Dated: 19990512 Docket: 7533 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Vancise, Wakeling Jackson JJ.A. HER MAJESTY THE QUEEN COUNSEL: Mr. R. Piche for the appellant, Mr. W.D. Sinclair for the Crown DISPOSITION: On Appeal From: QBC 1183/97 J.C. Melfort Appeal Heard: January 13, 1999 Appeal Allowed: May 12, 1999. Reasons By: The Honourable Mr. Justice Wakeling In Concurrence: The Honourable Mr. Justice Vancise and The Honourable Madam Justice Jackson WAKELING J.A. [1] The appellant [H.LM.] (appellant) was found guilty of having sexually assaulted N.M. on October 4, 1988 causing bodily harm to her contrary to s. 272(c) of the Criminal Code. He has appealed the conviction on the ground that the trial judge erroneously interpreted s. 276 of the Code to prevent proper cross-examination of the complainant in relation to a previous allegation she had made relating to this sexual assault. [2] The offence is alleged to have taken place at the home of the appellant’s brother. The appellant had been asked by his brother and sister-in-law to babysit their daughter N.M.who was then nine years old. The allegation was that the appellant had entered her parent’s bedroom where she was sleeping and sexually assaulted her. [3] The evidence at trial included the testimony of [J.M. 1], the mother of the complainant, who indicated her daughter had advised her of the assault the following morning but her only response was to refrain from having the appellant babysit N.M. on any further occasion. [4] At trial, N.M. described the assault which she said took place in the darkened bedroom of her parents where she was sleeping while they were away. She indicated the assault included actual penetration. The next day she advised the parents of what had occurred but they were sufficiently sceptical of the truth of the allegation that they took no action and indeed her father believed she was lying. She went on to indicate the nature of her troubled childhood which involved excessive drinking, drugs, periods where she was in foster home or other care centres and included an indication that perhaps some of the problems she experienced in her youth were the result of either this assault by the appellant or the failure of the parents to believe that the assault had occurred. [5] It was only years later when she was talking with guidance counsellor at school she attended that she again mentioned the assault. Sometime after that this charge arose as result of her belief she could only rid herself of the concern she continued to feel by confronting the appellant, so she took her complaint to the police. [6] The appellant testified in his own defence and admitted being the baby sitter on the night in question as he had on many other occasions. He said he watched television then went to bed after first checking that N.M. was asleep. He denied that sexual assault of any kind had occurred. He also indicated the foster child [K.M.] was in the home on the night in question. [7] The only other evidence was provided by [J.M. 2], sister of the appellant, who gave character evidence including the fact that she regularly engaged the appellant as babysitter at her home without any reason for concern and that she has continued to do so despite this charge as she has complete confidence in him. [8] The appellant, who has no previous record, was convicted of the charge and sentenced to three years imprisonment. The conviction has been appealed on the primary ground that the trial judge failed to permit cross-examination of N.M., as to another complaint she had made regarding this sexual assault. [9] This above summary of the evidence brought out at trial is to provide the background to permit an understanding of the significance of the evidentiary question which arose during the cross-examination of N.M. The following portion of the transcript indicates the nature of the objection raised and the manner in which it was dealt with. Q. Now, you’ve made allegations previously that MS. CARDINAL: Objection. My Lord, think my friend is going to be bringing in, again, perhaps previous sexual assault. MR. BENDIG: don’t know whether there was. It was My Lord, want to question this Witness on something that’s within her Statement provided to us. It’s part of disclosure of of another –- of another individual she complains about and want to examine that area. MS. CARDINAL: Complains about what would be my question. THE COURT: don’t think you can do that without leave. And to get leave, you would have you would have had to bring in an earlier Application. MR. BENDIG: Well, My Lord, would then seek leave at this point. would ask for some discretion exercised here. [H.L.M.] is before this Court without having representation prior to this Trial. There was no Preliminary Hearing conducted. None of the these issues were examined previously. THE COURT: But, the Criminal Code is quite clear on this. You –you would you have to make an Application in writing and think it has to be made upon seven days notice; I’m not certain about that and you’ve had ample time to do that. MR. BENDIG: That that’s fair comment, My Lord. In response though, would would submit that the Crown is not taken –taken by surprise. We have directed this issue. The the name has come up, although the issue of of questioning along these lines has not been brought up. It is in disclosure. It’s part of the Statement. There have been discussions previously and would seek your leave, My Lord THE COURT: Well, think don’t think