R. v. R.V.

R. v. R.V.
Collection
Supreme Court Judgments
Date
2019-07-31
Neutral citation
2019 SCC 41
Report
[2019] 3 SCR 237
Case number
38286
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Brown, Russell; Rowe, Malcolm; Martin, Sheilah
On appeal from
Ontario
Subjects
Criminal law
Notes
Case in Brief
SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. R.V., 2019 SCC 41, [2019] 3 S.C.R. 237
Appeal Heard: March 20, 2019 Judgment Rendered: July 31, 2019 Docket: 38286
Between:
Her Majesty The Queen Appellant
and
R.V. Respondent
- and -
Ending Violence Association of Canada and Criminal Lawyers’ Association of Ontario Interveners
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Brown, Rowe and Martin JJ.
Reasons for Judgment: (paras. 1 to 100)
Karakatsanis J. (Wagner C.J. and Abella, Moldaver and Martin JJ. concurring)
Joint Dissenting Reasons: (paras. 101 to 139)
Brown and Rowe JJ.
R. v. R.V., 2019 SCC 41, [2019] 3 S.C.R. 237
Her Majesty The Queen Appellant
v.
R.V. Respondent
and
Ending Violence Association of Canada and
Criminal Lawyers’ Association of Ontario Interveners
Indexed as: R. v. R.V.
2019 SCC 41
File No.: 38286.
2019: March 20; 2019: July 31.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Brown, Rowe and Martin JJ.
on appeal from the court of appeal for ontario
Criminal law — Evidence — Admissibility — Complainant’s sexual activity — Accused charged with sexual assault and sexual interference — Crown introducing evidence of complainant’s sexual activity — Accused’s application to challenge Crown’s evidence by cross‑examining complainant dismissed — Accused convicted — Whether accused was entitled to cross‑examine complainant on Crown‑led evidence relative to her sexual activity — If so, whether curative proviso should be applied — Criminal Code, R.S.C. 1985, c. C‑46, ss. 276 , 686(1) (b)(iii).
Criminal law — Trial — Continuation of proceedings — Application judge dismissing application by accused to cross-examine complainant on Crown‑led evidence of complainant’s sexual activity — Proceedings continued before different judge — Trial judge refusing to rehear accused’s application — Whether trial judge had jurisdiction to reconsider application — Whether material change in circumstances warranted reconsideration of application — Criminal Code, R.S.C. 1985, c. C‑46, s. 669.2 .
The accused was charged with sexual assault and sexual interference. During pre‑trial proceedings, he applied under s. 276 of the Criminal Code for permission to cross‑examine the complainant about her prior sexual activity because the Crown intended to rely on the complainant’s pregnancy as evidence of sexual contact with the accused. The application judge dismissed the accused’s s. 276 application. After the voir dire and prior to trial, the application judge invoked s. 669.2 of the Criminal Code and the trial continued before another judge. At the outset of the trial, the trial judge declined the accused’s request to re‑litigate the s. 276 application. The accused was convicted of sexual interference. The Court of Appeal allowed the accused’s appeal and ordered a new trial. In the Court of Appeal’s view, it was patently unfair for the Crown to rely on the pregnancy as confirming the complainant’s story while preventing the accused from challenging this inference. The court also held that the trial judge’s conclusion that he was bound by the initial s. 276 ruling was incorrect. It ordered a new trial.
Held (Brown and Rowe JJ. dissenting): The appeal should be allowed and the conviction restored.
Per Wagner C.J. and Abella, Moldaver, Karakatsanis and Martin JJ.: The application judge erred in dismissing the accused’s s. 276 application and the trial judge erred in concluding that he was bound by the initial s. 276 ruling. The ability to cross‑examine the complainant was fundamental to the accused’s right to make full answer and defence. However, no miscarriage of justice occurred since the cross‑examination that was permitted and actually occurred allowed the defence to test the evidence with sufficient rigour.
