R. v. IAN, 2011 NUCJ 09

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R. v. IAN, 2011 NUCJ 09 Date: 2011-05-17 Docket: 15-08-60 Registry: Iqaluit Crown: HER MAJESTY THE QUEEN -and- Accused: IAN ________________________________________________________________________ Before The Honourable Mr. Justice E. Johnson Counsel (Accused): Thomas Boyd Counsel (Crown): Leo Lane Location Heard: Iqaluit Date Heard: March 22-24, 2011 Matters: Charter Sections 7, 10(a), 10(b), 11(

c) and 13; Criminal Code

Section 276, 276.1 REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication) Restriction on publication:

By court order made under s. 276.3(1) of the Criminal Code , “No person shall publish in any document, or broadcast or transmit in any way … the contents of an application made under

section 276.1; the evidence taken and the representations made that will result in the publication of the name or identity of the complainant. I. INTRODUCTION [ 1 ] The accused is charged by indictment with attempting to murder his spouse M.T. He is also charged with assaulting her and committing aggravated sexual assault while attempting to suffocate and strangle her to enable him to commit the aggravated sexual assault.

Finally, it is alleged he made threats to kill her and another person while he forcibly confined her. [ 2 ] The accused challenges the voluntariness of a videotaped statement he made to the police and has applied for leave to cross-examine the complainant on her sexual history with the accused under

section 276 and 276.1 of the Criminal Code (Code). He has also filed a Canadian Charter of Rights and Freedoms (Charter) application requesting the exclusion of evidence alleging the police breached his rights under sections 10(

a) and 10(b) . [ 3 ] I heard evidence at voir dires held in Iqaluit and reserved judgment. II. FACTS [ 4 ] The Crown led evidence from the two police officers that had contact with the accused after his arrest and a civilian guard. However, the Crown was unable to locate guard Richard Harrington and he was not called as a witness. Instead, the Crown led evidence from Dwayne Whitford to explain the efforts that were made to locate Harrington. [ 5 ] Constable Jeff Henderson testified that he received a call in his police vehicle while on duty on the afternoon of May 30, 2008, from the complainant’s brother-in law.

He told him the accused had tried to kill the complainant. Henderson visited the brother-in-law’s house and spoke with him, the complainant, and her sister. He was advised that the accused had pulled the complainant’s hair and assaulted her. [ 6 ] Henderson decided he had grounds to arrest the accused for assaults and uttering threats. He went to the accused’s house, arrested him, and placed him in a police vehicle. He then read the standard police cautions to the accused and searched him. The accused was under the influence of alcohol but appeared to understand the cautions.

He responded by apologizing for what had happened. Henderson then read the standard police Charter warnings for sections 10(

a) and 10(

b) from a police card and asked the accused if he wanted to speak to a lawyer. The accused responded that he did not want a lawyer and Henderson took the accused back to the police station. He was placed in a cell at 9:21 p.m. in the evening and was guarded by civilian guard Richard Harrington.

While the accused was being placed in the cell Henderson heard him say, “Please God I am so sorry for this domestic.” [ 7 ] The Prisoner report form records that the accused was to be charged with “attempt murder et al [sic].” It also noted that the accused had tried to kill his spouse by choking her and that there was a sexual assault. [ 8 ] Henderson described the accused as being intoxicated, tearful and upset. He was verbal but not violent. The Prisoner Report form records the accused as being impaired by alcohol or drugs because there was an odour of alcohol, slurred speech and wobbling.

It also recorded that he was confused, depressed and angry. [ 9 ] At 1:10 a.m., Henderson entered the cell and removed the clothes worn by the accused for forensic testing. He was not given any replacement clothes and was left naked in the cell with only a blanket over him. [ 10 ] Civilian guard Christina Innakatsik replaced Harrington at 9 a.m. the following morning. She was on duty when Constable Michael Simpson entered the accused’s cell at 10:09 the next morning.

