R. v. Darrach, [2000] 2 S.C.R. 443
Andrew Scott Darrach Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada,
the Attorney General of Quebec,
the Attorney General of Manitoba,
the Attorney General of British Columbia,
the Women’s Legal Education and Action Fund,
the Canadian Association of Sexual Assault Centres,
the Disabled Women’s Network of Canada and
the National Action Committee
on the Status of Women Interveners
Indexed as: R. v. Darrach
Neutral citation: 2000 SCC 46.
File No.: 26564.
2000: February 23; 2000: October 12.
Present: McLachlin C.J. and L’Heureux‑Dubé,
Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for ontario
Constitutional law ‑‑ Charter of Rights
‑‑ Fair trial ‑‑ Right to make full answer and defence ‑‑
Sexual assault ‑‑ Evidence of complainant’s sexual activity ‑‑
Whether substantive aspect of s. 276 of Criminal Code infringing accused’s
right to make full answer and defence or his right to a fair trial ‑‑
Canadian Charter of Rights and Freedoms, ss. 7 , 11 (d) ‑‑
Criminal Code, R.S.C., 1985, c. C‑46, ss. 276(1) , (2) (c),
276.2(2) .
Constitutional law ‑‑ Charter of Rights
‑‑ Right to silence ‑‑ Right not to be compelled to be
a witness in proceedings against oneself ‑‑ Sexual assault ‑‑
Evidence of complainant’s sexual activity ‑‑ Whether procedural
aspect of s. 276 of Criminal Code infringing accused’s right to silence
and his right not to be compelled to be a witness in proceedings against him ‑‑
Canadian Charter of Rights and Freedoms, ss. 7 , 11 (c) ‑‑
Criminal Code, R.S.C., 1985, c. C‑46, ss. 276.1(2) , 276.2(2) .
Constitutional law ‑‑ Charter of Rights
‑‑ Self‑incrimination ‑‑ Voir dire – Whether
s. 13 of Canadian Charter of Rights and Freedoms protecting accused
against self‑incrimination on voir dire – Criminal Code, R.S.C., 1985,
c. C‑46, s. 276.2 .
The accused was charged with sexual assault and, at
his trial, attempted to introduce evidence of the complainant’s sexual
history. He unsuccessfully challenged the constitutionality of
s. 276.1(2) (a) of the Criminal Code (which requires that the
affidavit contain “detailed particulars” about the evidence), ss. 276(1)
and 276(2) (c) (which govern the admissibility of sexual conduct evidence
generally), and s. 276.2(2) (which provides that the complainant is not a
compellable witness at the hearing determining the admissibility of evidence of
prior sexual activity). At the trial proper, the complainant testified and
was cross‑examined. The defence was allowed a voir dire to
introduce evidence about her past sexual activity where the accused presented
his own detailed affidavit but refused to be cross‑examined on it. After
the voir dire, the trial judge refused to allow the accused to adduce
the evidence of the complainant’s sexual history. The accused was
subsequently convicted of sexual assault. The Court of Appeal dismissed the
accused’s appeal, concluding that the impugned provisions did not violate the
accused’s right to make full answer and defence, his right not to be compelled
to testify against himself or his right to a fair trial as protected by ss. 7 ,
11 (c) and 11 (d) of the Canadian Charter of Rights and Freedoms .
Held: The appeal should be dismissed.
The current version of s. 276 of the Criminal
Code is in essence a codification by Parliament of the Court’s guidelines
in Seaboyer. Section 276 contains both a substantive part that
prevents a complainant’s past sexual activity from being used for improper
purposes and a procedural part that enforces this rule. In view of Seaboyer,
the constitutionality of both the rule and the procedure has already been
established at a general level. Section 276 is carefully crafted to
comport with the principles of fundamental justice. It protects the integrity
of the judicial process while at the same time respecting the rights of the
people involved.
The substantive aspect of s. 276 does not
infringe the accused’s s. 7 right to make full answer and defence or his
s. 11 (d) right to a fair trial. Far from being a “blanket
exclusion”, s. 276(1) only prohibits the use of evidence of past sexual
activity when it is offered to support two specific, illegitimate inferences,
namely, that a complainant is more likely to have consented to the alleged
assault and that she is less credible as a witness by virtue of her prior
sexual experience. These “twin myths” are simply not relevant at trial.
They are not probative of consent or credibility and can severely distort the
trial process. Because s. 276(1) is an evidentiary rule that only
excludes material that is not relevant, it cannot infringe an accused’s right
to make full answer and defence. An accused has never had a right to adduce
irrelevant or misleading evidence. Further, the fact that s. 276(2) (c)
requires that the evidence tendered to support a permitted inference has
“significant probative value” does not raise the threshold for the
admissibility of evidence to the point that it is unfair to the accused. The
word “significant”, on a textual level, is reasonably capable of being read in
accordance with ss. 7 and 11 (d) and the fair trial they protect.
The requirement of “significant probative value” serves to exclude evidence of
trifling relevance that, even though not used to support the two forbidden
inferences, would still endanger the “proper administration of justice”. In
sum, s. 276 enhances the fairness of the hearing by excluding misleading
evidence from trials of sexual offences. It preserves the accused’s right to
adduce relevant evidence that meets certain criteria and so to make full answer
and defence.
With respect to the procedural aspect of s. 276,
the requirement that an accused present an affidavit and establish on a voir
dire that the evidence is admissible in accordance with established
criteria does not infringe his right not to be compelled to be a witness in
proceedings against him, nor a right not to reveal his defence. The procedure
mandated by s. 276 is consistent with the law of evidence and with Seaboyer.
It is a basic rule of evidence that the party seeking to introduce evidence
must be prepared to satisfy the court that it is relevant and admissible.
Therefore, if the defence seeks to adduce evidence of sexual activity, it must
establish that it supports at least some relevant inference. Further, the
particular voir dire required by s. 276 does not offend the
principle against self‑incrimination because the requirement that the
accused establish a legitimate use for evidence of sexual activity does not
compel him to testify. In applications under s. 276, there is free and
informed consent when the accused participates in order to exculpate himself.
Where there is neither a legal obligation nor an evidentiary burden on the
accused, the mere tactical pressure on the accused to participate in the trial
does not offend the principle against self‑incrimination or the right to
a fair trial. Lastly, s. 276 does not offend the presumption of innocence
because nothing in s. 276 obviates the Crown’s basic duty to establish
all the elements of a sexual offence beyond a reasonable doubt.
Section 276.1(2)(a) of the Code requires
the defence to enter an affidavit with “detailed particulars” of the evidence
it seeks to adduce. The affidavit requirement does not infringe the accused’s
right to silence. The right to silence in s. 7 comprises the right to
silence before trial and the privilege against self‑incrimination at
trial; it is inaccurate to speak of an absolute right to silence at the trial
stage of the criminal process. Moreover, s. 276 does not require the
accused to make premature or inappropriate disclosure to the Crown. The
accused is not forced to embark upon the process under s. 276 at all. If
the defence is going to raise the complainant’s prior sexual activity, it
cannot do so in such a way as to surprise the complainant. The right to make full
answer and defence does not include the right to defend by ambush.
If the trial judge is satisfied that the affidavit
meets the requirements of s. 276.1, the accused has the right under
s. 276.2 of the Code to an in camera hearing to decide
whether the evidence is admissible. The non‑compellability of the
complainant at the voir dire and the requirement to submit to cross‑examination
on the affidavit do not infringe the accused’s right not to be compelled to
testify at his own trial. An accused does not face a legal compulsion to
testify and the tactical pressure he encounters is not unfair. The basic rules
of evidence require the accused, having produced his affidavit, to submit to
cross‑examination because the right to cross‑examine is essential
to give any weight to an affidavit. An accused’s refusal to submit to cross‑examination
on his sworn affidavit in effect reduces its weight to that of an unsworn
statement, and it is well settled that an accused cannot make an unsworn
statement. The Crown’s right to cross‑examine on the affidavit under
s. 276 is essential to protect the fairness of the trial. Cross‑examination
is required to enable the trial judge to decide relevance by assessing the
affiant’s credibility and the use to which he intends to put the evidence. The
cross‑examination must be confined to what is necessary to determine
whether the evidence is admissible. Furthermore, on the voir dire,
s. 13 of the Charter protects an accused against self‑incrimination.
This privilege against self‑incrimination applies because a voir dire is
an “other proceeding” within the meaning of s. 13 .
The complainant’s non‑compellability at the voir
dire is based on sound legislative goals. To compel the complainant to be
examined on her sexual history before the subject has been found to be relevant
to the trial would invade the complainant’s privacy and discourage the
reporting of crimes of sexual violence. The right to make full answer and
defence, moreover, does not provide a right to cross‑examine an accuser.
The fair trial protected by s. 11 (d) is one that does justice to
all the parties.