Sexual assault trials raise unique challenges in protecting the integrity of the trial and balancing the societal interests of both the accused and the complainant. Parliament and the courts have responded to these challenges by setting out rules of evidence tailored to this context. Section 276 of the Criminal Code governs the accused’s right to introduce evidence regarding the complainant’s prior sexual activity. Such evidence is never admissible to support the twin myths that the complainant is less worthy of belief or more likely to have consented to the sexual activity in question. In order to respect the presumption of innocence and the accused’s right to make full answer and defence, evidence may be adduced for other relevant purposes but must satisfy rigorous criteria to ensure it does not undermine the integrity of the trial or the complainant’s dignity and privacy. The requirements of s. 276 apply with equal force regardless of whether the accused seeks to introduce evidence to establish a defence or to challenge inferences urged by the Crown. Before evidence of a complainant’s sexual history may be introduced, the court must carefully scrutinize the potential evidence.
Individuals charged with criminal offences are presumed innocent until proven guilty; accordingly, an accused has the right to call the evidence necessary to establish a defence and to challenge the prosecution’s evidence. Full answer and defence is a principle of fundamental justice, protected by s. 7 of the Canadian Charter of Rights and Freedoms . A key element of full answer and defence is the right to cross‑examine the Crown’s witnesses without significant and unwarranted restraint. In certain circumstances, cross‑examination may be the only way to get at the truth. The fundamental importance of cross‑examination is reflected in the general rule that counsel is permitted to ask any question for which they have a good faith basis. Uncertainty of result does not deprive a line of questioning of its probative value.
However, the right to cross‑examine is not unlimited. Cross-examination questions must be relevant and their prejudicial effect must not outweigh their probative value. Section 276 requires that the accused’s right to make full answer and defence be balanced with the dangers that cross‑examination may pose to the complainant’s privacy and dignity and the integrity of the trial process. This is because inquiries into any individual’s sexual history are highly intrusive. In addition, testifying in a sexual assault case can be traumatizing and harmful to complainants.
Where challenging the Crown’s evidence of the complainant’s sexual history directly implicates the accused’s ability to raise a reasonable doubt, cross‑examination becomes fundamental to the accused’s ability to make full answer and defence and must be allowed in some form. The more important evidence is to the defence, the more weight must be given to the rights of the accused. However, since permitting an accused to question a complainant on such matters treads on dangerous grounds, raising both dignity and privacy concerns, judges must tightly control such cross‑examinations to minimize those risks.
Broad exploratory questioning is never permitted under s. 276 . Where targeted cross‑examination of the complainant is permitted, trial judges must strike a delicate balance between giving counsel sufficient latitude to conduct effective cross‑examination and minimizing any negative impacts on the complainant and the trial process. Proposed questions should be canvassed in advance and may be re‑assessed based upon the answers received. In certain cases, it may even be appropriate to approve specific wording.
Section 276(1) and the common law principles apply to Crown‑led evidence of a complainant’s sexual history. Where the accused’s s. 276 application relates to Crown‑led evidence, it would be prudent to consider both the Crown’s proposed use of the evidence and any challenges proposed by the accused at the same time.
Section 276(2)(a) requires the accused to identify “specific instances of sexual activity” to avoid unnecessary incursions into the sexual life of the complainant. The words “specific instances of sexual activity” must be read purposively and contextually. They limit admissible evidence to discrete sexual acts, and protect against misuse of general reputational evidence to discredit the complainant and distort the trial process. The “specific instances” requirement is buttressed by the procedural aspects of a s. 276 application, which require the accused to set out “detailed particulars” of the evidence to be adduced. By requiring “detailed particulars”, the Criminal Code ensures that judges are equipped to meaningfully engage with the s. 276 analysis and that defence evidence does not take the Crown or complainant by surprise. However, s. 276(2)(a) does not always require an accused to come before the court armed with names, dates and locations. Requiring such details may, in some cases, be unduly intrusive, defeating one of the provision’s most important objectives. The degree of specificity required depends on the circumstances of the case, the nature of the sexual activity that the accused seeks to adduce and the use to be made of that evidence. Caution must be exercised where the proposed inquiry captures a broad range of sexual activity and is limited only by a specified timeframe.
