R. v. H.S.S., 2020 BCPC 196

Citation: R. v. H.S.S. 2020 BCPC 196 Date: 20201002 File No: 4856-1 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. H.S.S. PUBLICATION BAN Pursuant to s. 110 of the Youth Criminal Justice Act and s. 486.4 of the Criminal Code of Canada RULING ON APPLICATION OF THE HONOURABLE JUDGE P. CHEN Counsel for the Crown: K. Hennessy Counsel for the Defendant: M. Thompson Place of Hearing: Richmond , B.C. Dates of Hearing: September 22, 24 and 29, 2020 Date of Judgment: October 2, 2020

BACKGROUND TO THE APPLICATION [ 1 ] The accused applicant, a young person under the Youth Criminal Justice Act , has been charged that on May 3, 2019 he did commit sexual assault of the complainant, S.M.

This is a pre-trial application brought by the accused seeking a ruling that he be allowed to adduce certain Instagram text messages exchanged between the complainant and himself, as evidence in the trial, and/or that he be permitted to be put those documents to the complainant in cross-examination. [ 2 ] The accused and the complainant were both 16 years old at the time of the alleged offence and attending the same high school. [ 3 ] Both Crown and Defence counsel have agreed that I conduct an inquiry under

Section 276, following the procedures outlined in Sections 278.93 and 278.94. With the agreement of both Crown and Defence counsel, I saw the text messages for the first time when Defence counsel went through them during his submissions. [ 4 ] Exhibit A to the affidavit of the accused is a binder containing screen shots of Instagram text messages exchanged between the accused and the complainant on April 30, May 1, May 2 and May 3 of 2019. The binder contains over 233 pages containing the contents of 48 Instagram text conversations with approximately 2,000 messages being exchanged over those dates.

Not all of the messages contain dates but Defence counsel has submitted they are all in chronological order. [ 5 ] The messages commence at page 1 on April 30, 2019 at 4:45 p.m. The messages exchanged on May 1, 2019 start at 6:00 a.m. at page 54. The messages exchanged on May 2, 2019 start at 4:40 a.m. at page 166.

The messages exchanged on May 3, 2019 start at 6:16 a.m. at page 222 and end at page 233. [ 6 ] The applicant seeks rulings with respect to messages contained on pages: 24, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 47, 48, 55, 57, 58, 61, 62, 63, 64, 66, 70, 72, 73, 79, 80, 81, 82, 83, 84, 88, 104, 124A, 125, 127, 156, 160, 166, 168, 170, 171, 192, 213, 222, 230, 231, 232 and 233. [ 7 ] For the purposes of this application, the Crown has conceded that the messages contained in Exhibit A to the Applicant’s affidavit are true and accurate screen shots of text messages exchanged between the accused and the complainant.

THE LEGISLATIVE FRAMEWORK [ 8 ] The legislation governing this application is found in Sections 276 , 278.92 , 278.93 and 278.94 of the Criminal Code of Canada . [ 9 ] Section 276(1) provides an absolute bar to the admission of evidence of a complainant’s prior sexual history for twin-myth purposes; that is, to support an inference that a complainant with a sexual history is more likely to have consented to the sexual activity at issue or is less worthy of belief.

Such evidence is presumptively inadmissible unless it is admissible by application of Section 276(2). [ 10 ] Once the Court has embarked on an inquiry under

Section 276 , the evidence and its purpose must be specifically identified and its relevance weighed against the factors identified in Section 276(3).

The procedures governing the inquiry under Section 276(2) are set out in Sections 278.93 and 278.94 . [ 11 ] Section 276(2) states: In proceedings in respect of an offence referred to in subsection (1), evidence shall not be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in

section 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; and (

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. [ 12 ] Section 276(3) states: In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account (

a) the interests of justice, including the right of the accused to make a full answer and defence; (

b) society’s interest in encouraging the reporting of sexual assault offences; (

c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case; (

d) the need to remove from the fact-finding process any discriminatory belief or bias; (

e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury; (

f) the potential prejudice to the complainant’s personal dignity and right of privacy; (

g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and

(

h) any other factor that the judge, provincial court judge or justice considers relevant. THE EVIDENCE SOUGHT TO BE ADDUCED [ 13 ] At page 24, the accused asks the complainant if she might give him a “handjob” , to which she replies “Most likely” . At page 25, the accused asks again “So will you jerk me sometime this week?” and she replies, “Sure haha” . [ 14 ] At the bottom of page 26 (part of the April 30, 2019 messages) the accused asks the complainant to suggest a suitable location for them to meet to engage in this sexual activity.

