R. v. A.B.S. Date:, 2016 BCPC 110

Citation: R. v. A.B.S. Date: 20160502 2016 BCPC 0110 File No: 39511 Registry: Courtenay IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. A.B.S. RULING ON APPLICATION OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: R. Richardson Counsel for the Defendant: A.W. Mc Garvey Place of Hearing: Courtenay , B.C. Date of Hearing: March 2, 2016 Date of Judgment: May 2, 2016

1. The Issues [1] The accused is charged with two counts of sexual assault and one count of sexual touching of a person under the age of 16years. There are two complainants, one under the age of 16 years and the other over that age. The present application is brought inrelation to one count only, an allegation of sexual assault upon a person older than 16 years. In the interest of protecting her privacy, Iwill refer to her as “the older complainant”.

She alleges that the accused kissed her, without her consent, on three separate occasionsduring the period March 1 to May 25, 2015. [2] The relief sought on this application is articulated in two different ways in the accused’s notice of application. a. In the

preamble to the notice of application, the accused seeks: … an Order that certain evidence relating to “sexual activity other than the sexual activity that forms the subject matter of the charge” isevidence that comes within s. 276(2) of the Criminal Code, and for an Order permitting the evidence to be adduced by or on behalf ofthe accused, or for such further and other Order as to this Honourable Court seems just. b.

In the body of the notice of application, the accused seeks: … permission to question the Complainant about prior consensual sexual activity with the accused, and also to elicit from the accuseddetails about previous sexual encounters. Those are two very different things. The former is an application to determine the admissibility of evidence which may be tendered bythe defence, from the accused and other witnesses, in support of the accused’s assertion that he held an honest, if possibly mistaken,belief that the older complainant consented to be kissed by him.

The latter is an application for leave to raise certain matters during thecross-examination of the older complainant in an attempt to impugn her credibility. As explained below, there is a different process forthe adjudication of each application, although, in this case, the two may be heard and decided together at an appropriate stage of theproceeding. 2. The Application for Leave to Tender Defence Evidence a. The Procedure Mandated by the Statute [3] The application which the accused has made is premature. The application which the accused ought to have made is for anorder, pursuant to

section 276.1 of the Criminal Code, that a hearing be conducted under

section 276.2 of the Criminal Code. [4] The governing provisions are sections 276, 276.1 and 276.2 of the Criminal Code.

Section 276 sets out the principlesgoverning the admissibility of evidence in relation to the complainant’s sexual activity on occasions other than those giving rise to thecharge before the court. Sections 276.1 and 276.2 set out the process for determining the admissibility of particular items of evidence ofsuch activity. [5] The first step in the process, required by

section 276.1, is to determine whether a hearing on the question of admissibility isnecessary or appropriate. It is initiated by a written application by the accused, which must set out “detailed particulars of the evidencethat the accused seeks to adduce” and “the relevance of that evidence to an issue at trial”. The particulars must be provided in the formof an affidavit, although the deponent may rely upon information provided by others: R. v.

Darrach 2000 SCC 46 , [2000] 2SCR 443 at paragraph 53. [6] The point came up in this case because the accused swore, in support of his application, an affidavit in which he set out anaccount of sexual encounters between the older complainant and the accused prior to March 1, 2015. During argument of theapplication, Mr. McGarvey informed me that he had also received information from a private investigator about evidence of the same, orsimilar, encounters which might be given by other witnesses. Mr.

Richardson objected that there was no evidence on the applicationfrom the private investigator or from the witnesses themselves, and that I ought not to entertain the submission in the absence ofaffidavits from the private investigator or from the witnesses. I sustained Mr. Richardson’s objection, and adjourned the application toallow Mr. McGarvey time to procure affidavits. Mr. McGarvey procured an affidavit from the private investigator, which summarizesthe investigator’s interviews with three witnesses and appends witness statements signed by each of them. [7] An application under

section 276.1 is a screening tool. Its purpose is to avoid the inconvenience, expense and delay of ahearing under

section 276.2 where the evidence described in the particulars would be clearly inadmissible at trial. The issue to bedecided on an application under

section 276.1 is whether the evidence is “capable of being admissible at trial”. If so,

section 276.1requires that a hearing be held under

section 276.2 to determine whether it “is admissible under section 276(2)”. [8] An adjudication under

section 276.1 does not require an assessment of the reliability of the evidence which the accused seeks toadduce. The only question on an application under

