R. v. T.W.W.

R. v. T.W.W.
Collection
Supreme Court Judgments
Date
2024-05-24
Neutral citation
2024 SCC 19
Case number
40406
Judges
Wagner, Richard; Karakatsanis, Andromache; Côté, Suzanne; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas; Jamal, Mahmud; O’Bonsawin, Michelle; Moreau, Mary
On appeal from
British Columbia
Subjects
Courts
Criminal law
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. T.W.W., 2024 SCC 19
Appeal Heard: November 10, 2023 Judgment Rendered: May 24, 2024 Docket: 40406
Between:
T.W.W. Appellant
and
His Majesty The King Respondent
- and -
Attorney General of Alberta Intervener
Coram: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ.
Reasons for Judgment: (paras. 1 to 82)
O’Bonsawin J. (Wagner C.J. and Karakatsanis, Rowe, Martin, Kasirer and Jamal JJ. concurring)
Joint Dissenting Reasons: (paras. 83 to 131)
Côté and Moreau JJ.
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
T.W.W. Appellant
v.
His Majesty The King Respondent
and
Attorney General of Alberta Intervener
Indexed as: R. v. T.W.W.
2024 SCC 19
File No.: 40406.
2023: November 10; 2024: May 24.
Present: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ.
on appeal from the court of appeal for british columbia
Criminal law — Evidence — Admissibility — Complainant’s sexual activity — Accused charged with sexual assault — Accused and complainant married but separated at time of alleged assault — Accused applying to adduce evidence of sexual activity between himself and complainant on evening prior to alleged assault — Application dismissed — Accused convicted — Whether trial judge erred in refusing to admit evidence of prior sexual activity — Criminal Code, R.S.C. 1985, c. C‑46, s. 276.
Courts — Open court principle — Publication bans — Accused charged with sexual assault — Accused bringing application to adduce evidence of complainant’s prior sexual activity — Whether statutory provision prohibiting publication of information and evidence relating to accused’s application extends to appellate proceedings — If not, whether discretionary limits on court openness justified — Criminal Code, R.S.C. 1985, c. C‑46, s. 278.95.
The accused and the complainant were in a romantic relationship for over twenty years. In February 2018, they separated and the accused moved into the basement of the family home. According to a statement made to police by the complainant, she and the accused had consensual intercourse on the evening of April 1, 2018, and the accused sexually assaulted her the following morning. The accused brought a pre‑trial application to adduce evidence of the sexual activity from the evening of April 1, pursuant to ss. 276 and 278.93 of the Criminal Code. The application stated that the accused’s defence was consent. The trial judge dismissed the application. He held that the events of April 1 were not relevant to the issue of consent on April 2, and rejected the accused’s argument that the events on April 1 formed a continuous event with the events on April 2. He also concluded that the evidence was sought to be adduced for the prohibited purpose of arguing that the complainant was more likely to have consented to the alleged sexual activity or that she was less worthy of belief.
The accused was convicted of sexual assault and appealed his conviction. The appeal proceeded in camera and the appeal record was sealed. The majority of the Court of Appeal held that the accused failed to establish how evidence of the April 1 sexual activity was fundamental to his defence, which was not, in fact, a defence of consent as set out in his application, but was rather a complete denial that the assault occurred. It its view, evidence of consensual sex on April 1 could not support a defence that a sexual assault on April 2 did not occur. The dissenting judge held that the evidence of prior sexual activity was essential to challenging the complainant’s credibility and the Crown’s theory that the sexual assault occurred in the context of a complete breakdown in the accused and complainant’s relationship. The accused appealed to the Court as of right. The Crown brought a motion for the appeal to be held in camera, for filed materials to be sealed, and for any other order necessary to protect the information covered by ss. 276 and 278.93 to 278.95 of the Criminal Code, on the basis that the procedural protections prohibiting publication put in place at the trial level under ss. 278.94 and 278.95 should extend to the appeal before the Court.
Held (Côté and Moreau JJ. dissenting on the appeal): The appeal should be dismissed and the Crown’s motion should be allowed in part.
