Her Majesty the Queen - v. -, 2015 SKPC 87

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 087 Date: June 10, 2015 Information: 31733105 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Robert Michael Bartlett Appearing: Brian Hendrickson, Q.C. For the Crown Jordan Hogeweide For the Accused DECISION M. GORDON , J [ 1 ] Robert Michael Bartlett is charged that on or about the 11 th day of September A.D. 2014, at or near Moose Jaw, Saskatchewan did commit a sexual assault on L.M. contrary to s. 271 of the Criminal Code .

The Crown proceeded summarily and the matter was set to May 13, 2015. [ 2 ] The defence made an application for a hearing under s. 276.2 of the Criminal Code to determine whether the evidence is admissible under s. 276(2) of the Criminal Code .

[3] The applicant filed his original notice and then filed an amended notice stating as follows: The applicant, Robert Michael Bartlett asks for a hearing under s. 276.2 of the Criminal Code to determine whether evidence isadmissible under this

section at the trial of the matter. Particulars of the evidence that the applicant (accused) seeks to adduce (1) detailsof text messages between the accused and the complainant which occurred the morning after the incident that forms the subject matter ofthe charge; (2) details of the interactions between the accused and complainant which occurred the day after the incident that forms thesubject matter of the charge; and (3) details of the sexual activity between the accused and complainant which occurred the day after theincident that forms the subject matter of the charge.

The applicant submits that this evidence is relevant to the issue at trial as follows: An issue at trial will be the accused’s defence of his honest but mistaken belief that the complainant consented to the sexual activity thatforms the subject matter of the charge. [4] An affidavit of the accused was filed. [5] The Crown accepted short service of the application and the hearing was held on May 13. The only evidence before theCourt was the affidavit of Robert Michael Bartlett. The Crown declined to cross-examine Mr. Bartlett on his affidavit.

SUBMISSIONS [6] The applicant says that the proposed evidence is of activity that commenced the next morning; being September 12, 2014,which is sexual in nature and concluded with sexual intercourse later that day. The applicant says this proposed evidence is limited innature, relevant to an issue at trial and does not offend the “twin myths” that are referred to in R v Seaboyer, (SCC),[1991] 2 SCR 577 [Seaboyer]. [7] R v Ecker, (SK CA), [1995] 96 CCC (3d) 161 (SKCA) [Ecker], states that the Court must go through atwo-stage process in analysing the situation.

Further, if the Court is in doubt on the matter, the Court should err on the side of hearingthe application. [8] I advised counsel that I was prepared to proceed to the second stage and hear the application. On the face of it, the materialsfiled satisfied me that this indeed was appropriate. [9] The applicant bears the burden on a balance of probabilities. The applicant acknowledges the “twin myths” as codified in s.276(1) of the Criminal Code. The defence wants to cross-examine the complainant on the communications of a sexual nature and sexualactivity that he says occurred the very next day.

This evidence, according to the defence, does not offend s. 276(1) of the Code. Thedefence says he is not implying that her sexual history makes her unworthy of belief. Rather, his argument is that the complainant is notcredible because her account of their relationship is demonstratively untrue. The applicant reviewed the factors the Court is to considerunder s. 276(3) of the Code, as stated in R v Darrach, 2000 SCC 46 [Darrach].

The applicant argues that this single specific incident,which started early the next day and culminated in the two having consensual sex, is relevant to the issue of consent with respect to thecurrent allegation. [10] The defence says that is different from asking to cross-examine the complainant on her entire sexual history and the mythsthat if she had multiple partners in the past, she likely consented on this occasion. Consent and credibility of the complainant are the realissues at trial.

As a result, the probative value of this limited cross-examination easily outweighs any prejudicial effect according to thedefence. [11] The Crown responds that the accused is trying to do exactly what s. 276 prohibits. The Crown argues that by allowing thecomplainant to be cross-examined about sexual activity with the accused the next day suggests that she is less credible because of it. TheCrown argues that what happened September 12 obviously cannot go to the honest belief of the accused the evening prior, as it had notyet occurred.

The Crown further argues that the cross-examination proposed by the accused feeds into the twin myths that thecomplainant was more likely to have consented and as a result, her evidence is less credible. The Crown refers to R v Janvier, 2005SKQB 77 and R v Hashimi, 2012 SKQB 145.

