R v. Quesnelle, 2010 ONSC 2698

CITATION : R v. Quesnelle, 2010 ONSC 2698 COURT FILE NO. : 0013/08 DATE: 20100504 WARNING A non-publication order in this proceeding has been issued pursuant to subsection 486.4(1) of the Criminal Code . ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) HER MAJESTY THE QUEEN Respondent ) ) ) ) Sharna Reid, for the Respondent, Her Majesty the Queen - and - ) ) VINCENT QUESNELLE Applicant ) ) ) ) Graham Clark for the Applicant, Vincent Quesnelle ) ) HEARD: April 26, 2010 Thorburn J. R U L I N G 1. The Relief Sought [ 1 ] The Defendant, Vincent Quesnelle is charged with eight counts involving two Complainants.

Counts 1 through 3 on the indictment pertain to charges of sexual assault, threatening death and assault on T.R. on December 29, 2006. Counts 4 through 8 pertain to charges of threatening death, threatening bodily harm, sexual assault with a weapon, robbery, and assault on L.I. on March 5, 2007. [ 2 ] Vincent Quesnelle seeks to introduce evidence of prior sexual conduct with both Complainants that he says took place within three months of the events in question.

He wishes to testify with respect to his prior sexual contact with the two Complainants and to cross-examine the Complainants with respect to these incidents of alleged prior sexual conduct. [ 3 ] More specifically, he seeks to adduce evidence that he has known the Complainant T.R. as a prostitute, she performed fellatio on him approximately one week before the alleged sexual assault and that she had done so as many as five times in the three months preceding this alleged offence.

He also seeks to adduce evidence that on at least two occasions within two to three months of the date of the alleged sexual assault on L.I., Mr. Quesnelle paid L.I. partly in money and partly in drugs in exchange for performing fellatio on him. [ 4 ] Mr. Quesnelle says this evidence is necessary to enable him to make full answer and defence to the allegations brought against him. Reference to his alleged recent sexual history with the Complainants is a necessary part of the narrative without which, his testimony would not make sense. [ 5 ] Mr. Quesnelle has satisfied the procedural requirements of

section 276 of the Criminal Code as he has brought an Application in writing specifying the particulars of the evidence and why he claims they are relevant to an issue at trial. A voir dire was held to determine the admissibility of questioning about Mr. Quesnelle’s alleged recent sexual history with each of the two Complainants.

2. The Allegations of Fact The Alleged Incident Involving T.R. [ 6 ] The allegations against Mr. Quesnelle are that, on December 29, 2006, shortly after midnight, T.R. was in the area of Parliament and Shuter Streets in Toronto. At the time, Ms. T.R. was a prostitute. [ 7 ] Mr. Quesnelle approached her in his van and asked her to perform fellatio on him. He indicated that this could be done at his place of business. Ms. T.R. agreed to perform fellatio for a fee. Ms. T.R. entered the van. Mr. Quesnelle allegedly told her he was a member of Hell’s Angels and had just been released from the Don Jail.

He also indicated that he owned a business. [ 8 ] He drove to a laundromat in the north end of Toronto in a shopping plaza. Upon arrival, Mr. Quesnelle opened the rear door of the laundromat with a key. They went upstairs to the laundromat where Ms. T.R. noticed machines for washing and dry cleaning. Both smoked crack cocaine and went down into the basement. [ 9 ] Ms. T.R. says she asked Mr. Quesnelle if he was ready for the “blowjob” yet. Mr. Quesnelle told her he wanted to engage in anal intercourse. Mr.

Quesnelle allegedly punched her in the mouth, knocked her to the ground, ripped off her pants, turned her over onto her stomach and forced her to engage in anal sex. While doing so he said he would kill her. [ 10 ] Ms. T.R. says Mr. Quesnelle then told her to get dressed. He gave her change and dropped her off at a bus stop. She boarded a TTC bus and told the driver she had been sexually assaulted. [ 11 ] On December 29, 2006 Ms. T.R. was shown a photograph line-up that did not include Mr. Quesnelle’s photograph. She did not pick anyone out of the photograph line-up.

