R. v. Walsh Date:, 2017 BCPC 177

Citation: R. v. Walsh Date: 20170619 2017 BCPC 177 File No: 51288 Registry: Vernon IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. LAUREL EDWARD OWEN WALSH REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D.M. MCKIMM Counsel for the Crown: J. Guild Counsel for the Defendant: J. van der Wahl Place of Hearing: Vernon , B.C. Date of Hearing: May 31, 2017 & June 8, 2017 Date of Judgment: June 19, 2017 JUDGMENT ON PRE-TRIAL APPLICATION

[ 1 ] The accused is charged with one count of sexual assault. The alleged assault occurred on July 22, 2016. The matter is set for trial before this Court later this summer. THE APPLICATION [ 2 ] The accused brings an application pursuant to section 276(2) of the Criminal Code to question the complainant about previous consensual sexual activity he alleges occurred between him and the complainant on May 12, 2016.

He applies to this Court to enter into a voir dire in order that he can question the complainant about her denial of the previous sexual activity in hopes that he can use her answers to those questions to challenge her credibility. For the reason that follow the application is granted. FACTS [ 3 ] The accused and the complainant are acquainted and have been for some time. The accused alleges that on May 12, 2016 he and the complainant arranged through text messages a meeting where the two would drink together and socialize.

The accused alleges further that the social meeting resulted in the two having sex in the back of her van. These relations are particularized in his affidavit as follows: We sat in the vehicle and drank coolers together. We spoke for about an hour before we had sex. She spoke mostly of her mother. She was critical of her mum for the way her mum raised her. During this conversation, seemingly out of the blue, she asked me, "Do you want to fuck?" I responded "Yeah, sure." We got out of our seats and went around to the side of the van and got into the back area of the van.

There was enough room for us both to lie down. We took off our clothes and had sex.” [ 4 ] The alleged offense occurred approximately ten weeks later. After a night of heavy drinking, the accused is alleged to have entered the complainant’s bedroom and had sexual contact with her either without her consent or in circumstances where she was unable to consent as a result of her consumption of alcohol. The exact circumstances of the alleged offense are not particularly germane to the application. [ 5 ] The complainant made two separate statements to the police after reporting the alleged assault to the police.

In the first she was asked and answered; Officer: Have you ever been in an intimate relationship or had sex with him before? Complainant: No, never (crying) [ 6 ] In the second statement she was asked and answered; Officer: Ok. Ok. Um, now you intimated the, at this before that you weren’t in a sexual relationship? I had asked you that night before. Complainant: Yeah Officer: Ok.

Um, and I asked you just to describe your relationship with [the accused] Complainant: Hm hm Officer: Has there ever been a time where you can remember, back, before the time you met him to the time of the assault that happened on July 22nd. Was there any type of relationship, any sexual relationship? Complainant: Not that I recall, no… Officer: Not that you recall? Complainant: …We’ve, we had drinks together before but it was always like in public [ 7 ] And further: Officer: D’you ever recall being in any type of sexual relationship with him? Complainant: (moves her head side to side) Officer: Ok.

Can you see how he might interrupt that or? Complainant: He’s an alcoholic and I’m an alcoholic so maybe he dreamt it or I don’t know. You think stupid things when you are under the influence. Officer: Ok. Aw, so you’ve informed that you have never been in a sexual relationship with him? Complainant: (moves head side to side) [ 8 ] The accused says that he has a series of text messages between he and the complainant from the days after the May 12 th , 2016 encounter which, he asserts, show that she has acknowledged that they had an evening of sexual contact on the evening of May 12 th , 2016.

The text messages are attached to his affidavit. They are not graphic in their descriptions of the evening of May 12 th , 2016 but the natural inference from those text messages is that she acknowledges some form of sexual contact between them. [ 9 ] The accused wishes to cross examine the complainant on the previous sexual conduct because he says that the denials in the statements to the police establish that she has lied to the police and, as such, her credibility is impeached.

ISSUE [ 10 ] Has the accused established a proper foundation to enter into a voir dire for the purpose of asking the complainant about prior sexual activity?

POSITION OF THE PARTIES [ 11 ] The Crown asserts that the court ought not to enter into the voir dire for two principle reasons; that the defense material fails to properly establish an evidentiary foundation and is incomplete and, alternately, that any evidence gathered in the voir dire would not be admissible in any event and as such ought not to be allowed. [ 12 ] The accused asserts that the questions regarding previous sexual activity is being led solely to challenge the complainant’s credibility, that she lied to the police and her evidence is therefore not reliable and not for the improper purpose of impugning her character as a result of her previous sexual history or any of the sexual conduct myths.

ANALYSIS [ 13 ] It has long been accepted that the prior sexual history of the complainant has no

part in the assessment of the credibility of the complainant nor in the assessment as to whether she was more or less likely to have consented to the sexual activity at issue in the proceedings. This concept is captured in

section 276 of the Criminal Code which provides: 276.

(1) In proceedings in respect of an offence under

section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or

section 170, 171, 172, 173, 271, 272 or 273, evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that 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.

