R. v. J.S., 2016 ONCJ 59

WARNING The court hearing this matter directs that the following notice be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. Identity of offender not to be published. —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. Identity of victim or witness not to be published.—

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. No subsequent disclosure.— No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act , which deals with the consequences of failure to comply with these provisions, states as follows: 138. Offences.—

(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE sitting under the provisions of the Youth Criminal Justice Act , S.C. 2002, c. 1, as amended; DATE: 2016·02·02 COURT FILE No.: Goderich Y015043 CITATION: R. v. J.S. , 2016 ONCJ 59 BETWEEN: HER MAJESTY THE QUEEN — AND — J.S., a young person Before Justice Brophy Heard on 6 January 2016 Reasons for Ruling on

Section 276 Application

Released on 2 February 2016 Laura Grant ............................................................................................ counsel for the Crown David A. Reid ........................................................................... counsel for the defendant J.S. BROPHY J.: INTRODUCTION [ 1 ] This is a ruling on a

section 276 application brought by the defence. The matter was argued on 6 January 2016. The application was granted, with reasons to follow. These are those reasons. [ 2 ] The accused in this matter, J.S., born […] 1997, faces charges that on 9 March 2015 he committed a sexual assault against R.E. contrary to

section 271 of the criminal code. [ 3 ] The defence brought a

section 276 application to permit cross examination on prior sexual activity pursuant to sections 276.1 , 276.2 and section 276 (2) of the Criminal Code of Canada . The application is dated 29 December 2015. The case came on for trial 6 January 2016 and the 276 application was argued at the outset of the trial in the form of a voir dire. [i] APPLICATION PROCEDURE –

SECTION 276.1 [ 4 ] The procedure for a

section 276 application is set out below: 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). [ 5 ] No exception was taken by the Crown as to the proper constitution of the application. EVIDENTIARY BASIS [ 6 ] The evidentiary basis for the application is as follows: a. The complainant and the accused were high school students at the time of the incident. They were young people living in a small rural community. The accused lived in his parents’ home. b.

In the transcript of the police interview with the complainant she says that she had an on again and off again relationship with the accused and that over 90 times he had touched her sexually without her consent, mostly in his home. Nevertheless she continued her relationship with him and attended at his house regularly. c. The statement of the complainant is that on none of the previous occasions where she says the accused touched her inappropriately did she in fact consent. d.

Next there is a printout of a Facebook private message communication between the complainant and the accused wherein she says that what had happened on the day of the specific incident complained about was not consented to and that this had happened previously. In that exchange it is alleged by the Crown that there is an inculpatory admission by the accused and the Crown said unequivocally that it was the intention of the prosecution to enter the statement into evidence. e.

Counsel for the accused has not brought a Charter Application seeking to exclude the statement, although voluntariness was not averted to in the argument. The argument proceeded on the basis that the Facebook posting would be admitted into evidence. As this was

a private communication between the parties and there was no person in authority connected to the transaction, it would seem that itwould be admissible, subject to proof that the accused was a participant in that communication. [7] The facts advanced by the defence were capable of establishing a basis for receiving the evidence sought and it was thereforeimmediately dealt with by way of a hearing on its merits.

SECTION 276 HEARING [8] The relevant sections of the Criminal Code are 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 otherperson, 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 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 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 intoaccount (

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. DEFENCE ARGUMENT [9] The defence indicates that the accused will be testifying and that the defence is consent.[ii] [10] It is conceded by the defence that where the defence is one of consent it is rare that a

section 276 application is successful.See R. v. Dickson (1993), (YK CA), 81 C.C.C. (3d) 224 (Y.T.C.A.), affd (SCC), [1994] 1 S.C.R.153. However the defence argues that this case is unusual because of the number of incidents the complainant says occurred without herbreaking off the relationship and the confirmation of those facts in her Facebook post that the Crown proposes to introduce intoevidence. Exceptional circumstances can result in a

section 276 application being granted where the defence is consent. See R. v. Crosby, (SCC), [1995] 2 S.C.R. 912. [11] The defence argument is that to decide the main issue in this case, which is credibility and reliability, it is necessary tounderstand the relationship between the complainant and the accused and that this is impossible without cross examination beingpermitted, particularly with respect to the allegations made by the complainant in her police statement and the Facebook post.

Failing toallow this cross examination would not allow the court to properly assess the evidence of the complainant and the accused. [12] It is argued by the defence that it would be artificial to ask questions about this extended relationship and the many times theparties interacted without touching on a fundamental aspect of that contact. The complainant said that the accused touched her sexuallywithout her consent approximately 90 times. And yet she continued to see him and to spend time at his house.

