R. v. R.V., 2019 SCC 41

Criminal law — Evidence — Admissibility — Complainant’s sexual activity

On appeal from a judgment of the Ontario Court of Appeal (MacFarland, Watt and Paciocco JJ.A.) 2018 ONCA 547, setting aside the conviction for sexual interference entered by Gee J. and ordering a new trial.

The accused was charged with sexual assault and sexual interference. During pre‑trial proceedings, he applied under s. 276 of the Criminal Code for permission to cross‑examine the complainant about her prior sexual activity because the Crown intended to rely on the complainant’s pregnancy as evidence of sexual contact with the accused. The application judge dismissed the accused's s. 276 application. 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. At the outset of the trial, the trial judge declined the accused’s request to re‑litigate the s. 276 application. The accused was convicted of sexual interference. The Court of Appeal allowed the accused’s appeal and ordered a new trial. In the Court of Appeal’s view, 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. The court also held that the trial judge’s conclusion that he was bound by the initial s. 276 ruling was incorrect. It ordered a new trial.

Held (Brown and Rowe JJ. dissenting): The appeal should be allowed and the conviction restored.

Per Wagner C.J. and Abella, Moldaver, Karakatsanis and Martin JJ.:

The application judge erred in dismissing the accused’s s. 276 application and the trial judge erred in concluding that he was bound by the initial s. 276 ruling. The ability to cross‑examine the complainant was fundamental to the accused’s right to make full answer and defence. However, no miscarriage of justice occurred since the cross‑examination that was permitted and actually occurred allowed the defence to test the evidence with sufficient rigour.

Sexual assault trials raise unique challenges in protecting the integrity of the trial and balancing the societal interests of both the accused and the complainant. Parliament and the courts have responded to these challenges by setting out rules of evidence tailored to this context. Section 276 of the Criminal Codegoverns the accused’s right to introduce evidence regarding the complainant’s prior sexual activity. Such evidence is never admissible to support the twin myths that the complainant is less worthy of belief or more likely to have consented to the sexual activity in question. In order to respect the presumption of innocence and the accused’s right to make full answer and defence, evidence may be adduced for other relevant purposes but must satisfy rigorous criteria to ensure it does not undermine the integrity of the trial or the complainant’s dignity and privacy. The requirements of s. 726 apply with equal force regardless of whether the accused seeks to introduce evidence to establish a defence or to challenge inferences urged by the Crown. Before evidence of a complainant’s sexual history may be introduced, the court must carefully scrutinize the potential evidence.

Individuals charged with criminal offences are presumed innocent until proven guilty; accordingly, an accused has the right to call the evidence necessary to establish a defence and to challenge the prosecution’s evidence. Full answer and defence is a principle of fundamental justice, protected by s. 7 of the Canadian Charter of Rights and Freedoms. A key element of full answer and defence is the right to cross‑examine the Crown’s witnesses without significant and unwarranted restraint. In certain circumstances, cross‑examination may be the only way to get at the truth. The fundamental importance of cross‑examination is reflected in the general rule that counsel is permitted to ask any question for which they have a good faith basis. Uncertainty of result does not deprive a line of questioning of its probative value.

However, the right to cross‑examine is not unlimited. Cross-examination questions must be relevant and their prejudicial effect must not outweigh their probative value. Section 276 requires that the accused’s right to make full answer and defence be balanced with the dangers that cross‑examination may pose to the complainant’s privacy and dignity and the integrity of the trial process. This is because inquiries into any individual’s sexual history are highly intrusive. In addition, testifying in a sexual assault case can be traumatizing and harmful to complainants.

Where challenging the Crown’s evidence of the complainant’s sexual history directly implicates the accused’s ability to raise a reasonable doubt, cross‑examination becomes fundamental to the accused’s ability to make full answer and defence and must be allowed in some form. The more important evidence is to the defence, the more weight must be given to the rights of the accused. However, since permitting an accused to question a complainant on such matters treads on dangerous grounds, raising both dignity and privacy concerns, judges must tightly control such cross‑examinations to minimize those risks.

Broad exploratory questioning is never permitted under s. 276. Where targeted cross‑examination of the complainant is permitted, trial judges must strike a delicate balance between giving counsel sufficient latitude to conduct effective cross‑examination and minimizing any negative impacts on the complainant and the trial process. Proposed questions should be canvassed in advance and may be re‑assessed based upon the answers received. In certain cases, it may even be appropriate to approve specific wording.

Section 276(1) and the common law principles apply to Crown‑led evidence of a complainant’s sexual history. Where the accused's s. 276 application relates to Crown‑led evidence, it would be prudent to consider both the Crown’s proposed use of the evidence and any challenges proposed by the accused at the same time.

Section 276(2)(a) requires the accused to identify “specific instances of sexual activity” to avoid unnecessary incursions into the sexual life of the complainant. The words “specific instances of sexual activity” must be read purposively and contextually. They limit admissible evidence to discrete sexual acts, and protect against misuse of general reputational evidence to discredit the complainant and distort the trial process. The “specific instances” requirement is buttressed by the procedural aspects of a s. 276 application, which require the accused to set out “detailed particulars” of the evidence to be adduced. By requiring “detailed particulars," the Criminal Code ensures that judges are equipped to meaningfully engage with the s. 276 analysis and that defence evidence does not take the Crown or complainant by surprise. However, s. 276(2)(a) does not always require an accused to come before the court armed with names, dates and locations. Requiring such details may, in some cases, be unduly intrusive, defeating one of the provision’s most important objectives. The degree of specificity required depends on the circumstances of the case, the nature of the sexual activity that the accused seeks to adduce and the use to be made of that evidence. Caution must be exercised where the proposed inquiry captures a broad range of sexual activity and is limited only by a specified timeframe.

