R v Thompson, 2023 ABKB 70

Court of King’s Bench of Alberta Citation: R v Thompson, 2023 ABKB 70 Date: 20230208 Docket: 170938880Q2 Registry: Edmonton Between: His Majesty the King Crown - and - Joe Wayne Thompson Accused _______________________________________________________ Reasons for Determination under s. 278.94 of the Criminal Code of the Honourable Justice W.N. Renke _______________________________________________________ I provided oral reasons at the s. 279.94 hearing, with written reasons to follow. [ 1 ] On January 6, 2022, I granted Mr.

Thompson’s application under s. 278.93 of the Criminal Code ( 2022 ABQB 12 ). [ 2 ] A hearing was therefore held under s. 278.94 to determine whether the evidence at issue is admissible under s. 276(2). [ 3 ] The Complainant was represented by counsel at the hearing. [ 4 ] Publication bans under s. 278.95 have been maintained, save that under s. 278.95(d), my determination and reasons concerning the s. 278.94 hearing may be published.

I. Background [5] Mr. Thompson is charged with two counts of sexual assault and two counts of sexual interference respecting theComplainant. The offences are alleged to have occurred between dates in 2010 and 2012 when the Complainant was between the ages of14 and 16. [6] Mr. Thompson sought the admissibility of two types of evidence. [7] First, he applied to admit evidence of sexual contact between himself and the Complainant that occurred after the periodcovered by the Indictment, when the Complainant was age 16 and older (the Reliability Evidence).

More specifically, the proposedevidence was to show that the Complainant and Mr. Thompson were in an intimate relationship for a significant period after theComplainant had turned 16. This evidence clearly fell within s. 276(2) as evidence of “sexual activity other than the sexual activity thatforms the subject-matter of the charge” and so engaged the procedures set out in ss. 278.93 and 278.94. [8] Mr. Thompson asserted that the Reliability Evidence was relevant to the issue of whether the Complainant had mistakenlyclaimed that conduct that occurred after she was 16 occurred before she was 16.

In other words, the evidence went to the reliability of theComplainant’s recollection of when events occurred. If sexual contact occurred before age 16, Mr. Thompson would have no defence. Ifsexual contact occurred only after age 16, the contact would fall outside the scope of the Indictment. [9] Second, Mr. Thompson applied to admit evidence supporting the inference that the Complainant had a motive to fabricateallegations against him (the Fabrication Evidence). This evidence and the inferences to be drawn from it had the following structure: TheComplainant and Mr.

Thompson had been in an intimate relationship after she turned 16. Mr. Thompson ended the relationship. TheComplainant was upset. She had a motive to fabricate allegations, then, and did fabricate allegations against him. [10] A third issue was referred to during the hearing respecting representations made to Defence counsel by Crown counselformerly assigned to this prosecution. The representations were claimed to limit the scope of the Complainant’s testimony. [11] I will address these issues in turn. II.

Reliability Evidence [12] My conclusion in the s. 278.93 application was set out at para 22: [22] In my opinion, having regard to the factors and considerations set out in ss. 278.93(2) and (4) and ss. 276(1), (2), and (3), and onthe condition that the [Reliability] Evidence be limited to establishing the parties, the nature of the relationship, and the period of therelationship (i.e., that Mr.

Thompson and the Complainant had a sexual relationship for a period that extended from after her 16thbirthday to the approximate date when that relationship ended), given that the potential probative value of the [Reliability] Evidenceexceeds the potential prejudicial effect of the [Reliability] Evidence and given that this evidence would support an important aspect ofMr. Thompson’s response to the charges he faces, the [Reliability] Evidence is capable of being admissible under s. 276(2). [13] Subsection 278.94(4) requires me to determine whether this evidence is admissible under s. 267(2). A.

Relevance of the Reliability Evidence [14] On the record, it appears to be common ground that the Complainant and Mr. Thompson were in an intimate relationship for aperiod after the Complainant turned 16. The Indictment concerns conduct that occurred before the Complainant turned 16. [15] Mr. Thompson seeks to adduce the Reliability Evidence for the purpose of providing an evidential foundation from which itmay be inferred that the Complainant erred in alleging sexual contact before she was 16. That is, Mr.

