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Criminal - Evidence of Sexual Activity [CCC 276]
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. R. v. Kruk
In R. v. Kruk (SCC, 2024) the Supreme Court of Canada denied an appeal that sought to establish a new evidentiary rule against "ungrounded common sense assumptions". This would-be rule was born in an analogy to the already-accepted rule against sexual behaviour stereotypes that which barred prejudicial presumptions about a woman complainant's behaviour, eg.: that 'by wearing those clothes she was looking for it'. In this latter 'complainant' situation the law holds the use of stereotypes to be an 'error of law', such that an appellate court examines the trial judge's findings on a non-deferential 'correctness' standard of review. The court's conclusion here is that in any other context [ie. non-complainant sexual behaviour, and (apparently) entirely non-sexual as well] the use of 'ungrounded common-sense assumptions' could either be a finding of fact or law as assessed by the appeal court. While the courts haven't been clear here on what is meant by 'ungrounded', it appears to me as though they mean some form of 'corroboration' (either factual or circumstantial) of the 'common sense assumption':I. Introduction
[1] These appeals in two sexual assault matters concern the standard for appellate intervention with respect to a trial judge’s credibility and reliability findings in a criminal trial and the appropriate role of common sense when assessing the evidence of witnesses. The respondents ask this Court to recognize a novel rule referred to as the “rule against ungrounded common-sense assumptions”. A breach of this proposed rule would provide a new, stand-alone basis for correctness review of credibility and reliability assessments whenever an appellate court determines that a trial judge has relied on a common-sense assumption that was not grounded in the evidence. This significant departure from established standards of review in respect of credibility and reliability assessments in criminal cases has been applied by some appellate courts — often in sexual assault cases that turn on the competing accounts of the accused and the complainant.
[2] For the reasons provided below, no such change to the law is warranted, and I decline to recognize the rule against ungrounded common-sense assumptions as giving rise to an error of law. The current standards under which appellate courts review trial judgments are well-designed, long-established, and promote the fair assessment of testimony. There is no need to fashion a new rule of law against any assumption not supported by particular evidence in the record to strive for what existing rules already accomplish. Furthermore, the proposed rule is not a coherent extension of existing errors of law pertaining to myths and stereotypes against sexual assault complainants. Adopting it would undercut the functional and flexible approach to appellate intervention and create mischief across the entire criminal law.
[3] The faulty use of common-sense assumptions in criminal trials will continue to be controlled by existing standards of review and rules of evidence. In some cases, a trial judge’s use of common sense will be vulnerable to appellate review because it discloses recognized errors of law. Otherwise, like with other factual findings, credibility and reliability assessments — and any reliance on the common-sense assumptions inherent within them — will be reviewable only for palpable and overriding error. This standard is better equipped to the task than the new error of law the respondents propose.
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III. Analysis
[16] In both Mr. Kruk and Mr. Tsang’s cases, the British Columbia Court of Appeal reviewed the trial judges’ credibility and reliability findings on a standard of correctness. In line with this approach, the respondents now ask this Court to recognize the proposed rule against ungrounded common-sense assumptions as grounding an error of law.
[17] These appeals are part of a broader pattern in which special rules have been proposed for the assessment of credibility and reliability in sexual assault cases.[1] The rule against ungrounded common-sense assumptions is before this Court for the first time, and the question of whether it should be adopted should be approached based on first principles relating to credibility and reliability assessments and existing standards of review. When the rule comes into play in sexual assault cases in particular, constitutional imperatives call for the consideration of the Charter rights of both accused persons and complainants as well as the interests of society at large (R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668; R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443; R. v. J.J., 2022 SCC 28). This approach is part of the obligation to strive towards “the fair, ethical and non-discriminatory adjudication of sexual assault cases” (D. M. Tanovich, “Regulating Inductive Reasoning in Sexual Assault Cases”, in B. L. Berger, E. Cunliffe and J. Stribopoulos, eds., To Ensure that Justice is Done: Essays in Memory of Marc Rosenberg (2017), 73, at p. 95).
