Case Name:

[REDACTED]. v. [REDACTED]

Between

Her Majesty the Queen, and

[REDACTED]

[REDACTED]

[REDACTED]

Court File No. [REDACTED]

Ontario Superior Court of Justice

Newmarket, Ontario

Judge: [REDACTED]

Oral judgment: January 31, 2013.

(13 paras.)

Counsel:

[REDACTED]: Counsel for the Crown.

[REDACTED]: Counsel for [REDACTED]

RULING

 (ON THE SECTION 276 APPLICATION)

1 Judge: [REDACTED] (orally):-- The applicant has brought an application for an order that certain evidence relating to sexual activity, other than the sexual activity that is the subject matter of the charge before the Court, is evidence that comes within section 276 of the Criminal Code and seeks an order permitting evidence to be adduced in that regard. Specifically, the applicant seeks permission to cross-examine [REDACTED] and to adduce evidence about other sexual activity; first, that she had with the applicant on the date in question, March the 3rd, 2011, and secondly, a relationship that she had with a [REDACTED] on or about November the 25th, 2009.

2 [REDACTED] gave evidence on this application in which she alleged that she was sexually assaulted in the driveway of a friend's home in the early morning of March the 4th, 2011. The assault complained of is alleged to have occurred after the complainant returned home from a bar with her friend and the applicant joined them at that time. The friend who was in the company of [REDACTED] was her friend [REDACTED] and it was at [REDACTED]'s home in the driveway that the incident occurred.

3 The defence seeks to argue that [REDACTED] version of events is inaccurate and does not represent what really occurred. It is the position of the defence that the complainant describes a completely non-consensual sexual encounter where the activity was forced upon her.

4 The defence has raised three elements in defence to the charge before this Court. Firstly, that the complainant consented to the sexual activity with the applicant during the incident described; secondly, that it is open for this Court to find that the applicant honestly believed that [REDACTED] was consenting to sexual activity with him, even if in her own mind, regardless of how she was behaving on the occasion, she was not consenting; and, thirdly, that the applicant did not intentionally apply force to the complainant for which she had not consented or that he did not honestly believe to which she had consented.

5 The evidence sought to be adduced at trial involves the night in question, March the 3rd, and the morning of March the 4th, 2011, as well as an incident that occurred on November the 25th, 2009.

6 On March the 3rd, 2011, the evidence would indicate that [REDACTED] met [REDACTED] for the first time at a bar known as Main's Mansion. They both ultimately left the bar in the early morning of March the 4th, 2011. The evidence provided by [REDACTED] on this application and the testimony of [REDACTED] on this application are in some respects totally incompatible.

7 The issues that this Court has to deal with concern the evidence adduced at this trial, whether after several hours in the Mansion, talking and flirting between the two had taken place, including incidents of casual touching while dancing and incidents of consensual sexual activity at the bar, on the back patio during cigarette breaks. Although denied by the complainant, it was given in evidence by the applicant that activity at the Main's Mansion consisted of consensual kissing on the lips on two separate occasions and on at least one occasion [REDACTED] flashing her breasts at [REDACTED] and him kissing her breasts with her consent. Evidence also was brought in this application that there was flirtation between the two of them and this flirtation occurred leading up to the encounter, shortly thereafter, in the driveway. The incident in the driveway occurred within a short time of the parties leaving the Main's Mansion and it could be tantamount to being described as a continuing event, notwithstanding that some 15 to 20 minutes may have passed between leaving the Mansion and arriving at the driveway of [REDACTED] home.

8 In the incident at the Mansion, the nature of the relationship has been put into issue. The defence position is that [REDACTED] was attracted to the applicant in a sexual way, having flirted with him and engaged in sexual activity with him, both at Main's Mansion and in the driveway of [REDACTED] home. It has been argued on this motion that [REDACTED] claimed to the police and at the preliminary hearing that she never flirted with the applicant, was not attracted to him, nor did she ever engage in any form of consensual activity with him. She testified that she was very wary of and uneasy around the applicant and she never expected any form of sexual activity to occur in the driveway, although submissions have been made on this application that that particular statement is contrary even to the evidence of her friend, [REDACTED] It is clear that these various elements are an essential part of the narrative. Although on this application it is not the role of this Court to determine the weight to be given to the evidence for the reliability of the evidence, the issue is whether the evidence ought to be admissible in order to ascertain what occurred on the date in question that gives rise to the charges before this Court. There is not only disagreement between the version given in the evidence of the complainant with that of the applicant on this motion, but the versions are so disparate that the nature of the relationship between them leading up to the events that occurred in the driveway can be of assistance to this Court in deciding what happened on that occasion. [REDACTED] had put the nature of the relationship in issue in her statement to the police and at the preliminary hearing. In order to make full answer and defence, I am satisfied that [REDACTED] must be permitted to adduce evidence of this prior activity at Main's Mansion to rebut the complainant's claim. It is important to know what transpired leading up to the occasion and the incident described in the driveway in order to be able to fully understand what -- and make sense of what occurred in the driveway, if possible. It is important to have an overview of the evidence in order to be able to assess the defence, about what was in the state of mind of the applicant at the time, which bears directly on the defence of an honest and reasonable belief that [REDACTED] was consenting as he engaged in sexual activity with her in the driveway. State of mind of the applicant prior to the incident in the driveway and how it developed must be influenced by what occurred in the bar previously and that evidence would assist this Court in determining the issue of the defence of honest belief. The history, as short as it is, between the applicant and [REDACTED] is clearly relevant to the state of mind and played a role with respect to the defence of his belief that the complainant engaged consensually in sexual activity on March the 4th.