Thompson seeks an evidentialfoundation for the inference that the Complainant confused what occurred after she turned 16 with what occurred (or did not occur)before she turned 16. [16] The evidence pursues a potential inference only. Whether or not the inference is drawn and a reasonable doubt arises will befor myself as trier of fact at the end of the trial on the basis of all the evidence. [17] The evidence goes to the Complainant’s credibility. Credibility is often a critical issue in sexual assault cases and thereasonable doubt standard applies to credibility: R v W(D), (SCC), [1991] 1 SCR 742, Cory J at 757.

More precisely, theevidence goes to the Complainant’s reliability, the accuracy of her memory. It does not concern her sincerity or commitment to tell thetruth. [18] The evidence would support a single and distinct challenge to the Complainant’s credibility. It is not, on the present record,coupled with any other challenges based on, for example, prior inconsistent statements or inconsistencies internal to the Complainant’saccount of events. [19] In my opinion, the Reliability Evidence is relevant to the issue of the Complainant’s reliability.

On the nature of relevance,Justice Martin (dissenting but not on this point) wrote as follows in R v Calnen, 2019 SCC 6 at para 108: [108] Relevance involves an inquiry into the logical relationship between the proposed evidence and the fact that it is tendered toestablish. The threshold is not high and evidence is relevant if it has “some tendency as a matter of logic and human experience to makethe proposition for which it is advanced more likely than that proposition would be in the absence of that evidence”: R. v. White, 2011SCC 13, [2011] 1 S.C.R. 433, at para. 36, quoting D. M. Paciocco and L.

Stuesser, The Law of Evidence (5th ed. 2008), at p. 31. In other

words, the question is whether a piece of evidence makes a fact more or less likely to be true …. [ 20 ] If a complainant claims that an important event happened before an important time, if there were evidence that the event happened after the important time, the evidence of the later events would make it more likely that the complainant were mistaken than if that evidence were absent. [ 21 ] I emphasize that relevance and admissibility alone are at issue in these proceedings, not whether the contended-for inference will be or should be drawn or whether the inference raises a reasonable doubt. B.

Scope of the Reliability Evidence [ 22 ] As my conclusion in the s. 278.93 application indicated, the potential admissibility of the Reliability Evidence was predicated on significant constraints on its scope. I add my comments at para 18 of the previous decision: [18] …. Sufficient specificity to support the exploration of the Complainant’s reliability is provided if the [Reliability] Evidence is limited to identification of the parties to the relationship (the Complainant and Mr.

Thompson), the nature of that relationship (sexual contact occurred), and the relevant time period of the relationship (age 16 to the date (which could be approximate) when the relationship ended) …. [ 23 ] Further detail is unnecessary. At para 5 of the Written Submissions of the Accused, Mr.

Thompson’s parenthetical description of the nature of the relationship was of “a romantic relationship which included sexual activity.” That suggests a scope of admissibility beyond what I had in mind and beyond what I described in the previous decision. [ 24 ] Since the Indictment – and the sexual interference charges – require proof of events occurring before the Complainant turned 16, prima facie events taking place after the Complainant turned 16 would be collateral, irrelevant. [ 25 ] The post-age 16 events are drawn into relevance only through the inferential relationship with the Complainant’s reliability. [ 26 ] In relation to that issue, detail about the post-age 16 interactions between the Complainant and Mr.

Thompson, particularly its claimed “romantic” nature, are unnecessary. The basis for the claim of confusion is the ongoing intimate relationship after age 16, not specific events that occurred after the Complainant turned age 16. [ 27 ] The post-age 16 evidence, then, can remain at a low level of resolution. In my opinion, the evidence should be fitted within the constraints referred to by Justice Karakatsanis in R v Goldfinch , 2019 SCC 38 at paras 53-54 : [53] The words “specific instances of sexual activity” must be read in light of the scheme and broader purposes of s. 276.

The requirement that evidence be “specific” prevents aimless or sweeping inquiries into the complainant’s sexual history. The accused must point to identifiable activity, but the degree of specificity required in a particular case will depend on the nature of the evidence, how the accused intends to use it, and its potential to prejudice the proper administration of justice. As Doherty J.A. noted in L.S. , specificity is required so that judges may apply the scheme in a way that effectively protects the rights of the complainant and ensures trial fairness. A purposive

interpretation thus calls for evidence that is sufficiently specific to support a fully informed analysis, allowing the judge to circumscribe what evidence may be adduced and how it may be used. [54] Evidence of a relationship that implies sexual activity, such as “friends with benefits”, as defined by the accused here, inherently encompasses specific instances of sexual activity. Requiring further details would unnecessarily invade the complainant’s privacy , defeating an important objective of the provision.

