R. v. Zakuti, 2017 ONSC 3871

CITATION: R. v. Zakuti, 2017 ONSC 3871 COURT FILE NO.: 09-8127 DATE: 2017-06-23 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) HER MAJESTY THE QUEEN ) ) ) Victoria L. Reid, for the Respondent ) Respondent ) ) - and - ) ) ) SEVIM ZAKUTI ) ) ) Michael S. Puskas, for the Applicant ) Applicant ) ) ) ) HEARD: June 21, 2017 REASONS FOR JUDGMENT Justice Skarica NATURE OF PROCEEDINGS [ 1 ] The accused is charged with sexual assault. The accused brings a pre-trial motion seeking an order pursuant to

Section 276.2 that he be permitted to cross-examine the complainant, M.M., at trial, on prior sexual activity and further adduce evidence as to sexual activity between the accused and M.M. which activity does not form the subject matter of the charge before the court. OVERVIEW [ 2 ] The Crown alleges the following facts: M.M. on May 23, 2008 worked as a dancer at a strip club in Burlington. M.M. socialized with a group of men including the accused that night. The accused invited M.M. to a party. She agreed to accompany the accused to the party. The accused drove her to a secluded location and then forced sexual intercourse upon M.M. The accused then dropped M.M. off at

a gas station in Hamilton and M.M. approached an off duty officer and complained about the sexual assault. A medical examination was conducted and a vaginal swab/smear was taken from M.M. The vaginal swab/smear contained semen that was compared with the accused’s DNA sample and a match was made. The accused’s defence is that he had consensual intercourse with M.M. that night at the strip club and that is why his DNA sample is on M.M.’s vaginal swab/smear. The accused seeks under

Section 276 of the Criminal Code to introduce evidence of consensual sexual intercourse at the strip club as an explanation for why his DNA is on the vaginal swab/smear taken from M.M. FACTS [ 3 ] The accused swore an affidavit pursuant to

Section 276.1 of the Criminal Code which outlines M.M.’s evidence at the preliminary hearing and his proposed defence evidence. [ 4 ] At paragraph 4 of the accused’s affidavit, M.M.’s evidence at the preliminary hearing is summarized as follows: On the evening in question, M.M. was working as a stripper at Solid Gold in Burlington. M.M. had not worked as a stripper for some time but decided to work that night in order to buy her daughter a prom dress for her graduation. M.M. was required to pay Solid Gold $50 in order to work there that night.

In addition, she had to pay $50 for a cab to get to work and would have to pay $50 again to return home. Solid Gold was not paying her anything. Accordingly, M.M. was out of pocket $150 for the night. The only manner that M.M. could make money was to receive payment from customers for lap dances. M.M. realized that she could not make money that evening and socialized instead with the accused and his friends. The accused’s group paid for M.M.’s drinks. M.M. testified that she did not do any lap or table dances for the accused and received no money from anyone including the accused.

M.M. testified that after she left Solid Gold with the accused, he drove her to a side road and sexually assaulted her. Subsequently, a vaginal swab/smear was taken from M.M. within hours of the assault and the accused’s semen was found on that swab/smear. [ 5 ] This

summary is substantially in accord with the Crown’s

summary of facts contained in its application/factum for admissibility of post offence conduct. [ 6 ] At paragraphs 7-9 of the accused’s affidavit, he indicates that between 10 p.m. and 2 a.m. on the evening in question, the accused paid M.M. for a private lap dance at Solid Gold. During the course of the private dance, M.M. removed or loosened her clothing so that the accused’s genitals could make direct contact with her vagina. M.M. had given previous evidence that she was not wearing underwear at the material time. The accused’s clothing was either loosened or removed so that his penis was exposed.

The accused indicates that this evidence accounts for the presence of his DNA on the vaginal swab/smear and could raise a reasonable doubt regarding the allegation of sexual assault. [ 7 ] The accused indicates that the above explanation is proffered for two reasons: 1. To explain the presence of the accused’s DNA on the vaginal swab/smear; 2. To support an attack on M.M.’s credibility that she made no money that night and that she did preform a private dance that resulted in the accused’s DNA being found in her vaginal swab/smear taken later that night/morning. LAW [ 8 ] The leading case regarding

Section 276 of the Criminal Code applications is R. v. Darrach , 2000 SCC 46 . [ 9 ] The court in Darrach sets out the relevant statutory framework at para. 17: Relevant Statutory Provisions Criminal Code, R.S.C., 1985, c. C-46 276.

