ 18 ] Accordingly, the evidence is not being adduced for the purpose of suggesting that the complainant is in any way less worthy of belief because she had prior sexual activity with the defendant or that she is more likely to have consented to the sexual activity that forms the subject matter of the charges merely because she had done so in the past. [ 19 ] In his further oral submissions, Mr.

Murray submits that it is necessary to adduce this evidence for the following reasons: 1. It shows her motivation to fabricate. 2. When she became pregnant is relevant to her assertion to the authorities that the relationship with the defendant only lasted approximately three to four weeks. 3. Initially, the complainant did not want her parents to know that she was involved in a sexual relationship with the defendant, however, once she told them that she had become pregnant, she now had to fabricate and report these incidents as being non-consensual. 4.

It also demonstrates the family influences on her motive to fabricate. 5. It is also important to be able to demonstrate that her reporting to the authorities was never contemporaneous but always only after her family was involved. 6. Although, on the face of things, trying to adduce this evidence would appear to be an invasion of the complainant’s privacy interests, this should be properly balanced and weighed against the tenable, meaningful and important fairness of this trial in allowing the defendant to make full answer and defence. His position is not speculative or frivolous. 7.

Furthermore, the timelines for these alleged charges are rather vague. There is no specified date, but rather over a 42 day period and a further 10 day period, which is also suggestive of a motive to fabricate because of the acrimony in the relationship. 8. There is no doubt that this relationship became “poisoned”, which clearly forms a basis for the Court to draw an inference that the complainant was fabricating.

There was so much sexual activity between the two parties as well as significant other interaction including arguments over car accidents, the owing of money, suggestions by the defendant that he would tell the complainant’s parents about her pregnancy and subsequent abortion. 9. The defence theory of fabrication, therefore, is not fanciful or in the nature of a “fishing expedition”. 10.

Furthermore, if the Crown takes the position that evidence of the complainant’s pregnancy and abortion is somehow relevant to the issues and the fact that her parents found out, it cannot be any more prejudicial for the Court to hear evidence of the previous sexual activity between the parties. All of these factors, in defence counsel’s view, are intertwined. [ 20 ] Accordingly, Mr.

Murray submits that all of the factors in the present case point to the potential for family influences on the complainant’s thought process and decision-making process, sufficient to characterize the previous sexual history as constituting exceptional circumstances. 3:2 The Position of the Crown [ 21 ] Ms. Anderson submits that the previous sexual history is not relevant. [ 22 ] She understands from the written materials that the thrust of the defence in this matter is that the sexual activity relating to the specified charges was consensual.

It is only necessary, therefore, to hear evidence relating to the specific incidents resulting in the specific charges. Whether or not there was any previous sexual activity or whether or not it was consensual is of no moment to this issue, on the basis that even if there was previous consent, that does not mean that consent was present for these allegations. [ 23 ] Accordingly, Ms. Anderson submits that just because there may have been acrimony between the parties, this should not open to the door to adducing evidence of the entire relationship between the parties.

This goes beyond the defendant’s right to make full answer and defence. 4:0 ANALYSIS [ 24 ] S.276(1) prohibits sexual activity evidence where it is offered to show either that a complainant is more likely to have

consented to the sexual activity in question, or is less worthy of belief. [25] The rationale for this legislation is that evidence of past sexual history was so rarely relevant and so likely to distort thetrial process that its admissibility and use should be strictly circumscribed. The rationale also was to avoid there being a finding ofstereotypes, such as, women who have been assaulted must have deserved it and that they are unreliable witnesses.

Furthermore, to allowa defendant to delve into the previous sexual history of a complainant was considered a deterrent to reporting assault, knowing that theymight be humiliated in court. [26] That said, the admissibility of evidence of prior sexual conduct of the complainant is determined on a case-by-case basisin accordance with the criteria set out in s.276(2). [27] Where credibility is the essential issue at trial, however, the right to make full answer and defence will often militate infavour of the admission of evidence that demonstrates inconsistencies or contradicts the complainant’s evidence, even if it reveals priorsexual activity (see R.v.

Harris, [1997] O.J. No. 35 60 (C.A.) (1997), (ON CA), 118 C.C.C. (3d) 498 at p.509) citingR.v.

Crosby (1995), (SCC), 98 C.C.C. (3d) 225 (S.C.C.). [28] In Harris, the Court set out a non-exhaustive list of factors which will bear upon this determination including thefollowing: 1. the viability of the defence itself; 2. the nature and extent of the prior sexual activity as compared to the sexual activity forming the subject-matter of the charge orcharges; 3. the timeframe separating the incidents; and 4. the nature of the relationship between the parties. [29] Having regard to the above-noted factors, it would appear that the application should be successful where the proposedevidence contains highly distinctive features of a consensual sexual relationship as between the parties which is similar to the allegationsbefore the Court (see R.v.

McIntyre, [1993] O.J. No. 2971 (C.A.) [30] Generally speaking, a prior sexual relationship with the defendant is an irrelevant consideration on the issue of consent.However, to suggest that this type of evidence will never be relevant to the issue of consent is overly simplistic.