Cases Cited
Applied: R.
v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Mills, [1999] 3 S.C.R. 668; R.
v. White, [1999] 2 S.C.R. 417; R. v. Osolin, [1993] 4 S.C.R. 595; R.
v. B. (K.G.), [1993] 1 S.C.R. 740; R. v. S. (R.J.), [1995] 1 S.C.R.
451; R. v. Jones, [1994] 2 S.C.R. 229; Erven v. The Queen, [1979]
1 S.C.R. 926; R. v. Hebert, [1990] 2 S.C.R. 151; R. v. Ewanchuk,
[1999] 1 S.C.R. 330; R. v. Underwood, [1998] 1 S.C.R. 77; Dubois v.
The Queen, [1985] 2 S.C.R. 350; R. v. Kuldip, [1990] 3 S.C.R. 618; R.
v. Cook, [1997] 1 S.C.R. 1113; approved: R. v.
Stoddart (1987), 37 C.C.C. (3d) 351; R. v. Boss (1988), 30 O.A.C.
184; R. v. Frederick (1931), 57 C.C.C. 340; R. v. Tarafa, [1990]
R.J.Q. 427; referred to: R. v. Lyons, [1987] 2 S.C.R. 309; R.
v. O’Connor, [1995] 4 S.C.R. 411; R. v. Crosby, [1995] 2 S.C.R. 912;
R. v. Santocono (1996), 91 O.A.C. 26; R. v. Oakes, [1986] 1
S.C.R. 103; R. v. Whyte, [1988] 2 S.C.R. 3; R. v. Dickson, [1994]
1 S.C.R. 153, aff’g (1993), 81 C.C.C. (3d) 224.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 11 , 13 .
Criminal Code, R.S.C., 1985, c. C‑46, ss. 271 [am. c. 19 (3rd
Supp.), s. 10 ; am. 1994, c. 44, s. 19], 276 [am. c. 27 (1st
Supp.), s. 203 ; am. c. 19 (3rd Supp.), s. 12 ; rep. & sub.
1992, c. 38, s. 2], 276.1 [ad. 1992, c. 38, s. 2], 276.2 [idem],
278.3 [ad. 1997, c. 30 s. 1].
Authors Cited
Boyle, Christine, and
Marilyn MacCrimmon. “The Constitutionality of Bill C‑49: Analyzing
Sexual Assault As If Equality Really Mattered” (1999), 41 Crim. L.Q.
198.
Kelly, Katharine D. “‘You
must be crazy if you think you were raped’: Reflections on the Use of
Complainants’ Personal and Therapy Records in Sexual Assault Trials” (1997), 9 C.J.W.L.
178.
Schwartz, Hart. “Sex with
the Accused on Other Occasions: The Evisceration of Rape Shield Protection”
(1994), 31 C.R. (4th) 232.
Sopinka, John, Sidney N.
Lederman and Alan W. Bryant. The Law of Evidence in Canada,
2nd ed. Toronto: Butterworths, 1999.
APPEAL from a judgment of the Ontario Court of Appeal
(1998), 38 O.R. (3d) 1, 107 O.A.C. 81, 122 C.C.C. (3d) 225, 13 C.R. (5th) 283 (sub
nom. R. v. D. (A.S.)), [1998] O.J. No. 397 (QL), dismissing the
accused’s appeal from his conviction for sexual assault. Appeal dismissed.
Lawrence Greenspon and Blair
Crew, for the appellant.
Rosella M. Cornaviera and Karen Shai, for the respondent.
Graham R. Garton, Q.C., and Robin Parker, for the intervener the Attorney General
of Canada.
Joanne Marceau and Marie‑Claude
Gilbert, for the intervener the Attorney General of Quebec.
Cynthia Devine, for the
intervener the Attorney General of Manitoba.
Alexander Budlovsky and
Marian K. Brown, for the intervener the Attorney General of British
Columbia.
Elizabeth Thomas and Carissima
Mathen, for the interveners the Women’s Legal Education and Action Fund,
the Canadian Association of Sexual Assault Centres, the Disabled Women’s
Network of Canada and the National Action Committee on the Status of Women.
The judgment of the Court was delivered by
Gonthier J. –
I. Introduction
1
The proper use of a complainant’s sexual history in sexual
offence prosecutions was last before this Court in R. v. Seaboyer,
[1991] 2 S.C.R. 577. There the Court struck down an earlier version of
s. 276 of the Criminal Code, R.S.C., 1985, c. C‑46 ,
because it excluded all evidence about a complainant’s sexual history from the
judicial process, subject to three exceptions. The majority found that
s. 276 could potentially exclude evidence of critical relevance (at
p. 616). Parliament then enacted the current s. 276 in Bill C-49 in
1992 (now S.C. 1992, c. 38). It essentially codifies the decision in Seaboyer and provides a mechanism
for the trial judge to determine the admissibility of evidence
of prior sexual activity.
2
The current s. 276 categorically prohibits evidence of a
complainant’s sexual history only when it is used to support one of two general
inferences. These are that a person is more likely to have consented to the
alleged assault and that she is less credible as a witness by virtue of her
prior sexual experience. Evidence of sexual activity may be admissible,
however, to substantiate other inferences. Sections 276.1 and 276.2 provide a
procedure to determine the admissibility of such evidence. In brief, the
defence must file a written affidavit; if the judge finds that it discloses
relevant evidence capable of being admissible under s. 276(2) , the judge
will hold a voir dire to determine the admissibility of the evidence the
defence seeks to adduce.
3
The accused challenges the constitutionality of parts of s. 276
under the Canadian Charter of Rights and Freedoms and the way in which
they were interpreted by the trial judge. In my view, his challenge fails.
The current version of s. 276 is carefully crafted to comport with the
principles of fundamental justice. It protects the integrity of the judicial
process while at the same time respecting the rights of the people involved.
The complainant’s privacy and dignity are protected by a procedure that also vindicates
the accused’s right to make full answer and defence. The procedure does not
violate the accused’s s. 7 Charter right to a fair trial nor his
s. 11 (c) right not to testify against himself or his s. 11 (d)
right to a fair hearing. For the reasons below, I find that the impugned
sections of the law are constitutional and that their application by the trial
judge was beyond reproach.
II. Facts
4
The accused met the complainant in October 1991, when she began
working at the retail store where he worked as a supervisor. They became
friends and began a sexual relationship. After their sexual
relationship ended, they saw each other casually, largely because they lived
two doors apart on the same street. At some point, the accused lent the
complainant $20. On November 6, 1992, he called her at work (he no longer
worked there) and asked to be repaid. The complainant met him that night and,
later that evening, they walked home together. The accused asked her to come
into his apartment. Once inside, the accused sexually assaulted the
complainant.
5
The trial judge accepted the complainant’s testimony about the assault
as “clear, she was consistent and straightforward”. It was uncontradicted and
unshaken by cross‑examination. The accused called no evidence and made
no submissions. All the elements of the offence were proven by the Crown and
the accused was convicted of sexual assault under s. 271 of the Criminal
Code . He was sentenced to nine months’ imprisonment.
III. Judgments
Below
A. Ontario
Court of Justice (Provincial Division)
6
The trial judge, Judge Blishen, made many rulings in the course of the
trial, which lasted over a year. Most were about the constitutionality of
subsections of s. 276, all of which she upheld. She also ruled on the
procedure to be followed on applications under s. 276.1 and s. 276.2
to introduce evidence of the complainant’s prior sexual activity. I shall
discuss only those findings that were appealed before this Court. The
correctness of the others is not in dispute. The operation of the legislation
is best understood in the context of the proceedings, so I shall discuss the
issues in the order in which they arose at trial.
7
The accused tried early on to introduce evidence about the complainant’s
sexual history in the form of a brief affidavit signed by a lawyer at the firm
by which he was represented. He also initially challenged the
constitutionality of s. 276.1(2) (a), which requires that the
affidavit contain “detailed particulars” about the evidence, on the grounds
that it violates his rights under ss. 7 , 11 (c) and 11 (d) of
the Charter . The trial judge ruled on December 20, 1993 that the
affidavit must contain detailed particulars if she is to be able to decide
whether to proceed to a voir dire. Although this may require the
accused to reveal his defence, the rule is constitutional on the basis of Seaboyer
and consistent with the procedure for Charter applications. Before she
would require the detailed particulars, however, the trial judge had to decide
the constitutionality of the sections that govern the admissibility of evidence
of sexual activity generally, namely s. 276(1) and s. 276(2) (c).
8
The trial judge upheld the constitutionality of ss. 276(1) and
276(2) (c) on February 3, 1994 ((1994), 17 O.R. (3d) 481, at
pp. 493 and 497). She found that these sections are faithful to Seaboyer
and that they are capable of being read so as not to offend the Constitution.