In this case, the complainant testified that she was a virgin at the time of the assault. The Crown introduced evidence of her subsequent pregnancy and the approximate date of conception to support the complainant’s testimony that she was sexually assaulted by the accused. The presumption of innocence requires that the accused be permitted to test such critical, corroborating physical evidence before it can be relied on to support a finding of guilt. Given the accused’s denial of any sexual contact with the complainant, and the lack of other evidence of paternity, the ability to cross‑examine the complainant was fundamental to his right to make full answer and defence. It would be unfair for the Crown to rely on the complainant’s testimony that the accused caused the pregnancy while at the same time preventing the accused from challenging the complainant’s account. Furthermore, the accused’s request to cross‑examine the complainant satisfied the “specific instances” requirement of s. 276(2)(a) because it was sufficiently detailed to permit the judge to apply the regime. The cross‑examination sought to establish that the pregnancy was caused by sexual activity other than the alleged assault. The Crown‑led evidence implicated a specific sexual act, namely activity capable of causing pregnancy within a particular time‑frame.
Section 669.2 of the Criminal Code does not displace the general rule that a trial judge has discretion to re‑consider rulings made earlier in the proceedings if there is a material change of circumstances. An order related to the conduct of trial may be varied or revoked if there is a material change of circumstances as s. 276 continues to operate even after an initial evidentiary ruling has been rendered. In this case, the trial judge held that he could not re‑consider the ruling and also observed that no material change of circumstances had occurred between the s. 276 ruling and the start of trial. Given the trial judge’s decision, counsel for the accused may have thought it would be futile to apply for a re‑consideration, even if the circumstances changed during the trial.
Section 686(1) (b)(iii) of the Criminal Code permits a court of appeal to dismiss an appeal from a conviction where “no substantial wrong or miscarriage of justice has occurred”. Applying the curative proviso is appropriate in two circumstances: (1) where the error is harmless or trivial; or (2) where the evidence is so overwhelming that the trier of fact would inevitably convict. Because cross‑examination is a key element of the right to make full answer and defence, a failure to allow relevant cross‑examination will almost always be grounds for a new trial. In this case, a correct balancing of the interests set out in s. 276(3) would have allowed the accused to make limited inquiries into: (i) the complainant’s understanding of the types of sexual activity capable of causing pregnancy and (ii) whether she engaged in any such activity at the relevant time. The scope of permissible cross‑examination would not have been any broader than the questioning that actually occurred. The accused was not precluded from adequately testing the evidence in this case, despite the errors in the s. 276 ruling. The application and trial judge’s errors are harmless and there is no reasonable possibility that the verdict would have been different had the errors not been made.
Per Brown and Rowe JJ. (dissenting): There is agreement with the majority that the application judge misapplied the admissibility criteria under s. 276 of the Criminal Code and further, that the trial judge erred in holding that he had no jurisdiction to reconsider the s. 276 ruling in light of the evidence adduced by the Crown. However, there is disagreement as to the appropriate remedy for the errors of the application and trial judges. The errors in this case were not harmless or minor, nor was the evidence overwhelming. Cross-examination was restricted in a manner not consistent with the purpose behind s. 276 and as a result, the accused was denied a fair trial.
The right to test the Crown’s evidence through relevant cross‑examination is guaranteed by both the common law and the Charter as a core element of the right to make full answer and defence. An accused has the right of cross‑examination in the fullest and widest sense of the word as long as that right is not abused. An accused’s fair trial rights include not just the fact of cross‑examination, but also control over the rhythm of cross‑examination. Cross-examination is not so much a series of questions as a process of questioning. Cross‑examination involves putting careful questions to a witness that are designed to explore bit by bit the nature and extent of that witness’s knowledge, and therefore is effective only where it is permitted to proceed step by step towards the ultimate point, where the examiner can pose the final question (or questions), knowing by that time what the answer(s) will be, having regard to the earlier evidence elicited. When cross‑examination is unduly restricted, the effects on the fairness of the trial will often reverberate beyond, and cannot be fully appreciated by parsing, the particular words in a transcript. However, a cross‑examination that is not unduly restricted does not mean a cross-examination that is boundless. Parliament has specifically legislated limits on questioning related to a complainant’s sexual history into the Criminal Code .
