Her Majesty the Queen - v. -, 2013 SKPC 71

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2013 SKPC 071 Date: April 30, 2013 Information: 3173291Z Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - B.H.N. Appearing: Brian Hendrickson, Q.C.

For the Crown Estes Fonkalsrud For the Defence Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of a name or other information that would identify someone as either a young person being dealt with under the Act , or as a child or young person who is a victim or a witness in relation to an offence alleged under the Act . _____________________________________________________________________________ RULING ON VOIR DIRE M.

GORDON , J _____________________________________________________________________________ [ 1 ] The accused is charged that he did on or about the 28 th day of September 2012, at or near Moose Jaw, Saskatchewan commit

a sexual assault on K.L. contrary to s. 271 of the Criminal Code . The defence made an application pursuant to s. 276.1 of the Criminal Code for a hearing in accordance with s. 276 of the Code . The defence bases its application on such evidence would be extremely relevant to the accused’s defence that the complainant consented or the accused had an honest but mistaken belief in consent. The application was heard April 18, 2013. [ 2 ] The statutory authority and procedure is set out in s. 276 , 276.1 and 276.2 of the Criminal Code as follows: 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 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. 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.

(3) The judge, provincial court judge or justice shall consider the application with the jury and the public excluded.

(4) Where the judge, provincial court judge or justice is satisfied (

a) that the application was made in accordance with subsection (2), (

b) that a copy of the application was given to the prosecutor and to the clerk of the court at least seven days previously, or such shorter interval as the judge, provincial court judge or justice may allow where the interests of justice so require, and (

c) that the evidence sought to be adduced is capable of being admissible under subsection 276(2), the judge, provincial court judge or justice shall grant the application and hold a hearing under

section 276.2 to determine whether the

evidence is admissible under subsection 276(2). 276.2

(1) At a hearing to determine whether evidence is admissible under subsection 276(2), the jury and the public shall be excluded.

(2) The complainant is not a compellable witness at the hearing.

(3) At the conclusion of the hearing, the judge, provincial court judge or justice shall determine whether the evidence, or any partthereof, is admissible under subsection 276(2) and shall provide reasons for that determination, and (

a) where not all of the evidence is to be admitted, the reasons must state the part of the evidence that is to be admitted; (

b) the reasons must state the factors referred to in subsection 276(3) that affected the determination; and (

c) where all or any part of the evidence is to be admitted, the reasons must state the manner in which that evidence is expected to berelevant to an issue at trial.

(4) The reasons provided under subsection (3) shall be entered in the record of the proceedings or, where the proceedings are notrecorded, shall be provided in writing. [3] Sections 276.1 and 276.2 set out a two-stage process for the determination under s. 276(2). The case law suggests that thefirst stage involves facial consideration only and once the requirements are met the judge should hear the application in accordance withthe hearing under s. 276.2 and decide the issue in accordance with a consideration of the factors listed in the Code. In R. v. Ecker, (SK CA), 96 C.C.C. (3d) 161, 128 Sask.

R. 161, the Saskatchewan Court of Appeal stated at paragraph 61: 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 atthe next or hearing stage. I say that for the reason the first stage entails only a facial consideration of the matter and only a tentativedecision so far as the evidence appears capable of being admissible. Moreover the Courts must be cautious when applying the limits onthe rights of an accused to cross-examine and adduce evidence.

And so I am of the view that unless such evidence clearly appears to beincapable of being admissible, having regard for the criteria of subs. 276(2) and the indicia of subs. 276(3), the judge should proceed tothe evidentiary hearing stage. [4] I held that the defence had complied with s. 276.1 of the Code and thus the hearing was held. At the second stage of theapplication the accused testified on a voir dire. He described how his relationship with the complainant developed at the beginning ofthe school year about September 10, 2012.

When the complainant broke up with her boyfriend at the time the accused described thatweek how the relationship quickly developed and they were soon french kissing and making out. The accused described on September24 that they had consensual intercourse at his house. They started to have consensual sex at Wakamow Park in a deserted parking lotwhen the complainant said her mother would be upset if she was late and so they headed home. On Wednesday that week he testifiedthey also had consensual sex and on September 27, they were texting regularly and met up together and had consensual sex at theaccused’s home.

Then the accused drove the complainant home. [5] The Crown was allowed to cross-examine the accused but was limited by the Court with respect to some of the questions asthey were not appropriate at this stage. This view is supported in the Supreme Court of Canada case of R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, where at paragraph 65 the Court stated that the purpose of this voir dire to admit evidence of prior sexualactivity was not “defence disclosure”. The Court found the case analogous to the procedure in R. v.

Underwood, (SCC), [1998] 1 S.C.R. 77 and quoted from the Underwood case at paragraph 10 as follows: The purpose of this voir dire is not “defence disclosure”. It creates no independent rights in the Crown, and, therefore should not betreated as an excuse for the Crown to deeply probe the case for the defence ... the point is to provide the trial judge with the informationhe or she needs to make an informed decision but the Crown has no right to require more than that. ANALYSIS [6] In R. v. Bignall, (Sask. Q.B.), 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 support

an 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. [7] This is the proper starting point. The current s. 276 was enacted following the Supreme Court’s decision in R. v. Seaboyer, (SCC), [1991] 2 S.C.R. 577, and is a codification of that case. This

section states the purposes of any cross-examinationand includes a list of factors the Court is to consider. The requirement is that this cross-examination relate to specific instances. R. v.Darrach, 2000 SCC 46 , 2000 S.C.C. 46, upheld the constitutionality of these sections. Only evidence that is relevant will beallowed. It is clear that the evidence of the accused either by affidavit or viva voce must establish a connection between thecomplainant’s sexual history and the accused’s defence. In R. v.

