In R. v. S (D), 2022 MBCA 94, December 5, 2022, the accused was convicted of the offence of sexual interference. The accused appealed from conviction, arguing that the trial judge erred in refusing to allow him to cross-examine the complainant in relation to other sexual activity.
The Circumstances Involved:
The background circumstances were described by the Manitoba Court of Appeal in the following manner (at paragraphs 25 and 26):
At the preliminary inquiry, the victim twice testified that she was a “virgin” at the time of the alleged incident. In her police statement, she also stated that, during the sexual assault, she had told the accused “this is my first time, I don’t know what this all means”.
After the preliminary inquiry and prior to the trial, trial counsel made an application under section 276 to cross-examine the victim on “her prior sexual history covering a span of 30 days prior to the date of the offence alleged in the indictment”. The position taken by the accused on the application was that he wanted to cross-examine the victim with respect to her sexual activity in the 30 days prior to the offence date in order to explore whether she had engaged in other sexual activity that, within the timeframe identified by Dr. Bynkoski, could have caused the observed injuries.
The accused argued that “the victim had been diagnosed with chlamydia following the alleged sexual assault, and stated that [this] contradicted evidence she had given at the preliminary inquiry that she was a virgin”. The Accused also argued that “the victim’s chlamydia infection provided evidence that she was sexually active prior to the alleged assault and, thus, she may have received the injuries from other sexual activity prior to the offence date” (at paragraph 28).
The Court of Appeal noted that at the trial, the section 276 application “was addressed in court prior to trial by way of a consent order. Counsel advised the trial judge that they had agreed to an order which provided that trial counsel was permitted to ask the victim whether she had engaged in sexual activity within a 20-day period before May 5, 2018, and, if she responded that she had, to inquire as to the details. If the answer was ‘no’, that was to be the end of the matter. The trial judge, in endorsing the order, recognized the requirement, prescribed by the Code, that he give reasons for his decision; he provided brief oral reasons” (at paragraph 30).
The Court of Appeal indicated that “[d]uring her cross-examination, the victim was asked the question permitted by the pretrial consent order made under section 276, and she denied having had any sexual activity in the 20 days prior to the offence date. Then, at the end of the cross-examination, trial counsel asked her whether, when she was examined in the hospital following the alleged sexual assault, blood and other samples were taken and she was then referred to a doctor and ended up being treated for chlamydia. Crown counsel objected on the basis that the question gave rise to section 276 issues” (at paragraphs 32 and 33). The trial judge agreed and would not allow the questioning to continue.
The Appeal was dismissed.
Section 276 of the Criminal Code:
The Court of Appeal indicated that the “fundamental purposes of section 276 are protecting the integrity of a trial by excluding irrelevant and misleading evidence, protecting the accused’s right to a fair trial, and encouraging the reporting of sexual offences by protecting the security and privacy of complainants” (at paragraph 17). The Court of Appeal summarized the impact of section 276 in the following manner (at paragraphs 18 and 19):
Section 276(1) provides that evidence of sexual activity of a complainant other than that which is the subject of a charge is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant is (1) more likely to have consented to the sexual activity that forms the subject-matter of the charge, or (2) less worthy of belief. These twin myths are prohibited by the Code as a matter of social policy and “false logic” (Barton at para 60). However, to protect the presumption of innocence, evidence may be admitted, on application, for other relevant purposes, but must satisfy the criteria set out in section 276(2), considering the factors in section 276(3), to ensure that it does not undermine the integrity of the trial or the complainant’s dignity and privacy.
Even if the proffered evidence is not being adduced in support of the twin myths, and is relevant to an issue at trial and is of specific instances of sexual activity (see sections 276(2)(a)-276(2)(c)), it will not be admissible unless it “has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice” (at section 276(2)(d)), paying careful attention to the factors listed in section 276(3) (see RV at para 60).
The Manitoba Court of Appeal held that “a question to a complainant, by an accused, about a chlamydia diagnosis and treatment seeks to adduce evidence ‘that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge’… evidence of chlamydia implies sexual activity and, thus, engages section 276(1)” (at paragraphs 40 and 44).
The Court of Appeal concluded that “the trial judge did not err. The questioning sought engaged section 276, as the trial judge properly identified. He gave trial counsel an opportunity to bring a section 276 application, but trial counsel did not do so” (at paragraph 52). However, the Court of Appeal also indicated that “two matters warrant further comment” (at paragraphs 53 to 55):
First, when the trial judge approved the section 276 consent order prior to trial, he correctly identified that he had an obligation to provide reasons, even where there was agreement. However, and although not argued on the appeal, it is difficult to see how the trial judge’s very limited reasons complied with the requirement in section 278.94(4)(c) to “state the manner in which [the] evidence is expected to be relevant to an issue at trial.” His reasons were limited to a repetition of the terms of the consent order and a conclusory statement that the questions consented to were reasonable and did not violate the impermissible inferences. In Goldfinch, Karakatsanis J commented on the link between the procedural requirements within the section 276 regime, including the need for a judge’s reasons, and the requirement that evidence of other sexual activity be relevant (see para 55). It is important that judges be mindful of the specific statutory requirements for reasons set out in section 278.94(4).
