R. v. [REDACTED]
RE: Her Majesty the Queen, Respondent, and
Court File No. [REDACTED]
Ontario Superior Court of Justice
Criminal law -- Evidence -- Witnesses -- Examination -- Cross-examination -- Limitations -- Application by accused to introduce evidence of complainant's sexual history with him dismissed -- Accused and others allegedly kidnapped and physically and sexually assaulted complainant -- Crown to introduce DNA evidence from semen found on complainant's clothing -- Sample on shirt weak so analyst hypothesized it was mixed with saliva or shirt had been laundered -- Accused argued shirt could have been laundered after he had consensual sex with complainant earlier -- Accused failed to set out particulars of evidence he sought to introduce -- Accused's attempt to formulate alternative theory to how semen got on shirt insufficient basis.
Application by the accused to introduce evidence of his prior sexual history with the complainant. The accused and others were charged with various assault and sexual assault offences after they allegedly kidnapped, bound and physically and sexually assaulted the complainant for 24 hours. The Crown had DNA evidence matching the accused from semen found on the accused's clothing. The sample from her shirt was weak. The analyst hypothesized this could be because it was mixed with saliva or because the shirt had been laundered since the semen was deposited. The accused argued the shirt could have been laundered after he had consensual sex with the complainant earlier. The Crown argued that the accused had not complied with the requirements of s. 276 of the Criminal Code because he had not set out particulars of his evidence or explained the relevance.
HELD: Application dismissed. The accused could not enjoy the benefit of potentially helpful evidence of the complainant's sexual history without specifying exactly what information existed and how it was relevant. The accused was attempting to raise an alternate theory for how his semen got on the complainant's shirt and this fell far short of the requirements of s. 276. Furthermore, the accused could ask the complainant questions about laundering her shirt without violating the prohibition. The accused's evidence was mere speculation.
Statutes, Regulations and Rules Cited:
Canadian Charter of Rights and Freedoms, 1982, R.S.C. 1985, App. II, No. 44, Schedule B, s. 7, s. 11(d), s. 13
Criminal Code, R.S.C. 1985, c. C-46, s. 276(2), s. 276(3)
[REDACTED]. for the Applicant Accused.
[REDACTED], for the Respondent Crown.
1 Judge: [REDACTED]:-- [REDACTED] and two other men are charged with various counts of aggravated sexual assault, sexual assault bodily harm, sexual assault with a weapon, sexual assault, kidnapping, unlawful confinement, exercise control for the purpose of exploitation, withholding documents and assault, all in relation to a single complainant. On this voir dire he seeks an order under s. 276(2) of the Criminal Code permitting the introduction of evidence at his trial of alleged sexual activity of the complainant with him prior to the events which are the subject of the charges against him.
2 The Crown alleges that [REDACTED] and the others kidnapped the complainant, took her to an apartment, confined her by tying her hands and feet and physically and sexually assaulted her over the course of twenty four hours. The Crown says they committed these offences as retribution for the complainant's boyfriend allegedly stealing one of their cars.
3 The Crown will be introducing a DNA analysis of semen found on the front of the white t-shirt and the back of the track pants worn by the complainant at the time of the alleged offences. The DNA matched [REDACTED]'s DNA. A forensic analysis of the complainant's clothing obtained by the Defence concluded the semen on the front of her white t-shirt was weak, lacking acid phosphate. The analyst was unable to give an opinion as to the exact manner in which it was deposited. She opines that it is consistent with several scenarios. First, if the shirt was laundered after deposit, the soap and water could have compromised the contents of the DNA. Or, if the complainant had spit on her shirt or otherwise deposited her own saliva on the semen, it would have compromised it. The semen on the track pants was not similarly diluted.
The Applicant's Position
4 The Accused's counsel wishes to be permitted to ask the complainant about any prior sexual relations she may have had with [REDACTED], arguing that any such contact would provide an alternative explanation for the semen on her clothes other than that it was deposited during the assaults. Further, he argues, the timing of any laundering of the t-shirt is important. If it was washed before the alleged offences, it may be evidence of prior sexual activity, thus providing an innocent explanation unrelated to the offences, for the presence of [REDACTED]'s semen. He argues that the possibility of the t-shirt having been laundered meets the requirement in s. 276 to provide "detailed particulars of the evidence (of prior sexual activity) that the accused seeks to adduce, and the relevance of it to an issue at trial." He argues that the s. 7 and 11(d) Charter fair trial rights of his client necessitate his exploring this area and that the potential probative value of the evidence to his defence exceeds the prejudicial effects to the privacy rights of the complainant.
The Crown Attorney's Position
5 The Crown argues the Applicant has not complied with the procedural requirements of s. 276, in that an application under this section must be in writing, it must set out detailed particulars of the evidence the accused seeks to adduce and the relevance of that evidence to an issue at trial. The Application does not include an affidavit from the accused or anyone fulfilling these requirements. She says there must be some evidence of a sexual event that could explain the semen on the clothing before he can lead the forensic evidence of the possible degradation of the t-shirt semen by laundering. The possibility that laundering occurred, in itself and without the background evidence of sexual contact, does not meet the statutory criteria.