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A. The Proposed Rule Against Ungrounded Common-Sense Assumptions
[19] The proposed rule against ungrounded common-sense assumptions originated in a trio of key cases — R. v. Perkins, 2007 ONCA 585, 223 C.C.C. (3d) 289; R. v. Cepic, 2019 ONCA 541, 376 C.C.C. (3d) 286; and Roth — and has been most clearly and recently articulated in R. v. J.C., 2021 ONCA 131, 401 C.C.C. (3d) 433. The Court of Appeal in Mr. Kruk’s case cited to the trio of cases and specifically quoted the rule as stated by the British Columbia Court of Appeal in Roth, while the Court of Appeal in Mr. Tsang’s case relied on the rule as stated in J.C.
[20] In Perkins, the Ontario Court of Appeal held that the trial judge’s finding that a “virile young man with a full erection bound on having a climax would not lose his erection” was not the use of acceptable common sense, but was instead a conclusion reached outside the evidence and beyond the proper scope of judicial notice (paras. 35-36; see also para. 40). In Cepic, the Ontario Court of Appeal held that the trial judge’s characterization of the accused’s testimony as “implausible” and “nonsensical” was untethered to the evidence and reflected erroneous assumptions about what a young woman would do and stereotypes about male aggression (paras. 19-27). Both Perkins and Cepic were subsequently invoked in Roth, at para. 65, in which the British Columbia Court of Appeal articulated the following rule: “. . . although judges are entitled to rely on their human experience in assessing the plausibility of a witness’s testimony, they must avoid speculative reasoning that invokes ‘common sense’ assumptions not grounded in the evidence . . . .” The court went on to find that the trial judge had erred in relying on the speculative assumption that the accused, “a fit and healthy young man who regularly worked out and trained as a power lifter” (para. 56), would not fall asleep during a cab ride, erroneously leading the trial judge to reject the accused’s narrative.
[21] In J.C., the trial judge had found the accused guilty of sexual assault and extortion, accepting the complainant’s testimony that the accused had threatened to post a sexual video recording of her online if she did not continue her sexual relationship with him. On appeal, the accused alleged that the trial judge made two errors in his credibility assessment. First, the accused alleged that the trial judge impermissibly used stereotype to reject his testimony about expressly seeking the complainant’s consent before engaging in specific sexual acts — the trial judge had held that the accused’s testimony on this point was “too perfect, too mechanical, too rehearsed, and too politically correct to be believed” (para. 4). Second, the accused alleged that the trial judge had erred in characterizing the defence’s theory that the complainant had fabricated the allegations to conceal cheating from her boyfriend as relying on stereotype, when in fact it had been grounded in the evidence.
[22] The Ontario Court of Appeal unanimously allowed the appeal, set aside the convictions, and ordered a new trial. The court theorized a new approach to credibility and reliability assessments in sexual assault cases that consisted of two separate but interrelated rules: the new “rule against ungrounded common-sense assumptions”, and the modification of an existing “rule against stereotypical inferences”, the latter of which prevents judges from relying on stereotypes about how sexual assault complainants or accused persons are expected to act in assessing their credibility (J.C., at para. 63, citing Roth, at para. 129; R. v. A. (A.B.), 2019 ONCA 124, 145 O.R. (3d) 634, at para. 5; Cepic, at paras. 14 and 24). The court considered that failing to abide by either rule was an error of law reviewable on a standard of correctness where the error played a material role in the impugned conclusion.
[23] The appeals before this Court are therefore part of a body of recent jurisprudence that seeks to transform how credibility and reliability findings in sexual assault cases are reviewed on appeal. This jurisprudence undertakes three significant legal innovations. First, it introduces a novel general rule against ungrounded common-sense assumptions. Second, it classifies any breach of this rule as an error of law. Third, it takes the existing error of law barring the use of myths and stereotypes about sexual assault complainants and transposes it into a separate, parallel error of law relating to all factual assumptions about all witnesses, including the accused.
