R. v. Hillier, 2021 NLSC 21

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Hillier , 2021 NLSC 21 Date : February 10, 2021 Docket : 201903G0175 Her Majesty The Queen v. Marcus Hillier Restriction on Publication: Pursuant to

section 278.95(1) of the Criminal Code , no person shall publish, broadcast or transmit in any way, any of the following: the contents of the application made under

section 278.93 ; the evidence taken, the information given and the representations made at an application under

section 278.93 or at a hearing under

section 278.94; the decision of the justice under subsection 278.93(4) and the determination made and the reasons provided under

section 278.93(4) subject to further order of the Court under

section 278.95(d). AND: Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way. AND: Restriction on Publication: By court order made under subsection 539(1) of the Criminal Code , the evidence taken at the preliminary inquiry shall not be published in any document or broadcast or transmitted in any way until the accused is discharged after the preliminary hearing, or, if the accused is committed to stand trial, until the end of the trial.

Before: Justice Glen L.C. Noel Edited Transcript of Oral Reasons for Judgment Place of Hearing: Grand Falls-Windsor, Newfoundland and Labrador Dates of Hearing: November 4, 2020 & February 2, 2021 Date of Oral Judgment: February 2, 2021

Summary: The Accused made Application under s. 278.93(1) of the Criminal Code to cross examine the Complainant on identified specific instances of sexual activity. The Accused claimed such questioning was necessary on the issue of honest but mistaken belief in communicated consent. The Court held the Social Media Communications between the Accused and the Complainant, and certain other sexual activity between the Complainant and another person did not meet the threshold standard of admissibility.

The Court ordered a Stage 2 admissibility hearing on other identified sexual activity, and gave directions on the Complainant’s entitlement to independent government-funded counsel for the admissibility hearing. Appearances: Tina M. Walsh, Q.C. Appearing on behalf of the Crown Derek P. L. Ford Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. McMillan, 2019 ONSC 5616 ; R. v. A.T. , 2020 NLSC 31 ; R. v. Barton , 2019 SCC 33 ; R. v. Goldfinch, 2019 SCC 38 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46 ORAL REASONS FOR JUDGMENT

Noel, J. : INTRODUCTION [ 1 ] This is my decision on the Stage 1 threshold hearing of Mr. Hillier’s Application under s. 278.93(1) of the Criminal Code , R.S.C. 1985, c. C-46 on whether certain evidence is admissible under s. 276(2) . [ 2 ] Mr. Hillier stands charged that on or about 1 Dec 2018, at or near Bishop’s Falls, he did commit a sexual assault on the Complainant, contrary to s. 271 of the Criminal Code . He has elected to be tried by judge alone. The trial is to commence on Tuesday, 22 June 2021. background

Section 276 Evidentiary Regime [ 3 ] Evidence that the Complainant engaged in sexual activity with the Accused or anyone else, other than the sexual activity alleged in the charge, is subject to the special evidentiary regime set out in the Criminal Code . Section 276(1) declares inadmissible evidence of other sexual activity offered to support either the inference that the Complainant is more likely to have consented by reason of the sexual nature of the other activity, or the inference that the Complainant is less worthy of belief by virtue of the sexual nature of the other activity.

This is to prevent what is referred to as “twin-myth” reasoning. [ 4 ] The 2018 Amendments to the Code, specifically s. 276(4) defines “sexual activity” to include, “any communication made for a sexual purpose or whose content is of a sexual nature.” [ 5 ] Mr.

Hillier has made his Application in writing, as per s. 278.93(2) supported by Affidavit evidence, setting out detailed particulars of the evidence he seeks to adduce, and the relevance of that evidence to an issue at trial. [ 6 ] To hold a Stage 2 hearing, where the Complainant is entitled to be represented by counsel, I must be satisfied under s. 278.93(4): that the evidence sought to be adduced is capable of being admissible under s. 276(2). [ 7 ] For evidence of other sexual activity to be admissible under s. 276(2) the Accused must establish four requirements: 1.

It is not being adduced for twin-myth reasoning; 2. It is relevant to an issue at trial; 3. It is of specific instances of sexual activity; and 4. It has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. The Identified Sexual Activity [ 8 ] The Accused has identified specific instances of sexual activity to include: 1.

Previous communications through social media applications, Tinder and Snapchat at an uncertain point in time, but in advance of the night in question identified at paragraph 5 of the Application, and paragraphs 4, 5, and 6 of the Affidavit filed on 13 November 2020. I will refer to these as the “Social Media Communications.” 2. Other sexual activity that occurred on 1 December 2018, prior to the alleged incident of the sexual assault. This other sexual activity includes:

i) There is a reference that the Complainant started to kiss B.D. on the mouth and neck and began groping him.