Even if the trial judge erred in failing to provide the extent of reasons required, I am satisfied that the curative proviso in section 686(1)(b)(iii) of the Code would apply. There would be no substantial wrong or miscarriage of justice as the error would be trivial or harmless, particularly given that the victim, the accused and the Crown all consented to the order allowing trial counsel to ask the questions sought, with only an abridgement from 30 to 20 days (see R v Van, 2009 SCC 22 at para 35).
Also worthy of comment is the fact that it is not clear whether, at the trial, the trial judge or the lawyers appreciated that, if a section 276 application was required for trial counsel to seek to elicit the evidence of chlamydia, so too would it have been incumbent on the Crown to seek judicial permission to tender that evidence. The common law principles articulated in Seaboyer speak to the general admissibility of prior sexual activity evidence and, given the associated dangers, trial judges are to “follow [the] guidance in Seaboyer to determine the admissibility of Crown-led prior sexual activity evidence in a voir dire” (Barton at para 80).
The Fresh Evidence Application:
The accused sought to present fresh evidence on the appeal. The proffered fresh evidence was the following (at paragraph 56):
(1) report of Dr. Bynkoski, dated May 29, 2018, redacted, which contains the results of the victim’s chlamydia urine test taken a few hours after the alleged assault;
(2) Cadham Provincial Laboratory report (the Cadham report) which confirms that the accused attended for a chlamydia test in December 2018 and tested negative; and
(3) curriculum vitae and report of Dr. Pierre J. Plourde, an infectious disease expert, dated October 14, 2021, which addresses a number of questions about how chlamydia is transmitted and whether any of the victim’s symptoms and injuries could be attributed to a chlamydia infection.
The Court of Appeal held that “the reports of Drs. Bynkoski and Plourde are likely relevant to an issue at trial, at least on the question of the victim’s credibility. Thus, those reports could pass the relevance threshold of section 276(2)(b)…Regarding whether the evidence could qualify as specific instances of sexual activity under section 276(2)(c), in RV, Karakatsanis J, again writing for the majority, stated that ‘the words ‘specific instances of sexual activity’ must be read purposively and contextually’ (at para 48). In RV, it was determined that questioning the complainant about other sexual activity that could have caused her pregnancy qualified as ‘specific instances of sexual activity’. Likewise, questions about chlamydia could implicate specific sexual activity capable of causing chlamydia” (at paragraphs 71 and 72).
However, the Court of Appeal concluded that introduction of the fresh evidence would not have affected the result (at paragraphs 80 to 84):
The accused argues that the evidence of chlamydia would have so compromised the victim’s credibility as to affect the outcome of the trial. He says that this is particularly so given that the victim lied to the police when she said that her mother had not been in the bedroom when the assault began.
The accused’s argument assumes that the victim would have given the same evidence at trial regarding her virginity as she did at the preliminary inquiry—and assumes that her definition of “virgin” is based on vaginal sexual intercourse. No evidence was given as to what this term meant to her. With respect to the victim’s comment in her police statement about this being her first time, that was expressed as something she had said to the accused during the assault, not necessarily as a fact. Indeed, in that statement, in response to a question as to whether anything like this had ever happened before, she said “like it was only once, but that was not from him, it was from someone else.”
In any event, Dr. Plourde states that chlamydia can be contracted through “sexual contact with the penis, vagina, mouth or anus of an infected partner.” Thus, the evidence that the victim had chlamydia does not necessarily reveal a “clear contradiction” or “blatant lie” about her not having previously had vaginal intercourse, as argued by the accused.
Moreover, if the victim had agreed at trial that she previously lied about being a virgin, this evidence would simply have affected her credibility on a collateral issue—a collateral issue of intense privacy, especially to a
15-year-old girl. As stated by Karakatsanis J in RV, “Inquiries into any individual’s sexual history are highly intrusive. The threat to the complainant’s dignity and privacy is even higher when the proposed questions surround the conduct of a 15-year-old” (at para 68).
Finally, it is difficult to see how collateral evidence as to the victim “lying about being a virgin” could reasonably be expected to have affected the verdict. The trial judge found that the victim was unshaken, during an extensive cross-examination, on her key allegations against the accused. He recognized inconsistencies in her evidence, but nonetheless accepted it. He reasonably accepted her explanation for having lied to the police about her mother’s whereabouts, namely that she did not want her three younger brothers to be placed in foster care. The trial judge also found that the injuries to the victim’s genitals and rectal area strongly corroborated her description of the incident.