If an accused’s right to test the Crown’s evidence is irremediably impaired through an inability to challenge a crucial part of the case against them, it will be inappropriate to invoke or apply the curative proviso provided for in s. 686(1) (b)(iii) of the Criminal Code . Where there has been a legal error, the default is to order a new trial; the proviso allows a departure from this default rule only in very narrow circumstances. The curative proviso is rarely (successfully) invoked, and applies where, and only where, the error is minor or harmless, or the evidence is overwhelming. It is a high bar for the Crown to meet. The high bar on the proviso’s use strongly affirms the need to safeguard the integrity of the criminal justice system from the risk of wrongful conviction.
Given the interests the proviso protects, it cannot be invoked here. In the absence of overwhelming evidence, its application turns on whether the erroneous s. 276 ruling was so minor or harmless that it could not have had an impact on the verdict. The errors were significant and their cumulative effect deprived the accused of the right to engage in a process of questioning protected by both the Charter and the common law. Had the accused been able to effectively challenge the sexual history evidence presented by the Crown, he may have been able to elicit something that was sufficient to raise a doubt: cross‑examination may well have been the only way to elicit evidence that was not apparent at the outset. The accused, therefore, was denied a fair trial, and where fair trial rights have been infringed, the appeal should run its natural course. The appeal should be dismissed.
Cases Cited
By Karakatsanis J.
Referred to: R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443; R. v. Osolin, [1993] 4 S.C.R. 595; R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193; R. v. Mills, [1999] 3 S.C.R. 668; R. v. L.S., 2017 ONCA 685, 40 C.R. (7th) 351; R. v. Crosby, [1995] 2 S.C.R. 912; R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390; R. v. Nkemka, 2013 ONSC 2121; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579; R. v. Akumu, 2017 BCSC 533; R. v. Adams, [1995] 4 S.C.R. 707; R. v. Calder, [1996] 1 S.C.R. 660; R. v. La, [1997] 2 S.C.R. 680; R. v. Pittiman (2005), 198 C.C.C. (3d) 308, aff’d 2006 SCC 9, [2006] 1 S.C.R. 381; R. v. Brothers (1995), 169 A.R. 122; R. v. Bevan, [1993] 2 S.C.R. 599; R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823; R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272; R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716; R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33.
By Brown and Rowe JJ. (dissenting)
R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579; R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3; R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272; R. v. Sarrazin, 2011 SCC 54, [2011] 3 S.C.R. 505; R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716; R. v. Brown, 2018 ONCA 481, 361 C.C.C. (3d) 510; R. v. Bomberry, 2010 ONCA 542, 267 O.A.C. 235; R. v. Hill, 2015 ONCA 616, 339 O.A.C. 90; R. v. Osolin, [1993] 4 S.C.R. 595; R. v. Levogiannis, [1993] 4 S.C.R. 475; R. v. N.S., 2012 SCC 72, [2012] 3 S.C.R. 726; R. v. Schmaltz, 2015 ABCA 4, 593 A.R. 76; Regina v. White (1976), 1 Alta. L.R. (2d) 292; R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193; R. v. Anandmalik (1984), 6 O.A.C. 143; R. v. Wallick (1990), 69 Man. R. (2d) 310; R. v. Borden, 2017 NSCA 45, 349 C.C.C. (3d) 162; R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33; Fox v. General Medical Council, [1960] 1 W.L.R. 1017; Adams v. United States ex rel. McCann, 317 U.S. 269 (1942); Michelson v. United States, 335 U.S. 469 (1948); R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Sarrazin, 2010 ONCA 577, 268 O.A.C. 200; R. v. Crosby, [1995] 2 S.C.R. 912.