[24] Mindful of the context in which many of these cases have been argued, at the core of this novel approach is an explicit analogy between the historic treatment of myths and stereotypes undermining the credibility of sexual assault complainants and the principles to be applied when assessing the testimony of accused persons in sexual assault cases. In J.C., the court considered that because reliance on myths and stereotypes against sexual assault complainants is an error of law, it would be “equally wrong to draw inferences from stereotypes about the way accused persons are expected to act” (paras. 63; see paras. 72-74, citing R. v. A.R.J.D., 2018 SCC 6, [2018] 1 S.C.R. 218; A. (A.B.)). Embracing the proposed rule, other courts have agreed that this established error of law pertaining to myths and stereotypes about sexual assault complainants must also extend to other types of stereotypes or factual assumptions that can work to undermine an accused’s testimony. Collectively, these cases advance the notion that, although myths and stereotypes have traditionally operated to prejudice complainants, these same myths and stereotypes can simultaneously prejudice the accused (R. v. C.M.M., 2020 BCCA 56, at para. 139 (CanLII); R. v. Kodwat, 2017 YKCA 11, at para. 41 (CanLII); R. v. Thompson, 2019 BCCA 1, 370 C.C.C. (3d) 354, at paras. 56-57; R. v. T.L., 2020 NUCA 10, 393 C.C.C. (3d) 195, at para. 35).
[25] The parallel treatment proffered in this line of cases is at the forefront of the cases on appeal. At para. 25, the Court of Appeal in Mr. Tsang’s case relied upon a lengthy extract from J.C. that included the idea that it is “equally wrong” to invoke this historical set of myths and stereotypes about complainants in assessing the testimony of accused persons. Going further, in Mr. Kruk’s case, the Court of Appeal expressly drew a parallel between the historic use of myths and stereotypes as applied against sexual assault complainants, and the use of improper assumptions more generally:Historically, the issue of improper assumptions typically arose in the context of trial judges drawing adverse inferences about the credibility of sexual assault complainants based on discredited myths and stereotypes. The authorities are clear, however, that trial judges must not rely on assumptions and stereotypes in their assessment of testimony given by both sexual assault complainants and accused persons. [Emphasis added; para. 42.] [26] The proposed rule against ungrounded common-sense assumptions thus represents a radical departure from how appellate courts have typically approached credibility and reliability assessments, especially in the context of sexual assault. Crucially, the rule transformed all factual findings that could be said to constitute “assumptions” — which, in the ordinary course, were previously subject to review for palpable and overriding error — into errors of law reviewable on a standard of correctness. The rule also enlarged the well-established prohibition against myths and stereotypes about complainants — a relatively narrow error of law targeted at the fair assessment of a discrete category of witness testimony in a particular subset of criminal trials — well beyond its original scope, presenting it as the doctrinal basis for the creation of a far broader error that applies to credibility assessments of any witness in all criminal trials. The court continues [at paras 27-66] to reason and conclude that this proposed new rule would be pernicious from a number of perspectives - including that it disregards the unique (and Charter-unique) situation of the sex assault complainant in terms of historical prejudice ('myths and stereotypes') regarding credibility, and the treatment of credibility and reliability findings generally.
. R. v. Kruk
In R. v. Kruk (SCC, 2024) the Supreme Court of Canada sets out a useful history of the law of sexual assault complainant testimony, and it's developing grapple with social 'myths and stereotypes' about women:(a) The History of Myths and Stereotypes Against Complainants
[31] The prohibition against myths and stereotypes that undermine the credibility of sexual assault complainants has a unique history and a specific remedial purpose: to remove discriminatory legal rules that contributed to the view that women, as a group, were less worthy of belief and did not deserve legal protection against sexual violence.