At the top of page 27, the complainant suggests to the accused that they use the school’s handicapped washroom. She tells the accused that this washroom has a lock on it and suggests that they enter it when no one is watching. [ 15 ] At page 29, the complainant suggests that she could go to that washroom during “C Block”.

When the accused expresses his concern that they are both in the same class at that time, and asks whether they would both be able to leave the class together, the complainant replies that the teacher for this class: “… lets multiple people go out at once, she’s a chill teacher” . [ 16 ] The following messages then follow at the bottom of that page and the top of page 30: Accused: “Okay so tomorrow at C block we go out of class and then you give me a handjob in the bathroom?

Tomorrow right!?” Complainant: “Yeah” Accused: “Sounds amazing!” (with happy face emoji) Complainant: “Hahah” Accused: Do you like actually want to do it tho?... I’m not trying to force you…” Complainant: “I’m actually down, you’re not forcing me lol” Accused: “Oky so you like actually WANT to jerk my dick tomorrow? Complainant: “Yes I do” [ 17 ] The text conversations on the next day, May 1, 2019, start with a message from the complainant to the accused at 6:00 a.m.

At page 57 this exchange takes place: Complainant: Do you know how to give hickeys Accused: Uhm I think so yeah Why lol Complainant: Wanna give me one hahah Accused: I’m down! Lol Not on your neck tho cuz then people gonne ask where you got that and who gave it to you lol So where do you want one Complainant: You can do it on my chest lol. If people see it I’m not gonna tell them lol Accused: Il like do it on your one boob okay lol Complainant: lol Accused: If that’s fine with you?

Complainant: Yeah lol [ 18 ] Other texts exchanged during May 1, 2019 relate to at least two mutual but unsuccessful attempts to meet in the handicapped bathroom of the school. [ 19 ] The first attempt is described in the conversation at pages 61 and 62. From their conversation the day prior, it would appear that these texts began while they were both sitting in the same class: Accused: When do you think is best?

Complainant: In like 5 And oops Accused: Okay Just send me a msg when your ready Complainant: Kk I’ll leave in 2 mins and I’ll text u when to come out Accused: Oky… are you going to go see if the door is unlocked before I come out? Complainant: Yea Accused: Okayy

Complainant: Arter the movie It’ll be less noticeable Accused: Okayy Is it unlocked? Lol Complainant: Shit it’s locked It’s usually unlocked during the B block and lunch [ 20 ] At page 64, the complainant tells the accused: “They’ll probably be unlocked next block That’s what usually happens” .

The accused replies: “Okay will you go and see the next block then let me know” , to which the complainant replies, “Yeah” . [ 21 ] The next attempt on May 1, 2019 is described in the messages at page 65 and 66: Complainant: It’s unlocked rn Accused: There to many people outside of class rn I’ll like come in like 5-10 min when class started Is it okay with you?

Complainant: Not yet In a few mins I’ll tell you Accused: Where do I meet you when you tell me to come Complainant: Sorry my spare block athletic leadership teacher is like making me do stuff right now [ 22 ] At page 70, the complainant apologizes for not being able to meet and suggests “Tomorrow is better” and the accused agrees saying “Okay that’s fine!

Lol” . [ 23 ] However, the complainant, at pages 79 and 80, advises the accused that she is unable to meet the next day of May 2, 2019: Complainant: Yeahhh I’m sorry lol And I just remembered tomorrow I’m not gonna be at school tmrw bc I have track and field from 7- 4pm Accused: Nooo Complainant: Yeah I’m sorryyy (with two unhappy face emojis) Accused: Friday then? Complainant: Yeah [ 24 ] During the rest of that day – Wednesday, May 1, 2019 – the accused and the complainant exchange another 85 pages of text messages, many of which are sexually explicit and graphic.

At page 124A, the complainant sends the accused nude pictures of herself. [ 25 ] Although the accused and the complainant are not able to meet in person the next day, Thursday, May 2, 2019, they do exchange another 54 pages of text messages.