Per Wagner C.J. and Karakatsanis, Rowe, Martin, Kasirer, Jamal and O’Bonsawin JJ.: The accused failed to sufficiently identify a specific use for the prior sexual activity evidence that did not invoke twin‑myth reasoning and that was essential to his ability to make full answer and defence. Accordingly, the trial judge did not err in denying the application. With respect to the Crown’s motion, the mandatory publication ban under s. 278.95 of the Criminal Code does not extend to this appeal. Rather, the Court’s power to make an order limiting court openness in the instant case is derived from the implied jurisdiction of courts to control their own processes and records. The Court’s discretion should be exercised in a way that maintains court openness as far as practicable while protecting the complainant’s personal dignity and privacy and the accused’s fair trial rights. Applying the test set out in Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R. 75, the circumstances of the instant case do not justify all of the measures requested by the Crown. Banning publication of any information about or reference to the nature of the sexual activity other than that which forms the subject‑matter of the charge is sufficient.
On appeal from a trial judge’s determination to admit or refuse evidence of other sexual activity, an appellate court must ensure that the trial judge applied the correct legal principles, considered all the evidence they should have, did not admit irrelevant evidence, and did not otherwise err in law; no deference is owed in this regard. However, as to the trial judge’s determination that the evidence’s prejudicial effect substantially outweighed its probative value, appellate courts should defer. In reviewing a trial judge’s initial s. 276 ruling, the appellate court must only consider the evidence that was before the trial judge at the time of the determination on admissibility.
Other sexual activity evidence may be admissible in relation to issues of credibility or context, but the applicant must establish a specific use for this information that is permitted by the s. 276 regime, and the applicant bears the burden of establishing that any such probative value is not substantially outweighed by prejudicial effect. Specificity is required so judges can apply the scheme in a way that protects the rights of the complainant and ensures trial fairness, and there must be a sufficient factual and evidentiary basis for the trial judge to properly consider and weigh the factors set out in s. 276. The applicant must demonstrate that, in the absence of the evidence, their position would be untenable or utterly improbable.
The relevance and probative value of prior sexual activity evidence may not crystallize until witnesses have begun their testimony and the evidence, or the inconsistency or materiality thereof, becomes apparent. Where the evolution of a witness’ testimony at trial results in a material change in circumstances, the trial judge may, either on their own initiative or by request from either party, revisit an earlier s. 276 ruling in light of the new evidence or information. The possibility of reconsideration of a pre‑trial ruling in no way relieves the defence of its responsibility, in the majority of cases, to make a request for reconsideration and articulate the permissible purposes of the evidence in light of the changed circumstances. However, if the nature of the evidence at trial cries out for a reconsideration, an appellate court may find that a trial judge was required to revisit their prior s. 276 ruling of their own motion even without being specifically asked to do so.
In the instant case, there could be no use for the April 1 evidence beyond twin‑myth reasoning. The proposed evidence could not provide any greater context for understanding the complainant’s actions on April 2, or whether she did or did not consent, beyond unequivocally impermissible reasoning. Even if the evidence had some relevance to either context or credibility, the trial judge made no error in weighing its probative value against its prejudicial effect, and his conclusion on this point is entitled to deference. As for the issue of whether the trial judge ought to have revisited his pre‑trial ruling, addressed by Côté and Moreau JJ., it is beyond the proper scope of the appeal to the Court. The scope of an appeal to the Court under s. 691(1)(a) of the Criminal Code is limited to those questions of law on which a judge of the court of appeal dissents. Although in ascertaining the real ground upon which dissent is based the Court may look to the written reasons of the dissenting judges, in the instant case the formal judgment of the Court of Appeal plainly stated that the issue of dissent was whether there was an error in the pre‑trial ruling; it was not whether the trial judge should have revisited his initial ruling. Those are separate questions.
With respect to the Crown’s motion, it requires consideration of the source of the Court’s powers to make orders limiting court openness on appeals of s. 276 determinations. This issue engages an exercise in statutory interpretation. The words of s. 278.95 are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. Section 278.95 prohibits the publication of information and evidence adduced for applications and admissibility hearings pursuant to ss. 278.93 and 278.94, but provides trial judges with a discretion to permit the publication of their decision or determination under s. 278.93(4) or 278.94 by others after considering the complainant’s right of privacy and the interests of justice. A plain reading of the text suggests that it is aimed not at courts but at other entities who would otherwise publish a court’s decisions, such as law reporters, media outlets and reporters, and the general public. The wording of s. 278.95 also limits the power to displace the presumptive statutory publication ban to the judge or justice who has the ability to make orders under ss. 278.93(4) or 278.94(4) in trial proceedings. Section 278.95 is situated among a procedural scheme, the objects of which are to keep improper evidence out of trial proceedings. The scheme contemplates the appeal of such evidentiary determinations but it does not explicitly extend the trial protections to appellate proceedings or otherwise indicate the appropriate procedure on appeal. Had Parliament intended for s. 278.95 to apply to reviewing courts, it could have explicitly stated so.