[32] In the past, multiple legal barriers operated to ensure that the testimony of sexual assault complainants — who, at the time, were almost exclusively women — was treated as inherently unreliable. The term “myths and stereotypes” was coined to describe how the exceptional procedural protections historically afforded to those accused of sexual assault discriminated against complainants and made sexual assault not only the most underreported crime, but one that was exceptionally difficult to prove in court. These myths and stereotypes, formerly embedded into the law, arose in relation to both credibility and consent, and made sexual assault inherently dissimilar to other crimes.
[33] Before 1983, “rape” was a main type of sexual offence: it criminalized non-consensual penetration of a penis into a vagina and was thus understood as a gendered crime committed by men against women. Under the express terms of the prohibition, a married woman could not be raped by her husband as she was deemed, by her status as a wife, to have forfeited her legal capacity to refuse unwanted sexual activity. The law thereby enforced the notion that certain relationships provided men with a right to women’s sexual availability (see, e.g., J. Koshan, “Marriage and Advance Consent to Sex: A Feminist Judgment in R v JA” (2016), 6 Oñati Socio-legal Series 1377, at p. 1387).
[34] Special evidentiary rules also governed the testimony of sexual assault complainants. The statutory corroboration requirement obliged judges to instruct juries that it was dangerous to convict the accused of a sexual offence based only on the testimony of a complainant (Criminal Code, S.C. 1953-54, c. 51, s. 131(1); corroboration requirements were abolished by 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, ss. 5 and 19; see also Criminal Code, R.S.C. 1985, c. C-46 (“Code”), s. 274; R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, at p. 676). The doctrine of recent complaint required immediate disclosure of a sexual assault to avoid an adverse credibility inference, meaning a complainant’s initial silence could be taken as “a virtual self-contradiction of her story” (R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at paras. 60-61, quoting Kribs v. The Queen, 1960 CanLII 7 (SCC), [1960] S.C.R. 400, at p. 405; see also Timm v. The Queen, 1981 CanLII 207 (SCC), [1981] 2 S.C.R. 315).
[35] By virtue of these rules, not only were women as a group seen as lacking credibility, there was a construct about the specific subset of women who could be believed. Negative social attitudes about women were often used to differentiate “real” rape victims from women suspected to be concocting false allegations out of self-interest or even revenge. Prejudicial beliefs about women who were Indigenous, racialized, persons with disabilities, or part of the 2SLGBTQI+ community also operated to socially prescribe ideals and norms about sexual assault victims. To the extent a particular complainant deviated from the characteristics of the idealized real rape victim, her credibility and entitlement to the law’s protection was diminished, sometimes to zero (see, e.g., J. Benedet, “Judicial Misconduct in the Sexual Assault Trial” (2019), 52 U.B.C. L. Rev. 1; S. Ehrlich, “Perpetuating — and Resisting — Rape Myths in Trial Discourse”, in E. A. Sheehy, ed., Sexual Assault in Canada: Law, Legal Practice and Women’s Activism (2012), 389; M. Randall, “Sexual Assault Law, Credibility, and ‘Ideal Victims’: Consent, Resistance, and Victim Blaming” (2010), 22 C.J.W.L. 397; J. Benedet and I. Grant, “Hearing the Sexual Assault Complaints of Women with Mental Disabilities: Evidentiary and Procedural Issues” (2007), 52 McGill L.J. 515).
[36] This Court has repeatedly recognized the prevalence of myths and stereotypes about sexual assault complainants, some of which include the following:. Genuine sexual assaults are perpetrated by strangers to the victim (Seaboyer, at p. 659, per L’Heureux-Dubé J., dissenting in part; R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 130, per Wagner C.J. and Rowe J.).
. False allegations of sexual assault based on ulterior motives are more common than false allegations of other offences (Seaboyer, at p. 669, per L’Heureux-Dubé J., dissenting in part; R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595, at p. 625, per L’Heureux-Dubé J., dissenting; R. v. A.G., 2000 SCC 17, [2000] 1 S.C.R. 439, at para. 3, per L’Heureux-Dubé J., concurring).
