R v Johnson, 2023 ABKB 253

Court of King’s Bench of Alberta Citation: R v Johnson, 2023 ABKB 253 Date: 20230427 Docket: 211267323Q1 Registry: Peace River Between: His Majesty the King Crown - and - Graham Elmer Johnson Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the victim must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ Written Decision of the Honourable Justice Susan L. Bercov _______________________________________________________ I. Introduction [ 1 ] This published version is a near verbatim rendition of the oral decision delivered in Court on April 26, 2023.

I have made minor wording corrections to enhance clarity and readability and have added headings and citations; otherwise, there are no changes. The oral version remains the official decision of the Court.

[ 2 ] Mr. Johnson is charged with one count of sexual assault contrary to s 271 of the Criminal Code of Canada . The trial is scheduled for June 2023. The trial is before a judge and jury. Mr. Johnson applies to cross-examine the Complainant and adduce evidence on other sexual activity. [ 3 ] On February 4, 2002, the Complainant attended the Manning RCMP Detachment alleging that a named male, not Mr. Johnson, sexually assaulted her in the early morning hours of February 4, 2002. [ 4 ] A sexual assault kit was conducted, and a DNA profile of the suspect was generated from the underwear of the Complainant.

At the time there was no match to any offender in the databank. [ 5 ] In October 2017, Manning RCMP were advised that Mr. Johnson’s DNA was a match with the suspect profile. [ 6 ] A DNA warrant was executed for samples from Mr. Johnson. In October 2018 the RCMP were advised by the lab that the DNA collected from the Applicant by warrant matched the databank samples. [ 7 ] In December 2021, Mr. Johnson was charged with sexually assaulting the Complainant on February 4, 2002. [ 8 ] Mr.

Johnson swore an Affidavit alleging two specific instances of consensual sex with the Complaint: once on February 2, 2002 and once on February 3, 2002. Mr.

Johnson applies to give evidence and cross examine the Complainant on these two instances of consensual sex arguing that this evidence is necessary for him to make full answer and defence. [ 9 ] There are two stages to the application: (1) which determines whether there should be an evidentiary hearing; and (2) which is the evidentiary hearing to determine admissibility. [ 10 ] In this case, by agreement of counsel, I heard both Stage One and Stage Two together. [ 11 ] The Complainant was provided with notice and retained counsel for Stage Two of the application. II.

Stage One: Should There Be an Evidentiary Hearing? [ 12 ] The initial application filed pursuant to

section 278.93 is an application for an evidentiary hearing to determine the admissibility of the proposed evidence. [ 13 ]

Section 278.93(4) states that before an application for a hearing can be granted, I must be satisfied of the following three things: a. The application is made in writing and sets out detailed particulars of the evidence and the relevance of the evidence to an issue at trial; b. A copy of the application was provided to the Crown and the clerk of the court within seven days; and c. The evidence sought to be adduced is capable of being admissible under the test set out in s 276(2). [ 14 ] The parties did not dispute the first two requirements.

The real dispute is whether the evidence is capable of being admitted under section 276(2). [ 15 ] In determining whether it is capable of being admitted I must first consider whether the evidence is being proffered to support an inference that the Complainant is more likely to have consented to the sexual activity that forms the subject-matter of the charge or is less worthy of belief. [ 16 ] Three paragraphs of Mr. Johnson’s Affidavit are in issue. Paragraph 3 deposes to other sexual activity that occurred on February 2, 2022.

Paragraphs 4 and 5 depose to other sexual activity that occurred on February 3, less than 24 hours before the sexual activity that is the subject matter of the charge. [ 17 ] The Crown does not object to the evidence in paragraph 5 being adduced. [ 18 ] In paragraph 5 of his Affidavit Mr. Johnson deposes that on the evening of February 3, 2002, he had consensual sex with the Complainant around 9:30 – 10:00 p.m. He deposes that he slipped the Complainant’s panties to the side before they had consensual vaginal sex without a condom.

He ejaculated on her panties because she did not wish to get pregnant. [ 19 ] I am satisfied that the evidence in paragraph 5 of Mr. Johnson’s Affidavit dealing specifically with consensual sex on February 3, 2002 is not being proffered to support the twin myths. Mr. Johnson denies that he was the individual that allegedly sexually assaulted the Complainant in the early morning of February 4, 2002. While the credibility of the Complainant is almost always in issue in sexual assault trials, in this case, because the Complainant identified an individual other than Mr.