The argument is that thisalone suggests exaggeration on the part of the complainant. [13] Moreover these events are referred to in the Facebook post initiated by the complainant that in its later

part contains astatement by the accused which the Crown argues is inculpatory. The Crown has stated that it intends to introduce the statement. But thedefence says that for that statement by the accused to be properly understood it is necessary to be able to cross examine the complainanton the complete posting, which necessarily implies that there would be questions about the sexual aspect of the relationship. [14] In this case it is argued that the circumstances are so unusual that it would be unfair not to allow the defence to cross examine

on the previous events, including their sexual component. The defence argues that the cross examination will be on a subject that isrelevant – that is to say credibility. CROWN ARGUMENT [15] The Crown argument is that the events prior to 9 March 2015 are general in nature and that as provided for in R. v. Darrach,2000 SCC 46 , [2000] 2 S.C.R. 443 at paragraphs 57 and 58 they should not be subject to cross. The issue is whether thecomplainant consented on 9 March 2015 and that anything that happened before that will not assist in that determination.

Thecomplainant says that she did not consent and therefore the Crown argues that what happened before is not relevant. [16] The Crown also says that the court has to be wary of the underlying danger with respect to this type of evidence and themotivation in calling it, that is to say the risk that the argument would become - if the complainant consented previously the complainantwould be more likely to consent on the specific occasion complained about.

In this case where the complainant, although she deniesconsenting to previous sexual activity, nevertheless was continuing her relationship with the accused, the Crown says that it could still beargued by the defence that this would support her consenting on this occasion and that this would offend section 276(1)(

a) of the Code. ANALYSIS [17] Section 276(1) provides that the court should not admit evidence that supports either of the twin myths set out therein. [18] In this case the complainant says that she did not consent to any previous sexual activity. Therefore logically it cannot beargued that her previous non-consent would lead to an inference that she was more likely to have consented in the instant case.

Thereforethe relevant concern is whether or not the permission to cross examine on instances of sexual activity where she assert she was non-consenting would lead to an inference that she is less worthy of belief. [19] In determining whether or not that inference would follow from a cross examination related to the relationship between theparties and the complainant’s allegations of sexual impropriety, it is necessary to review the factors set out in section 276(2) and (3) Section 276(2) [20] Notwithstanding the Crown argument that the previous events were general in nature, the evidence suggests that they were ofspecific similar instances of sexual touching, albeit numerous in number. [21] The defence wishes to test the memory of the complainant with respect to those events and thereby challenge the credibilityand reliability of the complainant.

Clearly credibility and reliability are relevant issues in this case. [22] With respect to the requirement that there be significant probative value, Darrach, supra, states that the evidence must becapable of raising a reasonable doubt, but that it is not necessary for the accused to demonstrate strong and compelling reasons for theadmission of the evidence. Darrach, supra, goes on to say that the use of the word "substantially" in section 276(2)(

c) raises the standardfor exclusion once the accused has shown it to have significant probative value. [23] In this case there is significant probative value to the evidence, not so much with respect to the sexual component, given thedenial of consent, but rather the number of events that was complained about, with the complainant nevertheless continuing herrelationship with the accused. Section 276(3) [24] A bedrock principle of criminal justice is the right of the accused to make full answer and defence.

That principle looms largein this case. [25] The societal interest in encouraging complainants to come forward in sexual assault cases is not seriously impacted in thiscase because of its unusual circumstances. [26] There is a reasonable prospect that the cross examination will prove helpful in arriving at a just determination in that it willallow the court to make a proper assessment as to the credibility and reliability of the evidence of the complainant.

The concern iswhether the statements made by the complainant were exaggerations or not, and if they were exaggerations were they brought on byyouthful hyperbole or were they indicative of an inability to properly report events. The case of R. v. Anstey (2002), 2002 NFCA 7, 162 C.C.C. (3d) 567 (Nfld.

C.A.) notes that questions that go to the improbability of specific complaints are relevant tocredibility. [27] Further given the unusual facts in this case the admission of the evidence will carry a very low risk that the cross examinationwill support any discriminatory belief or bias or will case cause prejudice to the complainant’s personal dignity, rights of privacy orpersonal security.

RULING [28] After taking into account all of the above, the court is of the view that the probative value of the evidence concerning theprior relationship between the complainant and the accused is high and the prejudicial impact on the complainant is low, particularly inlight of the fact that she denies ever having consented to any sexual contact.

It is in the court’s view necessary to allow the crossexamination to enable the accused to make full answer and defence by challenging the memory and accuracy of the evidence of thecomplainant. [29] Accordingly counsel for the accused is given permission to cross examine the complainant on the prior contacts between thecomplainant and the accused of a sexual nature, but only in the frame work of the information provided in the complainant’s statement to

the police and the Facebook posting. Released: 2 February 2016 Signed: “Justice Brophy” [i] It should be noted that at the beginning of the trial the defence also advised the court that he was obtaining an intellectual report with respect to the defendant and at an appropriate time may be seeking to enter it into evidence. The Crown advised that admissibility would be contested. [ii] With a caveat that if the evidence in the case went in an unanticipated direction the defence of honest but mistaken belief in consent might arise.

As part of that conversation the Crown also reminded the court that if honest but mistaken belief is asserted there has to be an air of reality to defence before the court should consider it.