In R. v. Way, 2022 ABCA 1, January 4, 2022, the accused was convicted of the offence of sexual assault. On appeal, he argued that the trial judge erred “in failing to issue a mid-trial instruction to the jury to disregard the complainant’s evidence that it would be ‘out of character’ for her to have consented to sexual activity with the appellant”.
The “out of character” reference arose in the following exchange between the complainant and defence counsel:
Q. Gift told you to rest and join him in the living room whenever you were ready?
A. I have no memory of that.
Q. You asked Gift to stay in the bedroom, so he did?
A. That does not sound like something I would say, but I don’t remember.
Q. He covered you with a blanket and laid on top of the blanket?
A. I have no memory of that.
Q. You then started to cuddle and talk?
A. I wouldn’t do that, so no.
Q. But you have no memory of that?
A. I don’t, but that is so out of character for me that I can — I’m sure I did not do that.
Q. But you don’t remember?
The accused argued that the complainant’s evidence constituted “inadmissible evidence of her own sexual character ‘for the purposes of supporting the inference the complainant was more likely not to have consented’”. The accused argued that this evidence should have been the subject of a section 276 voir dire (see paragraph 62).
The Court of Appeal:
The Alberta Court of Appeal rejected these propositions, concluding that section 276 was not applicable, though it cautioned the Crown from leading such evidence from complainants (at paragraphs 65, 66 and 68):
In our view, the testimony given by the complainant to the effect that the appellant’s version of events would have been “out of character” for her, and that she “would not” have done the things put to her, was admissible as found by the trial judge. The testimony was not evidence of prior sexual conduct raising the danger of distorting the truth-seeking process by raising the “twin myths” (more likely to consent, less worthy of belief), which is what the restrictions in s 276 are aimed at preventing. Rather, the complainant blurted the “out of character” evidence not to support an inference that she was “more likely to have consented”, but rather the opposite. In the context of this case, the evidence was relevant to the material issue of consent, and its probative value exceeded its prejudicial effect: R v Vant, 2015 ONCA 481 at para 66.
The Crown must be careful about introducing evidence from a complainant that she “would not” have consented, because it can prejudice the defence who face difficulties in cross-examination because of s 276. However, it is less prejudicial here having arisen spontaneously when the complainant was being cross-examined about the defence’s version of the events; specifically, the initiating sexual behaviour she was said to have performed. Cross-examination about an accused’s version of events may well leave the door open for such a response by a complainant with no memory, but it cannot reasonably be argued the evidence in this matter was deliberately adduced by the complainant solely to bolster her own credibility. Moreover, the complainant did not make a blanket statement of her character, but one responsive to the appellant’s evidence about her sexual conduct with him.
The complainant’s “out of character” statements were not evidence as to her memory of the events, but rather circumstantial evidence related to the issues of consent and capacity to consent. There is no rule excluding such evidence where it is relevant and probative. Moreover, where a complainant attests to lack of memory due to intoxication, evidence of what she believes she would or would not have done may be all she has to offer, and the jury will assess its credit and weight. Here, the jury was entitled to weigh this testimony together with all the other evidence, including the complainant’s repeated answers during the same cross-examination that, in fact, she could not remember one way or the other.