Section 276(1) prohibits only general inferences about consent and
credibility. Evidence to support specific inferences may be admissible if it
meets the criteria in ss. 276(2) and 276(3) . Section 276(2) (c)
requires that evidence have “significant probative value that is not
substantially outweighed by the danger of prejudice to the proper
administration of justice”. The trial judge upheld this section because it too
faithfully “mirror[s]” Justice McLachlin’s (as she then was) requirement in Seaboyer
that the trial judge exercise discretion to admit only evidence with
“sufficient probative value” (p. 495). The balance between protecting the
accused’s right to present evidence and ensuring that the court is not misled
by highly prejudicial material is properly struck. Last, Seaboyer contemplated
that the accused may have to testify on a voir dire before the evidence
of sexual activity could be admitted. This requirement does not offend
s. 7 or s. 11 (c).
9
On May 3, 1994, the trial judge confirmed that the Crown has the
right to see the particulars and to review them with the complainant “to
properly prepare a response” for the voir dire. The accused’s lawyer
had argued against this on the grounds that the element of surprise was
essential to his cross-examination, but the trial judge rejected this notion.
Part of the purpose of the s. 276.1 proceeding was to prepare the witness
for a potential intrusion into her privacy.
10
The trial judge then ruled on a new information and belief affidavit
signed by a lawyer and submitted on May 10, 1994. The threshold test in
s. 276.1(4)(c) for admitting the affidavit is whether the evidence
is “capable of being admissible under s. 276(2) ” ([1994] O.J.
No. 3162 (QL), at para. 19). She found that there was no requirement
for a hearing at this stage; the point of the two-stage process is to have a
hearing at the second stage, and only if it is warranted (para. 21).
There is inconsistent case law on the application of the test to the
affidavit. The trial judge concluded that the proper approach was to ask
“firstly, whether [the evidence] was barred absolutely by s. 276(1), and
secondly, whether it was capable of meeting the criteria outlined in
s. 276(2) , and the general concerns and interests of justice as outlined
in s. 276(3)” (para. 28).
11
The affidavit met this test and the accused was allowed to proceed to a voir
dire. The defence then challenged the non-compellability of the
complainant at the voir dire according to s. 276.2(2) . The trial
judge upheld the constitutionality of this section on May 17, 1994, on the
basis that in the description of the procedure in Seaboyer, “[t]he
complainant is specifically not included, and the accused is included” as
possible witnesses at the voir dire ([1994] O.J. No. 3161 (QL), at
para. 11). To permit a cross-examination of the complainant before the
affidavit has been ruled admissible would defeat the purpose of s. 276 .
The complainant’s right to equality in ss. 15 and 28 of the Charter
should be taken into account when putting reasonable limits on her
cross-examination. This provision does not violate the accused’s s. 7 or
s. 11 (c) rights not to be compelled to testify against himself
because his decision to put her sexual history in issue was a tactical one and
not a legal compulsion.
12
In her next ruling, on May 30, 1994, the trial judge decided how
the voir dire in s. 276.2(2) should be conducted ([1994] O.J.
No. 3160 (QL)). First she held that an information and belief affidavit,
such as the one she had accepted at the first stage, would not suffice at the
second stage. “[S]ome direct evidence” must be led (para. 11). She
accepted the analogy to Charter applications, where “the onus will be
on the accused, and the burden of proof will be on a balance of probabilities”
(para. 15). To meet the mandate of the legislation and to determine
admissibility properly, the trial judge also found that the Crown had the right
to cross-examine the accused on the evidence he sought to adduce. The
legislation requires “some weighing and some assessing of the evidence”
(para. 20).
13
The court proceeded with the trial proper. The complainant was
cross-examined and the defence renewed its application for a voir dire
to introduce evidence about her past sexual activity. At the voir dire,
the accused presented his own detailed affidavit but refused to be
cross-examined on it. The trial judge found that without cross-examination,
“the court can not attribute much, if any, weight to such evidence” because it
is impossible to assess its probative value and prejudicial effect as the
legislation requires. There were other problems with the
affidavit. The trial judge also found that the sexual activity described in
the affidavit was “in no way corroborated by the complainant”. The accused
failed to lead any evidence “as to a link between the proposed evidence ... and
the possible defence of honest mistaken belief in consent. He has provided no
evidence as to his own state of mind resulting from the alleged previous sexual
conduct”. The trial judge refused to admit the evidence of prior sexual
activity and the trial ended.
B. Ontario Court of Appeal
14
The Court of Appeal upheld the trial judge’s findings about the
constitutionality of the law and about the procedure the law requires: (1998),
38 O.R. (3d) 1. The law does not violate the accused’s right to make full
answer and defence, his right not to be compelled to testify against himself or
his right to a fair trial as protected by ss. 7 , 11 (c) and 11 (d)
of the Charter .
15
The Court of Appeal affirmed that s. 276(1) is not a blanket
prohibition on evidence of a complainant’s sexual history. The requirement of
“significant probative value” in s. 276(2) (c)
mirrors Seaboyer and can be read in accord with ss. 7 and 11 (d).
Because the evidence at issue will “inherently” prejudice the complainant, its
probative value will have to be high in any case, even at common law. With
respect to s. 276.1(2) (a), the Court of Appeal agreed that
requiring detailed particulars in the affidavit does not violate the accused’s
s. 7 or s. 11 rights. They list several other contexts in
which the accused may have to disclose a defence. Last, the Court of Appeal
agreed that the complainant is not compellable in law at the hearing.
16
The Court of Appeal affirmed that the accused’s right to make full
answer and defence should be protected as fully as possible while preserving
the complainant’s legitimate privacy interest. Recognizing interests other
than the accused’s does not in itself infringe the Constitution. “[A] decision
[of a judge] could ... deny an accused the right to a fair trial. In such a
case it would be the decision, not the legislation, which infringed the
accused’s constitutional rights” (p. 17).
IV. Relevant
Statutory Provisions
17
Criminal Code, R.S.C., 1985, c. C-46
276. (1) In proceedings in respect of an
offence under section 151, 152, 153, 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.
(2) In proceedings in respect of an offence
referred to in subsection (1), no evidence shall be adduced by or on behalf of
the accused that the complainant has engaged in sexual activity other than the
sexual activity that forms the subject-matter of the charge, whether with the
accused or with any other person, unless the judge, provincial court judge or
justice determines, in accordance with the procedures set out in sections 276.1
and 276.2 , that the evidence
(a) is of specific instances of sexual activity;
(b) is relevant to an issue at trial; and
(c) has significant probative value that is not substantially
outweighed by the danger of prejudice to the proper administration of justice.
(3) In determining whether evidence is admissible
under subsection (2), the judge, provincial court judge or justice shall take
into account
(a) the interests of justice, including the right of the accused
to make a full answer and defence;
(b) society’s interest in encouraging the reporting of sexual
assault offences;
(c) whether there is a reasonable prospect that the evidence
will assist in arriving at a just determination in the case;
(d) the need to remove from the fact-finding process any discriminatory
belief or bias;
(e) the risk that the evidence may unduly arouse sentiments of
prejudice, sympathy or hostility in the jury;
(f) the potential prejudice to the complainant’s personal
dignity and right of privacy;
(g) the right of the complainant and of every individual to
personal security and to the full protection and benefit of the law; and
(h) any other factor that the judge, provincial court judge or
justice considers relevant.
276.1 (1) Application may be made to the
judge, provincial court judge or justice by or on behalf of the accused for a
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 a 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 a 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 a hearing under section 276.2 to determine whether the evidence
is admissible under subsection 276(2) .
276.2 (1) At a hearing to determine whether
evidence is admissible under subsection 276(2) , the jury and the public shall
be excluded.
(2) The complainant is not a compellable witness at
the hearing.
(3) At the conclusion of the hearing, the judge,
provincial court judge or justice shall determine whether the evidence, or any
part thereof, is admissible under subsection 276(2) and shall provide reasons
for that determination, and
(a) where not all of the evidence is to be admitted, the reasons
must state the part of the evidence that is to be admitted;
(b) the reasons must state the factors referred to in subsection
276(3) that affected the determination; and
(c) where all or any part of the evidence is to be admitted, the
reasons must state the manner in which that evidence is expected to be relevant
to an issue at trial.
(4) The reasons provided under subsection (3) shall
be entered in the record of the proceedings or, where the proceedings are not
recorded, shall be provided in writing.
Canadian
Charter of Rights and Freedoms
7. Everyone has the right to life, liberty
and security of the person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
11. Any person charged with an offence has
the right
.
. .
(c) not to be compelled to be a witness in proceedings against
that person in respect of the offence;
(d) to be presumed innocent until proven guilty according to law
in a fair and public hearing by an independent and impartial tribunal;
13. A witness who testifies in any
proceedings has the right not to have any incriminating evidence so given used
to incriminate that witness in any other proceedings, except in a prosecution
for perjury or for the giving of contradictory evidence.