W.J.A., 2010 YKTC 108, Judge Cozens states at paragraph 25: The objective of 276(2) is to “... ensure that any cross-examination of the complainant is not with respect to general reputation and isspecific enough to provide adequate notice to the Crown and the complainants of the evidence sought to be adduced so that they can properly respond”. (Quesnelle at para. 42; see also R. v. B.(B.) (2009), (ON SC), 64 C.R. (6th) 58 (Ont. S.C.) at para.16.) [8] In R. v. Darrach, supra, at paragraph 45, the Court stated:

Section 276 and the procedure it mandates are consistent with the laws of evidence. Sections 276(1) and 276(2) are rules to determinerelevance and admissibility. They were articulated in Seaboyer as common law rules and they 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 “there is no logical or practical link between a woman’s sexual reputationand whether she is a truthful witness” or [page 472] whether she is more likely to have consented to an alleged assault [page 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.

Lamar C.J. described the burden of proof on a voir dire to introduce evidence (in that case prior inconsistent statements) onbeing “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 page 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 the trial judges in this area. [9] It is clear that evidence of prior sexual activity is not probative of whether consent was actually given but it may beprobative of the accused’s belief that there was consent. The Court must have some basis on which to decide that the evidence sought tobe adduced is relevant.

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 sexualactivity in question, 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 havegreater relevance to issues at trial and will lend greater support to the defence of honest but mistaken belief.

The Court in Darrach atparagraph 39 commented on the meaning of the word “significant” in s. 276(2)(c). The Court held that this means evidence that mustnot be so trifling as to be incapable in the context of all the evidence of raising a reasonable doubt. In the within case, evidence of theexistence of a recent and prior consensual relationship between the accused and the complainant is significant and has probative value inthat it provides context for the defence of consent or in appropriate circumstances honest but mistaken belief in consent. In R. v.

W.J.A.,Judge Cozens 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. [10] Section 276(3) lists the factors the Court shall take into account in deciding whether to allow any cross-examination of thecomplainant in this context.

[11] When I consider factors (a), (

c) and (d), this favours the granting of the application and allowing limited cross-examination inthe area of previous sexual history. Section 276(3)(

b) which is society’s interest in encouraging the reporting of sexual assault offencesdoes give me some concern. This

section is designed to prevent complainants in these cases of having their prior sexual history exposedin open court. If the application is granted, this could possibly have the effect of complainants being more reluctant to report suchcrimes. On the other hand the complainant will be testifying with respect to intimate personal details with respect to the charge beforethe Court. However, s. 276(3)(

e) I think could cut both ways if the application is allowed it could lead to a negative view of thecomplainant. On the other hand, depending on the evidence, it could have the effect of putting the complainant in a more favourable orsympathetic light. It is noted that this is a trial in Youth Court where the parties’ identities will be initials only. There is no jury. Section 276(3)(

g) balances the rights of both the accused and the complainant. The accused must have the right to make full answer anddefence. Any intrusion into the personal security of the complainant can be limited by keeping the questioning confined to a narrow setof circumstances. I do not find any other factor that comes into play as described in s. 276(3)(h). Therefore I find that the applicationby the accused for admissibility meets the criteria of s. 276(2). The accused has leave to elicit evidence at trial concerning his sexualhistory with the complainant from September 10, 2012 to the date of the current allegation.

I do not conclude that the defence in anyway seeks to use this evidence that invokes the “twin myths” for example that an unchaste woman is more likely to consent to sex and isless worthy of belief. The evidence that the defence will be trying to elicit concerns the attitude of the complainant towards the accusedand the existence of a relationship in which the activity took place. This is a relevant circumstance when considering the evidence ofboth parties on the issue of consent or honest but mistaken belief in consent. I adopt the reasoning of the Ontario Superior Court of Justice in R. v.

Strickland, (ON SC), 2007 O.J. No. 517, 45 C.R. (6th) 183 at para. 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. [12] Therefore I am satisfied that the accused has met the burden of proof being on the balance of probabilities and I haveconsidered this in relation to the factors that are enumerated under s. 276.3 as discussed above.

Therefore I will allow defence counsel tocross-examine the complainant or adduce evidence with respect to the following: (1) as to whether the complainant has ever had a consensual sexual relationship with the accused from September 10 to 28, 2012, and inparticular: (

a) the context in which the consensual sexual activity occurred; (

b) whether there was consensual sexual activity on more than one occasion; (

c) the last time the complainant engaged in the consensual sexual activity; (

d) where this sexual activity occurred; and (

e) the nature of the sexual activity. [13] There shall be no evidence adduced in regard to sexual activity with any other individuals nor at any other times and placesother than referred to in this application with respect to the complainant and the accused. This ruling is subject to being revisited as theevidence unfolds at trial in the event it is materially different than the evidence that formed the basis of this ruling. [14] Dated at Moose Jaw, Saskatchewan this 30th day of April, 2013. M. Gordon, J