Johnson in her statement to police, this evidence is proffered to explain why DNA matching Mr. Johnson’s DNA was found on the Complainant’s underwear and supports the Complainant’s evidence that another individual, and not Mr. Johnson, is the assailant. [ 20 ] Relying on R v Silva , 1994 CarswellSask 11, para 34 and R v S. (D.R.), 1999 ABQB 330 the Crown objects to the evidence set out in paragraphs 3 and 4.

Essentially the Crown argues that paragraphs 3 and 4 depose to consensual sexual activity occurring before the alleged sexual assault and are adduced in support of the myth that because the Complainant consented to sexual activity with the accused before the alleged sexual assault, she must have consented to the alleged sexual activity on February 4. S 276 (2) prohibits

evidence of other sexual activity that is being adduced for the purpose of supporting an inference that the Complainant is more likely to have consented to the sexual activity that forms the subject-matter of the charge. [ 21 ] The Defence argues that paragraphs 3 and 4 are relevant to the narrative of consensual sex set out in paragraph 5. In short, the evidence in these paragraphs is necessary to establish that the sexual activity in paragraph 5 was consensual. Without this narrative, a trier of fact might conclude that Mr.

Johnson engaged in non-consensual sex with the Complainant hours before the alleged sexual activity that forms the subject-matter of the charge. [ 22 ] I disagree with the Defence that paragraph 3 is necessary narrative. I agree with the Crown that this evidence is not relevant to Mr. Johnson’s ability to explain the DNA evidence and is not relevant to any other issue in the trial. I am not satisfied on a balance of probabilities that it is capable of being admitted under s 276(2).

Accordingly, it is not necessary to proceed to an evidentiary hearing on this evidence. [ 23 ] I disagree with the Crown that paragraph 4 of Mr. Johnson’s Affidavit is incapable of being admitted under s 276(2). I agree with the Defence that paragraph 4 provides narrative evidence that is relevant to understanding Mr. Johnson’s allegation that the sexual activity in paragraph 5 (that is being admitted for the purpose of explaining the DNA evidence) was consensual.

I am satisfied that it is capable of being admitted under s 276(2) and that it is necessary to proceed to an evidentiary hearing on this evidence. [ 24 ] In

summary, I am not satisfied on a balance of probabilities that the three requirements under

section 278.93(4) are met for the other sexual activity evidence deposed to in paragraph 3 of Mr. Johnson’s Affidavit. Accordingly, it is not necessary for me to proceed to an evidentiary hearing on this evidence. I am satisfied that the three requirements are met for paragraphs 4 and 5 of Mr. Johnson’s Affidavit. I will proceed to the evidentiary hearing on these two paragraphs. III. Stage Two: Evidentiary Hearing [ 25 ] The purpose of the evidentiary hearing under

section 278.94 is to determine whether the admissibility criteria set out in section 276(2) is met. [ 26 ] The burden of proof is on the accused on a balance of probabilities : R v Darrach , 2000 SCC 46 . [ 27 ] Mr. Johnson must call evidence to establish on a balance of probabilities that the proposed 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; 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. [ 28 ] Section 276(3) of the Criminal Code sets out eight enumerated factors that I must consider in determining whether evidence is admissible under section 276(2) . [ 29 ] The Crown does not oppose the application to adduce the evidence set out in paragraph 5 of Mr. Johnson’s Affidavit. For the reasons stated above the Crown opposes the application to adduce the evidence set out in paragraph 4 [ 30 ] The Complainant engaged counsel for the stage two hearing.

The Complainant does not oppose the application to adduce the evidence set out in paragraph 5 of Mr. Johnson’s Affidavit. With respect to paragraph 4, the Complainant’s position is that this evidence should be narrowed to allow Mr. Johnson to adduce evidence of consent but in such a way that it respects the Complainant’s privacy. [ 31 ] For the reasons set out below, I am satisfied that Mr.