Statutes and Regulations Cited
Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, S.C. 1980‑81‑82‑83, c. 125, s. 246.6(1)(a) [rep. & sub. 1985, c. C-46, s. 276(1)(a)].
Bill C‑51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, 1st Sess., 42nd Parl., 2018.
Canadian Charter of Rights and Freedoms, ss. 7 , 11(d) .
Criminal Code, R.S.C. 1985, c. C‑46, ss. 276 , 276.1(2) [ad. 2018, c. 29, s. 25], (4) [idem], 669.2, 686(1)(b)(iii).
Authors Cited
Adair, Geoffrey D. E. On Trial: Advocacy Skills, Law and Practice, 2nd ed. Markham, Ont.: LexisNexis Butterworths, 2004.
Craig, Elaine. Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession. Montréal: McGill‑Queen’s University Press, 2018.
Craig, Elaine. “The Ethical Obligations of Defence Counsel in Sexual Assault Cases” (2014), 51 Osgoode Hall L.J. 427.
Ozkin, Senem. “Balancing of Interests: Admissibility of Prior Sexual History under Section 276 ” (2011), 57 Crim. L.Q. 327.
Woolley, Alice. Understanding Lawyers’ Ethics in Canada, 2nd ed. Toronto: LexisNexis, 2016.
APPEAL from a judgment of the Ontario Court of Appeal (MacFarland, Watt and Paciocco JJ.A.), 2018 ONCA 547, 141 O.R. (3d) 696, 362 C.C.C. (3d) 434, 46 C.R. (7th) 309, [2018] O.J. No. 3162 (QL), 2018 CarswellOnt 9555 (WL Can.), setting aside the conviction for sexual interference entered by Gee J. and ordering a new trial. Appeal allowed, Brown and Rowe JJ. dissenting.
Katie Doherty, for the appellant.
Michael Dineen and Megan Savard, for the respondent.
Greg J. Allen and Jorie Les, for the intervener the Ending Violence Association of Canada.
Marie Henein and Lauren Mills Taylor, for the intervener the Criminal Lawyers’ Association of Ontario.
The judgment of Wagner C.J. and Abella, Moldaver, Karakatsanis and Martin JJ. was delivered by
Karakatsanis J. —
I. Introduction
[1] Sexual assault trials raise unique challenges in protecting the integrity of the trial and balancing the societal interests of both the accused and the complainant. Parliament and the courts have responded to these challenges by setting out rules of evidence tailored to this context.
[2] Parliament enacted s. 276 of the Criminal Code, R.S.C. 1985, c. C-46 , to govern the accused’s right to introduce evidence regarding the complainant’s prior sexual activity. Such evidence is never admissible to support the twin myths that the complainant is less worthy of belief or more likely to have consented to the sexual activity in question. In order to respect the presumption of innocence, evidence may be adduced for other relevant purposes but must satisfy rigorous criteria to ensure it does not undermine the integrity of the trial or the complainant’s dignity and privacy.
[3] The issue in this case is how these requirements apply where the Crown introduces evidence relating to the complainant’s sexual activity and the accused seeks to challenge that evidence by cross-examining the complainant.
[4] Here, the complainant testified that she was a virgin at the time of the assault. The Crown introduced evidence of her subsequent pregnancy and the approximate date of conception to support the complainant’s testimony that she was sexually assaulted by the accused. The accused denied the allegations and sought to question the complainant as to whether anyone else could have caused the pregnancy.
[5] The application judge ruled that the accused was not permitted to ask whether the complainant had engaged in any other sexual activity because the accused had no evidence of “specific instances of sexual activity” — one of the requirements of s. 276(2) of the Criminal Code . The accused was, however, permitted to cross-examine the complainant about her claim that she was a virgin at the time of the assault.
[6] I conclude that the application judge erred. The cross-examination sought to establish that the pregnancy was caused by sexual activity other than the alleged assault. The Crown-led evidence implicated a specific sexual act, namely activity capable of causing pregnancy within a particular timeframe. The accused’s request satisfied the “specific instances” requirement of s. 276(2) because it was sufficiently detailed to permit the judge to apply the regime.
