R. v. Konkin, [1983] 1 SCR 388

Supreme Court of Canada

R. v. Konkin, [1983] 1 S.C.R. 388

Date: 1983-04-26

Her Majesty The Queen Appellant;

and

Howard Lorne Konkin Respondent.

File No.: 16807.

1982: December 1; 1983: April 26.

Present: Laskin C.J. and Ritchie, Dickson, Beetz, Chouinard, Lamer and Wilson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ALBERTA

Criminal law—Attempted rape—Evidence—Complainant’s post-offence sexual conduct ruled inadmissible at trial after s. 142 hearing—Whether or not evidence should have been admitted—Criminal Code, R.S.C 1970, c. C-34,s. 142.

This is a Crown appeal from a Court of Appeal judgment setting aside respondent’s conviction of attempted rape and ordering a new trial.

At respondent’s trial the judge, following an in camera hearing held pursuant to s. 142(1) of the Criminal Code, ruled that the evidence relating to the complainant’s pre-offence sexual conduct was admissible. Evidence of complainant’s post-offence sexual conduct was not admitted, however, because the trial judge considered it irrelevant. Section 142(2) gave the trial judge a discretion to include evidence if he were satisfied that it was necessary to a just determination of an issue of fact, and to exclude it if not so satisfied. The issue here was the admissibility of evidence relating to complainant’s post-offence sexual conduct with persons other than the accused and the trial judge’s treatment of this evidence.

Held (Beetz, Chouinard and Wilson JJ. dissenting): The appeal should be dismissed.

Per Laskin C.J. and Ritchie, Dickson and Lamer JJ.: The trial judge’s ruling erroneously affirmed his previous assertion that post-offence sexual conduct was irrelevant in principle and he therefore did not consider the requirements of s. 142(1). Although the trial judge might be said to have asked himself whether the defence on a balance of probabilities had established the necessity of asking questions relating to complainant’s post-offence sexual conduct, a conviction cannot properly be founded on what was at best speculation as to the trial

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judge’s intention. There was too tenuous a basis in what the trial judge said to extend it to include the post-offence conduct in his assessment required under s. 142(1).

Per Beetz, Chouinard and Wilson JJ., dissenting: The trial judge properly excluded evidence of complainant’s post-offence sexual conduct, not as a matter of principle, but because it was not relevant on the facts before him. He believed that the complainant’s post‑offence sexual conduct was occasioned by the trauma of the rape and therefore would not permit a humiliating and devastating inquiry into it at trial. The admission of such evidence, inadmissible prior to the enactment of s. 142, would not effect a balancing of the interests of the complainant and the accused.

APPEAL from a judgment of the Alberta Court of Appeal, [1981] 6 W.W.R. 632, 31 A.R. 518, 63 C.C.C. (2d) 193, setting aside a conviction of respondent of attempted rape and ordering a new trial. Appeal dismissed, Beetz, Chouinard and Wilson JJ. dissenting.

Ian Kirkpatrick, for the appellant.

William R. Pieschel, for the respondent.

The judgment of Laskin C.J. and Ritchie, Dickson and Lamer JJ. was delivered by

THE CHIEF JUSTICE—This is a Crown appeal from a majority judgment of the Alberta Court of Appeal, delivered by McGillivray C.J.A., Harradence J.A. concurring, setting aside a conviction of the accused of attempted rape and ordering a new trial. Prowse J.A., dissenting, would have dismissed the accused’s appeal.

The main issue before this Court and, indeed before the Alberta Court of Appeal, was the admissibility of evidence of post-offence sexual misconduct of the complainant with persons other than the accused and the trial judge’s treatment of this evidence. At the trial, there was an in camera hearing in the absence of the jury under Criminal Code, s. 142(1) to enable counsel for the accused

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to put questions to the complainant as to her conduct with persons other than the accused. A proper basis for putting these questions was established as required by s. 142(1)(a). The complainant admitted at the in camera hearing post-offence sexual misconduct with persons other than the accused, including intercourse with five men on a single occasion, about three months after the offence charged against the accused and after the preliminary inquiry. Questions were also asked about pre-offence misconduct with persons other than the accused, and although this evidence related to incidents which occurred as long as two years before, this evidence was admitted at the trial proper but the evidence respecting post-offence misconduct was not allowed to be adduced.