Those messages start that day with the complainant apologizing not having been able to engage in the sexual activity agreed to the day before, and promising that it will definitely take place the next day – Friday, May 3, 2019, saying “Tmrw nothing will get in the way” . [ 26 ] On Friday, May 3, 2019 – the date alleged in the charge to be the date of the offence, text messages commence on page 222 at 6:16 a.m. [ 27 ] Transcribed at pages 229 to 233 is the following text message conversation between the accused and the complainant: Complainant: Heyy Accused: You moved close to me lol Complainant: Yeaaa Accused: Ypu sooo hot You* Complainant: (two winking happy face emojis) Accused: So we doing the hickey?

Complainant: Perhaps Accused: You wanna go now? Complainant: In 5 Accused: Where we going tho? Complainant: Handicapped bathroom Accused: Is it open? Complainant: Yea

Accused: Okayy Tell me when you want to go Complainant: OK Accused: Okayy (heart emoji) Oo damn you hot af Complainant: Noooo Accused: Ooo yeah… why im I getting a boner then Complainant: (three shrugging female emojis) Accused: So we going or not lol? Complainant: Yea let’s go Accused: Okay il wait like a min then il come There r so many people there Complainant: Like hold on lol Accused: Okay lol Tell me when I can come We can like do something quick on the fitness room stairs aswell Lol Complainant: Ok come bow THE EXCEPTION TO THE EVIDENTIARY PROHIBITION DESCRIBED IN SECTION 276(2) [ 28 ] Both the Crown and the Defence had agreed that

Section 276 applied to the evidence contained in the text messages in Exhibit A and that I should conduct the inquiry described in Sections 276 , 278.93 and 278.94 .

However, during the Crown’s submissions I queried both counsel whether the messages in Exhibit A sought to be adduced by the Defence would fit more properly within the exception contained in Section 276(2), i.e.: In proceedings in respect of an offence referred to in subsection (1), evidence shall not be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge , whether with the accused or with any other person (emphasis added) . [ 29 ] If the messages in Exhibit A were evidence of sexual activity that the complainant had engaged in, that formed the subject-matter of the offence, i.e. the sexual activity between the accused and the complainant, that took place on May 3, 2019, in their school’s handicapped bathroom, that evidence would not be subject to the evidentiary prohibition and the analysis described in

Section 276 , and this application would not be required. [ 30 ] Crown submitted that the text messages sought to be adduced by the Defence are not evidence of the sexual activity engaged in by the complainant that forms the subject-matter of the charge.

Crown submits that each of the text messages sought to be adduced are instances of sexual activity that occurred prior to the sexual activity forming the subject-matter of the charge – and are therefore subject to the prohibition and the test contained in Sections 276(2) and 276(3). [ 31 ] The question is, what is the proper characterization of the evidence sought to be adduced by the accused in this application? ANALYSIS [ 32 ] When I asked counsel for case authorities on this issue, the Crown submitted that the facts in R. v. Langan , 2019 BCCA, were analogous to those in the case at bar.

On the final day of submissions, the Crown submitted the case of HMQ v . Jason Frank Paulette , 2020 NWTTC 13 . Defence counsel provided no authorities and made no submissions on this issue. When I asked Defence counsel if he was in agreement with the Crown, that the text messages were not evidence of the complainant’s sexual activity that formed the subject- matter of the charge, he replied that he was “ambivalent” on this issue. [ 33 ] In Langan , the trial judge had allowed the Crown to tender a series of text messages that were exchanged between Mr.

Langan and the complainant, before and after the alleged assaults. The majority of the Court of Appeal upheld Mr. Langan’s conviction appeal and ordered a new trial. [ 34 ] Mr. Langan and the complainant had been in a relationship between 2007 and 2012 and had a child together. After separation, the complainant moved to Vancouver Island and Mr. Langan remained in the lower mainland. In early 2015, they began seeing each other about once a month, trying to rekindle their relationship. The complainant’s evidence was that by May 2015, she was no longer interested in that rekindling and just wanted to be friends.

The sexual assault was alleged to have occurred later, in the summer, during a weekend visit to Vancouver Island by Mr. Langan. [ 35 ] The text messages exchanged between the complainant and Mr. Langan leading up to this visit, included this one: “I’m not having sex with you if that’s what your trying to get at” [ 36 ] In its reasons allowing Mr.

Langan’s appeal, setting aside the conviction and ordering a new trial, the Court held that the trial judge had erred by using the text messages – most of which were entered by the Crown – as prior consistent statements of the complainant to corroborate her account, to prefer it over the appellant’s evidence, and generally to discredit Mr. Langan. The Court also found that the trial judge had erred by misapplying R. v. W.D. In my view, the brief references to

Section 276 in Langan are obiter dicta .

