R. v. Q., 2010 CarswellOnt 3314

Her Majesty the Queen (Respondent) and V.Q. (Applicant)

Ontario Superior Court of Justice

Thorburn J.

Heard: April 26, 2010
Judgment: May 4, 2010
Docket: 0013/08

Counsel: Sharna Reid for Respondent, Her Majesty the Queen
Graham Clark for Applicant, V.Q.

Thorburn J.:

Ruling

1. The Relief Sought

1        The Defendant, V.Q. 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        V.Q. 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. Q. paid L.I. partly in money and partly in drugs in exchange for performing fellatio on him.

4        Mr. Q. 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. Q. 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. Q.’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. Q. 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. R. was a prostitute.

7        Mr. Q. 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. R. agreed to perform fellatio for a fee. Ms. R. entered the van. Mr. Q. 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. Q. opened the rear door of the laundromat with a key. They went upstairs to the laundromat where Ms. R. noticed machines for washing and dry cleaning. Both smoked crack cocaine and went down into the basement.

9        Ms. R. says she asked Mr. Q. if he was ready for the “blowjob” yet. Mr. Q. told her he wanted to engage in anal intercourse. Mr. Q. 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. R. says Mr. Q. 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. R. was shown a photograph line-up that did not include Mr. Q.’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. Q.’s photograph and picked him out as the person who had sexually assaulted her.

12        At the Preliminary Inquiry, Ms. R. testified that she had never met Mr. Q. before the night in question.

13        Ms. R. does not know Ms. I..

The Alleged Incident Involving L.I.

14        On March 4, 2007, Ms. I. says Mr. Q. was driving in the area of Queen and Bathurst Streets in Toronto. He asked a male named Raymond about purchasing cocaine. Raymond asked Ms. I. if she could get drugs.

15        She got into the van with Mr. Q. and Raymond to find cocaine. Raymond then left the van and Mr. Q. and Ms. I. drove to the laundromat located in the shopping plaza. The two used drugs.

16        Ms. I. says Mr. Q. told her he was a member of Hell’s Angels and that he had a gun. Ms. I. says she wanted to leave but was told Raymond was returning with the drugs. She fell asleep.

17        She awoke to find Mr. Q. above her. He punched her on the right side of her face and she lost consciousness briefly. When she awoke, she says Mr. Q. was standing above her with a steak knife in his hand. He told Ms. 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. I. to vomit. He then threw Ms. 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. I. says Mr. Q. drove her to a bus stop in the area of Briarhill and Bathurst Streets.

19        On March 6, 2007 Ms. I. picked Mr. Q. out of a photo line-up as the person who committed the above acts.

20        At the Preliminary Inquiry, Ms. I. testified that she had never worked as a prostitute and that she had never met Mr. Q. 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. R. and Ms. 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. Q.’s Position

25        In his affidavit dated April 9, 2010, Mr. Q. 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. Q. claims that:

a) he had known Ms. 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. 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. 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. 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. R. consisted of fellatio only.

28     Mr. Q. indicated that he knows Ms. 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. I. to perform fellatio. Mr. Q. said he would drive to a street where Ms. 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. Q. 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. Q. should be able to canvass the following information with Ms. R.:

a) Ms. R.’s criminal record,

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

c) when Ms. R. knew Mr. Q.;

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

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

f) whether Ms. R.’s comments in an interview with the CBC were entirely in relation to the case at bar.

31        The Crown agrees that Mr. Q. should be entitled to canvass the following information with Ms. I.:

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

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

c) whether Ms. 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. Q.’s affidavit lack the necessary specificity.

34        The Crown suggests that Mr. Q. may fairly put his version of events without exploring any prior sexual contact with either of these two Complainants. Any such exploration of prior sexual contact would lead to the impermissible and illegitimate inference that either or both of these Complainants was more likely to have consented to sexual intercourse with Mr. Q. or that either 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 issue connected to the defence. The Crown submits that Mr. Q. has not shown a pattern to the Complainants’ evidence that would suggest 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. Q. 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 is not substantially outweighed by the danger of prejudice to the proper administration of justice. In considering the admissibility of the evidence, 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] 2 S.C.R. 443, the Supreme Court of Canada held at paragraph 2, that, “the current s. 276 categorically prohibits evidence of a complainant’s sexual history only when it is used to support one of two general inferences. They are that a person is more likely to have consented to the sexual assault and that she is less credible as a witness by virtue of her prior sexual experience. Evidence of sexual activity may be admissible, however, to substantiate other inferences…” Based on 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 is inadmissible. This evidence can only be admitted if it satisfies the requirements set out in section 276 of the Criminal Code and it is deemed 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 connection between 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. Q.’s evidence did not satisfy the requirement in section 276 (2) of the Criminal Code that he refer to “specific instances of sexual activity” as he could not provide particulars of the specific dates, times or precise locations of the alleged 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 with respect to general reputation and is specific enough to provide adequate notice to the Crown and the Complainants of the evidence sought to be adduced so that they can properly respond. The evidence sought to be adduced sets out the timeframe, the time of day, the general area and the type of sexual activity that allegedly occurred with each of the two Complainants within three months of each of the incidents in question. The evidence provided by Mr. Q. in his affidavit and on the voir dire, is therefore sufficient to satisfy the objective.

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 met Mr. Q. before the night the incident took place. Both also testified that he forced them to engage in anal intercourse with him. If they confirm this testimony at trial, the Complainants will place the nature of their relationship with Mr. Q. in issue.

44        Mr. Q.’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 of this evidence, it may be difficult for the jury to understand Mr. Q.’s defence that this was not a discrete event that took place at one particular place at one particular time but was, according to Mr. Q., part of an ongoing relationship that involved the transfer of 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 Code means 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 not necessary for the defence to demonstrate strong and compelling reasons for admission of the evidence.

46        In R. v. Harris, 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. Q.’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. Q. 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. Q. 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. Q. and that they did not consent to any sexual activity with Mr. Q. 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. Q.’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. Q. will be highly prejudicial to them.[FN1]

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. Q. 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. Q.’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. Q. is consistent with the testimony they gave at the Preliminary Inquiry, the Defendant, Mr. Q. 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.

FN1 1 In R. v. M.M., [1999] O.J. No. 3943 (Ont. Sup. Ct.), Langdon J. admitted evidence of prior sexual activity between the parties because the development of the relationship between the parties was necessary to provide context, without which the testimony of the accused in support of his position that the contact was consensual would appear improbable. In R. v. Temertzoglou, [2002] O.J. No. 4951 (Ont. Sup. Ct.) Fuerst J. ruled that evidence of a prior sexual relationship between the parties was relevant for various reasons including the fact that it showed the development of a relationship between the parties which was more than platonic, notwithstanding a significant age difference which might otherwise engender a “presumption against the defence”. In R. v. Strickland, 2007 CanLII 3679 (Ont. Sup. Ct.), Heeney J. found that evidence of the past sexual relationship between the accused and the complainant was relevant to dispel any inference of the unlikelihood of consent to have sex with a virtual stranger. In R. v. B.B., 2009 CanLii 9405, (Ont. Sup. Ct.), Spies J. admitted evidence of prior recent sexual activity between an estranged married couple.

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