In the absence of a legislatively imposed exception to the open court principle, the presumption of court openness persists. The Court has implied jurisdiction to make orders limiting court openness, including orders that a hearing proceed in camera and for the sealing of filed materials, derived from its jurisdiction to control its own processes and records. This discretion is not to be exercised lightly, but while court openness is the rule, it is not an absolute or overriding principle. In appeals concerning a sexual offence, the application of the Sherman Estate test draws upon the legislative context and objectives of the s. 276 regime and the two analytical factors set out under s. 278.95 — the complainant’s right of privacy and the interests of justice. Privacy and personal dignity are important public interests, and protection of the dignity and privacy of complainants is not limited to the trial process. An applicant seeking a limiting order must articulate why the serious risk to the complainant’s privacy and dignity warrants a greater restriction on court openness than would be occasioned by an alternative measure. Sealing orders and in camera hearings are greater incursions on court openness compared to publication bans. The benefits of the requested orders must also outweigh their negative effects, bearing in mind the interests of justice in the case. Courts of appeal should also consider what orders were previously made in courts below. Furthermore, the Court has a responsibility to provide clear and authoritative statements of law and guidance to lower courts, which supports judicial accountability in sexual offence trials. Reasons from, and hearings before, the Court provide not only an explanation of an appeal’s resolution to the parties but also give meaning to the judgment’s precedential value.
The sexual nature of the evidence in the instant case touches on the complainant’s dignity and right of privacy, and publication of this type of information gives rise to a serious risk to the public interests of personal privacy and dignity. However, the Crown has not established that the risk to the complainant’s privacy and dignity requires a sealing order or in camera hearing. It can be addressed by banning publication of any information about or reference to the nature of the sexual activity other than that which forms the subject‑matter of the charge. The request to hold the hearing in camera is a greater restriction than is necessary. As the appeal deals with a question of law, counsel were able to argue their case without heavy reliance on sensitive information and evidence. In view of the alternative measures available, the benefits of the requested orders do not outweigh their negative effects on court openness.
Per Côté and Moreau JJ. (dissenting on the appeal): The appeal should be allowed, the accused’s conviction quashed, and a new trial ordered. There is agreement with the majority on the disposition of the Crown’s motion, and there is further agreement that the trial judge did not err in his initial pre‑trial determination on the voir dire under s. 276. However, the evolution of the evidence should have prompted the trial judge to revisit the voir dire ruling made at the pre‑trial stage, and he should have allowed the accused to cross‑examine the complainant about the April 1 consensual sexual activity for limited purposes. In failing to do so, the trial judge committed a reviewable error.
An appeal under s. 691(1)(a) of the Criminal Code is limited to the questions of law on which a judge of a court of appeal dissents, but it is important to maintain some flexibility in identifying what is at the heart of the dissent. An appellate court that raises new issues on appeal must allow the parties to make submissions on those matters, but only when the issue was not raised by the parties or cannot reasonably be said to stem from the issues as framed by the parties. Criminal appeals on questions of law are based in part on the desire to ensure that criminal convictions are the product of error‑free trials. An unduly rigid approach to characterizing the question on which a judge dissents would prevent the Court from addressing the substance of their disagreement.
Section 278.97 of the Criminal Code states that admissibility determinations under s. 276 are deemed to be questions of law. While appellate courts owe deference to the factual conclusions that underpin the analysis, the standard of review on the question of whether sexual activity evidence is admissible under s. 276 is correctness. This gives appellate courts a more active role in overseeing decisions made under s. 276, allowing them to step in more easily to give the proper interpretation to these provisions.