[ 37 ] None of the complainant’s texts to Mr. Langan contained any evidence of her interest in, much less her consent to, having sex with Mr. Langan during his weekend visit with her. [ 38 ] I do not find the facts in Langan to be analogous to those in the case at bar. Whether or not the exception to the evidentiary prohibition found in Section 276(2) applied to the text messages between Mr.

Langan and the complainant, was never an issue in Langan , and was never addressed in either the majority judgment or in the dissent. [ 39 ] This issue was addressed in Paulette , where Judge Malakoe ruled on the admissibility of words allegedly uttered by the complainant to the accused prior to the alleged sexual assault. The words “I want to fuck you” were allegedly whispered by the complainant to Mr. Paulette within 4 and ½ hours of the alleged sexual assault.

Defence took the position that the alleged utterance was part of the sexual activity that formed the subject-matter of the charge and therefore not subject to the conditions for admissibility set out in

Section 276. [ 40 ] Judge Malakoe ruled that the complainant’s utterance was a sexual activity that was not the sexual activity that formed the subject-matter of the sexual assault charge, and that, accordingly, an application under Sections 276 , 278.93 and 278.94 was required. [ 41 ] Judge Malakoe’s reasons on this issue were brief but, in my view, helpful. This was the only case on point on this issue provided to the Court.

At paragraph 37, Judge Malakoe stated: … the expression of consent contained in the complainant’s utterance could not be regarded as the consent required at the time of the alleged sexual assault due to the separation in time, context and place. This finding meant that a s.276 application was required. [ 42 ] At paragraph 46, Judge Malakoe stated: Let me return briefly to the relationship of the complainant’s utterance to the sexual intercourse that forms the subject matter of the sexual assault charge.

If I had found that the complainant’s utterance was part of the sexual activity that formed the subject matter of the sexual assault charge, the analysis of whether or not its admission could result in a “danger of prejudice to the proper administration” of justice would not be required since it would not be caught by the s.276 regime.

The circumstances of the complainant’s utterance made that decision a “close call” in the sense that the consent implied by the utterance occurred prior to the sexual intercourse but it is specific consent to sexual intercourse that is close enough in time to the sexual intercourse that it forms part of the “circumstances” leading to the alleged sexual assault and it has a significant probative value. [ 43 ] Judge Malakoe stated that his reasons for finding that the complainant’s utterance made 4 and ½ hours before the alleged sexual assault, was not sexual activity that formed the subject-matter of the offence, was based on the separation in time, context and place.

He also stated that his finding on this issue was a “close call” . [ 44 ] In the case at bar, the subject of this application is a series of text message conversations between the accused and the complainant that took place in the four days between Tuesday, April 30, 2019 and Friday, May 3, 2019. I find that the main subject and most frequently discussed topic of these conversations – in the messages sent by both the accused and the complainant – is a plan to meet in the school’s handicapped bathroom for the purpose of engaging in sexual activity together.

There is some negotiation as to what form of sexual activity is to take place, and some rescheduling being done, but throughout these messages, that plan is a constant theme throughout all of the messages exchanged during those four days. [ 45 ] In my view, the text messages sought to be adduced that are evidence of the plan to meet in the school’s handicapped bathroom for the purpose of engaging in sexual activity, should not be characterized as separate instances of prior sexual activity unrelated to the subject-matter of the charge. [ 46 ] The complainant’s final affirmation of the planned meeting is at pages 229-233 and ends with the complainant’s direction to the accused to “come now” to the school’s handicapped bathroom.

I find it very likely that this message was sent close to the time of the alleged sexual assault. [ 47 ] In my view, the text messages in Exhibit A are best characterized as evidence of a plan mutually agreed upon by the accused and the complainant, to meet in the school’s handicapped bathroom for the purpose of engaging in sexual activity – a plan that started on April 30, 2019, was twice attempted to be implemented on May 1, 2019, and ultimately led to them meeting there on May 3, 2019. Throughout those four days, the plan was re-affirmed a number of times.

Despite some ambivalence that arose on the afternoon of May 2, 2019 about what exactly was to occur at that meeting, the plan to meet was never abandoned or cancelled. [ 48 ] On the final day of submissions, Crown directed the Court’s attention to pages 193 to 213 of Exhibit A. [ 49 ] At page 194, the complainant states: “ Like not everything is about sex and your dick, we can have a normal conversation too lmaooo ” [ 50 ] At page 195, the complainant asks the accused, “Why do you want me to do it so bad” .