It was conceded by the Crown that an enquiry could be made into post-offence misconduct pursuant to s. 142(1) as relevant to the complainant’s credibility, provided the misconduct was not too remote. In the present case, remoteness itself was not a bar. What then was the trial judge’s reason for denying resort to this post-offence evidence? Criminal Code s. 142(1)(b) gives the trial judge a discretion if, after the in camera hearing “[he] is satisfied that the weight of the evidence is such that to exclude it would prevent the making of a just determination of an issue of fact in the proceedings, including the credibility of the complainant”. Correspondingly, if he is not so satisfied, he may exclude the evidence.

In my opinion, the record in this case indicates that the trial judge excluded the proferred evidence because he held it to be irrelevant. During the course of argument on the issues raised under s. 142(1), when accused’s counsel was urging that the post-offence misconduct should be admitted at trial, the trial judge asked: “How would that go to her credibility if she admits that?”; and then, further, “She says I did it. She says she did it”. To

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which counsel replied, “Well, it goes to character and general reputation”. The trial judge ended the matter by saying “That is irrelevant after the event”. It may be that he was replying to counsel’s answers and did not rule out all post-offence misconduct, but this is far from clear.

There is no doubt that there is evidence in the record before the trial judge which appears to diminish any ruling on the exclusion of post-offence misconduct. For example, he said, in the course of an argument of admissibility:

Section 142 speaks of sexual conduct without saying prior or subsequent or anything so it seems to give the judge sitting at a hearing, such as we are in now, the right, or maybe the duty to hear the whole story, he then has to decide which is relevant to the issues in fact in the trial.

And, again:

Very good. I am of the view that at this in-camera hearing I can hear evidence about her work as a stripper in 1980 and I will allow defence counsel to continue. This is to enable me to make a just determination as to what should be allowed at the trial.

And further:

It may be that you’re right, that nonetheless, a jury weighing the issue of credibility should be able to know about her entire sexual history and can argue backward from subsequent events to say, well, she’s more likely being such and such, I don’t know.

On the other hand, there are contrary observations which cast considerable doubt on his recognition of the relevancy of post-offence misconduct. The following are illustrative. When counsel for the accused said he was calling evidence to show that since the charged misconduct the complainant had on at least two occasions had sexual intercourse with men, not only one man on one occasion

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but on another occasion a number of men at once, the trial judge said:

I’m having a little trouble following—just seeing what the relevance of sexual intercourse after the event is.

And again:

… but she didn’t say I haven’t had sexual relations since the incident, and it seems to me her sexual conduct since the incident is nobody’s business.

Further, in the course of proceedings:

I really have difficulty following your reasoning there, Mr. Pieschel. Let’s try it once more. What has her sexual conduct after the event got to do with credibility? I mean, are you saying that people that have a lot of sex are dishonest?

And again:

… what she did after the incident is surely nobody’s business in her sex life. What has that got to do with it?

Subsequently, the trial judge made a ruling before the jury was brought in. I reproduce the ruling which in its entirety is as follows:

Thank you. I will give judgment now in this matter. It is my duty to insure that the accused is given a fair trial. It is equally my duty to afford to the complainant the protection provided by Section 142 of the Criminal Code, that is to say, she must be protected from harrassment with respect to her sexual conduct with persons other than the accused. I will only permit questions to be put that I am satisfied are necessary in order to enable the jury to make a just determination of issues of consent and the credibility of the complainant.

In considering this application, I have asked myself this question, has the defence on a balance of probabilities established that it is necessary that it be allowed to question the complainant on matters mentioned in the amended notice in order to permit the making of a just determination of the issues of credibility and consent.

In the particular circumstances of this case including the important factor that evidence as to the sexual conduct of the complainant was led in her direct examination, I am persuaded that the application must be allowed in part. The defence will be allowed to question the complainant concerning her sexual conduct with persons other than the accused under all five headings

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set out in the amended notice as it was clarified in discussion with counsel for the defence. However, those questions can only cover the conduct of the complainant up to and including March 31st, 1979. That is to say, no questions will be permitted as to her sexual conduct with persons other than the accused which occurred after March 31st, 1979.

I regard this as an affirmation of the previous assertion that post-offence misconduct is irrelevant. That, of course, is error and removes any consideration by him of the requirements of s. 142(1). It is said, however, that the trial judge, in his ruling had said that he asked himself the question whether the defence on a balance of probabilities established that it is necessary that it be allowed to question the matters mentioned in the amended notice, that is, the notice under s. 142(1)(a) of the accused’s intention to ask the complainant as to sexual conduct with persons other than the accused. The following paragraph of the ruling makes it clear to me that the trial judge was concerned here with the pre-offence misconduct. When he came to the post-offence misconduct, he excluded it in principle.