Pre‑trial rulings are not set in stone. An order related to the conduct of trial may be varied or revoked if there is a material change of circumstances. Counsel plays an important role in bringing such evidentiary shifts to the trial judge’s attention, but trial judges have the ability to revisit s. 276 rulings even in cases where counsel has not made a formal request or application. Trial judges have an obligation to remain alert to the evidentiary developments that warrant revisiting s. 276 rulings. Where the evidence cries out for a reconsideration of a prior ruling, the trial judge has an obligation, at the very least, to invite submissions on the issue. This contributes to maintaining trial fairness and avoiding a miscarriage of justice: trial judges’ responsibility to ensure that s. 276 is properly applied is crucial not only to evidence that may need to be screened out, but also to evidence that may need to be admitted for the accused to be afforded the opportunity to make full answer and defence.
In general, whether or not a relationship has previously included a sexual component is not relevant to determining whether a complainant has consented to a particular instance of sexual activity, and an accused must not be allowed to suggest that the complainant was more likely to have consented to the sexual activity in question because she had previously consented in the context of the same relationship. However, when the evidence suggests that, because of the platonic nature of a particular relationship, the complainant would be unlikely to consent, challenging that depiction of the relationship is fundamental to the coherence of the defence narrative.
In the instant case, the question on which the dissenting judge in the Court of Appeal dissented is whether or not the trial judge erred in refusing to admit the evidence of the parties’ sexual activity on April 1. The question of whether the trial judge should have revisited the pre‑trial ruling can be said to stem from the issue framed by the accused and the Crown, in this case, the admissibility of prior consensual sexual activity. The complainant’s trial testimony suggested that, according to her, consent was improbable in the context of separation, transforming the neutral fact of separation into an element that supported the conclusion that she did not consent. This testimony created a material change in circumstances that triggered the trial judge’s obligation to revisit his pre‑trial ruling. The testimony should have opened the door to cross examination of the complainant regarding her consensual sexual activity with the accused on April 1 for two limited purposes: to neutralize the suggestion that the complainant was unlikely to consent after the separation, and to test her credibility on this point.
Cases Cited
By O’Bonsawin J.
Applied: R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3; Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R. 75; distinguished: R. v. Crosby, [1995] 2 S.C.R. 912; R. v. Harris (1997), 118 C.C.C. (3d) 498; R. v. Temertzoglou (2002), 11 C.R. (6th) 179; considered: Dunlop v. The Queen, [1979] 2 S.C.R. 881; referred to: R. v. Ravelo‑Corvo, 2022 BCCA 19, 79 C.R. (7th) 128; R. v. I. (C.), 2023 ONCA 576, 168 O.R. (3d) 575; R. v. Graham, 2019 SKCA 63, [2019] 12 W.W.R. 207; R. v. T. (M.), 2012 ONCA 511, 289 C.C.C. (3d) 115; R. v. Schneider, 2022 SCC 34; R. v. Araya, 2015 SCC 11, [2015] 1 S.C.R. 581; R. v. Clayton, 2021 BCCA 24, 399 C.C.C. (3d) 283; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443; R. v. Mills, [1999] 3 S.C.R. 668; R. v. R.V., 2019 SCC 41, [2019] 3 S.C.R. 237; R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440; R. v. Keegstra, [1995] 2 S.C.R. 381; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579; R. v. L.S., 2017 ONCA 685, 354 C.C.C. (3d) 71; Browne v. Dunn (1893), 6 R. 67; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; R. v. Kruk, 2024 SCC 7; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; R. v. Garofoli, [1990] 2 S.C.R. 1421; Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442; R. v. Davies, 2022 BCCA 103, 412 C.C.C. (3d) 375; Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122; Fedeli v. Brown, 2020 ONSC 994, 60 C.P.C. (8th) 417; R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488; R. v. Kirkpatrick, 2022 SCC 33.