6 Section 276 reads as follows:
(1) In proceedings in respect of an offence under section 151, 152, 153, 153.1, 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
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.
Factors that judge must consider
(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.
7 In R. v. Harris (1997), 118 C.C.C. (3d) 498, the Ontario Court of Appeal held that the proper time to bring this type of Application is generally after the complainant has testified at trial. In that case the complainant brought the nature of her prior relationship with the accused into issue, characterizing it as platonic. The accused should then have been entitled to cross-examine her and/or lead evidence to rebut her version. The Court of Appeal held that the trial judge should have permitted a s. 276 application to be brought at that time. In the case at bar, counsel both wished to have the matter heard as a pre-trial motion. Accordingly, it was heard prior to trial, with the caveat that if the evidence warranted a review of this ruling, the Court would re-open the matter.
8 In R. v. Darrach (2000), 122 C.C.C. (3d) 225, the Supreme Court reviewed the procedure and principles governing a s. 276 application. Such an application engages the conflicting rights of an accused to defend himself against very serious allegations brought by the state and the right of a sexual assault complainant (usually a woman) to privacy respecting her past sexual activity. The section prohibits absolutely any evidence of past sexual history of a complainant when it is proffered only to show that, because of such history, she was more likely to have consented to the alleged assault or is less credible as a witness. However, it may be admitted if it relates to other inferences.
9 In the voir dire to be held to determine these issues, the onus is on the Applicant to establish that he meets the procedural and substantive requirements for admission of the evidence. At paragraph 22 of Darrach the Court held that if, in order to discharge his onus, the accused provides an affidavit and is cross-examined on it, his right not to be compelled as a witness has not been infringed. Gonthier J., for the Court says, "... The accused participates voluntarily in order to exculpate himself. Because he seeks to introduce evidence about the complainant's sexual activity, it is up to him to show how it is relevant ... His constitutional rights are not infringed by either the substantive or the procedural parts of s. 276. The balance struck in Seaboyer,  2 S.C.R. 577, among the interests of justice, the accused and the complainant is preserved in the current legislation." At paragraph 63, the Court said that "The Crown's right to cross-examine on the affidavit under s. 276 is essential to protect the fairness of the trial. Cross-examination is required to enable the trial judge to decide relevance by assessing the affiant's credibility and the use to which he intends to put the evidence ..."
10 Further, if the accused gives evidence on the voir dire, he is protected by s. 13 of the Charter, which prohibits the use of his evidence at his trial, except to impugn his credibility, should his trial evidence differ from that on the voir dire. (Paragraph 66).
11 Thus, there is no substantial downside to the accused either giving oral evidence on the voir dire or providing an affidavit on his Application, upon which he may be cross-examined. He argues that it unfairly requires him to reveal to the Crown elements of his defence prior to his knowing the full case against him. It requires him, in effect, to make his election to call or give evidence without the benefit of full knowledge of the strengths or vagaries of the Crown's case.
12 I disagree. He cannot have it both ways. He cannot expect to enjoy the benefit of potentially helpful evidence of the complainant's private and personal sexual history without specifying exactly what sexual information he thinks exists, the grounds for this belief and more particularity its relevance to his defence. He cannot be permitted to launch a mere fishing expedition.
13 The Applicant's own DNA expert speculates that laundering is but one of several possible explanations for the watered down semen spot. She says that "... deposition of the spermatozoa on the shirt prior to laundering is a consistent scenario, albeit not to the exclusion of other scenarios ..." She then suggests two other possible scenarios - the garment being washed with other garments containing semen from the donor, or "... a limited number of spermatozoa mixed with saliva spat upon the t-shirt is also a consistent scenario. There may be other scenarios that have not been discussed which could also account for these results." (The spitting scenario is suggested by the crown attorney. She says the complainant's evidence will be that oral sex was forced on her and that she could have spit out the semen mixed with her saliva, which was then deposited on her shirt.)
14 [REDACTED]'s counsel argues that disallowing him to cross-examine the complainant about possible past sexual contact with the accused amounts to permitting the Crown to veto alternative explanations for the semen stain. It is tantamount to withholding from the jurors an alternative conclusion they could draw from the evidence.
15 Again, I must disagree. The section requires the Applicant to provide "detailed particulars" of the sexual conduct sought to be explored. A possible alternative theory for how the semen got on the complainant's shirt falls well short of the detailed particulars requirement. Further, counsel is at liberty to question the complainant about her laundering practices, when she last washed her t-shirt, etc. without offending the prohibition. This line of questioning may lead to evidence that constitutes a basis for re-launching this application. But as it stands at present, his 'evidence' is mere speculation and falls short of that necessary to succeed under s. 276.
16 In this case, [REDACTED] did not provide an affidavit in compliance with the section and did not give oral evidence. His counsel indicated he does not intend to do either, even if given the opportunity during the trial, should evidence arise, that could lead to this matter being re-opened.
17 Notwithstanding this position, should the evidence dictate grounds for a review of this ruling, the Court would certainly consider re-opening the issue.
18 In the meantime, [REDACTED]'s Application under s. 276 is dismissed.