R. v. Murley, 2020 NSSC 273

SUPREME COURT OF Nova Scotia Citation: R. v. Murley , 2020 NSSC 273 Date: 20200923 Docket: Halifax, CRH No. 474186 Registry: Halifax Between: Edward Smith Murley Applicant v. Her Majesty the Queen Respondent DECISION –

SECTION 276 APPLICATION 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of the Criminal Code , information that may identify the person described in this decision as the complainant may not be published, broadcasted or transmitted in any manner. Judge: The Honourable Justice Kevin Coady Heard: September 18, 2020, in Halifax, Nova Scotia Oral Decision: September 23, 2020 Written Decision: October 2, 2020 Counsel: Kathryn Piché, Counsel for the Applicant Robert Kennedy, Crown Counsel Carbo Kwan, Counsel for the Complainant By the Court: [ 1 ] Mr.

Murley stands charged with several historical sexual offences (1978-1988). The complainant alleges that these offences occurred when she was between five years old and her early teens. Mr. Murley is presently 70 years old and the complainant is now 47 years old. Mr. Murley makes a pretrial application pursuant to

section 276 of the Criminal Code of Canada . He seeks admission of evidence related to previous sexual activity between the complainant and her uncle, David Sherman. [ 2 ] The evidence sought to be admitted on this application is as follows: • From when she was a toddler until she was 11 or 12 years old, she experienced ongoing sexual abuse by Mr. Sherman. • This sexual abuse took place in Halifax, Dartmouth and Windsor, Nova Scotia. • She began receiving counselling when she was 8 years old in relation to, inter alia , the assaults committed by Mr.

Sherman. • When she was nine years old, she told her mother about the sexual assaults committed by Mr. Sherman. • When she was approximately 12 years old, she confronted Mr. Sherman about sexually abusing her. The Crown is opposed to the admission of this evidence, arguing it is caught by the presumptively exclusionary language of

section 276 . The Defence argues that the timing of the complainant’s disclosures of the alleged abuse by Mr. Murley and David Sherman raises serious questions about her credibility. [ 3 ] The issue of the complainant’s credibility is fleshed out at paragraph 22 of the Defence’s pre-hearing brief: It is difficult to comprehend why the Complainant would have disclosed to her mother that she was being sexually assaulted by Mr. Sherman during a time frame that she says she was simultaneously assaulted by Mr. Murley, yet no mention whatsoever of the abuse by Mr. Murley at that time.

If she was enduring abuse by two different perpetrators, why would she feel compelled to make disclosure concerning one and not the other? Why would she be willing to disclose in relation to the perpetrator who is her landlord? These are questions that Defence should be permitted to raise at trial, as they bear directly on the Complainant’s credibility.

[ 4 ] It is noteworthy that the genesis of the proposed evidence is found in the complainant’s September 4, 2016 police statement concerning the alleged abuse by Mr. Murley. The following is from that statement: A. […] Ed wasn’t the only person, you know what I mean, to sexually abuse me. Q. Uh-huh. A. Before Ed there was my mother’s brother, David. Q. how old were you then? A. When that first started I was just a toddler. Q. Do you remember? A. Yeah. Q. Is that something you would like to talk about today? A. Not today. Q. Okay. So if at another time that’s something that you would like to talk about ... A.

Yeah, I would. I ... just ... just not today. It is quite obvious from the context that the complainant offered this information without being asked about it. [ 5 ] The abuse by David Sherman arose at the Preliminary Inquiry without a

section 276 analysis. The following exchanges occurred during cross-examination of the complainant: Q. And that is, I understand at some point you were assaulted by your uncle. A. That is correct. Q. Okay. And that happened before you had met Mr. Murley. A. That is correct. ... A. ... I learned … and because of also the abuse from my uncle, my mother’s brother, who ... he was the very first perpetrator.

So I learned at a very, like, toddler age to cope and manage in my own way of putting this stuff ... like, they tried to explain it to me and mental health have just, like ... it’s like you have, like, this storage shed and of bad stuff. … Q. So the last incident with your mother’s brother David, your uncle … A. Uh-huh. Q. ... was when you were 11 or 12. A. About 11 or 12. Other evidence that could be prohibited by

section 276 arose at the Preliminary Inquiry but Mr. Murley is not seeking admission of that information. [ 6 ] This Application was originally scheduled for August 18, 2020. Mr. Murley’s position, at that time, was that the David Sherman evidence was not caught by the prohibiting factors set forth in section 276(2) and, as such, was admissible. He argued that the evidence is relevant and probative and did not give rise to a reasonable concern that it offended the “twin myths” principle. [ 7 ] The Crown’s position, at that time, was that the David Sherman evidence engages