This provision appears toonly prohibit the defence from arguing that the complainant would have likely consented to the incident in question solely because of herprevious sexual relations with the defendant. [31] It seems that in the present case, the defence does not want the Court to infer that the complainant was the type of personwho consented because of the prior relationship.

Rather, the defence wants the Court to assess the alleged incident or incidents in thecontext of the prior relationship. [32] Therefore, the evidence of other sexual activity is relevant because it demonstrates the development of a relationshipbetween the complainant and the defendant that was more than just a non-sexual one. [33] Therefore, by failing to permit the defendant to lead evidence of the entire context of the relationship, both sexual andnon-sexual, the Court is deprived of the tools needed to fully and fairly assess the conduct of the parties and the believability of theirrespective positions.

Left unchallenged, the complainant’s testimony regarding her relationship with the defendant is potentially fatal tohis position. If the Court does not permit this latitude, it may be a short and distorted step to concluding that the complainant did notconsent to the sexual activity alleged in the charges. [34] Having regard to the analysis set out in Crosby, the Court must be careful not to immediately conclude that evidence ofprevious sexual activity should be admissible to show that there was a motive by the complainant to fabricate.

Indeed, it was suggestedthat mere evidence about the nature and frequency of sex would not necessarily advance the motive to fabricate defence, except in themost unusual of circumstances.

The illustration cited in Crosby is that this might be relevant, however, in such circumstances that mightarise in the context of a poisoned or acrimonious relationship. [35] There is no doubt that there is a strong evidentiary foundation that the relationship in the present case meets this criterion. [36] Furthermore, since Crosby, the law seems clear that the defence will be entitled to introduce evidence of thecomplainant’s previous sexual activity to rebut a material aspect of her testimony.

The other sexual activity, therefore, will not be used todraw the general inference that she is less likely to be believed. Rather, the evidence can be admitted to contradict specific evidencegiven by her which is central to her version of events. [37] It is not illogical to consider, prima facie, that the complainant has a motive to fabricate in order to preserve herrelationship with her parents.

Therefore, the defence is entitled to probe the extent to which she might be blaming the defendant forunwanted sexual activity, thereby allowing her to avoid taking responsibly for her voluntary consensual activity with him. 5:0 CONCLUSIONS

[ 38 ] Having regard to all of the circumstances, and having considered all of the factors in s.276(3), the Court finds that the defendant shall be entitled to adduce evidence of the previous sexual activity between the parties at large for the following reasons: 1. There is a realistic viability of the defence of motive to fabricate. 2.

The nature and extent of the prior sexual activity between the parties as compared to the sexual activity forming the subject matter of the charges is substantially the same, and will not embarrass, humiliate or affect the sensitivity or sensibilities of the complainant any more than her having to testify about the specific allegations. 3. The timeframes separating all of these incidents all tend to meld together, in any event. Since the timeframes set out for the specific allegations are so vague, it is important for the Court to have the full context of the relationship between the parties. 4.

It is also important for the Court to fully understand the nature of the relationship between the parties. 5. The proposed evidence contains highly distinctive features of a consensual sexual relationship as between the parties which is similar to the allegations in the specific charges before the Court. 6. There is a reasonable prospect that the evidence will assist in arriving at a just determination of the case given its relevance to the issues. 7. It is not in the interests of justice that the defendant be prevented from making full answer and defence. 8.

The evidence cannot and will not be used to support illegitimate inferences. This is not a case where discriminatory bias will form a part of the fact-finding process. 9. This is a judge alone trial. There is no risk that any sentiments of sympathy, hostility, bias or prejudice will be unduly aroused by the evidence. 10. Any potential impact on the complainant’s personal dignity and right of privacy will be minimized, given that the nature of any of the other sexual activity between the parties is no more intrusive than the acts involved in the actual charges. 11.

The complainant’s anonymity can also be addressed through the publication ban in this trial. 12. In balancing the competing interests, the Court is quite mindful of society’s interest in encouraging the reporting of sexual assault offences, however this does not trump the ability of the defendant making full answer and defence by adducing relevant evidence that has significant probative value. 13.

In any event, the personal security and dignity of the complainant is not so compromised in the circumstances of this case, where the evidence to be adduced is limited to that of her prior contact only with the defendant on occasions so proximate in time to the alleged offences, that they do not involve an intrusion into other aspects of her life, necessarily. 14. The evidence will go to the history and dynamics of the relationship, the complainant’s credibility, the defendant’s credibility, and to possibly even refuting the defence theory of fabrication by the complainant. 15.

By allowing the Court to hear the narrative, there will be a much more comprehensive understanding of their relationship. 16. Incidents between strangers, as a general rule, involve circumstances of a limited temporal duration, however, those between parties involved in a relationship often have complex dynamics and subtleties of personalities. Without this evidence, therefore, the process runs the risk of having a sterile and antiseptic record, devoid of the realities of the circumstances of the parties. [ 39 ] In the result, the Court is satisfied that the defendant has met the necessary threshold.

The application is granted. The defendant shall be allowed to adduce at trial evidence of prior and subsequent sexual activity between he and the complainant. Released: June 13, 2011 ______________________ Justice Steven R. Clark