(2) In proceedings in respect of an offence referred to in subsection (1), no evidence shall 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 sections 276.1 and 276.2, that the evidence (

a) is of specific instances of sexual activity; (

b) is relevant to an issue at trial; and (

c) has significant probative value that is not substantially outweighed by; the danger of prejudice to the proper administration of justice.

(3) 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 defense; (

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. 1980-81-82-83, c. 125, s. 19; R.S.C. 1985, c. 19 (3rd Supp.), s. 12; 1992, c. 38, s. 2; 2002, c. 13, s. 13 . [ 14 ] The Criminal Code provides that, before any evidence can be led with respect to prior sexual activity of the complainant, the accused must apply to the court to conduct a voir dire to determine whether or not the questioning of the complainant about the prior sexual activity will be allowed. The process for such applications are comprehensively outlined in

section 276.1 of the Criminal Code . It provides: 276.1

(1) Application may be made to the judge, provincial court judge or justice by or on behalf of the accused for a hearing under

section 276.2 to determine whether evidence is admissible under subsection 276(2) .

(2) An application referred to in subsection (1) must be made in writing and set out: (

a) detailed particulars of the evidence that the accused seeks to adduce, and (

b) the relevance of that evidence to an issue at trial,

and a copy of the application must be given to the prosecutor and to the clerk of the court. [15] The jury and the public are excluded from the courtroom while the court conducts the inquiry. See 276.2(1) of the CriminalCode. The complainant cannot be compelled to testify in the voir dire albeit that there is no reason to believe that they are not acompetent witness to testify. See 276.2 (2) of the Criminal Code.

At the end of the voir dire the court is called upon to articulate whatevidence will and will not be admissible before the trier of fact and to articulate reasons why the evidence is admissible or inadmissible. See 276.2(3) of the Criminal Code. [16] It is to be remembered that the primary purpose of

section 276 of the Criminal Code is to rid the fact-finding process of the twinmyths which often surround prior sexual conduct. These myths of course are that an unchaste woman or man would be more likely toconsent to sexual intercourse or sexual activity and that unchaste woman or man are generally less worthy of belief. As both of thesemyths are clearly wrong they obviously play no

part in the fact-finding process. On the other hand, this does not mean that prior sexualactivity may not be relevant for some other legitimate purpose during the course of the fact-finding process. [17] An example of this legitimate use of prior sexual activity is found in the decision of the Supreme Court of Canada in R. v.Crosby, (SCC), [1995] 2 S.C.R. 912. In that decision the complainant gave inconsistent evidence about prior sexualactivity with the accused in her statement to the police compared to what she had said at the preliminary inquiry.

This inconsistencyclearly went to her credibility and the reliability of her evidence at the trial. It was the kind of inconsistency that would be highlyrelevant at trial for the purpose of the trier of fact determining the issue of credibility. [18] The trial judge had excluded the use of the inconsistent evidence because to put that evidence to the complainant requiredreferring to previous sexual activity unrelated to the charge between the complainant and the accused. The accused was convicted ofsexual assault. The Nova Scotia Court of Appeal upheld that conviction.

The Supreme Court of Canada overturned the convictionfinding that the trial judge had erred in excluding the inconsistent statement. [19] In finding the unrelated prior sexual activity admissible the court wrote: However, although the defense of honest but mistaken belief in consent was not realistically at issue in the present case, thecircumstances were nonetheless somewhat exceptional.

In particular, it appears from the transcripts that the only reason the unrelatedsexual activity of November 1 was at all implicated was because it was directly referred to by police while posing a question which did,indeed, bear on the sexual activity which formed the subject matter of the charge.

The effect of the trial judge’s invocation of section276 of the Criminal Code in this case was therefore to exclude otherwise admissible evidence [the complainant’s prior statement as toher original intention in going to the Crosby House] by piggybacking it atop otherwise prima facie inadmissible evidence [the evidenceof the unrelated sexual activity]. In my view, it would be unfair for an accused person to be denied access to evidence which is otherwiseadmissible and relevant to his defense if the prejudice related to admitting that evidence is uniquely attributable to the authorities’conduct.

I do not believe that

section 276 was ever designed or intended to be employed to prevent cross examination in a situation suchas this. [20] The court was careful to point out that when otherwise admissible evidence might be excluded as a result of its reference to priorsexual activity unrelated to the offense, the court must undertake a careful balancing exercise that is “sensitive to many differing, andpotentially conflicting, interests.” In Crosby the inconsistency was clearly highly relevant and pertinent to the issue of credibilitywhereas the nature of the prior sexual activity was not such that it would unduly create potential prejudices against the complainant’spersonal dignity, her privacy interests or the persistent myths that surround the use of prior sexual activity. [21] It is important to point out that at this point in the process the Court is not being asked to make a determination whether theevidence is or it is not admissible.