[11] Simpson immediately noticed that the accused was naked except for a blanket. He discovered his clothes had been seized and thathe was not provided with replacement clothes. He immediately made arrangements to visit the accused’s parents to obtain other clothingfor him. He returned to the cell and gave the clothes to the accused. The accused agreed to speak with Simpson and at 10:37 a videotapedstatement was taken from the accused that lasted 37 minutes. [12] I viewed the video and read a transcript prepared that was an accurate transcription of the video. III. ISSUES A. Was the accused’s statement to the police voluntary? B. Did the police breach the accused’s rights under

section 10(

a) and 10(

b) of the Charter and, if so, what remedy should be granted? C. Should I grant leave to the accused to cross-examine the complainant about their sexual history under

section 276 and 276.1? A. Was the accused’s statement to the police voluntary? A.1 Crown argument [13] The Crown acknowledged the obligation discussed in R v Kacherowski , (AB CA), [1977] AJ No 769, 37 CCC(2d) 257 [Kacherowski], to call all witnesses who had contact with an accused person who gave a formal statement to the police orprovide a good explanation for their absence. It argues the witness Dwayne Whitford provided a satisfactory explanation forHarrington’s absence and relies on R v Settee, (SK CA), [1974] SJ No 317, 22 CCC (2d) 193 [Settee], to argue that therule is not absolute.

In that case the police officers that escorted the accused from his cell to the interrogation rooms were not called. TheSaskatchewan Court of Appeal held it was not necessary to call them because they took no

part in the interrogation of the accused. TheCrown is not required to call persons who were only peripherally involved in the taking of the statement. Similarly in R v Genaille, (MB CA), [1997] MJ No 341, 116 CCC (3d) 459 [Genaille], the Manitoba Court of Appeal applied Settee and held it wasnot necessary for the Crown to call the officers from the Sheriff’s Office that escorted the accused from a jail cell to an interrogationroom. [14] The Crown argues that the accused’s statement was voluntary under the principles set out in R v Oickle, [2000] 2 SCR 3, 2000 SCC38 [Oickle].

There were no promises or threats made to the accused and he had an operating mind as indicated on the videotape. Therewas no trickery employed. [15] The only potential issue of oppression that arose from the interrogation was the removal of the accused’s clothes. The Crowndistinguished Henderson’s actions in removing his clothes from the situation in R v Hoilett, (ON CA), 136 C.C.C.(3d) 449 [Hoilett], discussed at para. 59 of Oickle. Henderson removed the accused’s clothes after he discovered there was a sexualassault issue.

He had no intention of pressuring the accused into giving a statement and simply neglected to obtain some new clothing forthe accused because it was late in the night and his shift was ending. Henderson took no

part in the interrogation and when Simpsondiscovered the accused had no clothes he immediately obtained some for him before he started the questioning. [16] The Crown argues that the statements made by the accused in the police vehicle and the cells were not addressed to the policeofficers. They qualify as emotional utterances that were not made to a person in authority and were part of the res gestae. Alternatively,they were part of the post offence conduct. If the statements were made to persons in authority the accused had been warned andcautioned and understood his right to remain silent. A.2. Defence argument

[ 17 ] The accused argues that taking the accused’s clothes was an oppressive action similar to that discussed in Oickle. It took him out of his comfort zone and made him vulnerable to police pressure similar to the tactics used by the American jail in Iraq called Abu Ghraib . Furthermore, the police provided no explanation for failing to provide the accused with replacement clothing and Simpson testified it was not police practice to leave a prisoner in that condition. [ 18 ] The accused argues the oppression was compounded by the fact that a female guarded him.

He was embarrassed by his nakedness and asked for the lights to be turned out when he realized a female guard had taken over from Harrington. The combined effect of these conditions had a psychological effect on his state of mind just before the questioning began. It was not unlike the conditions present in Hoilett. A.3 Analysis [ 19 ] I am satisfied the Crown provided a reasonable explanation for the failure to produce Harrington as a witness. Furthermore, he had no involvement in the questioning of the accused.