I agree with the statement in L.S. that specifying the parties to the relationship, the nature of that relationship and the relevant time period satisfies the purposes of trial fairness (para. 83) . Those criteria are met in this case. [emphasis added] C.

Conditions for Admissibility [ 28 ] Subsection 278.94(4) requires that admissibility be determined under s. 276(2): 276(2) In proceedings in respect of an offence referred to in subsection (1), evidence shall not be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94, that the evidence: (

a) is not being adduced for the purpose of supporting an inference described in subsection (1); (

b) is relevant to an issue at trial; and (

c) is of specific instances of sexual activity; and (

d) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. I will address paras (a)-(

d) slightly out of order. 1. Relevance – s. 276(2)(b) [ 29 ] In my opinion, as discussed, the Reliability Evidence would be relevant to the Complainant’s credibility.

2. Twin Myths Not Engaged – s. 276(2)(a) [30] The Reliability Evidence does not engage either of the twin myths described in s. 276(1)(

a) and (b): 276(1) …. evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is notadmissible to support an inference that, by reason of the sexual nature of that activity, the complainant (

a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or (

b) is less worthy of belief. [31] The Reliability Evidence does not bear on consent at all. Before turning 16, over the period of the Indictment, theComplainant could not consent as a matter of law: s. 150.1(1). No evidence could change or obscure that. [32] The Reliability Evidence does bear on credibility, on the reliability of the Complainant’s memory. However, what s. 276(1)(b)forbids is reliance on the sexual nature of activity to undermine credibility.

In R v Darrach, 2000 SCC 46, Justice Gonthier wrote asfollows at para 35: 35 The phrase “by reason of the sexual nature of that activity” in s. 276 is a clarification by Parliament that it is inferences from thesexual nature of the activity, as opposed to inferences from other potentially relevant features of the activity, that are prohibited. Ifevidence of sexual activity is proffered for its non-sexual features, such as to show a pattern of conduct or a prior inconsistent statement,it may be permitted.

The phrase “by reason of the sexual nature of that activity” has the same effect as the qualification “solely tosupport the inference” in Seaboyer in that it limits the exclusion of evidence to that used to invoke the “twin myths” (p. 635). [emphasisadded] The inferential value of the Reliability Evidence lies in the timing of the intimate activity, not solely on the fact that the activity wasintimate. An acknowledgement of later similar activity could contribute to an inference that the activity was misrecollected as occurringearlier. 3.

Specific Instances – s. 276(2)(c) [33] In my opinion, the “specific instances” requirement of para (

c) is met by the Reliability Evidence constrained in the mannercountenanced by Goldfinch. 4. Probative Value and Prejudicial Effect – s. 276(2)(d) [34] Under s. 276(2)(d), to be admissible, proposed evidence must have “significant probative value that is not substantiallyoutweighed by the danger of prejudice to the proper administration of justice.” Criteria for assessing the probative value and prejudicialeffects of proposed evidence are provided in s. 276(3). [35] Subsection 276(3) provides that:

(3) In determining whether evidence is admissible under subsection (2), the judge … shall take into account (

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

b) society’s interest in encouraging the reporting of sexual assault offences; (

c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case; (

d) the need to remove from the fact-finding process any discriminatory belief or bias; (

e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury; (

f) the potential prejudice to the complainant’s personal dignity and right of privacy; (

g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and (

h) any other factor that the judge … considers relevant. (

a) Significant Probative Value, Substantial Prejudice [36] Justice Gonthier explained the “significant” and “substantial” qualifiers in Darrach at paras 39-41: 39 …. Morden A.C.J.O. found that “the evidence is not to be so trifling as to be incapable, in the context of all the evidence, ofraising a reasonable doubt” (p. 16). At the same time, Morden A.C.J.O. agrees with R. v. Santocono (1996), (ON CA),91 O.A.C. 26 (C.A.), at p. 29, where s. 276(2)(

