2023 MBPC 25, 2023 MBPC 25

2023 MBPC 25 THE PROVINCIAL COURT OF MANITOBA THE PAS CENTRE B E T W E E N: ) ) HIS MAJESTY THE KING, ) J. Malabar - and – ) ) ) for the Crown (Respondent) CHRISTIAN JAMES CONSTANT, ) ) ) K. Bueti Applicant. ) ) ) ) for the Accused (Applicant) ) Reasons for Decision: ) June 6, 2023 BAYLY, P.J. RESTRICTION ON PUBLICATION : The publication of these reasons is restricted pursuant to ss. 486.4(1) of the Criminal Code such that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.

RULING RE: s. 276 APPLICATION ( STAGE ONE ) Introduction [ 1 ] On June 19, 2022 after a lengthy RCMP investigation, Christian James Constant (the applicant) was charged with sexually assaulting K.L. (the complainant) on June 11, 2020. [ 2 ] The applicant has brought this application under s. 276 and 278.93 of the Criminal Code for leave to adduce evidence of prior sexual activity between the complainant and a third party M.G.

The applicant also seeks to adduce evidence of the complainant’s prior sexual activity with “others” said to have occurred in the seven days prior to June 11, 2020 (the date of the alleged sexual assault.) [ 3 ] The purpose of tendering this evidence through cross-examination is to “provide a full narrative and background to the Court with respect to the prior sexual contact of the complainant as it is relevant to his defence of lack of exclusive opportunity and mistaken identity.”

Facts [4] The Crown alleges that the applicant sexually assaulted the complainant on June 11, 2020. The basis of the allegation comesfrom a detailed statement provided by the complainant to investigators shortly after the incident. The statement is not before the Court. [5] Both parties agree that in her statement, the complainant indicates that she was drinking with friends and that she had consensualsex with a male friend named M.G. The applicant argues that this sexual encounter happened after the complainant and her friendsarrived at his trailer.

The respondent says that the encounter occurred at a different location altogether. For purposes of this applicationnothing seems to turn on this distinction. [6] While together in his trailer, both applicant and complainant, having just met, continue to drink along with the complainant’sfriends. After some time, the complainant fell asleep on a bed in the applicant’s trailer. When she woke, she says the applicant waslying behind her and penetrating her vaginally. She identified her assailant, stopped the assault and fled the trailer. She realized that herfriends had already left.

She contacted one of these individuals, who drove her to the hospital. While at the hospital she completed asexual assault evidence kit, which included a vaginal swab. [7] On June 30, 2020, the swab was sent for forensic testing. On January 13, 2021, the result of that testing concluded that thevaginal swab was of mixed origin, consistent with having originated from two male individuals. The major component was designatedMale A.

The second profile was not analysed because it contained only trace amounts of genetic information and no meaningfulcomparison was available. [8] On April 5, 2021, the applicant met with investigators and voluntarily provided a sample of his DNA for comparison to that ofMale A. On July 21, 2021, the results of that forensic comparison became available those results excluded the applicant as being MaleA. [9] Eleven months later, June 19, 2022, Crown authorized a charge of sexual assault against the Applicant. The matter is set fortrial August 4, 2023.

The Law [10] Parliament’s clear purpose when enacting s. 276 was to govern an accused's ability to introduce evidence regarding acomplainant's prior sexual activity. Such evidence is never admissible, in that it advances the myths that the complainant is less worthyof belief or is more likely to have consented to the sexual activity in question. [11] There is however, no absolute bar to the Court receiving this evidence so long as it meet the criteria set out in s. 276(2).

Thatcriterion is designed to balance the Applicant’s right to cross-examine and the ability to provide full answer and defence with societalconcerns that such evidence can undermine the integrity of the trial or the complainant's dignity and privacy. [12] The policy considerations behind Parliament's balance (criteria set out in s 276(2), have been examined in a number of importantdecisions, including R v Seaboyer, (SCC), [1991] 2 SCR 577; R v Osolin, (SCC), [1993] 4 SCR 595; Rv D.D., 2000 SCC 43 , [2000] 2 SCR 275; and R v Darrach, 2000 SCC 46.

More recent examinations are found in R v Barton,2019 SCC 33; R v Goldfinch, 2019 SCC 38 and R v. R.V., 2019 SCC 41. [13] Section 276(2) of the Criminal Code sets out the 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; (

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. Burden of Proof (Stage One) [14] In R v W.C.D. 2012 MBQB 128 at para 14, Justice Perlmutter citing the Saskatchewan Court of Appeal in R. v. Ecker (1995), (SK CA), 128 Sask. R. 161 articulated the burden on the applicant at the stage one analysis in the following way: Whether the evidence is capable of admission pursuant to [stage one] involves only a facial consideration and a tentative decision.