[12] In addition, both counsel referred to Ecker and Darrach and a decision of mine, R v B.H.N., 2013 SKPC 71 [B.H.N.]. [13] The defence also referred to the decision R v K.C., 2005 ONCJ 197. The Crown says this case from Ontario is wrong andcannot be rationalized with the Supreme Court of Canada cases, and of course is not binding on this Court. ISSUE Is evidence of sexual conduct by the complainant with the accused, that is said to have occurred after the alleged sexual assault,admissible? ANALYSIS [14] In R v Bignell, (SK KB), [1999] 175 Sask R 139, Mr.

Justice Hrabinsky states at paragraph 10: I begin with the principle that evidence that the complainant has engaged in sexual activity with the accused is not admissible to supportan inference that, by reason of the sexual nature of the 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. [15] As I said in B.H.N. at paragraph 7, “This is the proper starting point.” [16] In Seaboyer a list of factors the Court is to consider is given. The requirement is that any cross-examination must relate tospecific instances and only evidence that is relevant will be allowed. These requirements were held to be constitutional in Darrach. InDarrach at paragraphs 45 and 46, the Court stated:

Section 276 and the procedure it mandates are consistent with the law of evidence. Sections 276(1) and 276(2) are rules to determinerelevance and admissibility. They were articulated in Seaboyer as common law rules and are now codified in the Criminal Code.Evidence of prior sexual activity is of limited admissibility: it is admissible for some purposes but not others. This is because it is oflimited relevance.

In particular, as the Court put it in Seaboyer, “[t]here is no logical or practical link between a woman’s sexualreputation and whether she is a truthful witness” or whether she is more likely to have consented to an alleged assault (at p. 612). It is a basic rule of evidence that the party seeking to introduce evidence must be prepared to satisfy the court that it is relevant andadmissible.

Lamer C.J. described the burden of proof on a voir dire to introduce evidence (in that case prior inconsistent statements) asbeing “on the balance of probabilities, the normal burden resting upon a party seeking to admit evidence” in R. v. B. (K.G.), (SCC), [1993] 1 S.C.R. 740, at p. 800 (emphasis added). Prior sexual activity is, like hearsay, character evidence and similar factevidence, restricted in its admissibility. If the defence seeks to adduce such evidence, it must establish that it supports at least somerelevant inference.

Parliament has specified criteria for admissibility in s. 276(2) to guide the discretion of trial judges in this area. [17] At paragraph 9 in B.H.N., I stated as follows: It is clear that evidence of prior sexual activity is not probative of whether consent was actually given but it may be probative of theaccused’s belief that there was consent. The Court must have some basis on which to decide that the evidence sought to be adduced isrelevant. The defence must be realistically advanced and may not be used simply to adduce general character evidence. The Court

should have regard to the viability of the defence, the nature and extent of prior sexual activity as compared to the sexual activity inquestion, the time frame separating the incidents and the nature of the parties’ relationship. In R. v. Harris, (ON CA),[1997] 118 C.C.C. (3d) 498, the Ontario Court of Appeal said similar events and events more proximate in time will have greaterrelevance to issues at trial and will lend greater support to the defence of honest but mistaken belief. The Court in Darrach at paragraph39 commented on the meaning of the word “significant” in s. 276(2)(c).

The Court held that this means evidence that must not be sotrifling as to be incapable in the context of all the evidence of raising a reasonable doubt. In the within case, evidence of the existence ofa recent and prior consensual relationship between the accused and the complainant is significant and has probative value in that itprovides context for the defence of consent or in appropriate circumstances honest but mistaken belief in consent. In R. v.

W.J.A., JudgeCozens from the Yukon Territorial Court stated at paragraph 40: As both have been raised here I will say only this about the interaction between the defence of consent and the defence of honest butmistaken belief in consent. The consent of a complainant to sexual activity requires a subjective approach and is concerned with thecomplainant’s state of mind only.

However even if a defendant argues consent as a defence that does not mean that the defence ofhonest but mistaken belief in consent is automatically denied him should the Court hold that the complainant did not consent. [18] I have reviewed various decisions involving this area of post-sexual conduct as well as looking at McWilliams CanadianCriminal Evidence (Hill, Tanovich and Strezos). [19] In R v Van Oostrum, 1993 OJ No 1084 (ONCA), the Court of Appeal found that evidence that the accused had a continuingsexual relationship with one of the complainants was admissible as part of the totality of evidence and not demonstrating any motive onthe part of the complainant.

It is noted at trial that the Crown did not object to this evidence. [20] In R v J.(T.), 1994 OJ No 4167, the Court stated that “the friendly relationship, both social and sexual, before and after theincident complained of are relevant and admissible”. [21] In R v C.(K.), 2005 ONCJ 197, the Court stated: Consent and the credibility of the complainant will be very live issues at trial. I am satisfied that the evidence of the alleged post-offencesexual activity is relevant to those issues, in particular ways that do not involve the twin myth reasoning.