. Real victims of sexual assault should have visible physical injuries (Seaboyer, at pp. 650 and 660, per L’Heureux-Dubé J., dissenting in part; R. v. McCraw, 1991 CanLII 29 (SCC), [1991] 3 S.C.R. 72, at pp. 83-84, per Cory J. for the Court).
. A complainant who said “no” did not necessarily mean “no”, and may have meant “yes” (Seaboyer, at p. 659, per L’Heureux-Dubé J., dissenting in part; R. v. Esau, 1997 CanLII 312 (SCC), [1997] 2 S.C.R. 777, at para. 82, per McLachlin J. (as she then was), dissenting; R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at paras. 87 and 89, per L’Heureux-Dubé J., concurring; R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 167, per Arbour J., dissenting; R. v. Kirkpatrick, 2022 SCC 33, at para. 54, per Martin J. for the majority; R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at paras. 44 and 74, per Karakatsanis J. for the majority).
. If a complainant remained passive or failed to resist the accused’s advances, either physically or verbally by saying “no”, she must have consented — a myth that has historically distorted the definition of consent and rendered rape “the only crime that has required the victim to resist physically in order to establish nonconsent” (Ewanchuk, at paras. 93, 97 and 99, per L’Heureux-Dubé J., concurring, quoting S. Estrich, “Rape” (1986), 95 Yale L.J. 1087, at p. 1090; see also para. 103, per McLachlin J., concurring, and para. 51, per Major J. for the majority; see further R. v. M. (M.L.), 1994 CanLII 77 (SCC), [1994] 2 S.C.R. 3, at p. 4, per Sopinka J. for the Court; R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 101, per McLachlin C.J. for the Court; Cinous, at para. 167, per Arbour J., dissenting; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at paras. 98, 105, 107, 109 and 118, per Moldaver J. for the majority; Friesen, at para. 151, per Wagner C.J. and Rowe J. for the Court).
. A sexually active woman (1) is more likely to have consented to the sexual activity that formed the subject matter of the charge, and (2) is less worthy of belief — otherwise known as the “twin myths”, which allowed for regular canvassing of the complainant’s prior sexual history at trial, regardless of relevance, thereby shifting the inquiry away from the alleged conduct of the accused and towards the perceived moral worth of the complainant (Seaboyer; Ewanchuk). [37] Myths and stereotypes about sexual assault complainants capture widely held ideas and beliefs that are not empirically true — such as the now-discredited notions that sexual offences are usually committed by strangers to the victim or that false allegations for such crimes are more likely than for other offences. Myths, in particular, convey traditional stories and worldviews about what, in the eyes of some, constitutes “real” sexual violence and what does not. Some myths involve the wholesale discrediting of women’s truthfulness and reliability, while others conceptualize an idealized victim and her features and actions before, during, and after an assault. Historically, all such myths and stereotypes were reflected in evidentiary rules that only governed the testimony of sexual assault complainants and invariably worked to demean and diminish their status in court.
[38] Overall, this legal backdrop reflected a time in which less was known about the prevalence of sexual violence and its lifelong harms. Eventually, Parliament, the courts, academics, and the public came to understand that the previous legal rules and the inaccurate, outdated, and inequitable social attitudes they represented impeded the equal treatment of sexual assault complainants and, hence, the overall fairness of trials.
[39] New Criminal Code provisions were drafted replacing the former offence of rape with a new offence of sexual assault, and the marital rape exemption was repealed — reflecting the reality that while women continue to make up the vast majority of sexual assault complainants, the offence of sexual assault can be perpetrated by and against people of all genders. Consent was expressly defined in s. 273.1(1) of the Code as the voluntary agreement of the complainant to engage in the sexual activity in question, and ss. 273.1(2) and 273.2 clearly circumscribed when no consent is obtained and the scope of mistaken belief in consent. The corroboration requirement was abolished and the doctrine of recent complaint was abrogated, pursuant to ss. 274 and 275 of the Code, respectively. Finally, ss. 276 and 278.1 to 278.91 now govern the admissibility of a complainant’s prior sexual activity and the production and admission of records containing the complainant’s highly sensitive personal information that is either held by a third party or comes into the hands of the accused.