section 276.1 is whether the evidence particularized in the application is capable ofbeing admissible at trial. So, unless the court concludes that the evidence would be clearly inadmissible at trial (applying the principlesset out in

section 276), the court should order a further hearing under

section 276.2, at which the question of admissibility should bedetermined. [9] At a hearing under

section 276.2, the evidence itself must be tendered for assessment. So, the witnesses (including theaccused, if he chooses to give evidence) must attend to give their evidence orally, and to be cross-examined upon it. The learned trialjudge so held in R. v. Darrach, and her conclusion on the point was affirmed by the Ontario Court of Appeal and by the Supreme Courtof Canada: R. v. Darrach 2000 SCC 46 , [2000] 2 SCR 443 at paragraphs 6 - 14, 53, 73. The rationale is that the issues are sosensitive, and the factors set out in section 276(3) so nuanced, that no less rigorous process would suffice.

[10] It will be apparent that the first order sought by the accused (see paragraph 2(a), above) cannot now be granted. That reliefcould be granted only after a hearing under

section 276.2. [11] It would serve no one’s interest to dismiss the application on the ground that it is premature. The complainants, the accusedand the public share a common interest in bringing the matter on for trial as soon as possible. For that reason, I propose to address thematter as if the accused had applied for an order that a hearing be conducted under

section 276.2 of the Criminal Code. I must decidewhether such a hearing should be held. b. The Merits of the Application [12] In his affidavit, the accused describes a number of encounters with the older complainant before March 1, 2015. He deposesthat, on a number of occasions, the older complainant initiated sexual contact between them, touched him sexually and made verbaloffers to perform sexual activities with him.

He says: Based on the many conversations and many physical and romantic and sexual interactions, between the Complainant and me, and herdirect initiating of sexual and romantic behaviour, and direct sexual offers towards me, and our consensual sexual touching, includingkissing and necking, I believed that, since October, 2014, and up to March 1, 2015, and through to May 25, 2015, the Complainant wasromantically and sexually interested in me and consented to, or initiated all such activities. [13] Some aspects of the affidavit of the private investigator are clearly objectionable, and must be excluded from consideration: a.

The private investigator asserts that, by virtue of his 33 years’ experience as an investigator, he is particularly skilled in assessing thecredibility of witnesses, and that he is confident of the truthfulness of the three witnesses whom he interviewed. Evidence of that kindoffends the rule against “oath-helping”, and should never be tendered: R. v. Khan [2015] BCJ No. 1176; 2015 BCCA 382 at paragraph28 {leave to appeal refused at [2015] SCCA No. 374}. b. The witnesses refer to the older complainant as a sexually active teenager, who had a reputation for sexual activity with her peers.

Such evidence is entirely irrelevant to the defence raised by the accused. Even if it were true that the older complainant frequently hadsex with others, and the accused were aware of that, the fact would not entitle him to infer that she consented to sexual contact with him. c. Two of the witnesses are critical of a school counsellor. No attempt has been made to explain the role played by the schoolcounsellor or the relevance of the criticism. d. One of the witnesses describes the older complainant as emotionally unstable and untrustworthy.

Such “evidence” is the inverse of“oath-helping”, and equally objectionable. [14] However, other aspects of the evidence particularized in the private investigator’s affidavit are clearly relevant to the defenceraised by the accused. The witnesses describe incidents at which the witnesses were present, during which, they say, the oldercomplainant made repeated romantic overtures to the accused.

If the older complainant behaved in the manner described, a person in theposition of the accused might reasonably draw the inference that she consented to be kissed by him. [15] The question on the present application (under

section 276.1) is whether the evidence described in paragraphs 12 and 14 mightbe ruled to be admissible after a hearing under

section 276.2. If so, such a hearing should be held. [16] At a hearing under

section 276.2, I would be required to consider whether the evidence should be admitted, applying theprinciples set out in

section 276. [17] The first matter to be determined at a hearing under

section 276.2 would be whether section 276(1) requires that the evidence beexcluded. [18] It is at least arguable that the evidence in question is not excluded by section 276(1)(a), because it is not tendered to show thatthe older complainant consented to be kissed, but rather to show that the accused honestly, but mistakenly, believed that she did. Thedistinction between the two, in relation to section 276(1)(a), is well-established by the jurisprudence, and it is now settled that evidencetendered for the latter purpose does not offend section 276(1)(a): R v.

