Her Majesty the Queen v. Christopher Garnier DECISION AT PRELIMINARY INQUIRY ON DEFENCE SEXUAL HISTORY APPLICATION Judge: The Honourable Judge Anne S. Derrick, 2016 NSPC 86

IN THE PROVINCIAL COURT OF NOVA SCOTIA R. v. Garnier , 2016 NSPC 86 Date: July 12, 2016 Docket: 2909565, 2909566 Registry: Halifax Between: Her Majesty the Queen v. Christopher Garnier DECISION AT PRELIMINARY INQUIRY ON DEFENCE SEXUAL HISTORY APPLICATION Judge: The Honourable Judge Anne S. Derrick Heard: July 11, 2016 Decision: July 12, 2016 Charges: sections 235(1) and 182 (b), of the Criminal Code Counsel: Christine Driscoll and Carla Ball, for the Crown Joel Pink, Q.C., for Christopher Garnier By the Court: Introduction [ 1 ] Mr. Garnier is charged with the second-degree murder of Catherine Campbell and indecently interfering with her body. He has brought an application pursuant to

section 276 of the Criminal Code to enable him to introduce evidence at his preliminary inquiry of Catherine Campbell’s prior sexual history, notably her sexual history with [A.] [ 2 ] In the event I find that

section 276 is not applicable, Mr. Garnier submits the evidence of [A.] should be admitted in accordance with the common law rules of evidence. [ 3 ] The Crown submits that

section 276 does not apply to this case and that [A.]’s evidence is inadmissible under common law rules of evidence as it is not relevant. [ 4 ] In addition to its submissions yesterday on the merits, the Crown also sought an order for the public to be excluded for the hearing of the application. This was not opposed by Mr. Pink. It was his submission that the hearing of Mr. Garnier’s application is mandatorily an in camera proceeding pursuant to

section 276.1(3) of the Criminal Code which provides as follows: “The judge, provincial court judge or justice shall consider the application with the jury and the public excluded.” I will shortly explain my decision to exclude the public from this application, including the rendering of my decision. [ 5 ] The merits of the Defence application concerns an initial statement given by [A.] to police in response to the media release regarding Ms. Campbell as a missing person. [A.] was interviewed on September 15, 2015 when the police were trying to find Ms. Campbell. [ 6 ] Ms.

Campbell’s body was located on September 15 but not as a result of any information provided to police by [A.] The Medical Examiner has determined that her death was caused by strangulation and blunt force trauma. [A.] is not a suspect in her death.

The Issues [ 7 ] The issues on which I have focused are: 1) Should the Defence application be heard with the public excluded? 2) Does

section 276 apply? 3) If not, is [A.]’s evidence admissible under common law rules of evidence? Issue 1 - Should the Defence Application be Heard with the Public Excluded? [ 8 ] The public’s access to the evidence heard at this preliminary inquiry is already restricted by virtue of

section 539 of the Criminal Code which imposes a publication ban on “evidence taken at the inquiry”. A

section 539 ban has been requested by both Crown and Defence in this case and imposed. What I have had to decide as a threshold issue in relation to the Defence application is whether the public could attend in the courtroom while the application was argued. [ 9 ] It is well established that court proceedings in Canada are presumptively “open”. ( R. v. Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41 ; see also,

section 486, Criminal Code ) As the Supreme Court of Canada has noted: “Public access will be barred only when the appropriate court, in the exercise of its discretion, concludes that disclosure would subvert the ends of justice or unduly impair its proper administration .” ( Toronto Star Newspapers Ltd. , paragraph 4 ) [ 10 ] Legislated provisions curtail public access to certain types of proceedings. For example, as I noted earlier, a

section 276 application is to be considered “with…the public excluded.” There is no discretion.