[7] The Crown clearly intended to rely on evidence of the pregnancy to establish the actus reus. The presumption of innocence requires the accused to be permitted to test such critical, corroborating physical evidence before it can be relied on to support a finding of guilt. Given the accused’s denial of any sexual contact with the complainant, and the lack of other evidence of paternity, the ability to cross-examine the complainant was fundamental to his right to make full answer and defence.
[8] Nonetheless, permitting an accused to question a complainant about such matters treads on dangerous ground, raising both dignity and privacy concerns. Judges must tightly control such cross-examination to minimize those risks. The accused’s right to make full answer and defence must be balanced with other interests protected in s. 276(3). Here, balancing those interests would have required any cross-examination to be narrow in scope.
[9] That said, I am of the view that no miscarriage of justice occurred in this case. The cross-examination that was permitted and actually occurred allowed the defence to test the evidence with sufficient rigour. I would allow the appeal and restore the conviction.
II. Background
[10] The accused and the complainant are cousins. During the Canada Day weekend of 2013, they went camping with several members of their extended families. At the time, R.V. was 20 years old and the complainant was 15. The complainant testified that R.V. sexually assaulted her in the early morning hours of July 1st.
[11] The complainant testified that on the families’ last night together, she played cards and hung out with her cousins. The parents in the group went to bed around 2:00 a.m. while the complainant stayed awake with several of her cousins. She said that around 4:00 a.m., R.V. suggested the cousins go to the beach for a swim. After briefly venturing into the lake, the cousins headed back to their campsites. R.V. borrowed the complainant’s phone to use as a flashlight on the walk back.
[12] The complainant explained that she returned to her tent, realized R.V. still had her phone and went to his tent to retrieve it. Upon her arrival at his tent, R.V. told the complainant he needed to speak to her in private. He took her by the wrist and led her into a men’s washroom near the beach.
[13] Once inside the washroom, the complainant said R.V. tried to kiss her and remove her shirt, which she resisted. Then he told her to lay down on the floor. She complied out of fear and he pulled down her pants and underwear as well as his own. R.V. then placed himself on top of her. She believes he tried to penetrate her vagina with his penis but her memory of this moment is blank. Her next memory is of R.V. asking her if she heard one of the cousins calling for her. After warning the complainant not to tell anyone what had happened, R.V. got up, put his clothes on and left. After he left, the complainant went to the women’s washroom to clean up. She said the area outside her vagina felt wet and sticky and she felt disgusted. She then returned to her tent and fell asleep.
[14] R.V. denied the allegations and the complainant’s account of the evening. He acknowledged being around the bonfire with the family. But, he stated, he went to bed at around the same time as the parents and had no further interaction with the complainant that evening.
[15] Initially, the complainant did not tell anyone about the assault. In late August, she went to see a doctor, complaining of abdominal pain and nausea. When asked, she denied being sexually active. A urine test taken during a physical exam on August 29th subsequently confirmed that she was pregnant. Based on an ultrasound performed on September 18th, the doctor estimated that conception had occurred at the end of June or the beginning of July.
[16] The doctor asked the complainant whether she had any interactions capable of causing pregnancy around the date of conception. During this discussion, the complainant told the doctor about the incident with R.V. Because the complainant was underage, later that day the doctor relayed this information to the Children’s Aid Society, which in turn contacted the police.
[17] After consulting with her doctor again on September 19th, the complainant terminated the pregnancy on September 21st. The clinic disposed of the fetal remains that day, making a DNA paternity test impossible. The police contacted the complainant the following week and took a statement from her on September 24th. The complainant told the police (and testified at trial) that she was a virgin at the time of the assault. The police charged R.V. with sexual assault and sexual interference.
