R v Ponicappo, 2022 ABKB 734

Court of King’s Bench of Alberta Citation: R v Ponicappo, 2022 ABKB 734 Date: 20221004 Docket: 191489988Q2 Registry: Edmonton Between: His Majesty the King Crown - and - Dillan Ponicappo Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.5 . By Court Order:

(1) Information that could identify the Complainant shall not be published, broadcast, or transmitted in any way.

(2) No person shall publish, broadcast, or transmit in any way the contents of the publication ban application or the evidence, information or submissions at the hearing of the application. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Trial information in Absence of Jury – See the Criminal Code , section 648(1) . Permission having been given to the jurors to separate, information regarding any portion of the trial at which the jury is not present shall not be published, broadcast, or transmitted in any way.

NOTE: This decision is available from the court file. It may be published after the jury retires to consider its verdict.

_______________________________________________________ Ruling on Voir Dire of the Honourable Justice Robert A. Graesser _______________________________________________________ Introduction [ 1 ] This is a decision on Mr. Ponicappo’s application under

section 276 of the Criminal Code for permission to ask certain questions to the Complainant as to their alleged previous sexual relationship. This decision deals with the threshold question as to whether Mr. Ponicappo has met the burden of establishing that the proposed questions and evidence might be admissible in evidence so as to warrant a voir dire under

section 278.94 of the Criminal Code . Background [ 2 ] Dillan Ponicappo is charged with one count of sexual assault pursuant to

section 271 of the Criminal Code , and one count of sexual interference in relation to the same incident with the same Complainant. The matter is set to be tried before a judge and jury at Edmonton starting November 28, 2022. [ 3 ] On July 14, 2022, Mr. Ponicappo filed an application pursuant to

section 278.93 seeking that the Court direct a hearing to determine whether the proposed evidence was capable of admission under s 276(2). [ 4 ] At a pretrial meeting on October 13, Mr. Keyes was directed to file an affidavit in support of his application by October 21, and the application was adjourned to October 31, 2022. The Crown indicated that they may wish to cross examine Mr. Ponicappo on his affidavit, but that did not happen. [ 5 ] Mr. Ponicappo filed an affidavit sworn by Mr. Ponicappo on October 21, as well as an application under

section 276 of the Criminal Code for leave to ask the Complainant a number of questions:

a) Did you have a sexual relationship with the Accused beginning on or about November 1, 2018?

b) During that sexual relationship with the Accused, did you get together with him to drink and smoke cannabis involving other activities such as:

i) Kissing and sexual touching; ii) Giving and receiving oral sex; iii) And this sexual activity was consensual between you and him? and

c) From November 1, 2018 to November 24, 2019, you met with the Accused at least 15 times for encounters with him that included alcohol, cannabis, kissing, sexual touching, and oral sex? [ 6 ] He argues that this is necessary for him to make full answer and defence to the charges against him because it will provide context to the relationship they had before November 24, 2019 and it is appropriate to ask these questions to the Complainant because he intends to testify as to these events in the context of his anticipated defence of honest but mistaken belief in consent. [ 7 ] In his affidavit in support of the application, Mr.

Ponicappo swears that he initially met the Complainant on or about April 1, 2018. She told him she was 16 years old. In his affidavit he swears: 8. On or about November 1, 2018 (the Complainant) and I began to casually meet up for casual sex, which included penetrating and touching her vagina with my fingers and giving and receiving oral sex. 9. This casual relationship continued until on or about November 24, 2019 which was the last social gathering I had with (the Complainant). [ 8 ] He relies specifically on two cases: R v IL , 2015 ONCJ 61 and R v Zachariou , 2013 ONSC 6694 . [ 9 ] Mr.

Keyes noted that he wanted to avoid a Brown v Dunne situation where the Crown may need to call the Complainant to rebut Mr. Ponicappo’s testimony, and that this application was based partly on fairness to the Complainant. [ 10 ] When Mr. Keyes on behalf of Mr. Ponicappo first gave notice of his intention to bring this application, the Complainant advised the Crown that she did not intend to get legal advice. The initial application was adjourned to allow Mr. Keyes to provide an amended notice of application and affidavit in support. [ 11 ] Mr.

Loutit for the Crown advised on the application that he had not been able to contact the Complainant to review Mr.