[40] The significant legislative changes in this area of law were made with a view to protecting the rights of women and children given their particular vulnerability to sexual violence. In the preamble to the Act that amended s. 276 of the Code post-Seaboyer and reformed the definition of consent to sexual activity, Parliament explicitly focused on combatting “the prevalence of sexual assault against women and children” and expressed a particular intention to “ensure the full protection of the rights guaranteed under sections 7 and 15 of the Canadian Charter of Rights and Freedoms” (An Act to amend the Criminal Code (sexual assault), S.C. 1992, c. 38). Parliament also expressed an intention to “encourage the reporting of incidents of sexual violence” and emphasized that the admission of the complainant’s sexual history into evidence is “inherently prejudicial” and “should be subject to particular scrutiny” (ibid.). In amending ss. 278.1 to 278.91 of the Code, Parliament sought to protect complainants’ privacy interests in highly sensitive personal information and, in turn, preserve their dignity. Amendments such as these appropriately balance respect for complainants’ dignity, privacy, and equality and the fundamental right of the accused to the presumption of innocence and a fair trial and they have been endorsed as constitutionally compliant by this Court (see Mills; Darrach; J.J.).
[41] In turn, several of the myths and stereotypes outlined above have now been jurisprudentially condemned as errors of law. For example, it is prohibited for a trial judge to rely on notions such as: delay in a complainant’s disclosure of a sexual assault, alone, undermines the credibility of the disclosure (D.D.; R. v. Lacombe, 2019 ONCA 938, 383 C.C.C. (3d) 114); a complainant’s “failure” to dress modestly indicates that she is more likely to have consented (Ewanchuk, at para. 103); a complainant’s “failure” to resist or cry out is suggestive of consent (para. 93); the mere fact of a complainant having psychiatric or therapeutic consultations is relevant to their credibility or reliability (s. 278.3(4) of the Code); or a complainant associating with or not avoiding the accused after the alleged sexual assault suggests that there was consent and that no assault occurred (A. (A.B.), at paras. 6-12).
[42] The legislative and jurisprudential treatment of these issues reflects a collective understanding that courts should strive to eradicate myths and stereotypes from their decisions because they threaten the rights of complainants and undermine the truth-seeking function of trials. Today, sexual offences remain underreported and continue to occur mostly against women and children. There remains a “need to affirm the principles of equality and human dignity in . . . criminal law by addressing the problem of myths and stereotypes about complainants in sexual assault cases” (A.G., at para. 1, per L’Heureux-Dubé J., concurring; see R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411).
[43] This Court has repeatedly held that “myths and stereotypes have no place in a rational and just system of law, as they jeopardize the courts’ truth-finding function” (A.G., at para. 2). A trial is a truth-seeking process, and reliance on myths and stereotypes distorts the truth. In Mills, this Court explained that myths and stereotypes about sexual assault victims hamper the search for truth and impose “harsh and irrelevant burdens on complainants in prosecutions of sexual offences” (para. 119). While the accused’s constitutional rights must remain at the forefront of any criminal trial, this Court has also acknowledged that measures can be taken to avoid reliance on myths and stereotypes without compromising those rights. Myths and stereotypes in fact undermine a fair trial — meaning a trial that is fair not only to the accused, but to the complainant and the public (see J.J., at paras. 1-2).