c) was interpreted to mean that “it was not necessary for the appellant to demonstrate‘strong and compelling’ reasons for admission of the evidence”. This standard is not a departure from the conventional rules ofevidence. I agree with the Court of Appeal that the word “significant”, on a textual level, is reasonably capable of being read inaccordance with ss. 7 and 11(

d) and the fair trial they protect. 40 The context of the word “significant” in the provision in which it occurs substantiates this

interpretation …. The adverb“substantially” serves to protect the accused by raising the standard for the judge to exclude evidence once the accused has shown it to

have significant probative value. In a sense, both sides of the equation are heightened in this test , which serves to direct judges to the serious ramifications of the use of evidence of prior sexual activity for all parties in these cases. 41 …. The requirement of “significant probative value” serves to exclude evidence of trifling relevance that, even though not used to support the two forbidden inferences , would still endanger the “proper administration of justice ” …. [emphasis added] (

b) Significant Probative Value and ss. 278(3)(

a) and (c) [ 37 ] In my opinion, the Reliability Evidence has significant probative value and has a non-trivial capacity to contribute to reasonable doubt respecting the reliability of the Complainant’s memory. To that extent, admitting the evidence promotes the interests of justice, particularly the right of the accused to make full answer and defence. The case against Mr. Thompson will turn on credibility. Denying Mr. Thompson access to evidence that could legitimately assist in raising a reasonable doubt would be to deny him full answer and defence.

And to that extent, admitting the Reliability Evidence will ensure that there will be a just determination in the case, whatever the ultimate contribution of the Reliability Evidence might be, in light of all the evidence in the case. (

c) Myths and Stereotypes and ss. 278(3)(d), (e), and (c) [ 38 ] The Reliability Evidence does not draw inferential support from the twin myths or from any other myths or stereotypes concerning complainants or victims of sexual offences. The inferential support is drawn from the common experience of mistaking when events occurred. No assumptions about victims of sexual offences are made. The inference, for example, does not rely on the assumption that victims of sexual offences have memories less reliable than memories of other complainants and does not convey such message.

The evidence does not implicate any discriminatory belief or bias. [ 39 ] The evidence will not induce sentiments of prejudice by the trier of fact against the Complainant. The fact that the Complainant may have later consented to sexual contact with the Complainant could not affect the non-consensual nature of any sexual contact occurring before she was 16. In fact, given the age difference between Mr. Thompson and the Complainant, the Reliability Evidence might be considered to induce sentiments of prejudice or hostility against him as opposed to the Complainant.

Certainly the evidence would not induce sentiments of sympathy for Mr. Thompson. I can and will self-instruct to ensure that no improper emotive responses seep into my assessment of the evidence. [ 40 ] Since the Reliability Evidence does not insert any discriminatory belief or bias into the evidence and does not induce sentiments of prejudice, sympathy, or hostility, again, the evidence will assist in ariving at a just determination in the case. (

d) Dignity, Privacy, Reporting and ss. 276(3)(f), (g), and (b) [ 41 ] The constraining of the Reliability Evidence into Goldfinch -countenanced scope will preserve the Complainant’s privacy and dignity (“The requirement that evidence be ‘specific’ prevents aimless or sweeping inquiries into the complainant’s sexual history” (para 53); “Requiring further details would unnecessarily invade the complainant’s privacy” (para 54).) Her right to equal protection and benefit of the law is preserved. This Complainant will not be subjected to improper scrutiny or collateral inquiries.

Admitting the evidence, then, should not deter other complainants from reporting sexual assault offences. 5. Conclusion [ 42 ] In my opinion, the Reliability Evidence is admissible under s. 276(2).

D. “Adduced” [ 43 ] Subsection 276(2) states that “evidence [of other sexual activity] shall not be adduced by or on behalf of the accused” unless the judge determines that the evidence is admissible, with regard to the considerations set out in s. 276(2) and the factors in s. 276(3). [ 44 ] In R v JJ , 2022 SCC 28 , Chief Justice Wagner and Justice Moldaver wrote at para 76 that “adducing” evidence is “not limited to circumstances where evidence is entered as an exhibit[, but] … includes references to the content of a record made in defence submissions or the examination and cross-examination of witnesses.” [ 45 ] Hence, my admissibility ruling applies to the examination and cross examination of the Complainant, the testimony of Mr.