As recorded in the guard book, the accused was asleep for most of the time that Harrington guarded him. [ 20 ] I am also satisfied that there no threats or promises made to the accused and there was no trickery used to obtain the confession. [ 21 ] The sole issue is whether there was an air of oppression created when the accused was left naked in the cell from one o’clock in the morning until the next day around ten o’clock when Simpson first saw him and took steps to obtain other clothes. [ 22 ] In Hoilett the accused was charged with sexual assault.

He was arrested at 11:25 p.m. while under the influence of crack cocaine and alcohol. After two hours in a cell, two officers removed his clothes for forensic testing. He was left naked in a cold cell containing only a metal bunk to sit on. The bunk was so cold he had to stand up. One and one-half hours later he was provided with some light clothes, but no underwear and ill-fitting shoes. Shortly thereafter, at about 3:00 a.m., he was awakened for the purpose of interviewing. In the course of the interrogation, the accused nodded off to sleep at least five times.

He requested warmer clothes and a tissue to wipe his nose. However, both requests were refused. [ 23 ] Hoilett testified and admitted knowing that he did not have to talk, and that the officers had made no explicit threats or promises. He said he believed the police would give him some warm clothes and cease the interrogation if he talked to them. [ 24 ] In the case at bar the accused did not testify and defence counsel can only speculate about his psychological state.

He argues I should infer that the lack of clothing left him vulnerable to police questioning and contributed to an overall air of oppression. [ 25 ] I am satisfied that the lack of clothing did not distress the accused because a blanket covered him and he was asleep for most of the time he was guarded by Harrington. [ 26 ] Although I believe he was embarrassed when he discovered a female had replaced Harrington, I am satisfied there was no air of oppression as occurred in Hoilett. [ 27 ] Simpson immediately took steps to rectify the mistake made by Henderson and obtained other clothes from the accused’s parents.

He seemed comfortable as he waited for Simpson to start the questioning. The omission to provide clothing was not a police tactic to soften him up for questioning as appears to have been the case in Hoilett. Furthermore, Simpson treated the accused respectfully and politely and questioned him after he had a good sleep.

Hoilett on the other hand was mistreated and questioned at 3 a.m. in the morning while he was very tired and uncomfortable. [ 28 ] I am satisfied the confession was voluntary and is admissible in evidence at the trial. [ 29 ] I am also satisfied that the statements in the police vehicle and while being placed in the cell were made to persons in authority.

However, the accused had already been arrested and cautioned when he made the statement in the police vehicle. It was spontaneous and was not elicited by Henderson. The statement in the cells took place after the accused had been given his Charter rights and had declined to speak to counsel. It was also spontaneous and not elicited by Henderson. [ 30 ] While the accused was under the influence of alcohol, Henderson testified that he appeared to understand the cautions. Since the accused did not testify there is no evidence to contradict him. I am satisfied the statements were voluntary and are admissible in evidence. B. Did the police breach the accused’s rights under

section 10(

a) and 10(

b) of the Charter , and if so, what remedy should be granted? B.1 Defence argument [ 31 ] The accused abandoned the argument under

section 10 (

b) of the Charter . He only argues that he was not properly informed of the charges he faced and did not understand his right to be silent. [ 32 ] Henderson testified that he arrested the accused for assault and making threats. The accused’s statement about being sorry for “this domestic” while being placed in cells indicates he believed that he was charged with assault.

There was no further contact with the police until Simpson started the questioning and it is reasonable to assume that the accused started the interview believing that he was only facing an assault or threat charge. [ 33 ] At the beginning of the interview the accused was alone and tried to read some papers upside down that were on the desk. It is reasonable to assume he was trying to find more about the charges.