9 With respect to the incident that occurred on November the 25th, 2009, which consists of a videoed statement by the complainant to the police and a video of the incident complained of on the York Region Transit bus in the early morning of November the 25th, 2009, [REDACTED] complained that a [REDACTED] sexually assaulted her on that morning on the bus as they were both travelling to classes. She indicated in her video statement to the police that [REDACTED] came on to her and induced in her a panic disorder.

10 When one considers the testimony and the evidence on this application, it reveals a striking similarity between her evidence of her reaction to [REDACTED] on March the 4th and her reaction to [REDACTED] on November the 25th, 2009. The similarities include that while engaging in and being involved in a sexual contact, she froze and was not able to communicate non-consent. In her evidence on this motion with respect to the occasion of March the 3rd, 2011, she testified that she was scared. She said, I froze. I didn't know what to do. I was scared of the whole situation. I don't know why I froze. It's like I had all those words in my head, but my lips weren't moving. It's like they shut down, froze. And in relation to the incident of November the 25th, 2009, she testified, we were discussing the course and law and the students in the program. In reference to [REDACTED] she states, he gets a look on his face like an admiration look, you're cute kind of look. I'm usually nervous. His look began setting me off. My panic set in. Why is he looking at me like that? It was weird. It was new to me. He was asking me about my boyfriend. He said we can be intimate friends. I said yeah, we can be friends. He said I have liked you since I first saw you. He kissed me and tilted my head to kiss me. He stuck his tongue down my throat. Before my brain began working, he was kissing me again. I tried to say something, but couldn't get anything out. When one views the video of that same encounter in the bus with [REDACTED], one cannot help but notice, although the video leaves much to be desired in terms of clarity and there is no sound to it, it is clear that [REDACTED] began speaking to [REDACTED] on the bus as they sat on opposite sides of the bus; that there was an exchange of papers, consistent with her statement to the police that she reviewed notes that [REDACTED] had because he had written the same law exam the day before that she was attending to write on that day; that she moved from her side of the bus over to his side of the bus sitting in a seat that was next to him, not parallel to him but at a 90 degree angle so that as he faced the front of the bus closest to the window, she was sitting in the seat immediately in front of him with her back to the window so that she would be looking over her right shoulder at him sitting in his seat. It is clear that there was contact between the two consistent with her claim that he was kissing her. Then she actually sat in that position, she moved closer to him on the bus. The indication is consistent with her continuing to be kissed by him and which goes on, all in the context of being frozen, not knowing what to do and being at a loss. In her statement to the police, she indicated that she ran from the bus at the end, although her movement from her seated position is consistent with someone who is getting off the bus at the appropriate location.

11 In determining the reliability of the evidence that is being adduced, it would be of assistance to this Court to be able to be apprised of the behaviour of [REDACTED] when she is frozen, when she can't respond, when her lips won't move, when her brain has not clicked into gear. It is important to know what transpired between the two of them in relation to one another so that a proper ascertation can be made of the claim of honest belief in consensual sexual activity.

12 There has been an undertaking given by the defence in relation to the video of the November 25th, 2009 incident, that the defence will not seek to call additional eyewitnesses to the specific alleged incident, but intends to, if permitted, cross-examine only on the video evidence. That undertaking is significant because it reflects the intent with respect to the use of that video and statement to the police. I am satisfied that based on that undertaking which, if it had not been given, would be subject to an order of this Court in any event, that the incident of November the 25th, 2009, can be of assistance to this Court in determining not only the credibility of [REDACTED], but the reliability of her evidence, as well as of assistance in determining the issue of honest belief in consent. In the circumstances, I am going to permit cross-examination on that aspect of this application as well.

13 I am satisfied that the evidence on both branches of this application deal with specific instances of sexual activity. I am satisfied, as I have indicated in my reasons, that both applications are relevant to an issue at trial and I am satisfied that the significant probative value is not substantially outweighed by the danger of prejudice to the proper administration of justice. In arriving at that decision, I am satisfied that the interests of justice, including [REDACTED] right to make full answer and defence, are of importance. I am aware of society's interest in encouraging the reporting of sexual assault offences. The issue of the relationship between [REDACTED] and [REDACTED] having been put in issue and the limit of the cross-examination on this issue, I am satisfied would not interfere with the society's interest in encouraging reporting of sexual offences and I am satisfied that the evidence could be of assistance to this Court in making a determination of the issues that are alive and must be addressed during the course of this trial. The right of [REDACTED] to have her personal security protected is clearly protected in as much as the defence has given an undertaking about not expanding the incident of November the 25th beyond what is seen on the video and heard in the statement to the police. The interests of justice require that I be permitted to make assessment of that evidence in determining the eventual issues at this trial. So the evidence will be permitted to be used.

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