[44] All of this history puts into perspective the distinct reasons why relying on myths and stereotypes to discredit sexual assault complainants amounts to an error of law — as opposed to being an ordinary factual finding reviewable for palpable and overriding error. The very reason this error of law emerged was to prevent the accused from discrediting complainants’ testimony on unwarranted, discriminatory grounds, and accordingly to correct the particular advantage accused persons historically had in sexual assault cases as compared to accused persons in other cases: myths and stereotypes are no longer meant to play any role in mounting a defence. The judicial and legislative developments designed to eradicate the categorical discounting of women as witnesses do not create any special benefits in law for complainants in sexual assault cases. They simply remove discriminatory barriers, establish a level testimonial field between sexual assault complainants and complainants in other cases, and ensure the truth-seeking function of the trial is not distorted. . R. v. MacMillan
In R. v. MacMillan (Ont CA, 2023) the Court of Appeal considers CCC 276 ['Evidence of complainant’s sexual activity']:(2) Prior communications about sexual activity
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[45] The appellants brought applications under s. 278.93 of the Criminal Code, R.S.C. 1985, c. C-46 to have the s. 276 evidence admitted. Section 276 of the Criminal Code provides:Evidence of complainant’s sexual activity
276 (1) In proceedings in respect of an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant
(a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or
(b) is less worthy of belief.[6]
Conditions for admissibility
(2) In proceedings in respect of an offence referred to in subsection (1), evidence shall not 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 278.93 and 278.94, that the evidence
(a) is not being adduced for the purpose of supporting an inference described in subsection (1);
(b) is relevant to an issue at trial; and
(c) is of specific instances of sexual activity; and
(d) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. [46] Sexual activity includes communications about sexual activity: Criminal Code, s. 276(4).
[47] The appellants followed the required two-stage procedure for a s. 276 application. The initial screening stage of the application was heard by Dunnet J. ten days before the trial was to commence. She granted the application in part and adjourned the hearing stage of the application to the trial judge. Dunnet J. dismissed the application with respect to the social media evidence at this first stage, concluding that there was no basis upon which it could be relevant to any issue at trial. . R. v. N.G.
In R. v. N.G. (Ont CA, 2023) the Court of Appeal considered CCC 276 ['Evidence of complainant’s sexual activity'], which limits evidence of sexual activity in some charges:[25] ... The appellant brought an application to admit the printout of WhatsApp messages under s. 276 of the Code which sets up strict conditions that must be met before evidence of a complainant’s sexual activity, other than that which forms the subject-matter of the charge, can be admitted.
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[34] The second admissibility concern arose because in large part the printout purported to be of messages of a sexual nature which were inadmissible under s. 276 of the Code unless certain conditions were met.
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[37] Similarly, the fact that the appellant was purporting to introduce evidence from a cellphone he had stolen and withheld from the complainant, in circumstances where he was in a position to manipulate its contents, was relevant to whether the evidence should be admitted under s. 276(2) of the Code, particularly because s. 276(3)(b) of the Code expressly permits the court, in determining whether to admit such evidence, to consider “society’s interest in encouraging the reporting of sexual offences”. The trial judge had raised with defence counsel during argument whether people would be deterred from reporting sexual offences if an accused was allowed to benefit from withholding a complainant’s cellphone in a sexual assault and exploitation case. In that context, I interpret the statement in her reasons for conviction that it had struck her as fundamentally unfair that “the accused would be able to rely on material from a phone which he stole from the complainant in order to use it to undermine her credibility at trial…” to relate to that very consideration.
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[41] The messages that were of a sexual nature − that were “strongly suggestive” that the complainant wanted to have further sexual activity with the appellant after December 2, the date of the alleged sexual assault − could not bear on the question of whether she consented to sexual activity with the appellant on December 2 without engaging in twin myth reasoning proscribed by s. 276(1) of the Code. Nor would the messages that did not engage s. 276 have presented a different picture of the overall relationship than that otherwise in evidence, as the appellant now contends. It must be remembered that defence counsel at trial had not even tried to introduce the messages through cross-examination of the complainant and had, in argument, referred to the messages as “relevant” but “not terribly germane”.
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The Trial Judge Did Not Err in Her Refusal to Permit Cross-Examination on Prior Instances of “Sexual Punishment”
[44] Prior to trial, the appellant applied under s. 276 of the Code for, among other relief, permission to cross-examine the complainant on what he alleged were two earlier incidents, during the three-person relationship, in which the appellant or T.M.F. were “sexually punished” for a relationship transgression, with the complainant in the role of a “punisher”. According to the appellant, there was an agreement in place that if the appellant, T.M.F. or the complainant committed a relationship transgression, they had to perform a sexual act to the satisfaction of the others; the transgressor would have no say in the punishment.