V. Issues
18
The points in issue are, by order of Lamer C.J., the following
constitutional questions:
1. Do ss. 276.1(2)(a) and 276.2(2)
of the Criminal Code of Canada infringe upon an accused's right to
silence and the right not to be compelled to be a witness in proceedings
against himself in respect to the offence pursuant to s. 7 and/or
s. 11 (c) of the Canadian Charter of Rights and Freedoms ?
2. If the answer to question number one is yes,
are the infringements demonstrably justified in a free and democratic society
pursuant to s. 1 of the Charter ?
3. Do ss. 276(1), 276(2)(c) and
276.2(2) of the Criminal Code of Canada infringe upon an accused's right
to make full answer and defence pursuant to s. 7 and/or s. 11 (d)
of the Charter ?
4. If the answer to question number three is
yes, are the infringements demonstrably justified in a free and democratic
society pursuant to s. 1 of the Charter ?
VI. Analysis
19
In Seaboyer, the Court unanimously affirmed the legitimate
purposes of s. 276 as being to protect the integrity of the trial by
excluding evidence that is misleading, to protect the rights of the accused as
well as to encourage reporting of sexual offences by protecting the security
and privacy of complainants (at p. 606). The majority found that the
earlier version of s. 276 was unconstitutional because it was a blanket
exclusion of evidence of sexual activity, subject to three categorical
exceptions. It did not allow for the potential multiple relevance of this
evidence or for the exercise of judicial discretion to determine its relevance
(at p. 618). The law was struck down and in its place the Court provided
guidelines for the admission of evidence designed to remedy these defects while
preserving the intent of s. 276 .
20
The current version of s. 276 is in essence a codification by
Parliament of the Court’s guidelines in Seaboyer. It contains
substantive sections that prevent evidence of a complainant’s past sexual
activity from being used for improper purposes and procedural sections that
enforce this rule. The constitutional challenge in the case at bar focuses on
four aspects of s. 276 ; two of them are substantive and two are
procedural. The ultimate justification for all four is that they are found in
some form in the Seaboyer guidelines (at p. 635). At a general
level, the constitutionality of both the rule and the procedure has already
been established. The procedure in particular was not discussed in any detail
in Seaboyer, however, so I shall review why these rules, in the form in
which they were ultimately enacted by Parliament, are constitutional.
21
The accused challenges the constitutionality of s. 276 on two
grounds. He claims that the substantive sections that exclude evidence violate
his s. 7 right to make full answer and defence and his s. 11 (d)
right to a fair trial and the presumption of innocence. As I show below, his
argument fails because the legislation enhances the fairness of the hearing by
excluding misleading evidence from trials of sexual offences. It preserves the
accused’s right to adduce relevant evidence that meets certain criteria and so
to make full answer and defence.
22
The accused’s second challenge is that the procedural sections violate
his right not to be compelled to be a witness in proceedings against him, as
guaranteed by ss. 7 and 11 (c). The arguments relating to
self-incrimination fail because s. 276 does not create a legal compulsion
to testify. The accused participates voluntarily in order to exculpate
himself. Because he seeks to introduce evidence about the complainant’s sexual
activity, it is up to him to show how it is relevant. The presumption of
innocence is preserved because the Crown still bears the burden of proving all
the elements of the offence. His constitutional rights are not infringed by
either the substantive or the procedural parts of s. 276 . The balance
struck in Seaboyer among the interests of justice, the accused and the
complainant is preserved in the current legislation.
A. The Approach to Sections 7 , 11 (c) and 11 (d) of the
Charter
23
The accused claims that his right not to be compelled to testify against
himself as protected by s. 11 (c) and his right to a fair trial with
the presumption of innocence as protected by s. 11 (d) are infringed
by s. 276 . He therefore claims that he is deprived of his liberty in a
way that is not in accordance with the principles of fundamental justice,
contrary to s. 7 of the Charter . In R. v. Mills, [1999] 3
S.C.R. 668, the Court dealt with a claim that s. 11 (d) was violated
in combination with s. 7 , and the Court analysed the issues under the
rubric of s. 7 on the grounds that the fair trial specifically protected
by s. 11 (d) was itself a principle of fundamental justice under
s. 7 . In R. v. White, [1999] 2 S.C.R. 417, at paras. 40 and
44, Iacobucci J. described s. 11 (c) as a procedural protection
that underlies the principle against self-incrimination, which is also a
principle of fundamental justice under s. 7 . In both cases, the Court
analysed the rights involved in the context of s. 7 .
24
These cases are part of the Court’s jurisprudence that has consistently
held that the principles of fundamental justice enshrined in s. 7 protect
more than the rights of the accused. As McLachlin J. wrote in Seaboyer,
supra, at p. 603:
The principles of fundamental justice reflect a
spectrum of interests, from the rights of the accused to broader societal
concerns.... The ultimate question is whether the legislation, viewed in a
purposive way, conforms to the fundamental precepts which underlie our system
of justice.
One of the implications of this analysis is that while the right to
make full answer and defence and the principle against self-incrimination are
certainly core principles of fundamental justice, they can be respected without
the accused being entitled to “the most favourable procedures that could
possibly be imagined” (R. v. Lyons, [1987] 2 S.C.R. 309, at p. 362;
cited in Mills, supra, at para. 72). Nor is the accused
entitled to have procedures crafted that take only his interests into account.
Still less is he entitled to procedures that would distort the truth-seeking
function of a trial by permitting irrelevant and prejudicial material at trial.
25
In Seaboyer, the Court found that the principles of
fundamental justice include the three purposes of s. 276 identified
above: protecting the integrity of the trial by excluding evidence that is
misleading, protecting the rights of the accused, as well as encouraging the
reporting of sexual violence and protecting “the security and privacy of the
witnesses” (p. 606). This was affirmed in Mills, supra, at
para. 72. The Court crafted its guidelines in Seaboyer in
accordance with these principles, and it is in relation to these principles
that the effects of s. 276 on the accused must be evaluated.
26
The Court in Mills upheld the
constitutionality of the provisions in the Criminal Code that control
the use of personal and therapeutic records in trials of sexual offences. The
use of these records in evidence is analogous in many ways to
the use of evidence of prior sexual activity, and the protections in the Criminal
Code surrounding the use of records at trial are motivated by similar policy
considerations. L’Heureux-Dubé J. has warned that therapeutic records
should not become a tool for circumventing s. 276 : “[w]e must not allow
the defence to do indirectly what it cannot do directly” (R. v. O’Connor,
[1995] 4 S.C.R. 411, at para. 122, and R. v. Osolin, [1993]
4 S.C.R. 595, at p. 624). Academic commentators have
observed that the use of therapeutic records increased with the enactment of
s. 276 nonetheless (see K. D. Kelly, “‘You must be crazy if you think
you were raped’: Reflections on the Use of Complainants’ Personal and Therapy
Records in Sexual Assault Trials” (1997), 9 C.J.W.L. 178, at
p. 181).
27
The provisions that control the use of personal records contain a
two-step procedure like that in s. 276 . The defence must first apply in
writing under s. 278.3 with grounds to establish that the record is
“likely relevant”. On a voir dire, the judge may order the holder of
the record to produce it if the defence can demonstrate that the record is
“likely relevant” and “is necessary in the interests of justice”. The judge
then reviews the material and decides whether or not to produce it to the
accused. The Code contains a list of factors to help the judge
determine the relevance of the record, much like the list in s. 276 to help
the trial judge exercise her discretion to admit evidence of prior sexual
activity.
28
The constitutional issue in Mills was analogous to that in
the present case because the therapeutic records provisions can potentially
exclude relevant evidence from a trial. Although this is less likely under
s. 276 , in the sense that the accused is better able to establish the
relevance of sexual activity in which he participated than he can describe
therapeutic records not in his possession, it is still possible. This is
because the test for admissibility in s. 276(2) requires not only that the
evidence be relevant but also that it be more probative than prejudicial. Mills
dealt with a conflict among the same three Charter principles that are
in issue in the case at bar: full answer and defence, privacy and equality (at
para. 61). The Court defined these rights relationally: “the scope of
the right to make full answer and defence must be determined in light of
privacy and equality rights of complainants and witnesses” (paras. 62-66
and 94). The exclusionary rule was upheld. The privacy and equality concerns
involved in protecting the records justified interpreting the right to make
full answer and defence in a way that did not include a right to all relevant
evidence.
29
The Court has taken a similar approach to the principle against
self-incrimination. In White, supra, the principle against
self-incrimination was also held to require a contextual analysis: “[t]he
principle against self-incrimination demands different things at different
times, with the task in every case being to determine exactly what the
principle demands, if anything, within the particular context at issue”
(para. 45). At the same time, “[e]ach principle of fundamental justice
must be interpreted in light of those other individual and societal interests
that are of sufficient importance that they may appropriately be characterized
as principles of fundamental justice” (para. 47). In that case, the use
at the accused’s criminal trial of statements made by her under compulsion of
the Motor Vehicle Act was found to violate the principle against
self-incrimination.