section 276 in that it supports an inference that the complainant is less worthy of belief. Further, that it is irrelevant to an issue at trial and is of trifling probative value. [ 8 ] Shortly before the hearing, counsel for the complainant advised other counsel of the recent release of R. v. Kuzmich , 2020 ONCA 359 . All counsel agreed that this appellate level decision was clearly germane to this application. Consequently, the matter had to be adjourned for supplemental briefs. [ 9 ] R. v. Kuzmich , supra , holds that an accused person is prevented in a

section 276 application from relying upon information with an “improper foundation”. In other words, it holds that evidence of a complainant’s sexual activity that arises during the Preliminary Inquiry, absent a prior

section 276 hearing, cannot be relied on to ground a subsequent

section 276 application. The Court concluded that the remedy for such a situation is to prevent the accused from seeking to use the evidence in a subsequent

section 276 application, regardless of whether it is otherwise admissible. [ 10 ] R. v. Kuzmich , supra , is obviously problematic for Mr. Murley’s application and he now offers the following three responses:

• The evidence sought to be adduced does not engage

section 276. • Preliminary Inquiry evidence is not the foundation of his

section 276 application. • Kuzmich was wrongfully decided and should not be followed. I have carefully reviewed the submissions and authorities advanced on the second and third points and do not find them persuasive. Consequently, the Court will focus on Mr. Murley’s first response. [11] Mr. Murley argues the David Sherman evidence does not require a

section 276 hearing because the

section is inapplicable toevidence that does not delve into the details of sexual assault. He relies on R. v. T(M), 2012 ONCA 511 and R. v. TWR, 2018 NSPC 33,in support of his argument. He submits that evidence of the fact, rather than the details, of an allegation of prior sexual assault are notprohibited by

section 276. In R. v. T(M), supra, Justice Watt states at paragraph 34: The admissibility rules of s. 276 apply only where the evidence proposed for admission is of extrinsic sexual activity on the part of thecomplainant. A previous allegation of assault, without more, would fall outside the section: R. v. Gervais (1990), (QC CA), 58 C.C.C. (3d) 141 (Que. C.A.), at p. 154. Questions that focus on the fact, rather than the details, of an allegation of sexualassault are not prohibited by the section: R. v. M. (A.G.) (1993), (QC CA), (QC CA), 26 C.R. (4th) 379 (Que. C.A.), at p. 393. [12] In R. v.

TWR, supra, Judge Atwood relied on this authority and concluded at paragraphs 14-18: 14 […] does the evidence proposed to be put before the court by defence constitute evidence that the complainant engaged in sexualactivity other than the sexual activity that forms the subject matter of the charge? 15 I do not believe that it does. 16 Defence counsel wishes to cross-examine the complainant on whether she told her mother that she had been sexually assaulted by aformer intimate partner of her mother's; defence counsel wishes to ask the complainant whether she recanted that accusation at somepoint in time later.

Defence counsel proposes also calling the complainant's mother to give defence evidence on this point. 17 In my view, the evidence sought to be admitted by defence counsel is not evidence that the complainant engaged in sexual activityother than the sexual activity that forms the subject matter of the charge; I base this finding on what I consider to be a well settled line ofauthority. 18 The fact that a complainant made an allegation of sexual assault against a person other than the accused has been held not to becaught by s. 276, when it is the fact of another allegation only, and not the details of it, that an accused seeks to have admitted: R. v.Gervais (1990), (QC CA), 58 C.C.C. (3d) 141 at para. 59 (QCCA); R. v.

M. (A.) (1993), (QCCA), 26 C.R. 4th 379 (QCCA) at 393; M.T., supra, at para. 34. It seems to me that if the fact of an allegation would not fall under s. 276,then, a fortiori, the fact of a recantation of an allegation would land outside the scope of the statute, too: if the mere fact of

an act avoidsthe statute, then a statement denying that the act ever happened must be even less vulnerable to exclusion. A review of the authorities cited by Judge Atwood confirm this to be a well-settled line of authority. [13] Mr. Murley assures the Court that the use to be made of the David Sherman evidence will be very limited. He suggests thefollowing parameters: • The time frame of the alleged abuse; • The location of the alleged abuse; • The timing of the complainant’s disclosures regarding the alleged abuse; • The complainant’s relationship to David Sherman.