Section 276.1(3) states that the judge “shall” exclude the public. The exclusion of the public is also mandated if the application reaches the second stage of a hearing to determine whether the evidence is admissible under section 276(2). [ 11 ] Mr. Garnier’s application asks me to consider Ms. Campbell’s sexual history. Mr. Garnier says evidence about Ms. Campbell’s sexual history with [A.] is admissible at his preliminary inquiry either under

section 276 or through the application of common law rules of evidence. [ 12 ] As Mr. Garnier’s application was advanced, in part, as a

section 276 application, I concluded I was required to make an order for the public to be excluded from the hearing of the application. [ 13 ] As I will be explaining, I have decided that

section 276 of the Criminal Code does not apply to this case. That being so, it might be suggested that the public can no longer be excluded under

section 276.1(3) and are entitled to be present for my decision and to have access to the in camera recording of the submissions of counsel from yesterday. I will now explain why I have determined that the public should be excluded even though I have determined that Mr. Garnier’s application does not come within

section 276 . [ 14 ]

Section 276.1(3) is not the only Criminal Code provision under which an order can be made to exclude the public.

Section 486 permits a judge to exercise her discretion to exclude the public where in the judge’s opinion, “such an order is in the interest of public morals, the maintenance of order or the proper administration of justice…” I have concluded that this is an appropriate case for a

section 486 order, at this time, excluding the public from access to any part of this application, including my decision. I am of the opinion that such an order is in the interest of the proper administration of justice. [ 15 ] The Supreme Court of Canada has held that “discretionary action to limit freedom of expression in relation to judicial proceedings encompasses a broad variety of interests…” ( Toronto Star, paragraph 26 referring to R. v. Mentuck, 2001 SCC 76 ) The Court reiterated the Mentuck test that must be satisfied when imposing a

section 486 order: (

a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and (

b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice. [ para. 32 ] [ 16 ] In making this order on the basis that it is in the interest of the proper administration of justice, I have considered, as required, the factors under section 486(2). The listed factors are almost exclusively concerned with the interests of witnesses who are alive.

When I set aside the “witness” factors that do not apply, what remains as relevant factors for my consideration are only: whether effective alternatives to the making of the proposed order are available in the circumstances; the salutary and deleterious effects of the proposed order; and any other factor I consider relevant. (

section 486 (f), (

g) and (h) ) In my deliberations I have also considered, as required by Mentuck , the interests of the media and public in having open access to the courts and whether the Crown has satisfied me that the general rule of openness should be displaced. ( Mentuck , paragraph 38 ) [ 17 ] In my analysis, I have concluded that the interests of the deceased, Ms. Campbell, also fall within the broad scope of the interests to be considered. I find that Ms. Campbell’s entitlement to personal dignity and privacy have not been extinguished by her death. I can see no principled basis for treating public access to Ms.

Campbell’s sexual history differently at this preliminary inquiry than it would be treated if she was alive and this was a prosecution for one of the enumerated offences under

section 276 . [ 18 ] It would be illogical to suggest that because Ms. Campbell is dead she has no entitlement to dignity and privacy. Indeed, one of the

offences with which Mr. Garnier is charged is a dignity-based offence: improperly interfering with Ms. Campbell’s “human remains.” Asalutary effect of a

section 486 order therefore is the protection of Ms. Campbell’s dignity and privacy. There is no public interest to beserved in allowing members of the public access to details about Ms. Campbell’s intimate life at this stage of the proceedings. This isespecially so where the Crown submits the sexual history evidence has no relevance to the charges. [19] The Defence has conceded that the Crown’s evidence will support Mr. Garnier’s committal to trial. The evidence about Ms.Campbell’s sexual history is not relevant to that committal.

The public is therefore not being denied access to evidence (which couldn’tbe published anyway at the preliminary inquiry stage) that is relevant to the issue of committal. [20] I do not see the denial of public access to Ms. Campbell’s sexual history with [A.] as having a deleterious effect on the public’sright to access to the courts. The public who attend the preliminary inquiry, including the media, will hear the evidence on which Mr.Garnier’s committal to trial is based. They are simply being prevented from learning about Ms. Campbell’s sexual relationship with [A.]Ms.