However, the court is unable to determine what he was looking at because the papers were not entered as exhibits. [ 34 ] Innakatsik testified that the accused was very emotional and upset when he finished the interview. Simpson told her to check on him every five minutes instead of the usual 15 minutes because the accused was now aware of the charges he was facing. [ 35 ] Simpson testified that the usual reason for the more frequent checking was because of suicidal ideation. However, he could not recall why he told Innakatsiak to check more frequently. Nevertheless he accepted the accuracy of her evidence.

The accused argues that Simpson was not being forthright about his intentions and knew there was some issue about the accused’s understanding of the charges. [ 36 ] The accused argues this evidence supports his argument that he was not aware of the seriousness of the charges when Simpson interviewed him. As indicated at p.6 of the transcript, Simpson told the accused he would allow him to talk. This statement combined with the confusion about the charges suggests the accused was also confused about his right to silence. [ 37 ]

Section 10(

a) entitles the accused to know and understand the specific charges he was facing. His confusion about the charges would have a major impact on his knowledge about the jeopardy he was facing when he started the interview. B.2 Crown argument [ 38 ] The Crown argues the accused is simply speculating about his understanding of the charges.

He could have explained his confusion by testifying but chose not to do so. [ 39 ] The videotaped interview demonstrates that Simpson carefully and patiently explained each of the charges the accused was facing before asking him to give his version about what happened. [ 40 ] The Crown argues Simpson was credible when he testified about the reason for the more frequent checking. He could not

remember why and accepted Innakatsiak’s evidence. [41] The accused was fully aware of the charges and his right to speak to counsel but waived his rights and freely spoke with Simpson. B.3 Analysis [42] In R v Latimer, (SCC), [1997] 1 SCR 217, [1997] SCJ No 11 [Latimer], Lamer C.J. noted that the purpose ofsection 10(

a) of the Charter was as follows: [28]

Section 10(

a) of the Charter provides the right to be informed promptly of the reasons for one's arrest or detention. The purpose ofthis provision is to ensure that a person "understand generally the jeopardy" in which he or she finds himself or herself: R. v. Smith, (SCC), [1991] 1 S.C.R. 714, at p. 728. There are two reasons why the Charter lays down this requirement: first, because itwould be a gross interference with individual liberty for persons to have to submit to arrest without knowing the reasons for that arrest,and second, because it would be difficult to exercise the right to counsel protected by s. 10(

b) in a meaningful way if one were not awareof the extent of one's jeopardy: R. v. Evans, (SCC), [1991] 1 S.C.R. 869, at pp. 886-87. [43] Since the accused has abandoned the

section 10(

b) argument the sole focus of my inquiry is whether he generally understood thejeopardy he was facing when he began the interview. Lamer C.J. noted that in considering

section 10(

a) a court should look beyond theexact words used by the police and focus on whether what the accused was told was sufficient to permit him to make a reasonabledecision to decline to submit to arrest or alternatively to understand his right to counsel under

section 10(

b) as held by the Court in R vEvans, (SCC), [1991] 1 SCR 869, 63 CCC (3d) 289 [Evans]. [44] Henderson told the accused he was being arrested for assault and making threats and advised him of his right to silence and right tocounsel. The accused declined a lawyer and was placed in cells while the police further investigated the allegations. It was only later inthe evening after the police conducted a more comprehensive interview with the complainant that they discovered that there was apotential sexual assault as well.

There is no direct evidence that the accused was informed of the reason for his clothes being seized. It isa reasonable inference that the accused was aware that more charges were likely coming. [45] The accused acknowledged at the commencement of the interview that he had read the charges. Simpson then described the firstcharge as attempted murder and asked the accused if he had any questions. The accused responded that he wanted to make a commentbut he was stopped by Simpson and told that he wanted the accused to be aware of a number of things before he said anything.