it’s with don’t think have the discretion. MS. CARDINAL: Two seventy-six point one. MR. BENDIG: So, My Lord, I’m I’m not asking to go into the merits of of any other previous sexual conduct. I’m asking to question her on complaint and what happened to that complaint. THE COURT: Would you excuse us for few moments, please? MR. BENDIG: Thank you, My Lord THE COURT: Just tell me exactly what this is about. MR. BENDIG: She has made she she lay in her Statement, she also makes allegations against the other individual in the house being [K.M.], the foster child. These allegations were charged upon and then withdrawn. What want to the there is possibility here –identity has not been specifically established. would like to perhaps examine that this room is dark and perhaps it was different individual. MS. CARDINAL: Well, My Lord, s. 276 is clear and 276.1 is even clearer, that any kind of sexual conduct between the Accused and the Complainant or the the complainant and any other person has to is not admissible, first of all, to show that she has consented or is less worthy of belief. And, before we can even embark on that kind of an inquiry, the –Defence has to being an Application before the before the Judge, give the Crown seven days written notice and outline all the particulars and the evidence they intend to call on that Application. And, the Complainant is not compellable on that Application. So, my friend hasn’t complied with the strict requirements of s. 276.1.1. There’s been no Written Notice, no dis–no notice to the Crown and to –for my friend to say well, should have some leeway, he didn’t have Prelim.– THE COURT: Well MS. CARDINAL: all that kind of thing, that –quite frankly, the THE COURT: It– MS. CARDINAL: That’s not relevant, My Lord MR. BENDIG: Just just one thing– THE COURT: But MR. BENDIG: more, My Lord THE COURT: But, what the question goes to– MR. BENDIG: It– THE COURT: is is not it, guess– MR. BENDIG: If the charge was withdrawn and perhaps it–it wasn’t even sexual activity is, guess THE COURT: What did– MR. BENDIG: ... the gist of it THE COURT: What did she say in the Statement? MR. BENDIG: Oh, the charge was stayed. MS. CARDINAL: And, explained to my friend why, already. And, as had told him; and, perhaps can tell the Court, don’t know, don’t want to get into too much of it THE COURT: MR. BENDIG: It happened shortly after. It was from my it wasn’t the same guy. I’m sor it goes on for quite detailed and on on what happened with [K.M.] as well. THE COURT: Well, don’t think you’re permitted to do that. don’t think can grant you leave at this stage. You could ask her if if if if you want to approach it different way, without reference to the Statement, you you could question her about the darkness of the room and if it was possible that it was someone other than the Accused, that it’s possible she made mistake here. MR. BENDIG: Okay. THE COURT: If you want to approach it from that–from that perspective. MR BENDIG: Well, would be able to ask her any questions about the –the stayed proceedings, in in that like, perhaps, did you lie about that and or anything of that nature? THE COURT: don’t think it’s in dispute that there were that there were proc proceedings involving somebody else and that they were stayed. MS. CARDINAL: But but, I’m no making that just want to be clear on this. This is, again, something that falls under the rule of s. 276 and note that other cases have been held that it was improper to cross-examine the Complainant concerning an allegation she made about another man and that the Judge didn’t err in refusing the Defence permission to call this man who had denied the allegation and testify he had been charged with sexually assaulting the victim and had been acquitted. THE COURT: Just MS. CARDINAL: That evidence isn’t THE COURT: did MS. CARDINAL: before the Court. It’s not admissible. THE COURT: think– MS. CARDINAL: think as well THE COURT: that’s right. MS. CARDINAL: Yeah THE COURT: If you had brought an application under 276.1, well the position may be different. But, you but, you haven’t done that and and, absent that, don’t have the discretion to allow you to do what you want to do. MR. BENDIG: Okay. That’s fair. We’ll go on then. [10] The relevant portions of ss. 276 and 276.1are as follows: 276(1) In proceedings in respect of an offence under s. 151, 152, 153, 155 or 159, subsections 160(2) or (3) or s.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. (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...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. 276.1 (1) Application may be made to the judge, provincial court judge or justice by or on behalf of the accused for hearing under section 276.2 to determine whether evidence is admissible under subsection 276(2). (2) An application referred to in subsection (1) must be made in writing and set out (a) detailed particulars of the evidence that the accused seeks to adduce, and (b) the relevance of that evidence to an issue at trial, and copy of the application must be given to the prosecutor and to the clerk of the court. (3) The judge, provincial court judge or justice shall consider the application with the jury and the public excluded. (4) Where the judge, provincial court judge or justice is satisfied (a) that the application was made in accordance with subsection (2), (b) that copy of the application was given to the prosecutor and to the clerk of the court at least seven days previously, or such shorter interval as the judge, provincial