By Côté and Moreau JJ. (dissenting)
R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3; R. v. R.V., 2019 SCC 41, [2019] 3 S.C.R. 237; R. v. Arens, 2016 ABCA 20, 334 C.C.C. (3d) 379; R. v. Farrah, 2011 MBCA 49, 87 C.R. (6th) 93; R. v. Adams, [1995] 4 S.C.R. 707; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579; R. v. L.S., 2017 ONCA 685, 354 C.C.C. (3d) 71; R. v. Osolin, [1993] 4 S.C.R. 595; R. v. Hodgson, [1998] 2 S.C.R. 449; R. v. Sweezey (1974), 20 C.C.C. (2d) 400; R. v. Kahsai, 2023 SCC 20; Amell v. The Queen, 2013 SKCA 48, 2013 D.T.C. 5102; R. v. Harris (1997), 118 C.C.C. (3d) 498; R. v. Edmundson, 2023 ONSC 4236; R. v. Keegstra, [1995] 2 S.C.R. 381; R. v. Downes, 2023 SCC 6; Dunlop v. The Queen, [1979] 2 S.C.R. 881; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381; R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689; Browne v. Dunn (1893), 6 R. 67.
Statutes and Regulations Cited
Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, S.C. 2018, c. 29.
Act to amend the Criminal Code (sexual assault), S.C. 1992, c. 38.
Canadian Charter of Rights and Freedoms.
Criminal Code, R.S.C. 1985, c. C‑46, ss. 2 “court of appeal”, “every one, person and owner”, 276, 276.3 [ad. 1992, c. 38, s. 2; rep. 2018, c. 29, s. 22], 278.1 to 278.98, 486.4, 691(1), 693(1)(a).
Interpretation Act, R.S.C. 1985, c. I‑21, s. 35(1) “person”.
Authors Cited
Brown, Daniel, and Jill Witkin. Prosecuting and Defending Sexual Offence Cases, 2nd ed., in Brian H. Greenspan and Vincenzo Rondinelli, eds., Criminal Law Series, vol. 4. Toronto: Emond Montgomery, 2020.
Canada. House of Commons. House of Commons Debates, vol. VIII, 3rd Sess., 34th Parl., April 8, 1992, p. 9528.
Canada. House of Commons. House of Commons Debates, vol. 148, No. 249, 1st Sess., 42nd Parl., December 11, 2017, pp. 16218‑19.
Canada. House of Commons. Legislative Committee on Bill C‑49. Minutes of Proceedings and Evidence of Legislative Committee on Bill C‑49, An Act to amend the Criminal Code (sexual assault), No. 4, 3rd Sess., 34th Parl., May 20, 1992, pp. 25, 46.
Canada. House of Commons. Legislative Committee on Bill C‑49. Minutes of Proceedings and Evidence of Legislative Committee on Bill C‑49, An Act to amend the Criminal Code (sexual assault), No. 5, 3rd Sess., 34th Parl., May 21, 1992, pp. 17‑18.
Canada. House of Commons. Legislative Committee on Bill C‑49. Minutes of Proceedings and Evidence of Legislative Committee on Bill C‑49, An Act to amend the Criminal Code (sexual assault), No. 6, 3rd Sess., 34th Parl., June 2, 1992, p. 46.
Canada. Senate. Standing Senate Committee on Legal and Constitutional Affairs. Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, No. 48, 1st Sess., 42nd Parl., September 20, 2018, p. 73.
Rossiter, James. Law of Publication Bans, Private Hearings and Sealing Orders. Toronto: Thomson Reuters, 2006 (loose‑leaf updated May 2024, release 1).
Lederman, Sidney N., Michelle K. Fuerst and Hamish C. Stewart. Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 6th ed. Toronto: LexisNexis, 2022.
Vauclair, Martin, Tristan Desjardins and Pauline Lachance. Traité général de preuve et de procédure pénales 2023, 30th ed. Montréal: Yvon Blais, 2023.
APPEAL from a judgment of the British Columbia Court of Appeal (Newbury, Frankel and Fitch JJ.A.), 2022 BCCA 312, 418 C.C.C. (3d) 169, 83 C.R. (7th) 147, [2022] B.C.J. No. 1748 (Lexis), 2022 CarswellBC 2572 (WL), affirming the conviction of the accused for sexual assault. Appeal dismissed, Côté and Moreau JJ. dissenting.
MOTION for the appeal to be held in camera, for filed materials to be sealed, and for any other order necessary to protect the information covered by ss. 276 and 278.94 and 278.95 of the Criminal Code. Motion allowed in part.
Jaskarmdeep J. Mangat and Lisa Jean Helps, for the appellant.