(1) In proceedings in respect of an offence under

section 151, 152, 153, 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 part thereof, 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 be relevant 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 not recorded, shall be provided in writing. [ 10 ] Darrach , at paras. 53, 60 , indicates that the above provisions set out a two-step procedure that the accused must follow in seeking to introduce sexual activity that does not form the subject matter of the charge: 1. The accused must pursuant to

Section 276.1 (2) (

a) enter an affidavit with “detailed particulars” of the evidence and its relevance to an issue at trial. If the criteria in

Section 276.1 (4) are met, the judge orders a hearing to see if the evidence is admissible under Subsection 276 (2). 2. A hearing or a voir dire is then held pursuant to

Section 276.2. The affiant can be cross-examined and the complainant is not a compellable witness. The judge considers the factors outlined in Section 276 (3) and makes a decision pursuant to Section 276 (2) whether the evidence or any part of it is admissible. APPLICATION OF LAW TO THE FACTS STEP ONE [ 11 ] The Crown argued that the accused’s affidavit is so vague and bereft of detail that it does not explain the connection between the other sexual activity and the presence of semen.

The Crown pointed out that external genitalia swabs and vaginal swabs and smears were performed and the accused’s sperm was found on the vaginal swabs/smears. This would be consistent with actual intercourse and ejaculation. [ 12 ] The accused’s affidavit while not specifically referring to “sexual intercourse” does refer to his genitals (exposed penis) making direct contact with her vagina during the private lap dance and as a result of this contact, his DNA was found on M.M.’s vaginal swab/smear. In my opinion, this evidence satisfies the criteria in

Section 276.1 requiring evidence of detailed particulars and how that evidence is relevant to an issue at the trial. [ 13 ] I am also satisfied that the other criteria in

Section 276.1 (4) were met and I ordered a hearing under Section 276 (2). STEP TWO [ 14 ] At the hearing stage pursuant to

Section 276.2, the accused was cross-examined by the Crown. The accused had some language difficulties and did not know what ejaculate meant. When that was explained, he indicated that what he meant in his affidavit was that

the only time that semen came out of his penis was when his penis was inside the complainant. The gist of his evidence was that he paid her for a lap dance and they started to kiss and they removed their clothing and had consensual sex in the VIP lounge. He ejaculated inside her and there was no protection. There was no sexual activity outside of the strip club. [ 15 ] My assessment of the accused’s evidence is that it is sufficiently credible that it is capable of at least raising a reasonable doubt regarding how his semen came to be found on the vaginal swabs/smears taken hours later at the hospital.

See Darrach at para. 63 .

The accused’s evidence regarding the lap dance sexual encounter is not necessary to cross-examine M.M. regarding her $150 loss as that can be done without any reference to previous sexual encounters. [ 16 ] Regarding the factors that are set out at Section 276 (3), I believe that the accused’s ability to adduce evidence, through cross- examination and/or directly by the accused, regarding the sexual encounter at Solid Gold is essential to explaining the presence of his semen on the subsequent vaginal swab/smear taken from M.M. and accordingly is essential to the accused’s right to make full answer and defence and this militates an order in favour of allowing the accused’s application.

There is a reasonable prospect that this evidence will assist in arriving at a just determination in this case. This proposed evidence of past sexual activity is not being introduced to support the illegitimate inferences that M.M. is more likely to have consented to the alleged sexual activity or is less worthy of belief due to past sexual activity, as prohibited by Section 276 (1). See R. v. R.R.W. [2010] N.J. No. 266 (Nfld. S.C.) at paras. 12-15 , 25 affirmed on other grounds, R. v. R.W., [2011] N.J. No. 226 (Nfld.

C.A.) . [ 17 ] I further find that introducing the evidence of sexual activity at Solid Gold would not discourage reporting of sexual assault offences and would not introduce any discriminatory belief or bias. The evidence of M.M. dancing at a strip club is a part of the Crown’s case and will be introduced as part of the narrative in any event. In my opinion, the proposed defence evidence does not unduly arouse sentiments of prejudice, hostility or sympathy of a judge and/or jury hearing the matter.

Any potential prejudice to M.M.’s personal dignity and personal privacy and personal security can be protected by an order prohibiting publication of any evidence that would tend to identify the complainant. See R. v. R.R.W. at para. 20.

CONCLUSION [ 18 ] Pursuant to Section 276 (2) of the Criminal Code , I find that that the evidence of sexual intercourse between M.M. and the accused at Solid Gold on the night/morning of May 23/24, 2008 is a specific instance of sexual activity that is relevant to an issue at trial (i.e. what events caused the accused’s DNA to be found on a vaginal swab/smear taken from M.M. hours after the alleged sexual assault). I further find that this evidence has obvious and significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

ORDER The accused’s application is allowed. Pursuant to

Section 276.2 of the Criminal Code , the complainant in this matter, (referred to as M.M.), may be cross-examined and the accused may adduce evidence, as to sexual activity that occurred between M.M. and the accused at Solid Gold on the night/morning of May 23/24, 2008, which activity does not form the subject matter of the charge before this court. ___________________________ Justice Skarica Released: June 23, 2017 CITATION: R. v. Zakuti, 2017 ONSC 3871 COURT FILE NO.: 09-8127 DATE: 2017-06-23

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent - and – SEVIM ZAKUTI Applicant REASONS FOR JUDGMENT TS Released: June 23, 2017