B.D. told the Complainant “not here, would be awkward” (identified at paragraph 9 of the Affidavit). ii) The incident where the Complainant and B.D. went into the Applicant’s room to have sexual intercourse (identified at paragraph 7 of the Application and paragraph 10 of the Affidavit). iii) The incident where the Complainant sat on the couch, and she and the Applicant kissed (identified at paragraph 8 of the Application and paragraph 13 of the Affidavit). iv) The incident where the Complainant and B.D. went to the Applicant’s room to have sexual intercourse just prior to the Applicant admittedly being invited in the room by the Complainant (identified at paragraph 9 of the Application and paragraph 15 in part of the Affidavit).

v) Communications between the Applicant and the Complainant regarding the possibility of the parties engaging in a threesome that evening (identified at paragraphs 9 and 11 of the Applicant’s additional Factum and paragraph 12 of the Affidavit). Crown’s Position

[ 9 ] I would point out in the Crown’s Supplemental Factum filed on 14 December 2020, the Crown consents to item number 2(

v) above concerning the communications going to a Stage 2 hearing. The Crown objects to the other matters going to a Stage 2 hearing, and seeks a ruling that such be ruled inadmissible. Accused’s Position [ 10 ] Mr. Hillier’s counsel seeks to cross examine the Complainant regarding the identified evidence on the issue of the Accused’s defence of honest but mistaken belief in communicated consent. [ 11 ] The Accused argues the “interactions” on the night of the alleged sexual assault are not subject to the s. 276 regime. Mr.

Ford submits the time and proximity of the interactions constitute part of the res gestae of the offence, and not prior sexual activity. The Latin term res gestae means “transaction”. Where an incident and the alleged offence form part of the same transaction, and the transaction cannot be understood without it.

Alternatively, the Accused seeks to adduce evidence under permitted grounds of s. 276. analysis Stage 1 Threshold Ruling [ 12 ] I agree with the Crown that all of the identified instances of sexual activity fall within the scope of s. 276, and I reject the Accused’s argument that it is part of the res gestae of the offence. [ 13 ] I have concluded the Social Media Communications are not relevant to establish the Accused’s defence. The Complainant cannot be cross examined on the Social Media Communications and the Accused cannot lead evidence on the Social Media Communications.

To allow questioning on the Social Media Communications, regarding willingness to engage in a threesome or to use handcuffs during sexual activity will serve no other purpose than twin-myth inferences, and embarrass and unnecessarily invade the Complainant’s privacy interests on social media platforms. [ 14 ] I am following the recent authorities of R. v. McMillan , 2019 ONSC 5616 , and R. v. A.T. , 2020 NLSC 31 in ruling such evidence to be inadmissible. Both decisions apply to the Supreme Court rulings in R. v. Barton , 2019 SCC 33 and the majority opinion of the Supreme Court in R. v.

Goldfinch , 2019 SCC 38 . [ 15 ] I am also ruling the Accused cannot question the Complainant, B.D. or otherwise lead evidence on other sexual activity between the Complainant and B.D.; and specifically that activity is set out in paragraphs 9, 10 and 15 of the Affidavit. At paragraph 9, what I am not permitting, is the Complainant started to kiss B.D. on the mouth and neck and began groping him. B.D. told the Complainant “not here, that would be awkward.” At paragraph 10, there is the reference that B.D. came out and mentioned that he couldn’t wait until they got home and asked if they could use the room again.

That will not be permitted. Specifically, at paragraph 15 what is not permitted, is the reference about hearing noises coming from behind the door that sounded as though they were being intimate. [ 16 ] What I will allow, at the threshold stage, is the proposed evidence of the parties engaging in a threesome that evening. The kissing, and other physical contact between the Accused and the Complainant. I will allow matters specifically outlined in paragraphs 12, 13, 14, 15 (save and except what I indicated), and paragraphs 16 and 17 of the Affidavit. [ 17 ] As Stack, J. pointed out at paragraph 32 in R. v.

A.T. , 2020 NLSC, the Appeal Courts of Ontario and Saskatchewan advised it is preferable for courts to take a cautious approach to establishing the limits at the first stage of s. 276 inquiry, and to leave doubts regarding the admissibility of the proposed evidence to the Stage 2 hearing.

Stage 2 Admissibility Hearing [ 18 ] Further consideration of the Complainant’s rights and the other factors for consideration under s. 276(3) will occur at the Stage 2 admissibility hearing, when I provide my reasons as required by s. 278.94(5). [ 19 ] In accordance with s. 278.94(3), I am directing Crown counsel to inform the Complainant of her right to be represented by independent counsel funded through the applicable government program or plan. [ 20 ] Crown counsel is to provide counsel for the Complainant with copies of: 1. The Accused’s Application and supporting Affidavits; 2. The Applicant’s Brief; 3.

Crown’s Brief and Supplemental Brief; and 4. The additional case law I have brought to counsel’s attention not contained in the Briefs. [ 21 ] I will provide an edited transcript of these reasons to counsel, and Crown counsel can provide a copy to counsel for the Complainant. [ 22 ] The Complainant is to be advised the Stage 2 admissibility hearing will proceed in Grand Falls-Windsor on Friday, 23 April 2021, commencing at 10:00 am.

If counsel intends to file any written brief, such brief is to be filed on or before 9 April 2021, with a copy provided to counsel for the Crown and the Accused. [ 23 ] All counsel will be permitted the opportunity to make further oral submissions. [ 24 ] I am giving leave to counsel to request a Case Management Meeting via teleconference with the Accused present via

teleconference as well, in the event there is any reason the hearing will not proceed on 23 April 2021. _____________________________ Glen L.C. Noel Justice