30
In Mills and in White, the Court defined the scope of the
accused’s rights in a contextual way that reconciled the principles of
fundamental justice. In Mills, legislation that excludes evidence was
upheld as constitutional, to the benefit of the Crown; in White,
evidence was excluded to the benefit of the accused, on the grounds that it was
unfairly obtained through compulsion. In Seaboyer, a
blanket exclusionary rule about evidence of prior sexual activity was struck
down as unconstitutional in favour of vesting discretionary power to admit
evidence in the trial judge. The old s. 276 was held to violate ss. 7
and 11 (d) and could not be justified under s. 1 . The Court’s
substitute guidelines were fully constitutional and did not require a s. 1
justification, much like in Mills.
31
In the case at bar, I affirm the reasons in Seaboyer and find
that none of the accused’s rights are infringed by s. 276 as he alleges. Seaboyer
provides a basic justification for the legislative scheme in s. 276 ,
including the determination of relevance as well as the prejudicial and
probative value of the evidence. Mills and White show how the
impact of s. 276 on the principles of fundamental justice relied on by the
accused should be assessed in light of the other principles of fundamental
justice that s. 276 was designed to protect. The reasons in Mills
are apposite because they demonstrate how the same principles of equality,
privacy and fairness can be reconciled. I shall show below
how the procedure created by s. 276 to protect the trial process from
distortion and to protect complainants is consistent with the principles of
fundamental justice. It is fair to the accused and properly reconciles the
divergent interests at play, as the Court suggested in Seaboyer.
B. The
Substantive Sections
(1) Section 276(1) – The Exclusionary Rule
32
The accused objects to the exclusionary rule itself in s. 276(1) on
the grounds that it is a “blanket exclusion” that prevents him from adducing
evidence necessary to make full answer and defence, as guaranteed by ss. 7
and 11 (d) of the Charter . He is mistaken in his characterization
of the rule. Far from being a “blanket exclusion”, s. 276(1) only
prohibits the use of evidence of past sexual activity when it is offered to
support two specific, illegitimate inferences. These are known as the “twin
myths”, namely that a complainant is more likely to have consented or that she
is less worthy of belief “by reason of the sexual nature of [the] activity” she
once engaged in.
33
This section gives effect to McLachlin J.’s finding in Seaboyer
that the “twin myths” are simply not relevant at trial. They are not probative
of consent or credibility and can severely distort the trial process. Section
276(1) also clarifies Seaboyer in several respects.
Section 276 applies to all sexual activity, whether with the accused or with
someone else. It also applies to non-consensual as well as consensual sexual
activity, as this Court found implicitly in R. v. Crosby, [1995] 2
S.C.R. 912, at para. 17. Although the Seaboyer guidelines referred to
“consensual sexual conduct” (pp. 634‑35), Parliament enacted the new
version of s. 276 without the word “consensual”. Evidence of
non-consensual sexual acts can equally defeat the purposes of s. 276 by
distorting the trial process when it is used to evoke stereotypes such as that women
who have been assaulted must have deserved it and that they are unreliable
witnesses, as well as by deterring people from reporting assault by humiliating
them in court. The admissibility of evidence of
non-consensual sexual activity is determined by the procedures in s. 276 .
Section 276 also settles any ambiguity about whether the “twin
myths” are limited to inferences about “unchaste” women in particular; they are
not (as discussed by C. Boyle and M. MacCrimmon, “The
Constitutionality of Bill C-49: Analyzing Sexual Assault As If Equality Really
Mattered” (1999), 41 Crim. L.Q. 198, at pp. 231-32).
34
The Criminal Code excludes all discriminatory
generalizations about a complainant’s disposition to consent or about her
credibility based on the sexual nature of her past sexual activity on
the grounds that these are improper lines of reasoning. This was the import of
the Court’s findings in Seaboyer about how sexist beliefs about women
distort the trial process. The text of the exclusionary rule
in s. 276(1) diverges very little from the guidelines in Seaboyer.
The mere fact that the wording differs between the Court’s guidelines and
Parliament’s enactment is itself immaterial. In Mills, supra,
the Court affirmed that “[t]o insist on slavish conformity” by Parliament to
judicial pronouncements “would belie the mutual respect that underpins the
relationship” between the two institutions (para. 55). In this case, the
legislation follows the Court’s suggestions very closely.
35
The phrase “by reason of the sexual nature of that activity” in
s. 276 is a clarification by Parliament that it is inferences from the sexual
nature of the activity, as opposed to inferences from other potentially
relevant features of the activity, that are prohibited. If evidence of sexual
activity is proffered for its non-sexual features, such as to show a pattern of
conduct or a prior inconsistent statement, it may be permitted. The phrase “by
reason of the sexual nature of that activity” has the same effect as the
qualification “solely to support the inference” in Seaboyer in that it
limits the exclusion of evidence to that used to invoke the “twin myths”
(p. 635).
36
This Court has already had occasion to admit evidence of prior
sexual activity under the current version of s. 276 . In Crosby, supra, such evidence was
admissible because it was inextricably linked to a prior inconsistent statement
that was relevant to the complainant’s credibility (at para. 14). This
case itself demonstrates that s. 276 does not function in practice as a
blanket exclusion, as alleged by the accused. On the contrary, s. 276
controls the admissibility of evidence of sexual activity by providing judges
with criteria and procedures to help them exercise their discretion to admit it.
I explain below why the procedure to assess relevance is constitutional.
Suffice it here to say that it is this procedure that makes the Seaboyer
guidelines and the current version of s. 276 constitutional where the
earlier version of s. 276 was not.
37
An accused has never had a right to adduce irrelevant evidence. Nor
does he have the right to adduce misleading evidence to support illegitimate
inferences: “the accused is not permitted to distort the truth-seeking
function of the trial process” (Mills, supra, at
para. 74). Because s. 276(1) is an evidentiary rule that only
excludes material that is not relevant, it cannot infringe the accused’s right
to make full answer and defence. Section 276(2) is more complicated, and I
turn to it now.
(2) Section 276(2)(c) – “Significant Probative Value”
38
If evidence is not barred by s. 276(1) because it is tendered to
support a permitted inference, the judge must still weigh its probative value
against its prejudicial effect to determine its admissibility. This
essentially mirrors the common law guidelines in Seaboyer which
contained this balancing test (at p. 635). The accused takes issue with
the fact that s. 276(2)(c) specifically requires that the evidence
have “significant probative value”. The word “significant” was added by
Parliament but it does not render the provision unconstitutional by raising the
threshold for the admissibility of evidence to the point that it is unfair to
the accused.
39
It may be noted that the word “significant” is not found in the French
text; the law speaks simply of “valeur probante”. The rule of equal
authenticity and the rule against unconstitutional interpretation require that
the two versions be reconciled where possible. The interpretation of “significant”
by the Ontario Court of Appeal satisfies this requirement:
Morden A.C.J.O. found that “the evidence is not to be so trifling as to be
incapable, in the context of all the evidence, of raising a reasonable doubt”
(p. 16). At the same time, Morden A.C.J.O. agrees with R. v. Santocono
(1996), 91 O.A.C. 26 (C.A.), at p. 29, where s. 276(2)(c)
was interpreted to mean that “it was not necessary for the appellant to
demonstrate ‘strong and compelling’ reasons for admission of the evidence”.
This standard is not a departure from the conventional rules of evidence. I
agree with the Court of Appeal that the word “significant”, on a textual level,
is reasonably capable of being read in accordance with ss. 7 and 11 (d)
and the fair trial they protect.
40
The context of the word “significant” in the provision in which it
occurs substantiates this interpretation. Section 276(2)(c) allows a
judge to admit evidence of “significant probative value that is not substantially
outweighed by the danger of prejudice to the proper administration of justice”
(emphasis added). The adverb “substantially” serves to protect the accused by
raising the standard for the judge to exclude evidence once the accused has
shown it to have significant probative value. In a sense, both sides of the
equation are heightened in this test, which serves to direct judges to the
serious ramifications of the use of evidence of prior sexual activity for all
parties in these cases.
41
In light of the purposes of s. 276 , the use of the word “significant”
is consistent with both the majority and the minority reasons in Seaboyer.
Section 276 is designed to prevent the use of evidence of prior sexual activity
for improper purposes. The requirement of “significant probative value” serves
to exclude evidence of trifling relevance that, even though not used to support
the two forbidden inferences, would still endanger the “proper administration
of justice”. The Court has recognized that there are inherent “damages
and disadvantages presented by the admission of such evidence” (Seaboyer,
supra, at p. 634). As Morden A.C.J.O. puts it, evidence of
sexual activity must be significantly probative if it is to overcome its
prejudicial effect. The Criminal Code codifies this reality.