Campbell’s right, even in death, to have her dignity and privacy protected outweighs any right the public and press might have toknow such intimate details about her. [21] I see no effective alternative to excluding the public. Nothing less than an exclusion order under

section 486 can protect the properadministration of justice which includes respecting the dignity and privacy of a person who, it is alleged, has been the victim of ahomicide. I consider the proper administration of justice to encompass justice for Ms. Campbell, to the extent of not sharing her sexualhistory with the public at the preliminary inquiry stage. Issue 2 - Does

Section 276 of the Criminal Code Apply? [22] I return now to explain why I have determined that

section 276 does not apply to Mr. Garnier’s application. The Criminal Code isclear.

Section 276 applies to “proceedings” in respect of specific enumerated offences, which are all offences of sexual assault of onekind or another. Furthermore,

section 276 refers to “the sexual activity that forms the subject matter of the charge”. Mr. Garnier ischarged with murder and improperly interfering with Ms. Campbell’s remains. As the Crown submits in its written brief: “The charge ofsecond degree murder…is not an enumerated offence listed in

section 276, and sexual assault is not the “subject matter” of the seconddegree murder that the Crown alleges.” [23] This is not a murder prosecution where the allegation is that Mr. Garnier caused Ms. Campbell’s death in the course of sexuallyassaulting or attempting to sexually assault her. The Crown states in its brief that if it “had evidence – even inferentially – of sexualactivity, this would be a first degree murder” charge.

The Crown is not alleging a death caused in the course of sexual activity and saysabout the circumstances of the case: “The Crown has no evidence of sexual relations between the accused and the victim after they left[the bar where they had met.]” [24] In light of the Crown’s case against Mr. Garnier not resting on any sexual activity, I find the first degree murder cases offered bythe Defence in which

section 276 was considered to have no applicability here. Those cases – R. v. Iverson, 2014 BCSC 2400, R. v.Dempsey, 2001 BCSC 371, and R. v. Malboeuf, [1997] O.J. No. 1398 (C.A.) - undertook a

section 276 analysis in the context of theCrown alleging murder in the course of a sexual assault. As I have stated, murder in the course of a sexual assault is not what the Crownalleges against Mr. Garnier. [25]

Section 276 cannot be employed to advance Mr. Garnier’s application. Its role is specific and the charges against Mr. Garnier falloutside its scope. Having reached this conclusion I find it unnecessary to address the Crown’s submissions that Mr. Garnier’s

section 276application is deficient. Issue 3 - Is [A.]’s Evidence Admissible under Common Law Rules of Evidence? [26] The preliminary inquiry is not a trial. It operates as both a pre-trial screening procedure and a discovery process for the accused inrelation to the Crown’s case. In the context of these dual functions, a preliminary inquiry judge is required to make rulings onadmissibility of evidence. As the Supreme Court of Canada stated in R. v. Hynes, 2001 SCC 82 , [2001] S.C.J.

No. 80, at apreliminary inquiry the “traditional rules governing the admissibility of evidence apply.” (paragraphs 30 – 32) [27] The Defence submits that Ms. Campbell’s death was accidental. The Defence intends to present evidence at trial that she diedduring a sexual encounter with Mr. Garnier that involved erotic asphyxiation. Mr. Pink says that the medical examiner will testify that hecannot rule out erotic asphyxiation in this case. According to the Defence, the relevance of [A.]’s evidence about sexual activity with Ms.Campbell is that it supports the credibility of Mr.

Garnier’s claim about engaging in erotic asphyxiation with her. [A.]’s evidence abouthis sexual encounters with Ms. Campbell should be admitted into evidence, says the Defence, to show that she had an interest in “roughsex”. As Mr. Pink states in his Affidavit supporting the application: “The purpose of asking Your Honour to admit [[A.]]’s evidence is toprove that Ms. Campbell engaged in rough sex prior to her encounter with Mr. Garnier.” (Affidavit of Joel Pink, Q.C., paragraph 8) [28] Mr. Pink says the following about the defence “theory” at trial, …the theory of the defence at trial will be that Mr.