On May 17, 2007, she was shown a photograph line-up that included Mr. Quesnelle’s photograph and picked him out as the person who had sexually assaulted her. [ 12 ] At the Preliminary Inquiry, Ms. T.R. testified that she had never met Mr. Quesnelle before the night in question. [ 13 ] Ms. T.R. does not know Ms. L.I.. The Alleged Incident Involving L.I. [ 14 ] On March 4, 2007, Ms. L.I. says Mr. Quesnelle was driving in the area of Queen and Bathurst Streets in Toronto. He asked a male named Raymond about purchasing cocaine. Raymond asked Ms. L.I. if she could get drugs. [ 15 ] She got into the van with Mr.

Quesnelle and Raymond to find cocaine. Raymond then left the van and Mr. Quesnelle and Ms. L.I. drove to the laundromat located in the shopping plaza. The two used drugs. [ 16 ] Ms. L.I. says Mr. Quesnelle told her he was a member of Hell’s Angels and that he had a gun. Ms. L.I. says she wanted to leave but was told Raymond was returning with the drugs. She fell asleep. [ 17 ] She awoke to find Mr. Quesnelle above her. He punched her on the right side of her face and she lost consciousness briefly. When she awoke, she says Mr. Quesnelle was standing above her with a steak knife in his hand. He told Ms.

L.I. not to move or he would force the knife into her ear. He held the knife to the side of her head and forced her to perform fellatio. This caused Ms. L.I. to vomit. He then threw Ms. L.I. onto a bed in the room and forced her face down. He ordered her to remove all of her clothing and forced her to have anal intercourse with him. He used a condom. He removed the condom and ejaculated on her back. He then went through her wallet and removed some money. [ 18 ] Ms. L.I. says Mr. Quesnelle drove her to a bus stop in the area of Briarhill and Bathurst Streets. [ 19 ] On March 6, 2007 Ms. L.I. picked Mr.

Quesnelle out of a photo line-up as the person who committed the above acts. [ 20 ] At the Preliminary Inquiry, Ms. L.I. testified that she had never worked as a prostitute and that she had never met Mr. Quesnelle before the night in question. She further testified that the only illicit activity she has ever engaged in is selling illegal drugs. [ 21 ] The Crown intends to call both Ms. T.R. and Ms. L.I. as witnesses. 3.

The Statutory Requirements [ 22 ] Section 276 (1) of the Criminal Code specifies that evidence of sexual activity other than the sexual activity at issue, is not admissible to support an inference that, by reason of the sexual nature of that activity, a Complainant is more likely to have consented to the sexual activity that forms the subject matter of the charge, or that the Complainant is less worthy of belief. [ 23 ] Section 276 (2) of the Criminal Code provides that in a prosecution for sexual assault, no evidence shall be adduced by or on behalf of the accused that the Complainant engaged in sexual activity other than forming the subject matter of the charge, whether with the accused or with any other person, unless the court determines in accordance with the specified procedure 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 administration of justice. [ 24 ] Section 276 (3) of the Criminal Code provides that, in determining whether evidence is admissible under subsection (2), the judge 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. 4. The Positions of the Parties Mr. Quesnelle’s Position [ 25 ] In his affidavit dated April 9, 2010, Mr. Quesnelle states that although “the quality of my memory of my dealings with both Complainants prior to the alleged offence dates is affected by my heavy drug use at the time” he had prior sexual contact with both Complainants that “were central to my dealings with both Complainants”. [ 26 ] In his affidavit, Mr. Quesnelle claims that:

a) he had known Ms. T.R. for several years as a prostitute, he used her services and she performed fellatio on him, no more than one week before the alleged offence and on as many as five separate occasions in the three months before the alleged offences against her; and

b) he had dealt with Ms. L.I. before. He knew her as “Tracey”. She assisted him in the past in obtaining illicit drugs, he knew she frequented the area of Dundas and Shaw Streets and Trinity Bellwoods Park, and he saw her walking up Shaw Street after encounters with him. On approximately two occasions in the past, within 2 to 3 months preceding the date of the alleged offences, he paid her partly in money and partly in drugs for performing fellatio. [ 27 ] During his testimony on the voir dire , he confirmed that he had “no clear recollection” of picking Ms.