A. The Voir Dire: Baker J.
[18] In light of the medical evidence about the date of conception, the Crown tendered evidence of the pregnancy to support the complainant’s testimony that the alleged assault was the cause. During pre-trial proceedings, R.V. applied to question the complainant “about her prior sexual activity, with the [accused], or any other individual, that may have occurred between June 1st and July 1st, 2013” (A.R., vol. II, at p. 3). Because the Crown intended to rely on the complainant’s pregnancy as evidence of sexual contact with the accused, R.V. argued his right to make full answer and defence entitled him to inquire into “whether any other individual could have impregnated the complainant” (A.R., vol. II, at p. 4).
[19] Baker J. dismissed the s. 276 application. In her view, R.V. had failed to point to specific instances of sexual activity. Instead, she found, the request was “more in the nature of a fishing expedition” (A.R., vol. I, at p. 15).
[20] The application judge also observed that other means could be used to challenge the inference that R.V. caused the complainant’s pregnancy. First, the gestational age of the fetus might not align with the date of the alleged offence. She based this conclusion on the voir dire submissions of R.V.’s counsel, who suggested the date of conception was approximately June 14th, 17 days prior to the assault.
[21] Second, R.V. could question the complainant on her understanding of the term “virgin” and the truthfulness of her statement that she was a virgin at the time of the alleged offence. The application judge held that questions regarding virginity do not fall within s. 276 . However, R.V.’s right to ask these limited questions did not “give the defence carte blanche to cross-examine the complainant on any sexual activity she may have undertaken in the month immediately preceding the alleged offence” (A.R., vol. I, at p. 15).
[22] The application judge accepted that R.V. was not intending to rely on the cross-examination evidence to further the twin myths. Nevertheless, the complainant’s personal dignity and right of privacy outweighed the “highly uncertain probative value of the proposed evidence” (A.R., vol. I, at p. 16).
B. The Trial: Gee J.
[23] After the voir dire and prior to trial, the application judge invoked s. 669.2 of the Criminal Code and the trial continued before another judge. At the outset of the trial, Gee J. declined R.V.’s request to re-litigate the s. 276 application. He held that where a trial is continued by another judge, s. 669.2 does not provide for the re-consideration of pre-trial motions decided by the previous judge. In any event, he concluded there was no reason to re-hear the application because no change of circumstances had occurred.
[24] The complainant, the complainant’s doctor and the accused testified at trial. During the doctor’s testimony, it became clear that defence counsel’s calculation of the conception date at the voir dire was wrong.[1] Based on the ultrasound, conception would have occurred between June 21st and July 5th, 2013.
[25] The trial judge rejected R.V.’s account of the night in question. In assessing R.V.’s credibility, he considered inconsistencies in R.V.’s trial testimony and interview with the police, as well as his admission that he had lied during both. The trial judge ultimately concluded that R.V. was not a credible witness and did not accept his evidence.
[26] In contrast, the trial judge found the complainant to be “a very compelling witness” (A.R., vol. I, at p. 46) whose account was detailed and precise. He accepted her testimony that prior to July 1st she had never had intercourse. He also concluded that her pregnancy was “compelling evidence supportive . . . of her allegations” (A.R., vol. I, at p. 47).
[27] R.V. was convicted of sexual interference and received a four-year custodial sentence.
C. The Court of Appeal: MacFarland, Watt and Paciocco JJ.A.
[28] Writing for the Court of Appeal for Ontario, Paciocco J.A. allowed the appeal and ordered a new trial. He held that it was patently unfair for the Crown to rely on the pregnancy as confirming the complainant’s story while preventing the accused from challenging this inference. While the request to cross-examine the complainant about her sexual activity “that may have occurred between June 1st and July 1st, 2013” was “extravagant”, the accused should still have had the opportunity to ask relevant questions: 2018 ONCA 547, 141 O.R. (3d) 696, at paras. 27 and 29-30.
[29] Paciocco J.A. held that s. 276(2) requires the accused to adequately identify targeted evidence and proposed lines of questioning so as to permit the application judge to perform the balancing required by s. 276 . Here, the probative value of the cross-examination was clear — it had the potential to neutralize the Crown’s reliance on the pregnancy. Uncertainty about whether a line of questioning will succeed does not eliminate its potential probative value. Thus, the application judge erred in requiring an evidentiary foundation for the proposed cross-examination.