court judge or justice may allow where the interests of justice so require, and (c) that the evidence sought to be adduced is capable of being admissible under subsection 276(2), the judge, provincial court judge or justice shall grant the application and hold hearing under section 276.2 to determine whether the evidence is admissible under subsection 276(2). [11] It is apparent from the transcript that no effort was made to present brief by either counsel on the application of s. 276 to this case. The trial judge was left to determine from his prior experience or his reading of the section at the time the objection was raised the extent of its application to the facts at hand. [12] Section 276 is generally considered to have been passed to prevent the continuance of the prevailing practice of defence counsel of engaging in far reaching exploration into the nature of the previous sexual activities of the complainant with view to persuading the trier of fact to conclude the complainant was more likely to have consented to this sexual activity or was less worthy of belief. This section met this objectionable practice by requiring cross-examination be restricted to that permitted by the trial judge after due notice of an intention to apply for such permission had been given. similar rationale for the introduction of this section has also been provided by Russell J.A. in R. v. Brothers, 1995 ABCA 185 (CanLII), [1995] 40 C.R. 250 (Alta. C.A.) at p. 258: The section is intended to eradicate negative stereotyping associated with the myth that person who has been sexually active is less virtuous, and more likely to consent to other sexual activity, or be less credible. Though the amendments circumscribe the prohibition, the general intent of the section is unchanged. Evidence of previous sexual activity is irrelevant to either credibility or consent. [13] It seems the question that should have been put to the trial judge on this occasion was whether this section was applicable to a situation involving non-consensual sex. The complainant was not being questioned about her consensual sexual activities, but rather about a previous complaint of a sexual assault. It is understood the intent was to indicate the complaintant had implicated someone else as the assailant and after investigation the complaint had not been acted upon.  That evidence could have placed in doubt the reliability of the complainant’s identification of the person who assaulted her since the room was dark when the assault was alleged to have occurred. [14] The protection s. 276 provides complainant is the recognition that the sexual activity person engages in is irrelevant and nobody else’s business. On the other hand, the ability of an accused to make full answer and defence is protected by his right to have voir dire to provide an opportunity to show the relevance of such testimony and the consequent need for its disclosure. The issue which arises here and should have been put to the trial judge is whether this protection to the complainant is intended to extend to incidents of non-consensual sex. The need to extend this protection to non-consensual sex is not apparent. That information does not involve the right to keep confidential chosen lifestyle as it only requires complainant to be open about those occasions when sexual assault has been alleged on another occasion. The existence of such previous assault may or may not be relevant information, but it should not be excluded for the reason it discloses lifestyle that the complainant has chosen to adopt for that is clearly not what such disclosure reveals. [15] The Crown contends that the intent of the section is to protect the privacy of any sexual activity of complainant and that right should just as appropriately extend to instances where that person is the victim of an assault. There is, however, clear distinction between the need to provide protection from the public exposure of lifestyle complainant has chosen to engage in, and the need to protect that person from providing information regarding an incident which does not involve any voluntary action. That kind of information should not be restricted unless the section specifically so provides and it does not appear to do so. The relevance such information may have is illustrated by this case in which it bears either upon the identity of the alleged assailant or the propensity of complainant to make such allegations or perhaps the credibility of the complainant and the resultant reliability of the evidence. For this reason do not believe this section should be interpreted as having application beyond the incidence of consensual sex. In this respect, am supported by the judgment of Roscoe J.A. of the Nova Scotia Court of Appeal in R. v. B.