2017 SCC 16

In 2017 SCC 16the Crown appealed Mr. B’s acquittal by a jury for a careless handling of a firearm, five counts of assault, two counts of sexual assault, and one count of assault with a weapon against his girlfriend, Ms. M, and one count of assault against his girlfriend’s daughter, Ms. S, over a seven year period.

The Crown argued that the trial judge should not have allowed evidence of Mr. B’s girlfriend’s prior sexual activity with Mr. B.

At trial, Mr. B wanted to cross-examine Ms. M on a video he had of the two of them engaging in previous consensual sex acts that suggested she was interested in a type of sex she had told the police she was against. He also wanted to submit text messages they had about their sex life that suggested she liked a particular type of sex and text messages between Ms. M and another man that suggested she was having an affair. Ms. M had told the police she was not involved in an affair. Mr. B hoped to show that if she was lying to the police about her preferred sex acts, among other things, she could be lying about the charges as well.

Ms. M was not informed of Mr. B’s application and her interests were not known to the Court at the hearing about admissibility.

In the trial judge’s analysis, he stated:

Society’s interest in encouraging the reporting of sexual assault offences would be adversely affected by the prospect of such a video being shown in open Court. In an era where still and moving images of sexual intimacy are frequently recorded, the chilling effect upon a complainant in a sexual assault charge of having to face the possible disclosure of such images is obvious. The potential of such evidence to cause prejudice to the complainant’s personal dignity and right of privacy is also obvious. These prejudicial effects are not minor but severe.[1]

The judge allowed Mr. B to cross-examine her on the text messages and a transcript of the video only to challenge her credibility but not for other questioning related to her general sexual practices with Mr. B. The judge did not allow the admission of the video, as it would have a chilling effect on people reporting sexual assaults and had the potential to prejudice Ms. B’s dignity and right to privacy. However, the judge did say that depending on Ms. B’s testimony there may still be good reason to show the video.

In an evidence hearing at trial, the Crown was not allowed to enter evidence that Ms. M had told other people Mr. B had assaulted and sexually assaulted her. In a second evidence hearing, the judge denied an application by Mr. B to caution the jury about the credibility of Ms. B using a specific instruction known as a Vetrovec caution.

At the Court of Appeal, the Crown argued that Mr. B should not have been able to cross-examine Ms. M on the content of the texts and video to challenge Ms. M’s credibility. The Crown also argued that evidence of Ms. M telling other people about the assaults should have been allowed, because Mr. B had argued that Ms. M changed her story after he told her boss something that got her fired, and a new trial should be ordered.

Two of the judges agreed the trial judge made mistakes admitting the text and video evidence. Reading the text messages about the affair was unnecessary after Ms. M admitted she cheated on Mr. B while being cross-examined. Doing so played into the myth that if a woman is of “easy virtue” she is more likely to have consented to the sex with Mr. B, as did reading the transcript of the sex video. Because Mr. B accused Ms. M of fabricating her story after he told her boss something that made her lose her job, the trial judge made a mistake in not allowing the Crown to bring evidence forward that Ms. M had told other people about the assaults before this event. However, the two judges did not think these things were enough to set aside the acquittal and dismissed the appeal.

A third judge agreed with the two judge’s that the trial judge had made mistakes in regard to the evidence, but did find it was enough to set aside the acquittal and ordered a new trial. That judge found that admitting the evidence would have “material bearing” on the acquittal.

At the Supreme Court, the Court agreed with the dissenting judge at the Court of Appeal, and ordered a new trial.

Also see: [2017] SCJ No 16 (Leave to appeal); 2016 NLCA 20 (Appeal); 2014 NLTD(G) 84 (Voir Dire); 2014 NLTD(G) 83 (Voire Dire); 2014 NLTD(G) 61 (Evidence).

[1] 2015 NLTD(G) at para 78

Criminal Offence(s): Sexual Assault