Theaccused then said he was going to kill himself and asked if he could get help. Simpson said they could talk about that after the interviewand he would see what he could do for him, although he could not promise anything. [46] Simpson then told the accused the second charge was aggravated sexual assault stating: “The second charge is what they call Aggravated Sexual Assault without a firearm, so there was some sexual activity that was sort ofserious in nature.

Does that make sense?” [47] The accused responded “Yeah” and Simpson moved on and described the next charge as overcoming resistance to the commissionof an indictable offence. He told the accused he was not familiar with the charge stating: “…but there was something criminal going on and you were sort of involved in it and we’ll talk about contacting a lawyer and they cango over some of these charges with you as well.” [48] Simpson told the accused that the fourth charge was uttering threats and told him that charge was about the accused making athreat to people about possibly hurting them.

[ 49 ] Simpson then asked the accused if he understood those four charges and the accused responded in the affirmative. Finally Simpson explained the failure to comply with an undertaking charge. [ 50 ] Simpson then explained to the accused that there was a 24-hour Legal Aid number where he could get legal advice free of charge. He told him if he wanted to speak to a lawyer, Simpson would leave the room so that he could have some privacy. He then asked the accused if he understood all he had said and the accused responded in the affirmative.

Simpson asked the accused if he wanted to make a call and the accused responded in the negative. Simpson said “I would strongly advise” when he was interrupted by the accused who said: “They are going to say “Don’t say anything.” And I’m right here, I’m in the position, that I did something really wrong, I scared her and I’m gonna do what, I’m going to cooperate as best as I can and make it as easy as possible.” [ 51 ] After Simpson said he understood the following questions and answers took place: IN: I know I did something wrong— MS: -Right, I appreciate that- IN-and I am willing to make a statement.

MS: Okay fair enough. So you’re, ‘cause I would strongly suggest you do call. IN: They’re going to say, “Just don’t say anything.” MS: Okay. IN: They’ll say,“Don’t say a word”, but I did something really wrong and I want to get punished for it cause- MS: Okay, let me read the final part. So basically as you know, you know, I gave you the reasons why you are here and you don’t need to say anything, right. You have no, I’m going to read this by word so I have it all down. You have nothing to hope from any promise or favour and nothing to fear from any threat whether or not you say anything.

So anything you do say is used in as evidence, okay. So anything you say, like I’m writing things down, we tape things- IN: Yeah MS-of course, we’re at the police station, so I just want you to be aware what we say gets recorded and it gets to be used later in court. IN: Yeah MS: Are you aware of that? IN: Yes. MS: Do you understand that? IN: Yes. MS: Okay so having said that do you still not wish to contact a lawyer? IN: No. MS: Are you sure? IN: Yes. MS: Okay. All right cause I would strongly advise that you do so, so just for the record, okay.

Cause I want to make sure everything is fair for you, okay… [ 52 ] I am satisfied that the accused was fully aware of the jeopardy he faced and of his right to speak to counsel. He had sufficient previous experience with the criminal justice system to know he would be advised not to say anything and, accordingly, did not want to speak to a lawyer. He declined to speak to a lawyer despite the persistent advice of Simpson to do so. [ 53 ] Simpson carefully reviewed with the accused each charge he was facing and the accused indicated he understood. Simpson was unable to explain the nature of the charge under

section 246 and suggested the accused contact a lawyer to obtain assistance on it. While

the accused may have initially understood that he was only charged with spousal assault he should have been fully aware after the discussion with Simpson that he was facing very serious charges. Since he did not testify there is no evidence to contradict the video statement reviewed above and it is pure speculation that he was confused and did not understand his jeopardy. [ 54 ] As a result I am satisfied his

section 10(

a) rights were not breached. C. Should I grant leave to the accused to cross-examine the complainant about their sexual history under

section 276 and 276.1 ? C.1 Factual background [ 55 ] As held in R v Darrach, [2000] SCJ No 46, 2000 SCC 46 [Darrach],

section 246.1(2)(

a) requires the accused to file an affidavit with “detailed particulars” of the evidence he seeks to adduce from the complainant. [ 56 ] At the commencement of the application, I noted the accused had not filed the requisite affidavit. I suggested to counsel that I proceed in the same fashion as Spies J. did in R v BB, [2009] OJ No 862, 2009 CarswellOnt 1082 [B.B] , by permitting the accused to file a late affidavit.