Garnier did not intend to cause Catherine Campbell’s death. The theory of thedefence is that Ms. Campbell’s death occurred during a rough sex incident involving erotic asphyxiation. The theory of the defence isthat Ms. Campbell consented to partake in rough sexual acts and death was accidental and/or the accused did not intend to cause bodilyharm that he knew was likely to cause death. (Affidavit of Joel Pink, Q.C., paragraph 5) [29] In Mr. Pink’s submission Ms. Campbell’s consensual sex with [A.] is admissible evidence that supports an inference that sheengaged in consensual “erotic asphyxiation” with Mr.

Garnier, an activity which inadvertently led to her death. Mr. Pink characterizes[A.]’s evidence as evidence about “rough sex” and says it is highly relevant to Mr. Garnier’s ability to make a full answer and defence tothe charge of murder. [30] I see two issues emerging from Mr. Pink’s submissions: (1) does [A.]’s evidence support any relevant, admissible inferences; and(2) is [A.]’s evidence of his sexual relationship with Ms. Campbell comparable to what Mr. Garnier says happened in his encounter with

her? [31] The burden of satisfying me that [A.]’s evidence is relevant and admissible rests with Mr. Garnier. It is a balance of probabilitiesstandard. [32] As noted by the Crown in its brief, citing R. v. Cloutier, (SCC), [1979] 2 S.C.R. 709: The general rule as to the admissibility of evidence is that it must be relevant…for one fact to be relevant to another, there must be aconnection or nexus between the two which makes it possible to infer the existence of one from the existence of the other.

One fact is notrelevant to another if it does not have real probative value with respect to the latter. (paragraphs 71 – 72) [33] For the Defence to succeed in having sexual history evidence admitted, “it must establish that it supports at least some relevantinference.” (R. v. Darrach, 2000 SCC 46, paragraph 46) This principle applies whether the application to adduce sexual history isbrought under

section 276 or under the common law rules of evidence. [34] Although addressed in the context of a trial, the Supreme Court of Canada’s statement that an “accused has never had the right toirrelevant evidence” is as applicable to a preliminary inquiry. (R. v. Mills, (SCC), [1999] S.C.J.

No. 68, paragraph 74)An accused also does not have the right “to adduce misleading evidence to support illegitimate inferences…” (Darrach, paragraph 37)Although a trial is more concerned with “the search for the truth” than a preliminary inquiry, I find that the discovery aspect of apreliminary inquiry does not entitle an accused to evidence that is not relevant to and would distort the focus of the proceedings.

The factthat a proceeding is a preliminary inquiry and not a trial does not open the door to inadmissible evidence. [35] Another principle that applies to sexual history evidence whether it is sought by way of a

section 276 application or pursuant to thecommon law rules of evidence is that it must support permissible inferences. The use of prior sexual conduct to establish consent on theoccasion in issue has been discredited. As stated in R. v. Seaboyer, (SCC), [1991] S.C.J.

No. 62: “The fact that a womanhas had intercourse on other occasions does not in itself increase the logical probability that she consented to intercourse with theaccused.” (paragraph 23) As held by McLaughlin, J. (as she then was), that discredited myth about women and their sexuality has “noplace in a rational and just system of law.” (paragraph 91) [36] I view the Defence application to have [A.]’s evidence as invoking this impermissible reasoning. Mr. Garnier wants a jury toaccept that because Ms.