Rather the Court is being asked simply said to conduct an inquiry as to whether or not otherwiserelevant and probative evidence ought to be excluded on policy grounds. The accused is simply asking that the court embark on thelegitimate inquiry as to whether the value of the evidence and its utility in providing the accused with his right to make full answer anddefence outweighs the policy considerations which properly exclude consideration of such evidence. [22] The question then arises as to what is the burden on the person seeking to enter into the voir dire?

At the conclusion of theevidence of the complainant in chief the accused must bring their application to cross examine on the prior sexual activity in question.

Inorder to do so the accused must: First: provide written notice to the crown which is filed with the clerk of the court; the notice must be provided at least seven days priorto the application unless the court abridges that limit; Second: particularize the evidence that he or she intends to adduce; Third: the notice provided must articulate the relevance of the evidence to the issues at trial; Fourth: The Court will excuse the jury and the public in order to consider the application. [23] If the Court is satisfied that the appropriate procedural steps have been taken as indicated above the court must grant theapplication to hold the voir dire if, “the evidence sought to be adduced is capable of being admissible under subsection 276 (2).” Emphasis added. [24] The Saskatchewan Court of Appeal in Ecker v.

The Queen, (SK CA), [1995] SJ 53 provides a helpfularticulation of the considerations to be applied in the application for a hearing. It follows from the foregoing that an accused who seeks on application under

section 276.1 to adduce evidence of a specificincident of past sexual conduct is asking in effect that such evidence be admitted for purposes other than those contemplated by subs.276 (1) and on the grounds, first, that the evidence is relevant to an issue at trial and has probative value not overborne by its prejudicialeffect upon the proper administration of justice; and, second, that it is to be used legitimately in keeping with its genuinely relevant and

probative purposes. Confronted with such an application the judge must first determine, in accordance with

section 276.1 and on the face of the matter, whether the proposed evidence is “capable of being admissible under subs. 276(2).” If so, the judge must then determine, in accordance with s. 276.2 and on a hearing into the matter, whether and to what extent the evidence “is admissible under subs. 276(2).” As for the first of these determinations, it would seem to me that such doubts as might exist at this stage are better left to be resolved at the next or hearing stage.

I say that for the reason the first stage entails only a facial consideration of the matter and only a tentative decision so far as the evidence appears capable of being admissible. Moreover, the courts must be cautious when applying the limits on the rights of an accused to cross examine and adduce evidence. And so I am of the view that unless such evidence clearly appears to be incapable of being admissible, having regard to the criteria in subs. 276(2) and the indicia of subs. 276(3)the judge should proceed to the evidentiary hearing stage.

Section 276.1 simply provides that the Court should conduct the inquiry if the proposed evidence “is capable of being admissible under

section 276 [2].” The threshold for conducting the hearing is appropriately a relatively low one. [ 25 ] In the case at bar the accused has met all the procedural requirements contained within

section 276.1 . The crown argues that, in effect, the accused has failed to properly particularize the prior sexual activity and further that the text messages attached to his affidavit appear to be an incomplete list of all the text messages in the relevant time frame between the accused and the complainant.

While it is apparent that some portions of the text message conversation might be missing there is a sufficient record before the Court to allow the court to be satisfied that the alleged prior sexual activity is particularized sufficiently that the complainant and the crown are able to adequately prepare for the hearing.

The disclosed material articulates the date and time of the alleged prior sexual activity as well as the evidence that the accused intends to rely upon to adduce that evidence. [ 26 ] The material equally particularizes the alleged inconsistencies between the prior sexual activity and the inconsistent statements made to the police with respect to that activity and how those inconsistencies are relevant to a fact in issue of the trial, the complainant’s credibility.

If there are some weaknesses in the accused’s material or the crown wishes to challenge the natural inferences from that evidence that is a matter properly considered at the conclusion of the hearing. [ 27 ] The crown further argues that the prior sexual activity on which the accused intends to cross examine is not capable of being admissible because the acts complained of are necessarily collateral issues and therefore the accused must take the answers to his cross examination of the complainant and cannot go behind those answers.

The crown argues that the complainant will deny at trial any prior sexual activity between herself and the accused. In the face of that denial at trial there will be no inconsistency between her evidence and the statements she made to the police. If there is no inconsistency, the crown argues, the evidence will necessarily have no probative value. [ 28 ] That is too simplistic an approach to the application to conduct a hearing.

The natural inference drawn from the combination of the evidence of the accused contained within his affidavit and the supporting text messages is that there was sexual activity on May 12, 2016 between the accused and the complainant. This is inconsistent with her statements to the police. Clearly that inconsistency is capable of being admissible because it is probative directly to the issue of credibility without engaging the improper use of prior sexual activity in the fact-finding process.

It may be that when the Court is called upon to balance the many competing interests that arise from the introduction of this evidence before the trier of fact it’s probative value may be outweighed by the prejudicial effect it will have on the trial process and the other social difficulties that arise with the use of such evidence. [ 29 ] Given that the evidence is capable of being admissible at trial, the application by the accused to enter into a voir dire at the conclusion of the complainant’s evidence in chief is granted. ______________________________ The Honourable Judge D.M. McKimm