Lauren A. Chu and Janet A. M. Dickie, for the respondent.
Joanne B. Dartana, K.C., for the intervener.
The judgment of Wagner C.J. and Karakatsanis, Rowe, Martin, Kasirer, Jamal and O’Bonsawin JJ. was delivered by
O’Bonsawin J. —
I. Overview
[1] This appeal offers an opportunity for this Court to reaffirm the proper use of other sexual activity evidence for credibility and context purposes and to consider the powers of an appellate court to make orders that limit court openness in appeals of admissibility determinations under s. 276 of the Criminal Code, R.S.C. 1985, c. C-46.
[2] The appellant was convicted of sexual assault against his spouse, the complainant. Prior to the trial, the appellant brought an application to adduce evidence of prior sexual activity pursuant to ss. 276 and 278.93 of the Criminal Code, more particularly, an incident of consensual intercourse the night before the sexual assault. The trial judge dismissed the application on the basis that the evidence was not being adduced for a purpose other than twin-myth reasoning. This determination was upheld by a majority of the Court of Appeal for British Columbia. The appellant now appeals to this Court as of right.
[3] The conduct of sexual offence trials calls for a delicate balance in order to uphold their truth-seeking function: the process must safeguard the fair trial rights of the accused while also respecting the complainant’s dignity and right of privacy to achieve a result that is fair to all involved. Thus, while the open court principle and the protection of complainants’ personal dignity and privacy present competing interests, they can operate harmoniously. An open court that protects complainants’ personal dignity and privacy increases public confidence in the court process and administration of justice and encourages the reporting of sexual offences.
[4] Prior to the hearing before this Court, the Crown brought a motion requesting that this appeal be held in camera, a sealing order on all filed materials, and “any other order the Court deems necessary to protect information covered by sections 276 and 278.93-278.95 of the Criminal Code” (p. 1). It asserted that the procedural protections put in place at the trial level under ss. 278.94 and 278.95 should extend to the appeal before this Court. The Crown argued that either or both these provisions and a court’s implied jurisdiction to control its own processes grants this Court the authority to make the orders that it seeks. As I will explain, a court’s implied jurisdiction to control its own processes includes the discretionary ability to make those orders. However, the Court’s discretion should be exercised in a way that maintains court openness as far as practicable while protecting the complainant’s personal dignity and privacy and the accused’s fair trial rights.
[5] On appeal, the appellant argues that the trial judge erred in refusing to admit the evidence for context and credibility purposes. I disagree. As I will explain, the appellant failed to sufficiently identify a specific use for the evidence that did not invoke twin-myth reasoning and that was essential to his ability to make full answer and defence.
II. Facts
[6] The appellant and the complainant were in a romantic relationship for over 20 years. In February 2018, they took a trip, and on their return the couple separated. The appellant moved into the basement of the home he shared with the complainant and her son.
[7] The appellant sought to adduce evidence of sexual activity in the evening of April 1, 2018 and just after midnight on April 2, 2018. For ease of reference, I will refer to this event as occurring on April 1. The complainant alleged that in the morning of April 2, the appellant sexually assaulted her. The complainant’s evidence was that she and the appellant had separated in February 2018, and that they had consensual intercourse on April 1.
[8] Throughout the trial proceedings, the appellant’s defence evolved, but he ultimately advanced a defence of denial that the sexual assault occurred. He contested the complainant’s version of events and testified that the complainant had consented to sexual intercourse in the afternoon of April 2.
III. Procedural History
A. Oral Ruling on Voir Dire, 2021 BCSC 270 (Jenkins J.)
[9] Justice Fitch, writing for the majority below, set out in detail the s. 276 application’s procedural history, noting “the unfortunate way in which the s. 276 application was framed and presented in the trial court” (2022 BCCA 312, 418 C.C.C. (3d) 169, at para. 110; see paras. 110-42). I will therefore not repeat that history in depth here, but I make note of it as I agree with the majority that the manner in which the application unfolded “enable[s] a more informed assessment of the probative value of the evidence and its potential for prejudice” (para. 110), which I will turn to later in these reasons.
[10] There were three iterations of the appellant’s application. The appellant initially sought the admission of prior sexual activity evidence between February 2018 and April 1, 2018 on the basis that it had “significant probative value as it highlights the nature of the relationship between the complainant and the accused” (A.R., vol. II, at p. 5). The application did not specify the defence being advanced.