This commitment is stated at paragraphs 49 and 55 of Mr. Murley’s pre-hearing brief: 49 In contrast, Mr. Murley offers a number of factors that give rise to concern about the Complainant’s ability to distinguish theallegations, discussed above. None of those factors involve the details of the allegations against Mr. Sherman. The details are notrelevant, and Mr.

Murley does not seek to explore the particulars of the Complainant’s allegations. … 50 Upon consideration of the manner in which the proposed evidence is relevant to issues at trial, it is entirely unnecessary toparticularize the nature of the sexual activity in question. The details themselves would have no bearing on the issues of credibility andreliability identified above. As the Court in R(

V) held, delving into the details in this case would be unduly intrusive and unnecessary inlight of the use sought to be made of the evidence. [14] In R. v. T(M), supra, Justice Watt affirmed a trial-level decision denying admission of evidence of a second concurrent sexualassault. However, he provides guidance on the application of

section 276. The relevant ground of appeal was stated as follows:

… in failing to permit cross-examination of E.G. under s. 276 of the Criminal Code about allegations of similar sexual abuse by her biological father made at the same time she claimed abuse by the appellant; The complainant had reported sexual abuse by her biological father at the same time she complained about the Appellant’s abuse. She disclosed her father’s abuse during a police interview and testified about them at a preliminary inquiry. [ 15 ] Justice Watt discussed “governing principles” at paragraph 29:

Section 276 of the Criminal Code creates a statutory rule of admissibility. Enacted in negative terms, the section, like other admissibility rules, is exclusionary; it precludes the admission of certain evidence. The exclusionary effect of the rule only becomes engaged when three requirements have been met. For discussion purposes, these requirements, which are cumulative, may be characterized as: i. offence charged; ii. subject-matter; and iii. purpose.

The exclusionary rule prohibits the person charged from introducing certain evidence (subject-matter) for a specific use (purpose) in proceedings for a listed crime (offence). And further, at paragraph 32: The “purpose” requirement is crucial to the operation of this exclusionary rule, just as it is with the common law hearsay rule.

To engage the exclusionary rule of s. 276 , the proposed evidence must be offered to support either of two prohibited inferences grounded on the sexual nature of the activity: i. that the complainant is more likely to have consented to the conduct charged; or ii. that the complainant is less worthy of belief. Where the purpose underlying the introduction of the evidence of extrinsic sexual activity is neither of those prohibited by s. 276(1), this exclusionary rule is not engaged.

And further, at paragraph 40: The admissibility rule in s. 276(1) does not exclude all evidence of extrinsic sexual activity of a complainant. What is prohibited is the use of evidence of extrinsic sexual activity to support either or both of the specific, illegitimate inferences described in the section: R. v. Darrach, 2000 SCC 46 , [2000] 2 S.C.R. 443, at para. 32 . [ 16 ] In R. v. Darrach , supra, Justice Gonthier discussed

section 276 at paragraph 32: The accused objects to the exclusionary rule itself in s. 276(1) on the grounds that it is a ‘blanket exclusion’ that prevents him from adducing evidence necessary to make full answer and defence, as guaranteed by

section 7 and 11 of the Charter. He is mistaken in his characterization of the rule. Far from being a ‘blanket exclusion’, s. 276(1) only prohibits the use of evidence of past sexual activity when it is offered to support two specific, illegitimate inferences. These are known as the ‘twin myths’, namely, that a complainant is more likely to have consented or that she is less worthy of belief by reason of the sexual nature of the activity she once engaged in. [ 17 ] I am satisfied that the David Sherman evidence is not being offered to support the twin myths.

Further, I find that it will not offend any admissibility rule and is relevant to a trial issue. Mr. Murley has satisfied me that there are issues around reporting that could impact the complainant’s recollections. I see this more as an issue of accuracy rather than conventional credibility. I will allow cross- examination of the complainant on the David Sherman evidence; however, I will hold the defence to a very limited number of questions that are consistent with the purposes advanced by the Defence.

I am the trial judge, so I will be in a position to supervise the questions to ensure they do not exceed these purposes. This is a judge alone trial, so any jury concerns will not be present. [ 18 ] This approach reflects a balance between the complainant’s

section 276 rights and the accused’s right to make a full answer and defence. I am asking Mr. Murley’s counsel to submit the questions she intends to ask the complainant within the next seven days. Should the Crown conclude the questions do not reflect this decision, we will reconvene to settle the issue. It is important to remember the

section 276 door is not open; it is slightly ajar. Coady, J.