Johnson’s application to adduce the evidence set out in paragraphs 4 and 5 of his Affidavit should be allowed with some modifications. [ 32 ] I am satisfied that the evidence in paragraph 5 is relevant to the issue of identify and provides an explanation for the DNA evidence. The evidence in paragraph 4 is relevant narrative to understanding how the consensual activity alleged in paragraph 4 occurred. However, the reference to a boyfriend in paragraph 5 is not necessary to understanding that she did not wish to get pregnant nor is it relevant to any other issue.

Accordingly, The evidence that the Complainant had a boyfriend is not admissible. [ 33 ] The other evidence in paragraphs 4 and 5 is of a specific instance of sexual activity. Dates, location, time, and the nature of the sexual activity are provided. [ 34 ] In terms of whether the evidence has significant probative value, the word significant means that the evidence is not so trifling as to be incapable, in the context of all the evidence, of raising a reasonable doubt.

I am satisfied that this evidence, if accepted by the trier of fact, is capable of raising a reasonable doubt in the context of the Complainant’s statement that another individual is the assailant. [ 35 ] Whether the probative value of the evidence is substantially outweighed by the danger of prejudice to the proper administration of justice requires me to consider the factors set out in s 276(3). [ 36 ] The first factor is the interests of justice, including the right of the accused to make full answer and defence. The Crown’s DNA evidence is strong circumstantial evidence against Mr. Johnson. Mr.

Johnson’s evidence, if accepted by the trier of fact, provides an explanation for this circumstantial evidence that is inconsistent with guilt. This evidence together with the Complainant’s statement that the assailant was a different individual is capable of raising a reasonable doubt. To deny Mr. Johnson the ability to adduce this

evidence would, in my view, significantly impair his ability to make full answer and defence. The narrative evidence in paragraph 4 is necessary for Mr. Johnson to argue that the sexual activity in paragraph 5 is consensual. Otherwise, it is possible the trier of fact may infer that if the sexual activity in paragraph 5 was not consensual, it is more likely Mr.

Johnson engaged in non-consensual sex that is the subject matter of the charge. [ 37 ] One objective of these provisions prohibiting evidence of other sexual activity to be adduced except in certain circumstances is society’s interest in encouraging the reporting of sexual assault offences. To ensure this objective is not lost, the interests of justice must be strong. [ 38 ] In this case there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case. If the Complainant on cross-examination agrees that the other sexual activity occurred as described by Mr.

Johnson, this will assist the trier of fact in considering how much weight to place on the DNA evidence. If the Complainant disputes the other sexual activity, this will provide the trier of fact with a bases for declining to accept the DNA evidence if the trier of fact finds that the Complainant is not credible and accepts Mr.

Johnson’s evidence. [ 39 ] As this is a trial by judge and jury there is a risk that the evidence may unduly arouse sentiments in the jury, However, I am satisfied that an appropriate limiting instruction can be given to the jury that will remove or at least reduce the potential for discriminatory bias. [ 40 ] This evidence does prejudice the Complainant’s personal dignity and right of privacy and impacts the right of the Complainant to personal security. In my view, the evidence in paragraph 4 should be modified in a manner that allows Mr.

Johnson to adduce evidence of consent but in such a way that it respects the Complainant’s privacy. An appropriate balance is to allow the evidence in paragraph 4 to be adduced in the following way: “On the evening of February 3, 2002, I got off work about 8:30 – 9:00 p.m. I eventually make my way to the mess hall to eat. The Complainant was there, cleaning up and doing dishes. I finished eating, and as I was leaving the Complainant approached me and we agreed to go to her room to engage in intimate activity”. IV.

Conclusion [ 41 ] Considering all the factors, I conclude that the evidence in paragraphs 4 and 5 of Mr. Johnson’s Affidavit, with the modifications set out above, has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. In this case, the evidence is critical to Mr. Johnson’s ability to make full answer and defence. The interests of justice strongly weigh in favour of allowing this evidence to be adduced. I conclude that Mr.

Johnson may cross-examine the Complainant on this evidence and adduce this evidence if he decides to testify. [ 42 ] The evidence in paragraph 3 is not admissible as it is not relevant to any issue at trial. Heard on the 27 th day of March, 2023. Dated at the City of Peace River, Alberta this 27 day of April, 2023. Susan L. Bercov J.C.K.B.A. Appearances: Bruce Ritter Alberta Justice for the Crown Jason Leung Axon Law for the Accused

Melissa Erickson Trach Law for the Complainant