42
By excluding misleading evidence while allowing the accused to adduce
evidence that meets the criteria of s. 276(2) , s. 276 enhances the
fairness of trials of sexual offences. Section 11 (d) guarantees a
fair trial. Fairness under s. 11 (d) is determined in the context
of the trial process as a whole (R. v. Stoddart (1987), 37 C.C.C. (3d)
351 (Ont. C.A.), at pp. 365-66). As L’Heureux-Dubé J. wrote in Crosby,
supra, at para. 11, “[s]ection 276 cannot be interpreted so as to
deprive a person of a fair defence.” At the same time, the accused’s right to
make full answer and defence, as was held in Mills, supra, at
para. 75, is not “automatically breached where he or she is deprived of
relevant information”. Nor is it necessarily breached when the accused is not
permitted to adduce relevant information that is not “significantly” probative,
under a rule of evidence that protects the trial from the distorting effects of
evidence of prior sexual activity.
43
When the trial judge determines the admissibility of evidence under
s. 276(2), she is to take into account the multiple factors in
s. 276(3), which include “the right of the accused to make a full answer
and defence” in s. 276(3)(a). Section 276 is designed to
exclude irrelevant information and only that relevant information that is more
prejudicial to the administration of justice than it is probative. The
accused’s right to a fair trial is, of course, of fundamental concern to the
administration of justice. In a similar situation in Mills, the Court
preserved the right to make full answer and defence in the following
commonsensical way, at para. 94:
It is clear that the right to full answer and defence is not engaged
where the accused seeks information that will only serve to distort the truth‑seeking
purpose of a trial, and in such a situation, privacy and equality rights are
paramount. On the other hand, where the information contained in a record
directly bears on the right to make full answer and defence, privacy rights
must yield to the need to avoid convicting the innocent.
Thus the threshold criteria that evidence be of “significant”
probative value does not prevent an accused from making full answer and
defence to the charges against him. Consequently his Charter rights
under ss. 7 and 11 (d) are not infringed by
s. 276(2) (c).
C. The Procedural Sections to Determine Relevance: The Affidavit
and Voir Dire
44
The constitutionality of the procedure that must be followed to
introduce evidence of prior sexual activity has also been challenged. It
requires that whoever seeks to introduce it “by or on behalf of the accused”
must present an affidavit and establish on a voir dire that the evidence
is admissible in accordance with the criteria in the Criminal Code . The
accused in the case at bar protests that both the affidavit and the voir
dire requirements infringe his right not to be compelled to be a witness in
proceedings against him, as well as his right not to reveal his defence. I disagree.
A voir dire with affidavit or viva voce evidence and with the
participation of the accused is found, albeit in skeletal form, in the
guidelines in Seaboyer established by this Court in compliance with the Charter
(at p. 636). Because there was little direct discussion of the procedure
in Seaboyer and because the impugned provisions are more detailed than
the guidelines, it is useful to elaborate and to explain why they are
constitutional.
45
Section 276 and the procedure it mandates are consistent with the
law of evidence. Sections 276(1) and 276(2) are rules to determine relevance
and admissibility. They were articulated in Seaboyer as common law
rules and are now codified in the Criminal Code . Evidence of prior
sexual activity is of limited admissibility: it is admissible for some
purposes but not others. This is because it is of limited relevance. In
particular, as the Court put it in Seaboyer, “[t]here is no logical or
practical link between a woman’s sexual reputation and whether she is a
truthful witness” or whether she is more likely to have consented to an alleged
assault (at p. 612).
46
It is a basic rule of evidence that the party seeking to introduce
evidence must be prepared to satisfy the court that it is relevant and
admissible. Lamer C.J. described the burden of proof on a voir dire to
introduce evidence (in that case prior inconsistent statements) as being “on
the balance of probabilities, the normal burden resting upon a party seeking
to admit evidence” in R. v. B. (K.G.), [1993] 1 S.C.R. 740, at
p. 800 (emphasis added). Prior sexual activity is, like hearsay,
character evidence and similar fact evidence, restricted in its admissibility.
If the defence seeks to adduce such evidence, it must establish that it supports
at least some relevant inference. Parliament has specified criteria for
admissibility in s. 276(2) to guide the discretion of trial judges in this
area.
47
The Court has not yet pronounced on whether a voir dire is
an evidentiary proceeding and not a proceeding against the accused to which
s. 11 (c) applies. The issue was not argued in this case. In any
event, the particular voir dire required by s. 276 does not offend
the principle against self-incrimination because the requirement that the
accused establish a legitimate use for evidence of sexual activity does not
compel him to testify. As the Ontario Court of Appeal found in R. v. Boss
(1988), 30 O.A.C. 184, at p. 198,
the tactical obligation which an accused may feel to
testify does not constitute a legal obligation or compulsion to testify. The
use of the word “compelled” in s. 11 (c) indicates to me that the section
is referring to a legal compulsion.... The decision whether or not to testify
remains with the accused free of any legal compulsion.
48
The distinction between tactical and legal compulsion is consistent with
the definition of a compellable witness as “one who may be forced by means of a
subpoena to give evidence in court under the threat of contempt proceedings”
(J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of
Evidence in Canada (2nd ed. 1999), at para. 13.46). Such was the case
of the young offender in R. v. S. (R.J.), [1995] 1 S.C.R. 451, who was
subpoenaed to testify at his co-accused’s trial. Although compelled, his
s. 11 (c) right was not engaged because the proceedings were not
against him. His broader s. 7 privilege against self-incrimination was
protected because he received evidentiary immunity (at para. 204).
49
The accused is not forced to testify by s. 276 . Nor is he coerced by the state in any way that engages Charter
protection. Coercion to testify violates the principle against
self-incrimination, but as Lamer C.J. defined it, “[c]oercion ... means the
denial of free and informed consent” (R. v. Jones, [1994] 2 S.C.R. 229,
at p. 249, cited in White, supra, at para. 42). In White,
supra, at para. 76, Iacobucci J. found that “[i]f a declarant
gives an accident report freely, without believing or being influenced by the
fact that he or she is required by law to do so, then it cannot be said that
the statute is the cause of the declarant's statements.” In applications under
s. 276 , there is free and informed consent when the accused participates
in order to exculpate himself. He knows that he is not required to do so.
50
There is an important difference between a burden of proof with
regard to an offence or an evidentiary burden, and the tactical need to respond
when the Crown establishes a prima facie case, in order to raise a
reasonable doubt about it. “[T]he criminal law does not allocate an evidential
burden to the accused to refute the Crown’s case and he or she may decline to
adduce any evidence. Nevertheless, if the accused decides not to call any
evidence, he or she runs the risk of being convicted” (Sopinka, Lederman and
Bryant, supra, at para. 3.17). Where there is neither a legal
obligation nor an evidentiary burden on the accused, the mere tactical pressure
on the accused to participate in the trial does not offend the
principle against self-incrimination (s. 11 (c)) or the right to a
fair trial (s. 11 (d)).
51
The tactical pressure on the accused to testify at the voir dire
under s. 276 is neither a burden of proof nor an evidentiary burden. It
derives from his desire to raise a reasonable doubt about the Crown’s case by
adducing evidence of the complainant’s prior sexual activity. The sole
purpose of this voir dire is to establish the admissibility of the
evidence he proposes to call. As Dickson J. (as he then was) put it,
“[i]t is axiomatic that the voir dire and the trial itself have distinct
functions. The function of the voir dire is to determine admissibility
of evidence” (Erven v. The Queen, [1979] 1 S.C.R. 926, at p. 931).
If the evidence is found to be admissible under s. 276 , it may then serve
to satisfy the evidentiary burden of adducing a factual basis for a defence
(such as honest but mistaken belief in consent) or to raise a reasonable doubt
about an element of the offence, but that is a different matter altogether.
52
Nothing in s. 276 obviates the Crown’s basic duty to
establish all the elements of a sexual offence beyond a reasonable doubt. This
burden of proof on the Crown and the fact that the trial must be fair are the
essence of the presumption of innocence, as the Court found in R. v. Oakes,
[1986] 1 S.C.R. 103, at p. 121, and R. v. Whyte, [1988] 2 S.C.R. 3,
at p. 15. A fair trial includes the right to make full answer and
defence, but as I explained above, the admissibility criteria in
ss. 276(2) and 276(3) respect this right. In Osolin, supra,
at pp. 688-89, the “evidentiary burden” borne by the
accused in a sexual offence trial to substantiate a claim of honest but
mistaken belief in consent was held not to offend the presumption of innocence
because it did not relieve the Crown of the burden of proof of the elements of
the offence. The tactical burden under s. 276 is even less onerous on the
accused because it relates only to establishing relevance on a voir dire;
it does not impose any burden on the accused at trial.