[30] Paciocco J.A. also concluded that the application judge had erred in characterizing the requested cross-examination as a “fishing expedition”. In his view, the proposed questioning was “responsive to an important plank in the Crown’s case”, and the alternative methods of challenging the complainant’s claim of virginity did not adequately protect the accused’s right to a fair trial: paras. 69-84.
[31] According to the Court of Appeal, the impact of the application judge’s errors was compounded by the trial judge’s incorrect conclusion that he was bound by the initial s. 276 ruling. A new trial was therefore warranted because the trial judge’s refusal to reconsider the application effectively prevented future meritorious applications from being considered.
III. Analysis
[32] The question in this case is how s. 276 operates when the accused seeks to cross-examine the complainant to challenge sexual history evidence led by the Crown. Section 276 requires that the accused’s right to make full answer and defence be balanced with the dangers that cross-examination may pose to the complainant’s privacy and dignity and to the integrity of the trial process. This analysis applies with equal force regardless of whether the accused seeks to introduce evidence to establish a defence or to challenge inferences urged by the Crown.
A. Challenging the Crown’s Evidence Within the Limits of Section 276
[33] Testifying in a sexual assault case can be traumatizing and harmful to complainants: see E. Craig, Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession (2018), at pp. 4 et seq. Questions about a complainant’s sexual history are often irrelevant, serving no purpose other than supporting the “twin myths” — that a complainant’s past sexual acts make her less worthy of belief or more likely to have consented to the sexual activity in question. Historically, wide-ranging and intrusive inquiries into the complainant’s sexual history were used to distort the trial process and essentially put the complainant on trial: see R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at para. 33.
[34] In an effort to abolish “outmoded, sexist-based use of sexual conduct evidence”, Parliament, in 1982, enacted a blanket ban on all evidence of a complainant’s prior sexual activity, subject to three limited exceptions: R. v. Seaboyer, [1991] 2 S.C.R. 577, at p. 625. One exception covered evidence “that rebuts evidence of the complainant’s sexual activity or absence thereof that was previously adduced by the prosecution”: An Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, S.C. 1980-81-82-83, c. 125, s. 246.6(1)(a) (later s. 276(1)(a)). In Seaboyer, the Court struck down the 1982 provision as unconstitutional because it was too restrictive — it had the potential to exclude relevant evidence crucial to a fair trial: Seaboyer, at p. 625. The Court emphasized that the relevance of all evidence, including sexual history evidence, must be assessed on a case-by-case basis: p. 609.
[35] In response, Parliament amended s. 276 , codifying the guidelines outlined in Seaboyer: R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, at para. 20. The modern version of s. 276 [2] seeks to preserve the integrity of the administration of justice, and the trial, by striking a balance between the rights of the accused and those of the complainant:
276 (1) In proceedings in respect of [various sexual offences], 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.
[36] Before evidence of a complainant’s sexual history may be introduced under s. 276(2) , the court must carefully scrutinize the potential evidence. First, the accused must set out in writing the “detailed particulars of the evidence that the accused seeks to adduce” and its relevance “to an issue at trial”: s. 276.1(2) .[3] If the judge is persuaded that the evidence is “capable of being admissible under subsection 276(2) ”, a voir dire is held: s. 276.1(4).[4] Evidence adduced to support the twin myths is categorically barred. And, even where it has some relevance for another purpose, evidence may still be excluded if admitting it would endanger the “proper administration of justice”: s. 276(2) (c).
[37] In many cases, when the accused applies to adduce evidence pursuant to s. 276 , they have an evidentiary basis for known sexual activity (i.e., “detailed particulars” of “specific . . . sexual activity”). In this case, however, while R.V. maintained that other activity necessarily occurred because the complainant became pregnant, he had little knowledge of the particulars of that activity. He thus sought to adduce evidence of the other sexual activity by cross-examining the complainant.
[38] Individuals charged with criminal offences are presumed innocent until proven guilty. As a result,