Both agreed and the application was adjourned until later in the week. [ 57 ] The Crown objected to the affidavit filed by the accused because it did not provide sufficient particulars of the alleged sexual activity and I gave the accused a further opportunity to file a supplementary affidavit. [ 58 ] The Crown argued that the supplementary affidavit was still defective because it did not link the evidence to the proposed defences.

I overruled the objection and held that the accused had satisfied the first stage of the application and permitted the Crown to cross- examine the accused on the affidavit. [ 59 ] Paragraph 2 of the supplementary affidavit deposes that the accused learned that the complainant alleged that he wrapped a pillowcase around her head. [ 60 ] Paragraph 3 deposes that at the trial the accused expects to testify that it was common for them to engage in sex play that involved tying her up with items like sheets and clothing.

They engaged in this type of activity on the date of the offence. [ 61 ] Paragraph 4 states that this evidence is relevant to his belief that the complainant was consenting to the activities that took place on that date. [ 62 ] Paragraph 5 states that the accused was advised by his lawyer that the evidence about these activities is relevant to the charges of attempt murder, aggravated sexual assault, and the charge under

section 246. [ 63 ] Paragraphs 6 and 7 depose that choking the complainant during lovemaking was a common feature of their consensual sexual relationship for many years. [ 64 ] Paragraph 8 deposes the complainant and the accused participated in a ritual where he would carry her up the stairs for sex as if he was overcoming her resistance. [ 65 ] Paragraph 9 deposes that this evidence is relevant to the issue of consent or honest but mistaken belief in consent. [ 66 ] The accused was extensively cross-examined by the Crown on the affidavit and his evidence about the sexual activity can be summarized as follows:

(

a) The accused and complainant had been in a common-law relationship for 7 years prior to the date of the alleged offences; (

b) They had a very active sexual relationship that included daily intercourse; (

c) In 2002, they engaged in sexual experimentation with pseudo rape where he would tie her hands over her head so she could not move. This activity happened about once a week; (

d) In 2004, the accused read about the use of choking during sex to enhance sexual pleasure and the complainant agreed to try it. She seemed to really enjoy it and it became a regular feature of their sexual activity. The accused would sometimes use his hands and sometimes would use a pillowcase. During the choking the complainant would lose consciousness for about 15 seconds. Sometimes she would hold her breath as an alternative; (

e) The pseudo rape often involved the accused treating the complainant roughly when he grabbed her arms and pulled her hair. Sometimes the rough treatment caused some bruising and hair loss. The sex was usually initiated by the accused picking up the complainant and carrying her up to the bedroom. [ 67 ] On the evening of the alleged offences they hot-knifed some marijuana and he asked her if she wanted to have sex. She agreed and he picked her up and carried her to the bedroom. She performed oral sex on him and then he tied her up and started to put on a condom. She got upset because he wanted to use a condom.

He believes that she thought he used the condom because he suspected she might have had sex with someone else and was protecting himself so he would not catch a sexually transmitted disease. He then performed oral sex on her and concluded she had sex with someone else. He asked her if she had sex with someone else. She started yelling and then began swinging her arms and kicking him. The sex stopped and one of their children woke up. The complainant went to check on the child while the accused sat on the bed. The complainant came back and offered to perform oral sex.

The accused declined and pulled the complainant’s hair as he brought up her past relationships. The complainant denied having sex with other men. The accused responded he knew something was going on and would find out eventually. The evening ended when the police got involved. No consensual rough sex occurred that evening. [ 68 ] On re-examination, the accused indicated that when he restricted the blood flow to the complainant’s brain by choking her he also knew she was breathing. He did not enjoy using a pillowcase to choke the complainant but did it to give her pleasure.