T.R. up on any particular date nor was he able to provide details of those approximately five incidents of consensual sexual acts. He indicated that he would go to Shuter Avenue and would have oral sex with Ms. T.R. there. He believed the incidents would take place in the afternoons after he started his laundry deliveries in the area. He indicated that his sexual acts with Ms. T.R. consisted of fellatio only. [ 28 ] Mr. Quesnelle indicated that he knows Ms.

L.I. performed fellatio on him two or three months prior to the incident in question as that was his pattern: when he did laundry deliveries in the neighbourhood, he would get the urge to obtain cocaine and every time he used cocaine he would pay Ms. L.I. to perform fellatio. Mr. Quesnelle said he would drive to a street where Ms. L.I. would give him a “blow job”. He described the general area in which the acts took place. He in turn would give her approximately $250. She would bring him cocaine and he would give her $80 to $100 worth of cocaine and $20 to $30 in cash. [ 29 ] Mr.

Quesnelle takes the position that he cannot testify without referring to his past sexual relationship with each of the two Complainants and of their assistance in facilitating his drug habit, as both aspects of these relationships were integral and important to his relationship with each of them. He must therefore be able to impart his version of events to the Complainants on cross-examination. The Crown’s Position [ 30 ] The Crown agrees that Mr. Quesnelle should be able to canvass the following information with Ms. T.R.:

a) Ms. T.R.’s criminal record,

b) whether Ms. T.R. was working as a prostitute on the day the alleged offence is said to have taken place,

c) when Ms. T.R. knew Mr. Quesnelle;

d) whether Mr. Quesnelle knew her as a prostitute;

e) whether Ms. T.R. assisted him in getting drugs when he had difficulty getting them on his own; and

f) whether Ms. T.R.’s comments in an interview with the CBC were entirely in relation to the case at bar. [ 31 ] The Crown agrees that Mr. Quesnelle should be entitled to canvass the following information with Ms. L.I.:

a) whether Mr. Quesnelle dealt with her in the past;

b) whether Ms. L.I. assisted him in getting drugs before the night in question; and

c) whether Ms. L.I. frequented Dundas and Shaw Streets and the Trinity- Bellwoods park and lived in the area. [ 32 ] The Crown objects to the introduction of any evidence that would allow for “any exploration of prior sexual conduct between the

Applicant and the Respondent or any other individual”. [33] The Crown alleges that the facts in Mr. Quesnelle’s affidavit lack the necessary specificity. [34] The Crown suggests that Mr. Quesnelle may fairly put his version of events without exploring any prior sexual contact witheither of these two Complainants. Any such exploration of prior sexual contact would lead to the impermissible and illegitimateinference that either or both of these Complainants was more likely to have consented to sexual intercourse with Mr.

Quesnelle or thateither of them is less worthy of belief because of the sexual nature of the activities she once engaged in. [35] Evidence of the Complainants’ history is not admissible to impeach their credibility generally. It must relate to a specific issueconnected to the defence. The Crown submits that Mr. Quesnelle has not shown a pattern to the Complainants’ evidence that wouldsuggest that there has been a fabrication of evidence or that it is unlikely that the events occurred.

Admission of the evidence and cross-examination is therefore impermissible as its prejudicial effect would outweigh its probative value. 5. Analysis and Conclusion [36] Mr. Quesnelle is charged, among other things, with sexual assault of the Complainants, T.R. and L.I..