An important feature of theevidence under scrutiny here is that, unlike in the vast majority of s. 276 applications, this concerns alleged post-offence sexual activityas opposed to prior sexual activity. [22] In R v Bulianne, 2009 NBQB 253, the Court found there is really no necessary difference between post and pre-activity and ineach case the Court is required to go through a s. 276 analysis.

In that case the evidence was found to be inadmissible. [23] In R v Hicks, [2009] 86 WCB (2d) 965, the Court refused to allow cross-examination of the complainant as to whether or notshe had sex with her boyfriend after the alleged assault by the accused (not her boyfriend).

The Court held that such evidence wouldlikely be far more prejudicial than probative and that “the clear purpose of such evidence would be to try to demonstrate that thecomplainant is more likely to have consented to the sexual activity that formed the subject matter of the charge and further show that sheis less worthy of belief”. [24] R v L.(R.S.), 2006 NBCA 64, is a case which involves sexual conduct after the alleged offence. The Court found that theevidence could be included but that the jury warning was inadequate.

The Court of Appeal said that the jury was not warned that it wasclear that they could consider the subsequent sexual activity for assessing the complainant’s credibility in relation to the sexual assaultbut they could not use it to support an inference that the complainant is less credible simply because she had sexual activity. The Courtdid admit that this distinction “may be difficult to grasp”. [25] In McWilliams, the authors note that the Court must carefully assess the relevance of any such application because it risksstereotyping how women should or ought to act after they have been sexually assaulted.

If admitted, it has the potential to prejudice thetrial process and run contrary to the rationale underlying s. 276. In addition it is noted there are several case comments by academicsthat criticize allowing such application as in all cases it clearly offends the “twin myths”.

[26] When I consider the factors listed in s. 276(3), points (a), (c), (

d) and (

f) support granting the application and allowing limitedcross-examination. [27] Section 276(3)(

b) is society’s interest in encouraging the reporting of sexual assault offences. This does give me someconcern. This

section is designed to prevent complainants in these cases having their entire sexual history exposed in open court. However, as the defence points out, it is a very limited cross-examination that they are asking for. It is with the same accused andoccurs very close in time to the alleged offence. It is also noted that this is not a jury trial. [28] Section 276(3)(

g) balances the rights of the accused and the complainant. The accused must have the right to make fullanswer and defence. As I have said, any intrusion into the personal security of the complainant can be limited by keeping thequestioning confined to the very narrow set of circumstances. [29] Therefore, I find that the application by the accused for admissibility meets the criteria of s. 276(2). The accused has leave toelicit evidence at trial concerning the incident that occurred September 12, 2014, that is referred to in his affidavit.

In other words, point3 in the amended application for hearing which reads “details of the sexual activity between the accused and complainant whichoccurred the day after the incident that forms the subject matter of the charge”. This is a relevant circumstance when I consider theevidence of both parties on the issue of consent or honest but mistaken belief in consent.

I adopt the reasoning of the Ontario SuperiorCourt of Justice in R v Strickland, (ON SC), 2007 OJ No 517, 45 CR 6183, at paragraph 46: Returning to the case at bar, I conclude that the evidence of an existing sexual relationship between the parties in this case is a significantand essential contextual fact, without which the trier of fact cannot fully and fairly assess the behaviour of the parties on the night inquestion, the testimony of the complainant that she did not consent, and the testimony of the accused that she did.

To prevent theaccused from putting evidence of this existing relationship before the court is to run the risk of distorting the fact-finding process andartificially rendering his evidence inherently improbable. This would, in my view, deprive him of the right to make full answer anddefence. [30] As stated in some of the cases quoted, this reasoning applies equally to conduct that occurs shortly thereafter the allegedincident.

Therefore I am satisfied the accused has met the burden of proof, being on the balance of probabilities, and I consider this inrelation to the factors that are enumerated under s. 276.3 as discussed above.

Therefore I will allow defence counsel to cross-examinethe complainant or adduce evidence with respect to the following details of the sexual activity between the accused and complainantwhich occurred the day after the incident that forms the subject matter of this charge. [31] In my view, the text messages and the interactions between the accused and the complainant which occurred the next daywhich are not sexual in nature, do not fall within the ambit of s. 276.1 and therefore the normal rules of evidence apply. [32] This ruling is subject to being revisited as the evidence unfolds at trial in the event that it is materially different than theevidence that formed the basis of this ruling.

M. Gordon, J