The Court also stated that “unless such evidence clearly appears to be incapable of admissibility, having regard for the criteria of 276(2),the judge should proceed to the evidentiary hearing stage. [Emphasis added] [15] At stage one, the applicant need only demonstrate a prima facie case that the evidence of the complainant’s prior sexual historyis capable of being admissible. The applicant’s burden is a low one and any doubt or reservation held by the Trial Judge must beresolved in favor of the applicant and the matter must proceed to the hearing stage.

Issue [16] The applicant (as identified in the introduction) through his materials argues that the evidence he wishes to adduce is necessaryto advance the defence of mistaken identity and lack of exclusive opportunity.

In addition, given the result of the July 21, 2021forensic DNA report, the applicant argues that the evidence is necessary to provide a full narrative and background to the Court thathe says will assist him to make full answer and defence. [17] The respondent agrees the applicant has satisfied that procedural requirements set out in s. 278.93; so the issue to be determinedwith whether the evidence applicant seeks to adduce is ‘capable’ of being admissible.

Analysis ‘The defense of mistaken identity’ [18] Exploring the concept of mistaken identity in the context of an identification case is certainly acceptable but linking that conceptwith the witness’s sexual history is not. To do so suggests that the complainant’s identification evidence is less worthy of belief becauseof her prior sexual history.

This is both clearly false and is an impermissible myth specifically prohibited by section 276(1). [19] The applicant can absolutely cross-examine the complainant on what he says are frailties in her ability to accurately identify himas her attacker, but cannot link those frailties with any prior sexual activity. [20] I am satisfied that preventing the applicant from adducing this evidence of prior sexual activity, will have no impact onapplicant’s ability to explore through legitimate cross-examination the complainant’s ability or inability to identify him as her attacker. ‘The defense of a lack of exclusive opportunity’ [21] Another troubling assertion advanced in this application comes from the applicant’s desire to use the complainant’s prior sexualactivity to demonstrate a ‘lack of exclusive opportunity” to sexually assault her. [22] The materials filed do not define what the applicant means by the term ‘exclusive opportunity’ or what it means to ‘lack’ theexclusive opportunity to commit a sexual assault.

However, by linking these concepts with her sexual activity, the applicant seems toimply that the complainant can somehow be blamed for her assault because she put herself in a situation where others had theopportunity to harm her. This false implication highlights the danger in associating ‘opportunity to harm’ with prior sexual behaviour.

[ 23 ] If the applicant is suggesting however, that because there were other men in the trailer and that their presence should create a doubt as to whom assaulted the complainant, such a suggestion can be made without reference to the complainant’s prior sexual activity. ‘Putting the full narrative before the Court’ [ 24 ] The applicant argues that the prior sexual activity he wishes to adduce is part of the full narrative and that it is probative given the negative result from the forensic DNA comparison. The applicant points to R. v.

S.(D.) 2022 MBCA 94 and observes that any reference the applicant makes at his trial to the forensic DNA report will necessarily reference the complainant’s prior sexual activity and thus conflict with

section 276 . The applicant is concerned that the inability to reference the July 21, 2021 DNA report to rebut the complainant’s identification of him affects his ability to have a fair trial. [ 25 ] The Respondent points to R. v. Locke 2015 MBCA 73 arguing that the absence of forensic evidence linking the accused to the alleged offence does not exculpate him nor does it mean that the alleged incident did not occur. [ 26 ] In my view, the applicant’s situation is distinguishable from both the S.(D.) and the Locke cases.

I am of the view that because the DNA obtained from the complainant’s vaginal swab is not linked factually to the allegation of sexual assault; it is incapable of being admissible under section 276(2) . [ 27 ] Further, I see no benefit to the trial process in permitting the applicant to cross-examine the complaint on his theory regarding the origin of the DNA.

The material filed in support of the application do not demonstrate a specific instance of sexual activity that resulted in the presence of the DNA nor does the probative value in seeking the answer to that question outweigh the prejudice to the complainant or the proper administration of justice. [ 28 ] I do however, recognize the relevance of the DNA report to the defence argument and I would urge counsel to agree to its admission, without calling additional evidence. The July 21, 2021, report can stand on its own and be used in argument by both parties.

If the counsel cannot agree, I would invite the applicant to consider the principled approach to the admission of hearsay. It appears to me that the July 21, 2021 Forensic Report is both inherently reliable and necessary given the ruling of this court. The admission of this evidence either by consent or as a hearsay exception would balance the accused ability to make full answer and defence while protecting the complainant from unnecessary and protracted cross-examination on her prior sexual activity.

Decision [ 29 ] For the above noted reasons, the evidence of prior sexual activity that the applicant wishes to adduce is incapable of being admissible under subsection 276(2) and for that reason the application for a hearing is denied. __” original signed” _____ BAYLY, P.J.