Ponicappo’s affidavit with her and was unclear as to whether she might want legal advice. He suggested that we proceed to stage 1 of the276 application and if the application is successful at that stage, he would seek further instructions from the Complainant as to herwishes concerning counsel. That process was practical as the trial is to commence on November 28. Mr. Keyes was agreeable to thatsolution. [12] The Crown’s position is that Mr. Ponicappo’s affidavit of October 18, 2021 does not meet the requirements of

section 276 asinterpreted by the Supreme Court of Canada in R v Goldfinch, 2019 SCC 38. [13] Mr. Loutit argued that Mr. Ponicappo has not demonstrated that the questions are for any purpose other than to engage thetwin myths. He says that while Mr. Ponicappo’s affidavit speaks of prior sexual behaviour between the parties it lacks sufficient detail tomeet the requirements of the section. Paragraph 8 says that “on or about November 1, 2018, (the Complainant) and I began to casuallymeet up for casual sex”.

No further dates are given other than the end date of the relationship, which was the date of the incident thatgave rise to these charges. [14] No defence of honest but mistaken belief in consent is raised in the affidavit or in the materials in support of the application. [15] Mr. Loutit describes Mr. Ponicappo’s affidavit as containing “bare assertions. [16] Mr. Keyes noted that it was possible for me to narrow the time frame from the November 1, 2018 – November 24, 2019period to perhaps a month from November 24. [17] The Crown relies on Goldfinch as well as: 1. R v Barton, 2019 SCC 33; 2.

R v Darrach, 2000 SCC 46 , [2000] 2 SCR 443; 3. R v Ewanchuk, (SCC), [1999] 1 SCR 330; 4. R v Park, (SCC), [1995] 2 SCR 836; 5. R v Seaboyer, (SCC), [1991] 2 SCR 577; and 6. R v Hutchison, 2014 SCC 19. [18] I have also considered the Court of Appeal decision in Goldfinch, reported at 2018 ABCA as well as R v Kennedy, 2022NLCA 33. Analysis [19]

Section 276 of the Criminal Code states: Evidence of complainant’s sexual activity 276

(1) In proceedings in respect of an offence under

section 151, 152, 153, 153.1 or 155, subsection 160(2) or (3) or section170, 171, 172, 173, 271, 272 or 273, evidence that the complainant has engaged in sexual activity, whether with the accused or with anyother person, is not admissible 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. Conditions for admissibility

(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 thatthe complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether withthe accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the proceduresset 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. Factors that judge must consider

(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take intoaccount (

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, provincial court judge or justice considers relevant. [20] I will start my analysis by seeing what the trial judge in Goldfinch had done wrong. There, the Crown appealed Mr.Goldfinch’s acquittal on sexual assault charges against his former common law partner. At trial, Mr. Goldfinch applied under

section 276to adduce evidence of his previous sexual relationship with the complainant. They had lived together for 7 months ending a year beforethe incident in question and after the relationship ended they remained friends and occasionally got together for “casual sex”. The issue attrial was whether the complainant had consented to the activity Mr. Goldfinch was charged with. Honest but mistaken belief in consentwas not raised by Mr. Goldfinch. [21] The trial judge’s ruling on the

section 276 application before her was described by the Court of Appeal: [9] The trial judge noted that the respondent was advancing the defences of consent, and alternatively, honest but mistaken belief inconsent. [10] After reviewing some case law on point, the trial judge concluded that the respondent’s affidavit was deficient as it lacked evidenceto support a defence of honest but mistaken belief in consent.

Evidence of prior sexual activity could not be used to support that defenceas there was no connection established by the appellant between the proposed evidence and the defence of honest but mistaken belief inconsent. [11] Nevertheless, relying upon R v Strickland (2007), 45 Crown (6th) 183 (ONSC), she concluded that the complainant’s prior sexualhistory may be relevant and admissible to provide context and to avoid an erroneous misapprehension on the part of the jury that therelationship was platonic.

She noted that the defence only sought to introduce the nature of the relationship—they were friends whowould from time to time got together to have sex—and did not propose to question the complainant about specific sexual activity nor didthe defence intend to suggest to the jury that, because of the prior sexual activity, the complainant either consented to the impugnedactivity or was less worthy of belief. [12] The trial judge concluded that the proposed evidence was relevant in providing appropriate context and had probative value thatexceeded any prejudicial effect. [13] During the trial, the jury was given instruction on the limited use that they could make of the evidence as well as the prohibiteduses.