(1) Section 276.1(2)(a) – The
Affidavit with Detailed Particulars
53
Section 276.1(2)(a) requires the defence to enter an affidavit
with “detailed particulars” of the evidence it seeks to adduce. The trial
judge allowed an information and belief affidavit at this first stage but then
insisted on an affidavit from the accused for the voir dire stage. In
my view, this procedure is permissible. It minimally impinges upon the
accused, in the sense that if the information and belief affidavit is not
accepted, he has not testified at all. The trial judge was correct to require
a personal affidavit at the voir dire because part of the purpose of the
voir dire is to cross-examine the affiant. It need not be the accused
himself who presents evidence; it can be anyone with relevant information who
can personally testify to its truth. Whoever is the source of the evidence,
however, must supply an affidavit with detailed particulars. I also agree that
the trial judge’s analysis of the evidence provided by the personal affidavit
was correct: she asked “firstly, whether it was barred absolutely by
s. 276(1), and secondly, whether it was capable of meeting the criteria
outlined in s. 276(2), and the general concerns and interests of justice
as outlined in s. 276(3)” ([1994] O.J. No. 3162 (QL), at para. 28).
Her approach properly construes the legislation.
54
The accused specifically objects to having to submit the affidavit on
the grounds that it compels him to reveal his defence and to disclose evidence
he hopes to call at trial. He claims that this violates his right to silence.
The right to silence in s. 7 properly speaking comprises the right to silence
before trial and the privilege against self-incrimination at trial; it is
inaccurate to speak of an absolute right to silence at the trial stage of the
criminal process (R. v. Hebert, [1990] 2 S.C.R. 151, at p. 164).
In White, supra, at paras. 40-41, Iacobucci J.
summarised the Court’s position on this subject:
It is now well‑established that there exists,
in Canadian law, a principle against self‑incrimination that is a
principle of fundamental justice under s. 7 of the Charter . . . .
The principle against self‑incrimination was
described by Lamer C.J. in Jones, supra, at p. 249, as
"a general organizing principle of criminal law". The principle is
that an accused is not required to respond to an allegation of wrongdoing made
by the state until the state has succeeded in making out a prima facie
case against him or her. It is a basic tenet of our system of justice that the
Crown must establish a "case to meet" before there can be any
expectation that the accused should respond: P. (M.B.), supra,
at pp. 577‑79, per Lamer C.J., S. (R.J.),
supra, at paras. 81 to 83, per Iacobucci J.
The right not
to be compelled to testify against oneself is specifically protected by
s. 11 (c); the general principle against self-incrimination resides
in s. 7 .
55
Section 276 does not require the accused to make premature or
inappropriate disclosure to the Crown. For the reasons given above, the
accused is not forced to embark upon the process under s. 276 at all. As
the trial judge found in the case at bar, if the defence is going to raise the
complainant’s prior sexual activity, it cannot be done in such a way as to
surprise the complainant. The right to make full answer and defence does not
include the right to defend by ambush. The Crown as well as the Court must get
the detailed affidavit one week before the voir dire, according to
s. 276.1(4)(b), in part to allow the Crown to consult with the
complainant. The Crown can oppose the admission of evidence of sexual activity
if it does not meet the criteria in s. 276 . Neither the
accused’s s. 11 (c) right not to be compelled to testify against
himself nor his s. 11 (d) right to be presumed innocent are violated
by the affidavit requirement. This is borne out by the way in which the
admissibility procedure operates.
56
The defence must satisfy the trial judge that the evidence it seeks to
adduce meets the statutory requirements for admissibility. To admit evidence
of sexual activity at trial, the judge must provide written reasons about how
the evidence “is expected to be relevant to an issue at trial” and the factors
she considered in making this determination (as per ss. 276.2(3)(b)
and (c)). It is perfectly appropriate that, to this end, the affidavit
must disclose evidence that is “capable of being admissible under
subsection 276(2)”. Among other things, the evidence must be adduced for
a permissible purpose and must be relevant to an issue at trial. The affidavit
must therefore establish a connection between the complainant’s sexual history
and the accused’s defence. As the trial judge put it, “there would have to be
evidence to establish the link between the potential defences ... and the prior
sexual conduct”.
57
The necessity that the connection be drawn between the evidence and the
accused’s defence was affirmed by this Court in R. v. Dickson, [1994] 1
S.C.R. 153, in its adoption of the Yukon Territory Court of Appeal’s judgment.
In Dickson, the accused tendered evidence under s. 276 to support
an honest but mistaken belief in consent, but then on the voir dire
argued consent on one count and denied that two other counts of sexual assault
had occurred ((1993), 81 C.C.C. (3d) 224 (Y.T.C.A.), at p. 233). The
Yukon Territory Court of Appeal properly found that the trial judge erred in
admitting the evidence of sexual activity where the evidence on the voir
dire did not raise the defence of honest but mistaken belief in consent as
the affidavit promised, nor did it raise any other defence.
58
It is common for the defence in sexual offence cases to deny that the
assault occurred, to challenge the identity of the assailant, to allege consent
or to claim an honest but mistaken belief in consent. Evidence of prior sexual
activity will rarely be relevant to support a denial that sexual activity took
place or to establish consent (see Sopinka, Lederman and Bryant, supra,
at para. 10.108). As the Court affirmed in R. v. Ewanchuk, [1999]
1 S.C.R. 330, at para. 27, the determination of consent is “only concerned
with the complainant’s perspective. The approach is purely subjective.”
Actual consent must be given for each instance of sexual activity.
59
Section 276 is most often used in attempts to substantiate claims
of an honest but mistaken belief in consent. To make out the defence, the
accused must show that “he believed that the complainant communicated
consent to engage in the sexual activity in question” (Ewanchuk,
supra, at para. 46 (emphasis in original)). To
establish that the complainant’s prior sexual activity is relevant to his
mistaken belief during the alleged assault, the accused must provide some
evidence of what he believed at the time of the alleged assault. This is
necessary for the trial judge to be able to assess the relevance of the evidence
in accordance with the statute. It is an essential part of the legislative
scheme which provides a means by which the accused may establish the relevance
of the evidence he chooses to put forward.
(2) Section 276.2 – The Voir Dire
60
If the trial judge is satisfied that the affidavit meets the
requirements of s. 276.1, the accused has the right to an in camera hearing
to decide whether the evidence is admissible. If it is admissible, the type of
use to which evidence of sexual activity may be put is not controlled by the
legislation. It could for instance be used to cross-examine the complainant,
in chief by the accused (should he choose to testify himself), or by another
witness.
61
The accused challenges the constitutionality of the voir dire on
the grounds that being required to submit to cross-examination on his affidavit violates his s. 7 and s. 11 (c) rights not to be
compelled to testify at his own trial. He also complains that he is
“compelled” to testify because there are usually no witnesses to sexual
assaults other than the accused and the complainant, and the complainant is not
compellable at the voir dire according to s. 276.2(2). Again, the
accused mischaracterises his predicament. He does not face a legal compulsion
to testify for the reasons given above, and the tactical pressure he describes
is not unfair. Having produced his affidavit, the basic rules of evidence
require the accused to submit to cross-examination because the right to
cross-examine is essential to give any weight to an affidavit.
62
The accused’s refusal to submit to cross-examination on his sworn
affidavit in effect reduces its weight to that of an unsworn statement. Yet, it has long been decided that an accused cannot make an
unsworn statement because it
would lead to many dangerous results, the most obvious
of which are, the escape from cross-examination; the safe introduction of a
concocted defence; the securing of all the benefits of sworn evidence in
accused’s favour without incurring the consequences of perjury by refraining
from going into the witness box; and also depriving the jury of the benefit of
appraising his credibility in general from his demeanour therein.
(R. v. Frederick (1931), 57 C.C.C. 340
(B.C.C.A.), at p. 342)
63
As Cory J. put it more recently in Osolin, supra,
cross-examination “is of essential importance in determining whether a witness
is credible” (p. 663). This applies to all witnesses who offer testimony,
whether for the Crown or for the defence. The Crown’s right to cross-examine
on the affidavit under s. 276 is essential to protect the fairness of the
trial. Cross-examination is required to enable the trial judge to decide
relevance by assessing the affiant’s credibility and the use to which he
intends to put the evidence. The trial judge correctly found that the
legislation itself requires “some weighing and some assessing of the evidence”
before it can be admitted ([1994] O.J. No. 3160 (QL), at para. 20).
Without cross-examination, “the court can not attribute much, if any, weight to
such evidence” because it is impossible to assess its probative value and
prejudicial effect as the legislation requires.
64
Because the affidavit must show how the prior sexual activity is
relevant to the alleged assault, the Crown must have the opportunity to
cross-examine on whatever aspects relevant to the charge that the accused
chooses to raise. The trial judges who have declined to allow this
cross-examination are in error (as discussed by H. Schwartz, “Sex with the
Accused on Other Occasions: The Evisceration of Rape Shield Protection”
(1994), 31 C.R. (4th) 232, at p. 250). At the same time, the trial judge
in the case at bar was correct that the cross-examination must be “confined to
what is necessary to determine . . . whether the proposed evidence is
admissible” ((1998), 38 O.R. (3d) 1, at p. 21). The voir dire is
not a forum for unfair questioning of the accused; the trial judge controls the
hearing to meet the statutory goals, which include protecting the rights of the
accused in s. 276(3).