[11] The appellant’s amended notice of application sought only the admission of prior sexual activity evidence from April 1. The application stated that “[t]he evidence has significant probative value as it is relevant to the context of how the events transpired between the complainant and the accused from April 1, 2018 to April 2, 2018 from the accused’s perspective” (A.R., vol. II, at pp. 6-7). The application stated that the appellant’s defence was one of consent and that the context of the relationship and the complainant’s credibility were factors in assessing this defence. The evidence was relevant to context and coherence in the defence narrative because the evidence was necessary to understand the nature of the relationship between the appellant and the complainant (including that their relationship was not platonic) and to challenge the complainant’s credibility on the nature of their relationship.
[12] The appellant’s further amended notice of application added only that the appellant was seeking the admission of evidence from events on April 2 as well as from April 1.
[13] The trial judge dismissed the application. He held that the complainant’s statement to the police and her evidence on the preliminary inquiry were not inconsistent. In any case, the events of April 1 were not relevant to the issue of consent on April 2. He rejected the appellant’s argument that the events on April 1 formed a continuous event with the events on April 2. The trial judge concluded that the evidence was being adduced for the prohibited purpose of arguing that the complainant was more likely to have consented to the alleged sexual activity or that she was less worthy of belief.
B. British Columbia Court of Appeal, 2022 BCCA 312, 418 C.C.C. (3d) 169 (Newbury and Fitch JJ.A., Frankel J.A. Dissenting)
[14] The appeal before the Court of Appeal for British proceeded in camera and the record was sealed.
[15] The majority upheld the trial judge’s decision, agreeing that the appellant’s application had not satisfied the requirements for admissibility. The appellant failed to establish how evidence of the prior sexual activity was fundamental to his defence, which was not, in fact, a defence of consent as set out in the appellant’s s. 276 applications, but was rather a complete denial that the assault occurred. In the majority’s view, the evidence was not fundamental to this defence: evidence of consensual sex on April 1 could not support a defence that a sexual assault on April 2 did not occur. Further, based on the appellant’s testimony at trial, it was clear that the evidence would have been adduced to support the myth that because they had consensual sex on April 1, she consented to sex on April 2 or it should not be believed that she did not consent on April 2. There was no inconsistency in the complainant’s evidence to the police and at the preliminary inquiry that could only be resolved by the prior sexual activity evidence, because it was not inconsistent for the complainant to state that she and the appellant separated in February but had consensual sex on April 1.
[16] Justice Frankel, dissenting, would have allowed the appeal, finding that it was an error for the trial judge to dismiss the application. In his view, the evidence of prior sexual activity was essential to challenging the complainant’s credibility and the Crown’s theory that the sexual assault occurred in the context of a “complete breakdown” in the appellant and complainant’s relationship. Credibility was the central issue at trial and the appellant was entitled to explore the divergences in their accounts to challenge the complainant’s credibility. The prejudice to the complainant would be minimized by the fact that she had already disclosed the prior sexual activity to the police, and her personal dignity would be protected by the publication ban.
IV. Issues
[17] The appellant argues that the majority of the Court of Appeal for British Columbia erred in finding that the trial judge made no error in dismissing the appellant’s s. 276 application. The appellant submits that the evidence of prior sexual activity was necessary to challenge the complainant’s credibility and to provide necessary context to the defence’s case.
[18] The Court must also determine the Crown’s motion to conduct the hearing before this Court in camera, to seal the filed materials, and to make any other order necessary to protect the information protected by ss. 276 and 278.93 to 278.95 of the Criminal Code. This requires the Court to consider its authority to do so and whether this appeal warrants additional orders that would limit court openness in this case.
V. Analysis
A. The Standard of Review of Section 276 Decisions
[19] Section 278.97 of the Criminal Code states that an appeal from a trial judge’s determination to admit or refuse evidence of other sexual activity is a question of law. However, this provision only delimits the nature of the issues that can be raised on appeal; it does not prescribe a standard of review.