Campbell consented to what he is characterizing as “rough sex” with [A.], his claim that she consented to engagein “erotic asphyxiation” with him is credible. Boiled down, evidence of Ms. Campbell’s prior sexual conduct is being sought in orderthat Mr. Garnier can say, “My claim that Ms. Campbell had “erotic asphyxiation” sex with me should be believed because Ms. Campbellhad previously had consensual “rough sex” with [A.]” [37] An accused is not entitled to evidence that invokes impermissible reasoning. As Ms. Ball pointed out, in one of the first degreemurder cases provided by Mr. Pink, R. v.

Dempsey, the trial judge admitted evidence from a prior acquaintance of the victim who relateda story similar to the accused about the victim trying to extort money with a threat of rape. The court said the following about theevidence being admitted: The evidence of J.P. Vienneau is admissible to show that the deceased made such a threat. The whole of his evidence including the factthat he later had sex with the deceased must necessarily be admitted so the jury may properly weigh the seriousness and significance ofthe threat.

The jury will have to be instructed that they may not make the prohibited inference that the deceased consented to sex with theaccused from the evidence that she once had sex with J.P. Vienneau. (paragraph 33, emphasis added) [38] I return to the fact that the Crown is not alleging that Ms. Campbell and Mr. Garnier had any sex at all. As I noted earlier, theCrown has indicated it has no evidence of sexual relations between them after they left the bar. I agree with the Crown that it isimpermissible to infer from the fact that Ms. Campbell and Mr.

Garnier were seen kissing and hugging and dancing that she went withhim to the apartment where he was staying to have sex with him, and “rough sex” at that. Not only is that a discredited line of reasoning,it does not amount to “a connection or nexus” which makes it possible to infer the existence of “erotic asphyxiation” from the existenceof “kissing and hugging”. [39] I reject the Defence submission that admitting [A.]’s evidence would not engage stereotypes about women’s propensity to consentto sex. The Defence brief explicitly states that the evidence “is tendered to enhance the credibility of Mr.

Garnier’s testimony that he andMs. Campbell consensually engaged in a physically rough sexual encounter.” In other words, Ms. Campbell’s consensual sexual historywith [A.] supports an inference or a finding that she had consensual sex with Mr. Garnier. That is stereotypical reasoning about women,sex and consent. It is reasoning that is prejudicial to the proper administration of justice. (Dempsey, paragraph 37) [40] While I am satisfied that Mr.

Garnier’s application fails for the reasons I have given about its lack of probative value and itsprejudicial effect on the proper administration of justice, I will make a brief comment about the nature of [A.]’s evidence and the defencetheory. Even taking only [A.]’s statement to police on September 15, 2015 and not the additional details and clarification he provided toCrown and police on June 23, 2016, [A.] did not describe anything remotely similiar to “erotic asphyxiation.” On September 15 he toldpolice that in their last sexual encounter Ms.

Campbell was “a lot more aggressive…a lot rougher…than I am used to, and it was not likethat at all the first time.” He went on to say: “She was wanting…to wrestle…” This is very non-specific. There is no evidence that [A.]ever went beyond touching Ms. Campbell’s throat to applying pressure to it nor is there any evidence they had any discussion aboutchoking, “erotic asphyxiation” or “rough sex”. Furthermore, Ms. Campbell’s past sexual history with [A.] did not involve casualspontaneous sex which is what Mr. Garnier is suggesting Ms. Campbell consented to with him.

Conclusion [41] I find that the evidence of [A.] is not admissible under the common law rules of evidence. It invokes the discredited myth that Ms.Campbell, having previously consented to have sex with [A.] was likely to have consented to sex with Mr. Garnier. The Defence has notsatisfied me that [A.]’s evidence is relevant and I find the inferences that Mr. Garnier seeks to support with this evidence are illegitimateinferences.

[ 42 ] [A.]’s evidence is evidence of a sexual relationship that bears no resemblance to what Mr. Garnier is suggesting about the events that led to Ms. Campbell’s death. [ 43 ] I find the evidence of [A.] to be inadmissible. Mr. Garnier’s application is dismissed. Derrick, P.C.J.