The final jury charge also directed the jury on several occasions as to the limited use of the evidence in question. The jury was alsoprovided with those limiting instructions in writing. [22] The Court of Appeal concluded that the trial judge had erred in admitting the evidence and ordered a new trial. It held (2/1): [48] In some cases where evidence of prior sexual activity between the accused and the complainant was permitted to be adduced it wasclearly introduced for a specific purpose, as contemplated in Darrach, rather than to provide narrative or context.

In R v Harris, (Ont CA), the trial judge had denied the accused’s application to introduce evidence of an alleged prior sexual encounterbetween he and the complainant. Following that ruling, the complainant testified in her direct examination that her relationship with theaccused was platonic and that there had been nothing of a sexual nature between them. The Ontario Court of Appeal concluded that “thecomplainant placed the nature of her relationship with the appellant in issue.

Accordingly, in order to be able to make full answer anddefence, the appellant was entitled to lead evidence designed to rebut the complainant’s testimony” (para 40). [49] The voir dire in this case reached the opposite conclusion. As a result, it was not the complainant that put the nature of herrelationship with the accused in issue, but the result of the trial judge’s decision on the voir dire. Once that decision was made, it was notunreasonable for that issue to have been addressed in the complainant’s direct rather than left to be pursued by the defence in cross-examination.

It is the voir dire decision that is the focus of the Crown’s appeal. [23] The Supreme Court of Canada dismissed Mr. Goldfinch’s appeal. The majority stated at paras 48-51: [48] Taken as a whole, s. 276 seeks to protect the privacy of complainants, encourage the reporting of sexual offences and excludeevidence which fuels propensity reasoning.

In pursuit of these goals, s. 276(2) presumptively bars evidence of the complainant’sprevious sexual activity. [49] However, in certain circumstances, the accused’s right to make full answer and defence requires that such evidence be admitted.Under s. 276(2), the accused must demonstrate that the evidence: (

a) is of specific instances of sexual activity; (

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

c) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

[50] In determining whether these criteria are met, s. 276(3) requires judges to consider a number of factors. These include the accused’sright to make full answer and defence, the need to remove discriminatory beliefs or biases from the fact-finding process, potentialprejudice to the complainant’s dignity and privacy, and the right of every individual to the full protection and benefit of the law. [51] Bare assertions that such evidence will be relevant to context, narrative or credibility cannot satisfy s. 276(2).

A s. 276 applicationmust provide “detailed particulars” which will allow a judge to meaningfully engage with the tests set out at s. 276(2) and (3). Theaccused must propose a use of the evidence that does not invoke twin-myth reasoning.

These requirements are key to preserving theintegrity of the trial by ensuring twin-myth reasoning masquerading as “context” or “narrative” does not ambush the proceedings. [24] Justice Karakatsanis continued at paras 62-64: [62] Prior sexual activity may be particularly relevant to a defence of honest but mistaken belief in communicated consent (Seaboyer, atpp. 613-16; Darrach, at para. 59; Barton, at paras. 91 et seq.). However, an honest but mistaken belief cannot simply rest upon evidencethat a person consented at “some point” in the past: that would be twin-myth reasoning.

By definition, the defence must rely uponevidence of how the complainant previously communicated consent so that the accused can adequately support a belief that consent wasexpressed. Here, the trial judge properly instructed the jury not to rely on the “friends with benefits” evidence in evaluating the defenceof honest but mistaken belief. [63] Evidence of a sexual relationship may also be relevant when complainants have offered inconsistent statements regarding the veryexistence of a sexual relationship with the accused (see, e.g., R. v. Harris (1997), (ON CA), 118 C.C.C. (3d) 498 (Ont.C.A.); R. v.

Temertzoglou (2002), (ON SC), 11 C.R. (6th) 179 (Ont. S.C.J.)). There were no such contradictorystatements from the complainant in the record at the time of the voir dire and Goldfinch did not proceed on this basis. [64] To the extent that Goldfinch sought to establish a pattern of behaviour, the “pattern” here was hardly distinctive; it would not beadmissible as similar fact evidence (Handy, at paras. 82, 127 and 131). As I have noted, the limited admissibility of similar fact evidenceprotects the truth-seeking function of the trial by excluding evidence that is overly prejudicial to the accused.