The Pre-Conditions to be Met [37] Section 276(2) of the Criminal Code sets out three preconditions that must be met before any such evidence can be introduced;namely, the evidence is of specific instances of sexual activity, is relevant to an issue at trial and has significant probative value that isnot substantially outweighed by the danger of prejudice to the proper administration of justice. In considering the admissibility of theevidence, the eight factors set out in subsection 276(3) of the Criminal Code must also be taken into consideration. [38] In R. v.

Darrach 2000 SCC 46 , [2000] 2 S.C.R. 443, the Supreme Court of Canada held at paragraph 2, that, “thecurrent s. 276 categorically prohibits evidence of a complainant’s sexual history only when it is used to support one of two generalinferences. They are that a person is more likely to have consented to the sexual assault and that she is less credible as a witness byvirtue of her prior sexual experience.

Evidence of sexual activity may be admissible, however, to substantiate other inferences…” Basedon this finding, the court found that the new legislation did not interfere with the defendant’s ability to make full answer and defence. [39] The new provision creates a presumption that evidence of prior sexual conduct between the accused and complainant isinadmissible. This evidence can only be admitted if it satisfies the requirements set out in

section 276 of the Criminal Code and it isdeemed admissible by the trial judge. [40] The Supreme Court of Canada in R. v. Darrach, supra at paragraph 56, held that, “the affidavit must … establish a connectionbetween the complainant’s sexual history and the accused’s defence.” Whether the Evidence Refers to Specific Instances of Sexual Activity [41] The Crown argued that Mr.

Quesnelle’s evidence did not satisfy the requirement in section 276 (2) of the Criminal Code that herefer to “specific instances of sexual activity” as he could not provide particulars of the specific dates, times or precise locations of thealleged sexual activity. [42] I do not agree. In my view, the objective of the subsection is to ensure that any cross-examination of the Complainant is not withrespect to general reputation and is specific enough to provide adequate notice to the Crown and the Complainants of the evidencesought to be adduced so that they can properly respond.

The evidence sought to be adduced sets out the timeframe, the time of day, thegeneral area and the type of sexual activity that allegedly occurred with each of the two Complainants within three months of each of theincidents in question. The evidence provided by Mr. Quesnelle in his affidavit and on the voir dire, is therefore sufficient to satisfy theobjective. Whether the Evidence is Relevant [43] Based on their evidence given at the Preliminary Inquiry, it is expected that the Complainants will testify that they had never metMr. Quesnelle before the night the incident took place.

Both also testified that he forced them to engage in anal intercourse with him. Ifthey confirm this testimony at trial, the Complainants will place the nature of their relationship with Mr. Quesnelle in issue. [44] Mr. Quesnelle’s ability to provide his evidence as to the nature of his recent past relationship with each of the two Complainants,including their recent past sexual relationship, if any, is relevant to his ability to make full answer and defence. Without the inclusion ofthis evidence, it may be difficult for the jury to understand Mr.

Quesnelle’s defence that this was not a discrete event that took place atone particular place at one particular time but was, according to Mr. Quesnelle, part of an ongoing relationship that involved the transferof money by a drug addict in exchange for drugs and sex. Whether the Evidence is Significant and Whether the Probative Value is Outweighed by the Prejudicial Effect of the Evidence [45] In R. v. Darrach, supra at paragraph 39, the Court held that the term “significant” in subsection 276(2)(

c) of the Criminal Codemeans that the evidence is not so trifling as to be incapable, in the context of all the evidence, of raising a reasonable doubt, but it is notnecessary for the defence to demonstrate strong and compelling reasons for admission of the evidence. [46] In R. v. Harris, (ON CA), 118 C.C.C. (3d) 498 at paragraph 50, Moldaver J.A. held that:

I am satisfied that once the complainant testified in-chief, the proposed evidence became relevant and highly probative of the issue of credibility. The probative value of the evidence did not depend upon resort to the now debunked myths suggesting some connection between prior sexual activity and a lack of veracity but in its ability to contradict specific evidence given by the complainant that was central to her version of the relevant events.