65
The demands on the defence at the voir dire are in some ways
analogous to the procedure in a Corbett application. In R. v.
Underwood, [1998] 1 S.C.R. 77, at paras. 6‑11, Lamer C.J.
explained how a voir dire in which the defence discloses evidence it
intends to call is consistent with a “scrupulously fair” trial that observes
the case-to-meet principle. The accused can use the protection of a voir
dire to apply to have some or all of his criminal record excluded at
trial. He reveals the evidence he intends to call for his case, which allows
the trial judge properly to apply the factors relevant to his request. As
Lamer C.J. explained at para. 10:
. . . the purpose of this voir dire is not “defence
disclosure”. It creates no independent rights in the Crown, and, therefore
should not be treated as an excuse for the Crown to deeply probe the case for
the defence. . . . The point is to provide the trial judge
with the information he or she needs to make an informed decision, but the
Crown has no right to require more than that. [Emphasis in original.]
This is also true of the voir dire to admit evidence of prior
sexual activity.
66
Furthermore, Dickson J., in the pre-Charter context, held
that “[e]vidence on the voir dire cannot be used in the trial itself” (Erven,
supra, at p. 932). Although this Court has not specifically ruled
on whether s. 13 of the Charter protects an accused against
self-incrimination on a voir dire, I am of the opinion that it does (as
the Superior Court of Quebec found in R. v. Tarafa, [1990] R.J.Q. 427,
at p. 429). Section 13 provides that:
13. A witness who testifies in any
proceedings has the right not to have any incriminating evidence so given used
to incriminate that witness in any other proceedings, except in a prosecution
for perjury or for the giving of contradictory evidence.
This privilege
against self-incrimination applies because a voir dire is an “other
proceeding” within the meaning of s. 13 . In Dubois v.
The Queen, [1985] 2 S.C.R. 350, at
p. 386, McIntyre J. (in dissent, but the only one to address this
issue) found that
[t]he voir dire is clearly another proceeding.
Its purpose is not to resolve any issue raised in the charge but merely to
determine what may be introduced into the proceedings for that purpose. After
the voir dire the evidence found to be properly admissible in the
proceedings is admitted and thereafter forms part of the proceedings. That
which is excluded never becomes a part.
This is true
of the voir dire under s. 276 . Its purpose is to enable the judge
to determine the admissibility of evidence. The voir dire is not itself
part of the determination of the guilt or innocence of the accused. When the
accused testifies on a voir dire, the protection of s. 13 means
that his testimony cannot later be used as evidence of guilt
at trial. It was established in R. v. Kuldip, [1990] 3 S.C.R.
618, that an accused’s testimony from a previous trial
on the same charge can be used by the Crown at the retrial only to impeach his
credibility, and not as evidence of guilt. In Kuldip,
at p. 636, Lamer C.J. found that using such a prior inconsistent
statement for its truth to incriminate the accused is forbidden by s. 13 ,
but that
s. 13 does not preclude the use of previous
testimony during a subsequent cross-examination if the sole purpose of that
cross-examination is to challenge the credibility of an accused who has chosen
to testify in the second proceedings.
67
In B. (K.G.), supra, when Lamer C.J. reformed the
“orthodox rule” of hearsay to allow some prior inconsistent statements as
evidence to establish guilt, he specifically noted that Kuldip still
applied to statements of the kind with which we are concerned. At p. 762,
he explained that:
It must also be remembered that Kuldip and
s. 13 of the Charter refer to a very special subset of prior
inconsistent statements, in which the prior statement is made by an accused in
a proceeding who testifies at a future proceeding and which, if admitted for
the truth of its contents, would incriminate him in the second proceeding.
Furthermore, s. 13 applies only to a witness who testifies in a
"proceeding"; while this Court has yet to explore the outer
boundaries of this term, cases decided to date have concentrated on judicial
proceedings such as trials and preliminary inquiries: see Dubois. A
police interview, even where the witness makes his or her statement under oath,
may not be a "proceeding" for the purposes of s. 13 . As this
precise issue does not arise in this appeal, I will make no further comments on
this point.
In my opinion,
the voir dire under s. 276 is a proceeding that attracts the
protection of s. 13. A prior inconsistent statement in the accused’s
testimony on this voir dire could be used later at trial only to impugn
his credibility and not to establish his culpability.
(3) Section 276.2(2) – Complainant Non-Compellable
68
The complainant is not compellable at the voir dire pursuant to
s. 276.2(2). This provision is both constitutional and an important
aspect of s. 276 . The accused argues that he is de facto
compellable because the complainant is non-compellable at the voir
dire. I have already established that he is not compellable nor being
compelled at law. His desire to have the complainant testify flows, as would
his need to testify himself, from his tactical decision to present evidence and
the ensuing need to show its relevance. As we have seen, there is no legal
compulsion nor violation of the accused’s constitutional rights. Furthermore,
the complainant’s non-compellability is based on sound legislative goals. To
compel the complainant to be examined on her sexual history before the subject
has been found to be relevant to the trial would defeat two of the three
purposes of the law, as articulated and upheld in Seaboyer (at
p. 606). It is an invasion of the complainant’s privacy and discourages
the reporting of crimes of sexual violence. As the Ontario Court of Appeal
points out, the accused must know what evidence he wants to introduce on his
own; the voir dire is not to be a “fishing expedition” (p. 21).
The evidence is tested at the voir dire and if it meets the criteria in
s. 276(2), it may be introduced at trial. The complainant can then be
compelled to testify or if the Crown, as it is most likely to do, calls her as
a witness, be cross-examined on it.
69
The right to make full answer and defence, moreover, does not provide a
right to cross-examine an accuser. This was explicitly held in R. v. Cook,
[1997] 1 S.C.R. 1113, where the Court affirmed the broad discretion of the
Crown to conduct its case. The Crown is free from any requirement to call
particular witnesses, and this applies even to the victim of the crime for
which the accused faces conviction (at para. 19).
70
The fair trial protected by s. 11 (d) is one that does
justice to all the parties. As Cory J. wrote of sexual assault trials in Osolin,
supra, at p. 669:
The provisions of ss. 15 and 28 of the Charter guaranteeing
equality to men and women, although not determinative should be taken into
account in determining the reasonable limitations that should be placed upon
the cross-examination of a complainant.
VII. Conclusion
71
On the basis of this Court’s decision in Seaboyer, Parliament
gave the trial judge the role of deciding whether a complainant’s sexual
history is relevant in the trial of a sexual offence. She is to exercise her discretion
within the structure of a procedure created by s. 276 . The legislation
lists factors to take into account, similar to those upheld by this Court’s
decision in Mills, supra, which prominently include the accused’s
right to make full answer and defence in s. 276(3)(a). This
discretion, of course, cannot be exercised in an unconstitutional manner. The
accused’s constitutional rights are protected by this legislation.
72
The answers to the constitutional questions are as follows:
1. Do ss. 276.1(2)(a) and 276.2(2)
of the Criminal Code of Canada infringe upon an accused's right to
silence and the right not to be compelled to be a witness in proceedings
against himself in respect to the offence pursuant to s. 7 and/or
s. 11 (c) of the Canadian Charter of Rights and Freedoms ?
Answer: No.
2. If the answer to question number one is yes,
are the infringements demonstrably justified in a free and democratic society
pursuant to s. 1 of the Charter ?
Answer: Not applicable.
3. Do ss. 276(1), 276(2)(c) and
276.2(2) of the Criminal Code of Canada infringe upon an accused's right
to make full answer and defence pursuant to s. 7 and/or s. 11 (d)
of the Charter ?
Answer: No.
4. If the answer to question number three is
yes, are the infringements demonstrably justified in a free and democratic
society pursuant to s. 1 of the Charter ?
Answer: Not applicable.
73
The appeal is dismissed.
Appeal dismissed.
Solicitors for the appellant: Karam, Greenspon, Ottawa.
Solicitor for the respondent: The Ministry of the
Attorney General, Toronto.
Solicitor for the intervener the Attorney General of
Canada: The Department of Justice, Ottawa.
Solicitor for the intervener the Attorney General of
Quebec: The Department of Justice, Sainte‑Foy.
Solicitor for the intervener the Attorney General of
Manitoba: The Department of Justice, Winnipeg.
Solicitor for the intervener the Attorney General of British
Columbia: The Ministry of the Attorney General, Vancouver.
Solicitor for the interveners the Women’s Legal Education and Action
Fund, the Canadian Association of Sexual Assault Centres, the Disabled Women’s
Network of Canada and the National Action Committee on the Status of
Women: The Women’s Legal Education and Action Fund, Toronto.