(O) 1995 CanLII 7507 (NS CA), [1995] 45 C.R. 68 at p. 94: In my opinion, s. 276 is not applicable to non‑consensual sexual activity. agree with the decision in R. v. Vanderest (1994), 1994 CanLII 2542 (BC SC), 91 C.C.C. (3d) 5, 24 W.C.B. (2d) 17 (B.C.S.C.), on this question where Lysyk J. said at pp. 7‑8: The terminology of s. 276(1) closely tracks passage in the reasons of McLachlin J., delivering the reasons of the majority, in R. v. Seaboyer (1991), 1991 CanLII 76 (SCC), 66 C.C.C. (3d) 321 at p. 409, 83 D.L.R. (4th) 193, [1991] S.C.R. 577, where she summarizes the applicable principles and formulates the first of those principles in the following terms: 1. On trial for sexual offence, evidence that the complainant has engaged in consensual sexual conduct on other occasions (including past sexual conduct with the accused) is not admissible solely to support the inference that the complainant is by reason of such conduct: (a) more likely to have consented to the sexual conduct at issue in the trial; (b) less worthy of belief as witness. It is the case that McLachlin J. refers expressly to evidence of consensual sexual conduct whereas s. 276(1)be explained, however, on the basis of economy of expression in the statutory language inasmuch as the reference to the complainant having “engaged in” certain activity clearly excludes non‑consensual activity. If, for example, bank teller complies with demand from an armed bandit to hand over cash, one would not, in ordinary use of the English language, say that the teller has engaged in bank robbery. Accordingly, on natural reading of s. 276(1) of the Code as well as on authority, conclude that the primary position taken by defence counsel is correct, that is to say, s. 276(1) and related provisions are not triggered by evidence of non‑consensual sexual activity. The conclusion reached in Vanderest was approved in R. v. Eyre, [1995] B.C.J. No. 1377 (QL) [summarized 27 W.C.B. (2d) 499 (S.C.)], leave to appeal refused by British Columbia Court of Appeal, [1995] B.C.J. No. 1936 (QL) [summarized 28 W.C.B. (2d) 321]; and in R. v. Sakakeesic, [1994] O.J. 2021 (QL) [summarized 24 W.C.B. (2d) 588 (Prov. Div.)]. [16] Even if had not concluded that s. 276 did not apply to non-consensual sex, would have concluded that the question put to N.M. did not give rise to the application of s. 276. It was factually relevant question that has as its focus the existence of previous complaint. The relevance of such a question pertaining to the existence of another complaint made by N.M. in respect of the same assault is obvious. It does not raise the issue of N.M. having “engaged in sexual activity”. This being so, N.M. should have simply been directed to respond to the question, not so as to permit an assessment of N.M.’s previous sexual conduct, but to clarify what previous complaint she may have made about this alleged assault. That question had a direct bearing on her credibility. [17] In my view, the failure of the trial judge to allow this cross-examination has prevented the appellant from having a fair trial as he has been denied the opportunity to make full answer and defence. This is not case which calls for an analysis of extensive evidence, rather it is dependant entirely upon finding of credibility and reliance upon the testimony of one person recalling an incident which occurred nearly ten years earlier. One cannot accurately assess what the result would have been had the cross-examination been allowed, however, it is enough to warrant new trial if the failure to present this evidence may reasonably have had an influence on the trial judge’s conclusion. [18] Several other issues were raised by the appellant, but in view of the conclusion have reached that the failure to permit cross-examination of N.M. regarding another complaint she made about sexual assault prevented the appellant from making full answer and defence, do not feel it is necessary to deal with these another issues. [19] In the result, the appeal is allowed and a new trial ordered. Dated at the City of Regina in the Province of Saskatchewan this 12th day of May 1999. WAKELING J.A. concur VANCISE J.A. concur JACKSON J.A.
The appellant appeals his conviction of sexual assault causing bodily harm on the ground the trial judge erred in preventing cross-examination of the complainant. The trial judge prevented the cross-examination of the complainant in relation to a previous allegation she had made relating to this sexual assault. The offence is alleged to have taken place at home of the appellant's brother. The appellant was asked by his brother and sister-in-law to babysit their daughter. The allegation was that the appellant had entered her parent's bedroom where she was sleeping and sexually assaulted her. The appellant, who has no previous record, was convicted of the charge and sentenced to three years imprisonment. The appellant during cross-examination of the complainant attempted to question her regarding a previous allegation regarding the same sexual assault against another person. The trial judge did not permit this line of questioning as he held it pertained to her past sexual history. HELD: Appeal allowed. The failure of the trial judge to allow this cross-examination has prevented the appellant from having a fair trial as he has been denied the opportunity to make full answer and defence. It seems the question that should have been put to the trial judge on this occasion was whether this section was applicable to a situation involving non-consensual sex. The complainant was not being questioned about her consensual sexual activities but rather a previous complainant of a sexual assault. It is understood the intent was to indicate the complainant had implicated someone else as the assailant and after investigation the complaint had not been acted upon. That evidence could have placed in doubt the reliability of the complainant's identification of the person who assaulted her since the room was dark when the assault was alleged to have occurred. The relevance of such a question pertaining to the existence of another complaint made by the complainant in respect of the same assault is obvious. That question has a direct bearing on her credibility.