He also slapped her sometimes when she requested him to do it. C.2 Defence arguments [ 69 ] The accused argues that the facts of this case are very similar to those in B.B. and that the reasoning of Spies J. in paragraphs 20, 21 and 22 should be applied to this case. In that case, Spies J. was satisfied that the cross-examination of the complainant about her sexual history with the accused would not violate the twin rape myths. [ 70 ] The accused argues that this evidence is relevant to understanding the broad parameters of the long-term sexual relationship between them.

If he is not able to cross-examine the complainant about the past relationship he will not be able to make full answer and defence. C.3 Crown arguments [ 71 ] The Crown argues that the accused admitted in cross-examination that there was no consensual rough sex on the evening of the alleged offence. As a result any questioning about the past sexual history is irrelevant. The defence is that the complainant consented and the cross-examination should be restricted to what occurred on the date of the alleged offence.

C.4 Analysis [ 72 ] In B.B, the accused deposed in his affidavit that there were at least two occasions between March and August 2007 when he and the complainant engaged in consensual activity that included bondage and both vaginal and anal intercourse. The complainant would initiate the activity and the accused would tie her hand to the headboard and put a scarf over her eyes.

[73] During cross-examination on the affidavit. Spies J. described the evidence from B.B., as follows: [13] With respect to August 11, 2007, he testified that some time between 12 and 1:00 p.m. in the afternoon, he and Ms. E. B. hadconsensual sexual intercourse in the master bedroom of the townhouse where Ms. E. B. was living, involving both vaginal and analintercourse. Mr. B. testified that Ms. E. B. initiated sexual activity and asked him to "do it with a scarf". He knew what she meant basedon the prior occasions when they had used a scarf during sexual intercourse. According to Mr.

B., one of them grabbed a scarf from thecloset in the bedroom and at some point, he used the scarf to tie Ms. E. B.'s wrists together and then tie her hands to the bars of theheadboard of the bed. Mr. B. was then cross-examined about the prior occasions involving bondage that he alleged had occurred. Hestated that the first time this occurred, Ms. E. B. had asked that he tie her hands to the frame of the bed with a scarf and that he wasprepared to do so as long as it pleased her. When Ms. E. B. first came up with the idea, it was new for the two of them in theirrelationship. Mr.

B. was unable to specify a day or a time for the first or last occasion prior to the alleged sexual assault. The onlyevidence he was able to give was consistent with the evidence he gave concerning what he alleges happened on August 11, 2007.According to Mr. B., on each occasion it was Ms. E. B. who initiated the use of the scarf. It was only after considerable cross-examination, when he was asked if he could recall any other details, that he advised that a scarf was also used to cover Ms. E.

B.'s eyesand that he wore a condom on August 11, 2007. [74] In granting leave to cross-examine the complainant, Spies J. noted that Darrach did not suggest that evidence of prior sexual activitycould never be relevant. She then noted a number of cases had held such evidence was relevant to show the development of arelationship between the parties from a platonic one to a sexual one. These included R v MM, (ON SC), [1999] OJNo 3943, 44 WCB (2d) 186 [MM], R. v. Temertzoglou, (ON SC), [2002] OJ No 4951, 56 WCB (2d) 184[Temertzoglou], and R v Strickland, (ON SC), [2007] OJ No 517, 72 WCB (2d) 787 [Strickland].

She concluded witha reference to Professor Galvin’s

article stating: [19] In addition I reviewed portions of Professor H.R. Galvin's article, "Shielding Rape Victims in the State and Federal Courts: AProposal for the Second Decade,"… which was extensively referred to with approval in Seaboyer.