[45] The trial judge denied this request and dismissed this aspect of the s. 276 application. She found the proposed evidence legally irrelevant − it was an attempt to advance a defence of prior consent, or to buttress a defence of honest but mistaken belief in consent based on prior consent. Both were legally impermissible.
[46] The appellant argues that the trial judge misunderstood the purpose of the proposed evidence. He says that defence counsel at trial disavowed any reliance on prior consent. Instead, he says the purpose of the evidence was to show that the complainant understood that she had a choice not to agree to participate in the punishment, and that this was relevant to how the parties communicated about the issue of consent within the parameters of the sexual punishment scheme.
[47] I do not accept this argument. A trial judge’s decision on a s. 276 application is entitled to substantial deference on appeal: R. v. M.T., 2012 ONCA 511, 289 C.C.C. (3d) 115, at para. 54. I see no error in her analysis of the potential relevance of the proposed evidence and in the exercise of her discretion to exclude it.
[48] For the purpose of a charge of sexual assault, consent means “the voluntary agreement of the complainant to engage in the sexual activity in question”: s. 273.1(1) of the Code. It requires the conscious agreement of the complainant to “every sexual act in a particular encounter”: R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 31. At the actus reus stage, the absence of consent is determined solely by reference to the complainant’s subjective state of mind at the time of the touching; the accused’s perception of whether there was consent is irrelevant at this stage: R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at paras. 25-26; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 87. At the mens rea stage, the focus shifts to whether the accused knew of, was wilfully blind or reckless as to, the lack of consent: Barton, at para. 87. In some circumstances, an honest but mistaken belief that there was consent is exculpatory. But the range of beliefs that may exculpate an accused are limited by the common law and the Code: R. v. Ewanchuck, 1999 CanLII 711 (SCC), 1999 SCC 711, [1999] 1 S.C.R. 330, at para. 28; G.F., at para. 1; Code, s. 273.2. A mistake in law about what constitutes consent − such as a belief that broad advance consent is sufficient − is not exculpatory. “[A] belief that the complainant gave broad advance consent to sexual activity of an undefined scope will afford the accused no defence, as that belief is premised on a mistake of law”: Barton, at para. 99.
[49] In light of these principles, the trial judge was correct to exclude the evidence. It is hard to see it as possibly related to anything other than the question of whether the complainant gave consent, or the accused’s state of mind about consent, exactly as the trial judge found. But as she also found, it could not permissibly relate to either. Evidence about prior occasions of punishment could not be used for the purpose of showing the complainant was more likely to have consented to the oral and anal sex that occurred on December 2, 2016, because s. 276(1) of the Code renders inadmissible evidence of extrinsic sexual activity to support an inference that the complainant is more likely to have consented to the sexual activity that is the subject of the charge by reason of her consent to sexual activity on another occasion. The evidence of what occurred in the past was not itself evidence of consent to “every sexual act in a particular encounter” that is, the oral and anal sex on December 2, 2016. Nor could the appellant’s belief in the existence of an agreement for unspecified sexual punishment, and prior episodes of it, have been relied on by the appellant as broad advance consent to the specific sexual acts that occurred on December 2, 2016.
[50] The appellant’s argument that the prior episodes could show whether the complainant believed a person had a choice whether to undergo sexual punishment is unavailing. Under s. 276(2)(b) of the Code, evidence of extrinsic sexual activity is inadmissible, even where its purpose is not to support one of the twin myth inferences, if it is not relevant to an issue at trial. The issue of whether the complainant gave voluntary agreement − consent − on December 2 could not be affected by that kind of evidence. If the complainant believed she had a choice to consent, and did not consent, then there was an absence of consent. If the complainant believed that she had no choice about whether to consent, and therefore did not consent, the result is the same − there was an absence of consent.
[51] I therefore reject this ground of appeal.
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