There is too tenuous a basis in what the trial judge said to extend it to include the post‑offence misconduct into his assessment of s. 142(1). A conviction cannot properly be founded on what is at best speculation as to what he intended. It was simple enough to speak plainly if irrelevancy was not the excluding consideration.

For these reasons, as well as those of the majority of the Alberta Court of Appeal, I would dismiss the appeal and affirm the order for a new trial.

The reasons of Beetz, Chouinard and Wilson JJ., were delivered by

WILSON J. (dissenting)—The broad issue raised by this appeal is the extent to which s. 142 of the Criminal Code changed the common law respect-

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ing the admissibility of evidence of sexual conduct of the complainant in a rape case with persons other than the accused. Section 142 replaced an earlier section requiring judges to warn juries of the danger of convicting persons accused of rape in the absence of corroboration of the complainant’s testimony.

The decision of this Court in Laliberté v. The Queen (1877), 1 S.C.R. 117, provides a convenient entrée into the law as it stood prior to the enactment of the section. It was held in that case that while the complainant could be asked questions about her prior sexual conduct, i.e. conduct prior to the offence being tried, she was not obliged to answer them. It was for the judge to decide whether she must answer them or not. In that case the Court engaged in an extensive review of English authorities and English texts on the law of evidence and concluded:

1. that the accused could not be deprived of the right to ask the question because the complainant might answer it in a way favourable to him;

2. the complainant was not obliged to answer it unless directed by the judge to do so inasmuch as

(a) it did not go directly to a fact in issue;

(b) it could open up a wide range of inquiry into collateral matters;

(c) it went only to the complainant’s character or credibility; and

(d) the character and credibility of the complainant could be impeached only by general evidence and not by evidence of particular facts not in issue in the case;

3. that if the complainant denied the sexual conduct with other men, the accused was

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bound by her answer and could not cross-examine or lead evidence to contradict her.

A more succinct statement of the common law is found in Gross v. Brodrecht (1897), 24 O.A.R. 687, where Osler J.A. says, at p. 689:

… evidence of specific acts of lewdness and unchastity with men other than the prisoner is not [admissible]. She may be asked as to them, but cannot be compelled to answer, and if she denies them cannot be contradicted … such evidence is rejected because it is not relevant to the issue, going merely to the credit of the prosecutrix, since the mere fact of her having had connection with other men can be no defence to the charge of rape…

The Law Reform Commission of Canada, having concluded that the common law did not afford sufficient protection to complainants and that because of this many rapes were not being reported and prosecuted, recommended in 1971 that questioning of the complainant with respect to her sexual conduct with other men be prohibited and the legislature responded by enacting s. 142. Subsection (1) of s. 142 provides as follows:

142. (1) Where an accused is charged with an offence under section 144 or 145 or subsection 146(1) or 149(1), no question shall be asked by or on behalf of the accused as to the sexual conduct of the complainant with a person other than the accused unless

(a) reasonable notice in writing has been given to the prosecutor by or on behalf of the accused of his intention to ask such question together with particulars of the evidence sought to be adduced by such question and a copy of such notice has been filed with the clerk of the court; and

(b) the judge, magistrate or justice, after holding a hearing in camera in the absence of the jury, if any, is satisfied that the weight of the evidence is such that to exclude it would prevent the making of a just determination of an issue of fact in the proceedings, including the credibility of the complainant.

This Court had its first opportunity to discuss the effect of s. 142 in Forsythe v. The Queen, [1980] 2 S.C.R. 268. In that case s. 142 was raised at the preliminary hearing stage and the presiding judge declined to compel the complainant to give

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evidence in camera although the notice requirements were apparently met. This Court held that she was compellable at the in camera hearing. It reasoned that the judge had to hear her evidence in order to assess its weight with a view to exercising his discretion under the section. How could he satisfy himself as to whether or not the exclusion of the evidence would “prevent the making of a just determination of an issue of fact in the proceedings, including the credibility of the complainant” if he had not first heard the evidence?

It seems to be implicit in the Court’s judgment that the complainant must answer all questions put to her in order that the determination under the section can be made. This is, of course, a substantial departure from the common law. The Supreme Court held, however, that it was mandated by the section which by its terms makes the credibility of the complainant “an issue of fact in the proceedings”. Accordingly, not only must the complainant answer the question at the in camera hearing but her answers can be contradicted by evidence led by the accused. The judge will then assess the weight of the evidence and decide whether or not it should be admitted at trial. In effect s. 142, instead of minimizing the embarrassment to complainants, increased it. Chief Justice Laskin, in commenting on its purpose in Forsythe, said at p. 276:

Section 142 may, therefore, be regarded as balancing the interests of both the complainant and the accused through this change in the law of evidence.