By imposing the sameevidentiary standard under s. 276, neither the accused nor the complainant is denied equal protection of the law on the basis of lifestyle,character or reputation (Craig, “Section 276 Misconstrued”, at p. 71). [25] A recent Newfoundland Court of Appeal decision, R v Kennedy, distinguished Goldfinch: [62] The facts of Goldfinch are distinguishable because Mr. Kennedy claims relevance, not for context or prevention of faultyimpressions, but because the past sexual activity illustrates how the complainant previously communicated consent.

On thosedistinguishing facts, it appears, based on comments of Karakatsanis J. (for the majority) in Goldfinch, that the evidence of prior sexualactivity was properly admitted by the trial judge: [62] Prior sexual activity may be particularly relevant to a defence of honest but mistaken belief in communicated consent. However, anhonest but mistaken belief cannot simply rest upon evidence that a person consented at "some point" in the past: that would be twin-mythreasoning.

By definition, the defence must rely upon evidence of how the complainant previously communicated consent so that theaccused can adequately support a belief that consent was expressed… (Citations omitted). [63] R. v. Seaboyer, (SCC), [1991] 2 S.C.R. 577 at 613 to 616 (S.C.C.), recognized that sexual history can be relevantand admissible evidence supporting the defence of honest but mistaken belief in communicated consent.

Karakatsanis J. referred to thispoint in Goldfinch: [35] In Seaboyer, this Court struck down that blanket exclusion [of all evidence of prior sexual activity], holding that Parliament had castthe net too wide, impairing the accused's right to a fair trial. Improperly excluded evidence critical to the defence included evidencegoing to: (

i) honest but mistaken belief in consent … [64] The trial judge was satisfied that Mr. Kennedy established that the proposed evidence was of specific instances of sexual activity,was relevant to his defence of honest but mistaken belief in communicated consent, and had significant probative value that was notsubstantially outweighed by the danger of prejudice to the proper administration of justice. In my view, there was no error coming to thatconclusion. The proposed evidence directly implicated Mr.

Kennedy’s ability to raise a reasonable doubt based on honest but mistakenbelief in communicated consent, and the admission of the evidence was fundamental to a full answer and defence. [26] The cases cited by Mr. Keyes are both pre-Goldfinch. IL related to a defence application to introduce evidence from variousof the complainant’s social media accounts. That application was refused. “Restricted” questioning of the complainant about prior sexualactivity with one of the accused was ruled admissible, but that had been previously agreed between counsel “subject to the court’sapproval”.

That case has no precedential value. [27] Zachariou involved a

section 276 application that arose out of the Complainant’s testimony. The decision explains why theapplication was denied, largely on the basis that the issue in that trial was consent or lack of consent. The

section 276 application relatedmainly to the complainant’s testimony on her attitude towards threesomes. I do not see it as being helpful here. [28] I ultimately agree with the Crown’s position. The evidence before me does nothing more than invite the propensity reasoningprohibited in Goldfinch [29] The Alberta Court of Appeal followed R v Darrach in the majority decision in Goldfinch. Darrach stands for the principlethat the applicant on a

section 276 application must establish a connection between the complainant’s sexual history and the accused’sdefence. The majority stated at para 56: 56 The defence must satisfy the trial judge that the evidence it seeks to adduce meets the statutory requirements for admissibility. Toadmit evidence of sexual activity at trial, the judge must provide written reasons about how the evidence “is expected to be relevant to anissue at trial” and the factors she considered in making this determination (as per ss. 276.2(3)(

b) and (c)). It is perfectly appropriate that,

to this end, the affidavit must disclose evidence that is “capable of being admissible under subsection 276(2)”. Among other things, theevidence must be adduced for a permissible purpose and must be relevant to an issue at trial. The affidavit must therefore establish aconnection between the complainant’s sexual history and the accused’s defence.

As the trial judge put it, “there would have to beevidence to establish the link between the potential defences … and the prior sexual conduct”. [30] The Supreme Court echoed the Alberta Court of Appeal’s approval of Darrach, including noting that “arguments forrelevance must be scrutinized to ensure “context” is not simply a disguised myth” (at para 56). [31] While Moldaver, J wrote a separate but concurring decision in Goldfinch, his comments at paras 116-119 are instructive: [116] The problem with the first rationale advanced by Mr.