At page 201, the complainant asks the accused, “Why are you into me”. [ 51 ] At pages 203 and 204, the complainant sends to the accused the following messages (accused’s replies omitted): The whole time I just felt like you wanted me to jerk you off But with me, I want more than that like I don’t always wanna jerk someone off you know Honest truth I just don’t like jerking someone off that I’m not in a relationship with because it makes me feel slutty lol [ 52 ] By pages 211 to 213, the complainant tells the accused that she is no longer prepared to masturbate him and tells him, “I’m still

not gonna jerk you off tmorrkw” . However, she is still prepared to allow the accused to give her a “hickey” on her neck. The complainant initially requests the “hickey” to be placed on her neck, but after some pleading from the accused, she consents to the hickey being placed on her chest but “at the top”. [ 53 ] These submissions from the Crown were made to oppose the accused’s application. However, I find them also relevant to the issue of whether or not the text messages between the accused and the complainant are evidence of the sexual activity that forms the subject-matter of the charge.

Crown argued, on the basis of these messages appearing at pages 193 to 213, that none of the messages appearing prior to page 193 could be used to support a defence of honest but mistaken belief in consent. [ 54 ] Crown submitted that these messages make it clear that after these text messages, the accused's belief, at most, could only have been that the complainant may have consented to having a hickey placed on her upper chest. [ 55 ] Actually, more was agreed to.

At page 213, this exchange occurs: Accused: So you want me to give you a hickey… that’s all… Complainant: We can make out too if you’re down Accused: Yeah… [ 56 ] I would expect, during the trial proper, to hear evidence and submissions about what “making out” means in this day and age to young people 16 years old. [ 57 ] However the main conclusion that I draw regarding the messages at pages 193 to 213, and from Crown’s submissions about them, is that they are evidence of the accused’s state of mind at the time of the alleged offence. [ 58 ] However, these messages contain the contents of a conversation between two people.

If they are evidence relevant to the state of mind of the accused at the time of the offence, they must also be evidence relevant to the complainant’s state of mind at the time of the offence. Accordingly, they must also be evidence of the sexual activity that forms the subject-matter of the charge. [ 59 ] The “…subject-matter of the charge…” described in Subsection 276(2) includes each and every essential element of the offence that the Crown is required to prove beyond a reasonable doubt in order to secure a conviction.

The absence of the complainant’s consent is one of those essential elements. [ 60 ] It is important to consider the nature and quality of the text message evidence and to view it holistically. They show a plan hatched on April 30, 2019 to meet to engage in sexual activity – a plan that is reaffirmed each day after that, and finally re-affirmed again on May 3, 2019, very close to the time of the alleged assault. The location of the planned sexual activity – a handicapped bathroom in the school that can locked from the inside – was suggested by the complainant.

That plan and that location is affirmed again on the morning of May 3, 2019, just prior to the complainant’s direction to the accused to “come now”, just prior to the assault alleged to have occurred in that handicapped bathroom. [ 61 ] In my view, the appropriate characterization of the messages exchanged between the accused and the complainant is, that they are evidence of a plan to meet in their school’s handicapped bathroom for the purpose of engaging in sexual activity – a plan that the complainant was as much the architect of as the accused. [ 62 ] That plan is evidence of the complainant’s consent to meeting in the school’s handicapped bathroom for the purpose of engaging in sexual activity.

The numerous messages after that, affirming and re-affirming that plan is evidence of continuous and ongoing consent to that plan being carried out, notwithstanding that the later messages did not display the same full-throated, enthusiastic consent, as the earlier messages did.

Evidence of confirmation to that consent can be found right up to and including the final message directing the accused to go to that handicapped bathroom, which appears to be minutes prior to the activity that gives rise to the charge. [ 63 ] Applying the factors considered by Judge Malakoe in Paulette – separation in time, context and place – I find that the proper characterization of the text messages exchanged between the accused and the complainant between April 30, 2019 and May 3, 2019 that are evidence of the complainant’s sexual activity, is that they are evidence of the sexual activity that forms the subject-matter of the charge. [ 64 ] Accordingly, I find that that evidence need not be subject to the analysis described in

Section 276 . There will be no need for a phase 2 hearing. _____________________________ The Honourable Judge P. Chen Provincial Court of British Columbia