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EVIDENCE - Admissibility - Witnesses - Examination - Cross-examination - Limitations - Range of examination

Wednesday, July 31, 2019 @ 1:47 PM  

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Appeal from a judgment of the Ontario Court of Appeal setting aside the accused’s conviction for sexual interference and ordering a new trial. The complainant testified that she was a virgin at the time of the assault. The Prosecution introduced evidence of her subsequent pregnancy and the approximate date of conception to support the complainant’s testimony that she was sexually assaulted by the accused. The accused denied the allegations and sought to question the complainant as to whether anyone else could have caused the pregnancy. The application judge ruled that the accused was not permitted to ask whether the complainant had engaged in any other sexual activity because the accused had no evidence of “specific instances of sexual activity”, one of the requirements of s. 276(2) of the Criminal Code. The accused was, however, permitted to cross-examine the complainant about her claim that she was a virgin at the time of the assault. After the voir dire and prior to trial, the application judge invoked s. 669.2 of the Criminal Code and the trial continued before another judge. The trial judge declined the accused’s request to relitigate the s. 276 application. He held that where a trial was continued by another judge, s. 669.2 did not provide for the reconsideration of pretrial motions decided by the previous judge. The Ontario Court of Appeal allowed the appeal and ordered a new trial, holding that it was patently unfair for the Crown to rely on the pregnancy as confirming the complainant’s story while preventing the accused from challenging this inference.

HELD: Appeal allowed. The application judge erred when she concluded that the accused failed to identify evidence of specific instances of sexual activity. The accused sought to cross-examine the complainant on a specific instance of sexual activity, the activity that caused her pregnancy, evidence of which was introduced by the Prosecution. The pregnancy itself demonstrated only that sexual activity capable of impregnating the complainant took place around July 1. The existence of such activity was not speculative. The more important the evidence is to the Defence, the greater the weight that must be given to the rights of the accused. The accused’s right to make full answer and defence required some means of challenging the Prosecution’s reliance on the pregnancy. A correct balancing of the interests set out in s. 276(3) would have allowed the accused to inquire into: (i) the complainant’s understanding of the types of sexual activity capable of causing pregnancy and (ii) whether she engaged in any such activity at the end of June and the beginning of July. However, the inquiry should be circumscribed to minimize the impact on the complainant’s privacy and dignity. Section 669.2 does not displace the general rule that a trial judge has discretion to reconsider rulings made earlier in the proceedings if there is a material change of circumstances. Questions regarding when the complainant ceased to be a virgin and whether she had engaged in other sexual activity that could have resulted in pregnancy during the relevant timeframe undoubtedly fell within the ambit of s. 276. However, the accused was not precluded from adequately testing the evidence in this case. Neither the application judge’s interpretive error with respect to s. 276(2)(a) nor the trial judge’s conclusion that he was bound by the previous s. 276 ruling prevented the accused from making full answer and defence at trial. On the facts of this case, the errors were harmless and there was no reasonable possibility that the verdict would have been different had the errors not been made.

R. v. R.V., [2019] S.C.J. No. 41, Supreme Court of Canada, R. Wagner C.J., R.S. Abella, M.J. Moldaver, A. Karakatsanis, R. Brown, M. Rowe and S.L. Martin JJ., July 31, 2019. Digest No. TLD-July292019013-SCC