Thompson, and to Defence submissions. The admissible features of the Reliability Evidence may be “adduced” but only to the extent permitted by these reasons. In other words, my admissibility determination is permissive but also restrictive. The restrictions must be respected. III. Fabrication Evidence [ 46 ] In the present application Mr. Thompson sought an admissibility ruling respecting evidence supporting an inference that the Complainant had a motive to fabricate evidence against Mr.

Thompson. [ 47 ] This evidence was not considered in the previous s. 278.93 application. [ 48 ] Neither was this evidence addressed in a written application. Subsection 278.93(2) makes a written application mandatory (“must be made in writing”). [ 49 ] Mr. Thompson’s affidavit in support of his application did describe the following particulars of proposed evidence (para 7(d)):

The circumstances surrounding the termination of our relationship. It is my evidence that I terminated our relationship. [50] Mr. Thompson correctly pointed out that “[a]n accused who denies that alleged events occurred may attempt to identify amotive for fabrication, and evidence to that effect may be highly relevant:” R v CEK, 2020 ABCA 2 at para 26. In CEK, a sexual assaultcase that turned on credibility, the evidence relating to motive to fabricate was a text allegedly sent by the complainant to the accused’swife, threatening “I will ruin your life:” ibid.

The Court of Appeal wrote as follows at para 52 of R v JOL, 2020 ABCA 73: [52] We agree the trial judge erred in refusing defence counsel’s request to provide a specific instruction regarding motive tofabricate. While not determinative, the existence of a motive to fabricate is relevant to assessing credibility: R v CEK …at para 26; R vZapeda, 2018 ABCA 425 at para 10; R v Batte, (ON CA), 49 OR (3d) 321 at paras 119-121, 134 OAC 1 (CA). Thisapplies to all matters, including sexual assault trials.

See also R v WDM, 2022 SKCA 64, Leurer JA at paras 41-42. [51] However, I declined to rule on the admissibility of the proposed Fabrication Evidence. I confirmed that Mr.

Thompson was atliberty to bring an application respecting that evidence under s. 278.93. (Keeping in mind that the trial is coming up in May and theapplication and hearing (if any) would have to be completed before trial, likely in April.) My reasons for declining to rule on theadmissibility of the Fabrication Evidence were these: [52] First, a written application conforming to s. 278.93(2) had not been provided. [53] Second, the s. 278.93 and s. 278.94 sequential process must be respected. [54] Third, by way of preliminary observations in the absence of a complete application with affidavit in support, the informationin para 7(

d) of Mr. Thompson’s affidavit would not appear to support an inference of motive to fabricate. [55] The fact that the parties had been in a relationship would not support an inference of motive to fabricate. [56] The fact that the parties’ relationship terminated would not support an inference of motive to fabricate. [57] If there were evidence that the Complainant were merely “upset” by the termination of a relationship by Mr. Thompson, thatwould not support an inference of motive to fabricate.

The current affidavit evidence did not, in any event, concern the Complainant’sresponse to the break-up. [58] A contrary view founded on the current affidavit could well rely on stereotypes concerning complainants’ disposition tofabricate. See R v Seaboyer, (SCC), [1991] 2 SCR 577, L’Heureux-Dubé J (dissenting in part) at 653 (myths 7 and 9),659. [59] An added complication: If Mr. Thompson were to seek the admission of any records in his possession in aid of an inference ofmotive to fabricate, and if the Complainant had a reasonable expectation of privacy in those records, s. 278.92 would be engaged. IV.

Crown Representations [60] A pre-trial application would be required to resolve the issue of whether the Crown is bound by any representations made bya prior prosecutor limiting the scope of the Complainant’s evidence. Defence counsel will advise the Crown within two weeks whetherthis application will be pursued. [61] I referred counsel to R v Nixon, 2011 SCC 34. See also R v Anderson, 2014 SCC 41 at paras 44-51. Heard on the 3rd day of February, 2023. Dated at the City of Edmonton, Alberta this 8th day of February, 2023. W.N. Renke J.C.K.B.A. Appearances:

Veronica Alexander Crown Prosecution Service for the Crown Kenneth Sockett, KC Sockett Law Barristers & Solicitors for the Accused Anthony Oliver Oliver Litigation for the Complainant