[20] Some courts have suggested that appellate review of s. 278.94 admissibility decisions attracts deference to the trial judge’s determination. Both the majority and dissent in the court below agreed with Fisher J.A.’s conclusion, in R. v. Ravelo-Corvo, 2022 BCCA 19, 79 C.R. (7th) 128, that “such a determination is a discretionary exercise that involves a fact-sensitive analysis guided by the factors enumerated in s. 276(3), and is entitled to substantial deference on appeal” (para. 29). The Court of Appeal for Ontario made a similar observation in R. v. I. (C.), 2023 ONCA 576, 168 O.R. (3d) 575, at para. 102, speaking of determinations to admit an accused’s records about a complainant (which are subject to the same standard of review):
The admissibility of evidence under s. 278.92 is deemed to be a question of law for the purposes of determining appeal rights. Despite this characterization, the admissibility of evidence offered under s. 278.92 lies very much in the exercise of the trial judge’s discretion. Assuming the trial judge correctly applies the applicable legal principles, does not misapprehend material evidence, does not fail to consider relevant evidence, and does not arrive at an unreasonable result, this court will defer to the trial judge’s ruling. [Citations omitted.]
See also R. v. Graham, 2019 SKCA 63, [2019] 12 W.W.R. 207, at para. 69; R. v. T. (M.), 2012 ONCA 511, 289 C.C.C. (3d) 115, at para. 54.
[21] There is no dispute that the question of relevance is reviewable on a standard of correctness (R. v. Schneider, 2022 SCC 34, at para. 39). However, in making a determination of whether to admit evidence of other sexual activity, the trial judge balances a number of considerations, both those enumerated in s. 276(3) and others that may arise in the specific circumstances of a case. The admissibility of prior sexual activity evidence is highly fact-specific and contextual, and the trial judge is best placed to assess probative value versus prejudice (R. v. Araya, 2015 SCC 11, [2015] 1 S.C.R. 581, at para. 31; S. N. Lederman, M. K. Fuerst and H. C. Stewart, Sopinka, Lederman & Bryant: The Law of Evidence in Canada (6th ed. 2022), at ¶2.93). The appellate court’s approach on appeal must respect this reality while giving effect to Parliament’s decision to deem s. 278.94 determinations questions of law. Justice MacKenzie in R. v. Clayton, 2021 BCCA 24, 399 C.C.C. (3d) 283, at paras. 50-51, astutely articulated how an appellate court should approach a trial judge’s admissibility determination:
The parties disagree on the standard of review. The appellant says the standard is correctness as it is a question of law whether the judge erred in taking an overly restrictive view of relevance in the context of cross-examination. The Crown’s position is that the judge’s assessment of the probative value and prejudicial effects of the evidence, and his management of cross-examination, is owed deference on appeal. In my view, both parties are correct.
Whether the threshold requirement of relevance is met is a question of law reviewable on a correctness standard; it would be a legal error to admit irrelevant evidence. However, not all relevant evidence is necessarily admissible. A judge’s decision to exclude relevant evidence where its probative value is outweighed (or, for defence-led evidence, substantially outweighed) by its prejudicial effect involves the exercise of discretion. Absent reliance on improper legal principles, the judge’s conclusion in this regard is owed deference. [Citations omitted.]
[22] I agree. An appellate court must ensure that the trial judge applied the correct legal principles, considered all the evidence they should have, did not admit irrelevant evidence, and did not otherwise err in law; no deference is owed in this regard. However, as to the trial judge’s determination that the evidence’s prejudicial effect substantially outweighed its probative value, appellate courts should defer.
[23] Finally, in reviewing a trial judge’s initial s. 276 ruling, the appellate court must only consider the evidence that was before the trial judge at the time of their determination on admissibility (R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at paras. 63 and 101).
B. The Use of Other Sexual Activity Evidence for Credibility and Context
[24] In 1982, to address the detrimental and truth-distorting uses of other sexual activity evidence that permeated the jurisprudence, Parliament chose to set parameters for when evidence of other sexual activity can be introduced at trial. Either the Crown or the defence can bring an application for a voir dire or a s. 278.94 hearing where it seeks to adduce “evidence that the complainant has engaged in sexual activity” (s. 276). There is no need to do so where the parties only seek to establish that a relationship existed between the accused and the complainant, unless the very nature of that relationship is sexual, as was the case in Goldfinch.
[25] Over time, thos