Darrach @ paragraphs 56 - 59. [19] As I understand the accused’s application, the evidence of other sexual contact between the accused and the older complainantis not tendered to impugn the older complainant’s credibility. More specifically, the accused does not contend that the oldercomplainant is unworthy of credit because she is, or has been, unchaste. For that reason, it is at least arguable that the evidence inquestion is not excluded by section 276(1)(b). The accused does impugn the older complainant’s credibility on other grounds.

I discussthat issue below (paragraphs 25 - 28). [20] Having concluded that the evidence in question would not necessarily be excluded by section 276(1), the next question iswhether it is evidence of “specific instances of sexual activity”: section 276(2)(a). The evidence described in the particulars ismanifestly of sexual activity. There may be an issue about whether it is sufficiently specific, but it seems to me to be sufficientlyspecific to justify a hearing of that issue under

section 276.2. [21] The next question at a hearing under

section 276.2 would be whether the evidence in question is relevant: section 276(2)(b). Itis at least arguable that it is. The defence of honest, but mistaken, belief in the existence of consent was explained by Chief JusticeMcLachlin in R. v. J.A. 2011 SCC 28 , [2011] 2 SCR 440 at paragraphs 47 - 48: The jurisprudence of this Court also establishes that there is no substitute for the complainant's actual consent to the sexual activity at thetime it occurred.

It is not open to the defendant to argue that the complainant's consent was implied by the circumstances, or by therelationship between the accused and the complainant. There is no defence of implied consent to sexual assault: Ewanchuk, at para. 31.

The cases on the mens rea defence of honest but mistaken belief in consent take the same view. At common law, this was a standarddefence of mistake of fact: the accused was not guilty if he honestly believed a state of facts, which, if true, would have rendered hisconduct lawful: Pappajohn v. The Queen, (SCC), [1980] 2 S.C.R. 120, at pp. 134 and 139.

In Ewanchuk, this Courtheld that it is not sufficient for the accused to have believed that the complainant was subjectively consenting in her mind: "In order tocloak the accused's actions in moral innocence, the evidence must show that he believed that the complainant communicated consent toengage in the sexual activity in question" (para. 46 (emphasis in original)). See also R. v. Park, (SCC), [1995] 2 S.C.R.836, at para. 39 (per L'Heureux-Dubé J.).

It thus is not sufficient for the accused to have believed the complainant was consenting: hemust also take reasonable steps to ascertain consent, and must believe that the complainant communicated her consent to engage in thesexual activity in question. While the evidence described in the particulars may not be sufficient, by itself, to establish the defence which the accused advances, itmight, if accepted, materially advance his defence, and therefore may be relevant. [22] The next question on a hearing under

section 276.2 would be whether the evidence “has significant probative value that is notsubstantially outweighed by the danger of prejudice to the proper administration of justice”: section 276(2)(c). The evidence describedin the particulars clearly has some probative value in relation to the defence of honest belief in the existence of consent. How muchvalue it has may depend on the cross-examination of the defence witnesses, and is a matter to be determined at a hearing under section276.2. The material presently before me does not raise a serious concern about prejudice to the administration of justice.

I will try thiscase without a jury. There is nothing very shocking in the activities described in the particulars. If the facts alleged are proven, the oldercomplainant might be described as an adventurous teenager, but not an unusual one. There is no risk that I will consider the oldercomplainant to be untruthful because she has expressed an interest in sexual activity (if she has done so). [23] At a hearing under

section 276.2, it would be necessary for me to consider the factors set out in section 276(3). Because I havenot yet heard the evidence, I cannot assess those factors as they arise in this case. However, I have no present reason to think that any ofthem pose an insuperable obstacle to the admissibility of the evidence tendered. [24] It follows that the material on this application justifies a hearing under

section 276.2 to determine the admissibility of theevidence in question. 3. Cross-examination of the Older Complainant [25] Section 276(1) excludes evidence of sexual activity if it is offered “to support an inference that, by reason of the sexual natureof that activity, the complainant … is unworthy of belief”.