At the in camera hearing in the present case the complainant was questioned about pre‑offence sexual conduct with persons other than the accused and, although this evidence related to incidents which occurred as long as two years earlier, the evidence was admitted at the trial. The complainant was also questioned at the in camera hearing about post-offence sexual conduct with persons other than the accused, including intercourse with five men on a single occasion about three months after the offence charged against the accused and after the preliminary inquiry. The

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evidence respecting her post-offence conduct was not allowed to be adduced at the trial.

The majority of the Alberta Court of Appeal, Prowse J.A. dissenting, found that the trial judge erred in not admitting the evidence of her post-offence sexual conduct. They viewed the evidence of the post-offence sexual conduct as relevant to the complainant’s credibility. The Chief Justice, whose reasons I have had the benefit of reading, concludes that the learned trial judge failed to consider the evidence of post-offence sexual conduct when exercising his discretion under s. 142 because he thought it was irrelevant per se. This was error. The Chief Justice points out that, even if the evidence was relevant, the trial judge could still in his discretion exclude it at trial unless in the words of the section “the weight of the evidence is such that to exclude it would prevent the making of a just determination of an issue of fact in the proceedings, including the credibility of the complainant”. What the trial judge cannot do, the Chief Justice finds, is exclude it from his consideration under s. 142 on the erroneous ground that it is irrelevant per se. He shares the view of the majority of the Alberta Court of Appeal that this is what the trial judge did in this case.

With respect I disagree. The trial judge did not on my reading of the transcript refuse to admit the evidence of the post-offence sexual conduct simply because it occurred after the offence and therefore was irrelevant per se. He excluded it because he found it was not relevant on the facts of the case before him and I agree with him. Section 142 does not require the judge to consider irrelevant evidence in making his determination under the section. Nor does it make all evidence of sexual conduct with other men which might be sought to be adduced in order to impugn the credibility of the complainant relevant. I think it is implicit in

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the section that what the judge is to weigh in making his determination is the relevant evidence. If he finds that a particular piece of evidence is relevant to a fact in issue including the credibility of the complainant, then he must consider whether its weight is such “that to exclude it would prevent the making of a just determination of an issue of fact in the proceedings” including her credibility. If he so concludes then he will let it in. If he doesn’t, he will keep it out. But the first prerequisite either way is, in my view, that it be relevant evidence, that it have some probative value in relation to a fact in issue in the case.

I believe it is clear from the transcript that during the in camera hearing a very open dialogue was taking place between the judge and counsel. The judge’s thinking seems to progress through three stages. In the first stage he challenges the accused’s counsel to persuade him of the relevance of the evidence of post-offence sexual conduct on the part of the complainant. In the second stage he hears all the evidence with a view to making his ruling and at the third stage, after all the evidence has been heard, he advises counsel of the conclusion he has reached which is then reflected in his official ruling.

At the first stage it is clear that the trial judge was acknowledging frankly to counsel that he was having difficulty in seeing the relevance of post-offence sexual conduct of the complainant. It is at this point of time that he makes some of the observations quoted by the learned Chief Justice in support of his conclusion that the trial judge erred in the exercise of his discretion under s. 142. There is no doubt that at this stage the trial judge was in effect saying to counsel: Why is post-offence sexual conduct relevant? Prima facie it doesn’t appear to me to be so. How can sexual conduct the complainant engaged in after the offence tell us anything about her credibility as a witness or whether she consented to have intercourse with this particular accused in relation to this particular

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offence? At the end of this dialogue with counsel the trial judge says at p. 347, lines 6-9:

Well, the purpose of the hearing under 142 are [sic] to see what limits are going to be placed on you. That’s what we are trying to thrash out. Parliament says you can be limited.

The second phase of the trial judge’s thinking is reflected in two passages in the transcript (pp. 352-55 and pp. 370-75) which culminated in the trial judge’s ruling that he would hear in camera evidence about the complainant’s work as a stripper over Crown counsel’s objection. I note two things about these passages. The first is that in the earlier passage in his dialogue with defence counsel, Mr. Pieschel, the judge presses Mr. Pieschel for his arguments but also concedes that he is open to be swayed. He notes for example at p. 353, lines 12-17 that there may be an argument that moral character should be presumed to remain unchanged so that pre- and post-offence conduct might be equally relevant. At the conclusion of this exchange he also suggests that perhaps the jury should be allowed to argue backward from subsequent events. He says at p. 355, lines 34-41:

Well, the question or the matter as to what you’re going to be allowed to ask will have to be resolved at the end of this hearing as part of my decision when the hearing is concluded.