Professor Galvin is of the view thatalthough evidence of prior consensual relations between the accused and the complainant is offered to prove consent, its probative valuerests on the "nature of the complainant's specific mindset toward the accused rather than on her general unchaste character" and thatexcluding such evidence arguably denies the accused a fair opportunity to rebut the charges against him. [75] Spies J. held that the evidence of the accused concerning prior sexual intercourse including bondage was relevant to issues at trialas required by section 276(2)(b).

She was also satisfied that such evidence did not involve the twin myth reasoning prohibited by section276(1) because the sexual activity took place within the context of a married couple.

Noting the accused and complainant were marriedand recently separated, Spies J. concluded the jury would not have properly understood the defence of consent to sexual activityinvolving bondage without knowing that the complainant had consented to this type of activity during marriage. [76] Finally, Spies J. was satisfied the evidence had significant probative value that was not substantially outweighed by the danger ofprejudice to the proper administration of justice as required by section 276(2)(c).

She then considered the factors specified in section276(3) and concluded the evidence was necessary for the accused to make full answer and defence to a very serious allegation of sexualassault stating: [24] This right is not outweighed by society's interest in encouraging the reporting of sexual assault offences. There is no issue ofdiscriminatory belief or bias. Although the evidence may be considered out of the usual, it is not shocking or otherwise prejudicial to thecomplainant.

Given the account the complainant will have to give of the sexual assault she alleges occurred on August 11, 2007, I do notbelieve permitting Ms. Kancharla to ask her a few general questions to determine her position, with respect to the evidence of Mr. B.about the two prior occasions of bondage, will significantly impact her right of privacy or her personal security. As it is the fact ofbondage that is relevant, there will be no need to ask particularly detailed questions about this prior sexual activity and this furtherintrusion of her privacy interests will be relatively minimal.

I have already made an order prohibiting publication of the complainant'sname and identity. For the reasons given, there is a reasonable prospect that this evidence will assist in arriving at a just determination inthis case.

The substantial probative value of this evidence is not outweighed by the danger of prejudice to the proper administration ofjustice. [77] In the case at bar the evidence from the accused was sufficiently detailed to satisfy section 276(2) (a). [78] In balancing “significant” probative value against the “danger of prejudice” specified by section 276(2) (b), I must, as directed byDarrach, consider whether the evidence is not so trifling as to be incapable, in the context of all the evidence, of raising a reasonabledoubt.

It is not necessary for the defence to demonstrate strong and compelling reasons for the admission of the evidence.

[ 79 ] The accused testified that he carried the complainant to the bedroom and tied her up as they had done in the past. However, he also stated that they did not engage in rough sex. I inferred this meant that he did not engage in the choking activity. If this is correct, the evidence of past rough sex that involved choking with a pillowcase during sex is not relevant to counts 1,2,3,4 and 6. It may be relevant to counts 5 and 7. [ 80 ] I am satisfied that the section 276(2) (

b) is also satisfied in this case and that the evidence is necessary for the defence to make full answer and defence. [ 81 ] I now turn to the factors in section 276(3). I find myself in the same position as Spies J. and do not believe permitting defence counsel to ask the complainant a few general questions about their sex practices that involve bondage or sadomasochism will significantly impact her right to privacy or her personal security.

Since this is a judge alone trial the risk of the invasion of privacy rights is minimal and I will be able to control the extent of the cross-examination without the risks posed by a jury trial. IV. CONCLUSION [ 82 ] The statements of the accused are admissible in evidence. [ 83 ] The Charter application is dismissed. [ 84 ] The accused is permitted to cross-examine the complainant on the alleged consensual sexual activity with the accused involving bondage and sadomachism in the period 2002 to the date of the offence. [ 85 ] Pursuant to

section 276.3(1) , I order that no person shall publish in any document, or broadcast in any way the contents of the application under

section 276.1 , the evidence taken and the representations made that will result in the publication of the name or identity of the complainant. Dated at the City of Iqaluit this 17th day of May, 2011 ____________________ Mr. Justice Earl D. Johnson Nunavut Court of Justice