In this case, the complainant testified that she was a virgin at the time of the assault. The Crown 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 presumption of innocence requires that the accused be permitted to test such critical, corroborating physical evidence before it can be relied on to support a finding of guilt. Given the accused’s denial of any sexual contact with the complainant, and the lack of other evidence of paternity, the ability to cross‑examine the complainant was fundamental to his right to make full answer and defence. It would be unfair for the Crown to rely on the complainant’s testimony that the accused caused the pregnancy while at the same time preventing the accused from challenging the complainant’s account. Furthermore, the accused’s request to cross‑examine the complainant satisfied the “specific instances” requirement of s. 276(2)(a) because it was sufficiently detailed to permit the judge to apply the regime. The cross‑examination sought to establish that the pregnancy was caused by sexual activity other than the alleged assault. The Crown‑led evidence implicated a specific sexual act, namely activity capable of causing pregnancy within a particular time‑frame.

Section 669.2 of the Criminal Code does not displace the general rule that a trial judge has discretion to re‑consider rulings made earlier in the proceedings if there is a material change of circumstances. An order related to the conduct of trial may be varied or revoked if there is a material change of circumstances as s. 276 continues to operate even after an initial evidentiary ruling has been rendered. In this case, the trial judge held that he could not re‑consider the ruling and also observed that no material change of circumstances had occurred between the s. 276 ruling and the start of trial. Given the trial judge’s decision, counsel for the accused may have thought it would be futile to apply for a re‑consideration, even if the circumstances changed during the trial.

Section 686(1) (b)(iii) of the Criminal Code permits a court of appeal to dismiss an appeal from a conviction where “no substantial wrong or miscarriage of justice has occurred.” Applying the curative proviso is appropriate in two circumstances: (1) where the error is harmless or trivial; or (2) where the evidence is so overwhelming that the trier of fact would inevitably convict. Because cross‑examination is a key element of the right to make full answer and defence, a failure to allow relevant cross‑examination will almost always be grounds for a new trial. In this case, a correct balancing of the interests set out in s. 276(3) would have allowed the accused to make limited inquiries 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 relevant time. The scope of permissible cross‑examination would not have been any broader than the questioning that actually occurred. The accused was not precluded from adequately testing the evidence in this case, despite the errors in the s. 276 ruling. The application and trial judge’s errors are harmless and there is no reasonable possibility that the verdict would have been different had the errors not been made.

Per Brown and Rowe JJ. (dissenting):

There is agreement with the majority that the application judge misapplied the admissibility criteria under s. 276 of the Criminal Code and further, that the trial judge erred in holding that he had no jurisdiction to reconsider the s. 276 ruling in light of the evidence adduced by the Crown. However, there is disagreement as to the appropriate remedy for the errors of the application and trial judges. The errors in this case were not harmless or minor, nor was the evidence overwhelming. Cross-examination was restricted in a manner not consistent with the purpose behind s. 276 and as a result, the accused was denied a fair trial.

The right to test the Crown’s evidence through relevant cross‑examination is guaranteed by both the common law and the Charteras a core element of the right to make full answer and defence. An accused has the right of cross‑examination in the fullest and widest sense of the word as long as that right is not abused. An accused’s fair trial rights include not just the fact of cross‑examination, but also control over the rhythm of cross‑examination. Cross-examination is not so much a series of questions as a process of questioning. Cross‑examination involves putting careful questions to a witness that are designed to explore bit by bit the nature and extent of that witness’s knowledge, and therefore is effective only where it is permitted to proceed step by step towards the ultimate point, where the examiner can pose the final question (or questions), knowing by that time what the answer(s) will be, having regard to the earlier evidence elicited. When cross‑examination is unduly restricted, the effects on the fairness of the trial will often reverberate beyond, and cannot be fully appreciated by parsing, the particular words in a transcript. However, a cross‑examination that is not unduly restricted does not mean a cross-examination that is boundless. Parliament has specifically legislated limits on questioning related to a complainant’s sexual history into the Criminal Code.

If an accused’s right to test the Crown’s evidence is irremediably impaired through an inability to challenge a crucial part of the case against them, it will be inappropriate to invoke or apply the curative proviso provided for in s. 686(1) (b)(iii) of the Criminal Code. Where there has been a legal error, the default is to order a new trial; the proviso allows a departure from this default rule only in very narrow circumstances. The curative proviso is rarely (successfully) invoked, and applies where, and only where, the error is minor or harmless, or the evidence is overwhelming. It is a high bar for the Crown to meet. The high bar on the proviso’s use strongly affirms the need to safeguard the integrity of the criminal justice system from the risk of wrongful conviction.

Given the interests the proviso protects, it cannot be invoked here. In the absence of overwhelming evidence, its application turns on whether the erroneous s. 276 ruling was so minor or harmless that it could not have had an impact on the verdict. The errors were significant and their cumulative effect deprived the accused of the right to engage in a process of questioning protected by both the Charterand the common law. Had the accused been able to effectively challenge the sexual history evidence presented by the Crown, he may have been able to elicit something that was sufficient to raise a doubt: cross‑examination may well have been the only way to elicit evidence that was not apparent at the outset. The accused, therefore, was denied a fair trial, and where fair trial rights have been infringed, the appeal should run its natural course. The appeal should be dismissed.

Citation: R. v. R.V., 2019 SCC 41

SCC File Nos. : 38286

Reasons for Judgment: Karakatsanis J. (Wagner C.J. and Abella, Moldaver and Martin JJ. concurring)

Joint Dissenting Reasons: Brown and Rowe JJ.