This provision was necessary to extinguish the long-held, but entirelyunfounded, belief that people who are sexually active, or unconventional, are of weak moral character, and so more likely to lie whengiving evidence. [26] However, section 276(1) does not mean that evidence of sexual activity is always inadmissible in relation to the issue of thecredibility of the complainant. A complainant who gives evidence, to the effect that her relationship with the accused was asexual priorto the occasion(

s) giving rise to the charge, places the nature of her relationship with the accused in issue. As a result, the accused isentitled to lead evidence to contradict the complainant: R. v. Harris (ON CA), [1997] OJ No. 3560; 118 CCC (3d)498 at paragraphs 41 - 42. [27] A trial judge faced with evidence: a. from the complainant, to the effect that her previous relationship with the accused was asexual; and b. from the accused or from independent witnesses, to the contrary effect, will be obliged to make a finding of credibility.

If the trialjudge concludes that the complainant’s evidence on the point is not to be believed, that finding will inevitably reflect on thecomplainant’s credibility in respect of other issues.

Such a conclusion does not offend section 276(1)(b), because it is not a conclusionthat the complainant is an unreliable witness because she has been unchaste, but rather a conclusion that the complainant is an unreliablewitness because she is contradicted on a material point by other witnesses. [28] The accused relies on the transcript of the older complainant’s police interview in support of the proposition that she will giveevidence at trial, to the effect that, while the accused had made sexual overtures to her before March 1, 2015, she had consistentlyrejected them.

However, the older complainant has not yet given evidence. She may say nothing of the kind. In R. v. Harris atparagraphs 38 - 39, Justice Moldaver cautioned against premature determination of such issues. He said, and I respectfully agree, thattrial judges should defer a decision on such questions until the complainant has completed her evidence in chief. 4. Scheduling the Application [29] As explained above, evidence of the kind under discussion may affect the assessment of the older complainant’s credibility. That presents defence counsel with a challenging issue of professional responsibility.

On the one hand, the rule in Browne v. Dunnconstrains the cross-examiner to confront the complainant on issues upon which the cross-examiner intends to contradict the complainantduring the defence case: R. v. Poole [2015] BCJ No. 2455; 2015 BCCA 464 at paragraph 42. On the other hand, the cross-examiner willbe constrained by the principles discussed in Sopinka, Lederman & Bryant: The Law of Evidence in Canada (4th ed) at pages 1155 -1158. As a consequence, Mr.

McGarvey needs to know what defence evidence will be admissible before he embarks on the oldercomplainant’s cross examination. [30] For the reasons given in paragraphs 28 and 29, the hearing under

section 276.2 should be conducted at the conclusion of theolder complainant’s evidence in chief and before Mr. McGarvey begins her cross-examination. 5. Publication [31]

Section 276.3(

c) of the Criminal Code prohibits publication of these reasons unless I make an order permitting publication

“after taking into account the complainant’s right of privacy and the interests of justice”. [ 32 ] There is a reason to publish this judgment. As noted above, it is my opinion that counsel in this case misunderstood the two- step procedure required by sections 276.1 and 276.2. They sought (no doubt innocently) to by-pass the screening procedure required by

section 276.1 and to proceed directly to a determination of the question of admissibility under

section 276.2. They sought a determination under

section 276.2 on the basis of hearsay provided by the private investigator, and without requiring any of the witnesses to attend for cross-examination. If I have correctly understood and described the procedure required by sections 276.1 and 276.2, this judgment may serve a useful purpose by assisting counsel to avoid such errors in future cases. If I have not, a judge of higher authority is likely to correct me, sooner or later, and that correction will serve a similarly useful purpose. [ 33 ] The countervailing factor is the older complainant’s right of privacy.

Unfortunately, that right has already been materially impaired. As a result of the allegations in issue in this prosecution, the accused was expelled from his school (which the older complainant also attended). The private investigator’s affidavit makes it clear that the allegations and the accused’s expulsion have been topics of heated discussion among the students. Anyone who knows the older complainant well is likely to have heard much more about the allegations than is disclosed in this judgment.

I have deliberately limited my discussion of the evidence to that which is absolutely necessary to the reasoning process which I am obliged to follow at this stage of the prosecution.

As a result, the incremental damage to the older complainant’s privacy rights which may result from the publication of this judgment is likely to be small. [ 34 ] I think that the public interest in the correct articulation and application of the process mandated by the statute is of greater importance in this case than the incremental damage to the older complainant’s privacy rights which may result from the publication of this judgment. For that reason, I direct that these reasons be published, but in a redacted form which will not disclose the accused’s name.

That direction may help to protect the older complainant’s privacy by inhibiting her identification by association with the accused. May 2, 2016 T. Gouge, PCJ