A sharp warning from the trial judge that the evidence of the Tuesday night incident could only be used to assess the complainant's credibility in relation to the specific events forming the subject matter of the charge and not to draw the general inferences that she was more likely to have consented or that she was less worthy of belief would have overcome any possible prejudice resulting from its admission. [ 47 ] The evidence of Mr.

Quesnelle’s prior sexual encounters within three months of each of the two incidents in question, are a significant part of his prior relationship with each of the Complainants. [ 48 ] The evidence is relevant to show the nature of the relationship between the parties during the three months before the incident involving each Complainant. The inferences to be drawn from this evidence are not that if one or both of the Complainants consented to sexual intercourse of a different nature with Mr.

Quesnelle before, that one of both of them is more likely to have consented on the evening in question, or that she should not be believed. The probative value of this narrative rests on the nature of the Complainants’ relationship or feeling about Mr. Quesnelle rather than on either of them having an “unchaste character” and excluding such evidence may deny the accused a fair opportunity to rebut the charges against him. [ 49 ] I am advised by the Crown that the Complainants will each assert that they did not know Mr. Quesnelle and that they did not consent to any sexual activity with Mr. Quesnelle.

It will, therefore, be open to the Defence to raise a reasonable doubt about that element of the offence by adducing relevant evidence. I am satisfied that this evidence is relevant in ways that do not lead to the twin myth reasoning prohibited by section 276(1) of the Criminal Code . [ 50 ] The Defence states that Mr. Quesnelle’s position is that he never engaged in anal sexual intercourse with either of the two Complainants.

As such, the alleged prior sexual conduct could not support an inference that the Complainants consented to the anal sexual intercourse alleged to have taken place on the evenings in question. [ 51 ] Moreover, since the Complainants will have to give evidence regarding the sexual assaults on the two dates in question, I do not believe permitting the Defence to ask them whether there were recent incidents of consensual sexual activity with Mr.

Quesnelle will be highly prejudicial to them. [1] [ 52 ] For these reasons, the substantial probative value of this evidence is not outweighed by the danger of prejudice to the proper administration of justice. Consideration of the Factors in Section 276(3) of the Criminal Code [ 53 ] In order for Mr. Quesnelle to make full answer and put forward a tenable defence to very serious allegations of sexual assault, he must be able to provide details of his relationship with the Complainants on or around the time of the incidents.

The right to make full answer and defence is not outweighed by society’s interest in encouraging the reporting of sexual assault offences. [ 54 ] I understand from Defence counsel that there will be no need to ask particularly detailed questions about this prior sexual activity and thus the effect of their privacy interests should be minimal. I have already made an order prohibiting publication of the Complainants names. Moreover, it is agreed that the jury must be warned of the limited use to which such evidence can be put. [ 55 ] A carefully worded instruction to the jury will ensure that the evidence of Mr.

Quesnelle’s alleged recent sexual relationship with the Complainants will not unduly arouse sentiments of prejudice, sympathy or hostility in the jury. [ 56 ] For the above reasons, and assuming the Complainants’ testimony on the issue of their prior relationship with Mr. Quesnelle is consistent with the testimony they gave at the Preliminary Inquiry, the Defendant, Mr. Quesnelle is permitted to cross-examine each of the two Complainants on prior consensual sexual activity with him that he says took place within three months of each of the two alleged sexual assaults.

If the Complainants’ testimony is not consistent with their testimony on this point given at the Preliminary Inquiry, the Crown may reopen this issue at the appropriate time. ________________________ Thorburn J. Released: May 4, 2010 CITATION : R v. Quesnelle, 2010 ONSC 2698 COURT FILE NO. : 0013/08 DATE: 20100504

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent - and – VINCENT QUESNELLE Applicant RULING Thorburn J. Released: May 4, 2010