…

I’m really just considering what you have to say now.

The second and more telling point, it seems to me, is that in his dialogue with Crown counsel in the second passage it is the judge who points out that s. 142 speaks of sexual conduct without differentiating between prior and subsequent. He says at p. 371, lines 3-8:

Section 142 speaks of sexual conduct without saying prior or subsequent or anything so it seems to give the judge sitting at a hearing, such as we are in now, the right, or maybe the duty to hear the whole story, he then

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has to decide which is relevant to the issues in fact in the trial.

He points out that the issue of post-offence sexual conduct did not arise in the authorities put forward by Crown counsel. This is a new issue under s. 142. He concludes that he ought to hear the post-offence conduct with relation to the complainant’s being a stripper. This seems to me to make it very clear that at this stage he is certainly not ruling out post-offence conduct as a matter of principle.

The third stage in the progression of the trial judge’s thinking comes, I believe, during argument after he has heard all the evidence. At pp. 406-07 of the transcript he has the following dialogue with Mr. Pieschel, a passage which is set out in full in the Court of Appeal’s judgment:

THE COURT: HOW would that go to her credibility if she admits that?

MR. PIESCHEL: Well, sir, I’m saying—

THE COURT: She says I did it. She says she did it.

MR. PIESCHEL: Well, it goes to character and general reputation then.

THE COURT: That is irrelevant after the event.

MR. PIESCHEL: Sir, with the greatest of respect and I would submit it’s not irrelevant after the event, what can be more relevant when this girl comes before the Court and tells us that she’s, for all intents and purposes, a virgin before this offence? Then she tells us that she never said anything to anyone that she had been raped, yet we have witnesses to say that she had, in fact, told them that she was raped before. She also tells us that she didn’t pet with anybody for a year, yet on two occasions prior to this offence, she knows two men for a few hours and she’s in bed with them. You know, she doesn’t have intercourse but—

THE COURT: Oh, that’s before the event and that’s certainly relevant, but what she did after—the

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traumatic affect of the rape on her is certainly not relevant. We are not going to lead this girl into a psychiatric of psychological inquiry. [Emphasis added]

The Court of Appeal used this passage as confirmation of the judge’s error but in my view it indicates the very opposite. The Court has now heard all the evidence and is satisfied that with respect to this accused the post-offence sexual conduct had no probative value because it was occasioned by the trauma of the rape. The evidence, therefore, had to be excluded. It would merely be a “psychiatric or psychological inquiry”. In face of this assessment of the evidence by the trial judge, I find it hard to believe that he rejected the evidence as a matter of principle when he made his formal ruling. He started out, it is true, by querying the relevance of post-offence sexual conduct. I see nothing wrong with this. (Indeed, I think it would be a matter of concern to trial judges if they felt they cannot disclose to counsel during the hearing the aspects of the case which trouble them for fear that their concerns will be imported into their reasons at the end of the day.) Then he heard the evidence. He obviously believed the complainant and the other witnesses that the offence caused a traumatic change in her personality and he excluded evidence of post-offence conduct on that basis. I think that he did everything he was called upon to do by s. 142 of the Code. I would respectfully adopt the view expressed by Mr. Justice Prowse, dissenting, in the Court of Appeal to the effect that:

… where the evidence is to the effect that the complainant’s subsequent sexual conduct was related to the traumatic effect of what had occurred and that her sexual pattern had changed materially following the event, it was open to the trial judge to be satisfied that the exclusion of such evidence would not prevent the making of a just determination of an issue of fact, including the credibility of the complainant.

Coming back to the purpose of s. 142 as explained in Forsythe, supra, it would not in my view effect a “balancing” of the interests of the

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complainant and the accused to permit him to lead a humiliating and devastating inquiry at trial into post-offence sexual conduct of the complainant that would clearly have been inadmissible prior to the enactment of the section. Accordingly, while post-offence sexual conduct is not inadmissible per se, it should only in my view be admitted where its relevance to a fact in issue has been established. The trial judge himself gave an example of how this might be done, namely if it were shown that pre- and post-offence sexual conduct formed a continuous pattern. He did not exclude the post-offence conduct per se. He excluded it because it did not cross the first hurdle of being relevant to a fact in issue in the case.

I would allow the appeal and restore the conviction.

Appeal dismissed, BEETZ, CHOUINARD and WILSON JJ. dissenting.

Solicitor for the appellant: Bruce W. Duncan, Calgary.

Solicitors for the respondent: James, Pieschel & Taylor, Calgary,