Goldfinch is that it does not explain why it would be necessary to correct anypotential “misapprehension” as to the sexual nature of his relationship with the complainant. A judge reviewing Mr. Goldfinch’sapplication might legitimately conclude that the “friends with benefits” evidence was being proffered solely to inform the jury that thetwo were occasionally engaging in sexual intercourse during the relevant time frame, and to potentially support the impermissibleinference that it was more likely that the complainant consented on the night in question.

If this was the sole reason for which thedefence sought to correct the supposed “misapprehension”, then the evidence was inadmissible by virtue of s. 276(1). Assuming,however, that there may have been a legitimate reason to correct any potential “misapprehension” on the part of the jury, Mr.Goldfinch’s application did not identify one. [117] As for the second rationale, Mr. Goldfinch argued that the sexual activity evidence was relevant to his defence because it provided“context” to the events that formed the subject-matter of the sexual assault charge.

The trial judge described the existence of an ongoingsexual relationship between the complainant and Mr. Goldfinch as a “background piece of evidence” that the jurors could use whenassessing the conflicting direct evidence “as to whether or not the complainant did consent to the events in question” (A.R., vol. I, at p.9). [118] In my view, this line of reasoning paints with too broad a brushstroke. While it is true in every case that the existence of a “friendswith benefits” relationship between the complainant and the accused provides “context” to the events at issue, neither Mr.

Goldfinch’svaguely drafted affidavit nor his arguments at the voir dire stage specified the precise inference he wanted the jury to draw from that“context”.

Put differently, he failed to identify a specific, legitimate purpose for putting the “friends with benefits” evidence before thejury — he did not link the evidence to specific facts or issues relating to his defence that could be properly understood and resolved onlyif reference could be made to the “friends with benefits” evidence. [119] Where sexual activity evidence is concerned, the failure to identify the explicit link between the evidence and specific facts orissues relating to the accused’s defence can result in twin-myth reasoning slipping into the courtroom in the guise of “context”.

Forexample, there is a risk that sexual activity evidence may be used, whether consciously or not, to “contextualize” a complainant’stestimony that she did not consent to the sexual activity in question through twin-myth reasoning: because the complainant consented inthe past (the “context”), it is more likely that she consented this time as well. This is, of course, precisely the sort of stereotypicalreasoning s. 276(1) sought to banish from the courtroom.

Yet without a clear and precise identification of the specific purpose for whichsexual activity evidence is sought to be introduced, this sort of reasoning can all too easily infiltrate the courtroom through the Trojanhorse of “context”. [32] In this case, my view is that Mr.

Ponicappo needs to do more than have his lawyer say, “we intend to advance a defence ofhonest but mistaken belief in consent.” [33] There needs to be an air of reality to that defence, not just that bald statement together with some evidence of prior sexualactivity between the parties. [34] There also needs to be a logical connection between the questions or issues to be raised and the defence raised. [35] At this stage of the proceedings, I have no information as to how the proposed line of questioning may be relevant to thepotential defence of honest but mistaken belief in consent. [36] It is clear that “implied” consent no longer exists as a defence.

Since Ewanchuk in 1999, communicated consent is requiredfor each sexual act. Goldfinch states at para 44: Today, an accused may no longer argue that consent was implied by a relationship: contemporaneous, affirmatively communicatedconsent must be given for each and every sexual act (R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330; R. v. J.A., 2011SCC 28, [2011] 2 S.C.R. 440, at paras. 34 and 47; R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, at para. 27; R. v.Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at paras. 90-94). Today, not only does no mean no, but only yes means yes.

Nothing less thanpositive affirmation is required. Conclusion [37] On the evidence and information before me, I am not satisfied that Mr. Ponicappo has met the burden of establishing that theevidence before me is capable of being admissible. As a result, there is no basis to hold a hearing under

section 278.94. [38] I am mindful of the Mr. Ponicappo’s Charter right to make full answer and defence to the charges against him. A dismissal ofthe present application does not preclude further applications as the trial progresses. Heard on the 31st day of October, 2022.

Dated at the City of Edmonton, Alberta this 4th day of November, 2022. Robert A. Graesser J.C.K.B.A. Appearances: Barry Loutit for the Crown David Keyes for the Accused