CONTENT WARNING: This summary concerns a sexual assault. It contains explicit details of a sexual assault, and discussions about the law of sexual assault.
Key Takeaways
1. The full scope of s. 276 protections apply during preliminary inquiries. Furthermore, a s. 276 application is fundamentally flawed when it is based on answers to improper questions at a preliminary inquiry.
2. Section 715 allows for evidence that would otherwise have been lost to be admitted. It does not allow counsel to second-guess earlier tactical decisions. If the defence declined to pursue certain questions due to tactical considerations in the preliminary inquiry, this does not mean the evidence should be excluded now that cross-examination is unavailable.
Overview
The appellant, Kuzmich, was charged with a single count of sexual assault under s. 271 of the Criminal Code. It was alleged that, during consensual sexual intercourse, the complainant told him to stop. He did so briefly, then continued without her consent.
At the preliminary inquiry, defence counsel asked the complainant, E.S., whether she previously had sex with the appellant. She said she had not. The Crown and preliminary inquiry judge did not object. The appellant was ultimately committed to stand trial.
The trial judge heard two interrelated pre-trial applications. First, the defence applied under s. 276 of the Criminal Code to adduce evidence of other sexual activity between the appellant and E.S.
Second, the Crown applied under s. 715 of the Criminal Code to admit E.S.’s preliminary inquiry testimony because she had passed away before the trial. The appellant opposed, claiming he did not have a full opportunity to cross-examine E.S. at the preliminary inquiry, particularly on several incidents of alleged prior sexual activity.
The trial judge dismissed the s. 276 application but admitted ES’s prior testimony under s. 715. The appellant was found guilty and sentenced to 15 months of imprisonment.
The appellant appealed his conviction. He submits that the trial judge erred in how she decided both pre-trial applications, and in how she assessed the evidence.
Verdict: Appeal dismissed. The trial judge’s ruling on both applications were correct.
Definition: Preliminary Inquiries
Preliminary inquiries are allowed by Part XVIII of the Criminal Code. It is a hearing before a main trial action presided over by a different judge.
The purpose of the preliminary inquiry is to determine if there is sufficient evidence to set the matter down for trial before a Justice of the Superior Court. It is available to accused who are charged with an indictable offence punishable by 14 years or more of imprisonment.
Definition: The “Rape Shield” Laws and Section 276 Applications
Section 276 of the Criminal Code prohibits the admission of evidence that a sexual assault complainant engaged in sexual activity with the accused or any other person, to support the inference that the complainant is more likely to have consented, or is less worthy of belief.
However, under s. 276(2), evidence of sexual activity other than the subject matter of the charge is admissible if three conditions are met:
- The evidence must be of specific instances of sexual activity.
- The evidence must be relevant to an issue at trial, other than to make either of the prohibited inferences.
- The evidence must be more probative than it is prejudicial to the proper administration of justice.[1]
In assessing its probative or prejudicial value, the application judge must consider the rights of the accused to a fair trial, balanced against the complainant’s equality, dignity, and privacy interests.
Definition: Section 715 Applications
Section 715(1) of the Criminal Code allows evidence taken during a preliminary inquiry to be read into the trial in certain cases if the person who originally gave the evidence is unavailable (for e.g., because they have died in the intervening time period).
If the evidence was taken in the presence of the accused, it may be admitted as evidence into the trial proceedings without any further proof. The exception is where the accused proves that they did not have a full opportunity to cross-examine the witness.
Key Facts
- E.S. went to the appellant’s rooming house to buy marijuana. When she attempted to leave, the appellant blocked her.
- E.S. and the appellant both testified that they had intercourse. At one point E.S. felt pain and told the appellant to stop.
- The appellant stopped for a few minutes, then resumed despite her continued refusal and resistance.
- E.S. told a friend who was present, “Seppo,” what had happened and she was taken to a hospital, accompanied by a police officer.
The central factual issue in the case was framed as follows by the trial judge
“If I find the accused stopped when asked, the he would be found not guilty of sexual assault. If I find that he did not stop when he was asked to stop, then he will be found guilty of sexual assault.”
Issue 1: Prior Sexual History Evidence
The Court of Appeal agreed that evidence of prior sexual history between the appellant and E.S. was inadmissible under s. 276 of the Criminal Code. The proposed evidence had minimal to no probative value, but significantly impacted E.S.’s equality, privacy and security interests.
Evidence at the Preliminary Inquiry
At the preliminary inquiry, the Crown asked E.S. if she had a romantic relationship with the appellant. She said no. On cross-examination, the defence asked if she had ever had sex with the appellant. She again said no. Neither the Crown nor the judge intervened.
The Section 276 Application at Trial
The appellant filed an application under s. 276. In his affidavit, he said he engaged in consensual sexual activity with E.S. five times before the events leading to the sexual assault charge.
The Crown submitted that her question about a “romantic relationship” did not engage considerations of sexual activity, nor was it intended to do so. The Crown further submitted that the evidence was irrelevant. Even if the evidence impacted E.S.’s credibility, this was an insufficient bases for admission under s. 276.
The Trial Judge’s Reasons
The trial judge ruled that, if she allowed the s. 276 application, the Crown’s case would be at an end because E.S. was not available for cross-examination on her prior sexual history. Furthermore, it would prejudice E.S.’s personal dignity and right of privacy. She also ruled that the evidence was irrelevant to the central issue and not sufficiently helpful in assessing her credibility.
The application was rejected for two main reasons: it was based on improper questions asked at the preliminary inquiry, and the Crown did not “open the door” to this line of questioning as the appellant submitted.
The s. 276 application rested solely on E.S.’s answers to questions about previously having sex with the appellant. Section 276 applies at a preliminary inquiry. The plain meaning of the words “proceedings in respect of” does not restrict its use to trial proceedings alone. It may include others, including preliminary inquiries, or bail proceedings. The interests protected by s. 276 – “the equality, privacy and security rights of complainants” are no less important at these earlier stages of a criminal trial.
Since s. 276 was active at the preliminary inquiry, the issue becomes whether the appellant can rely on the improper questions made during the inquiry in his s. 276 application. There are two reasons to prevent this.
First, counsel should not be permitted to benefit by ignoring provisions designed to protect complainants in sexual assault prosecutions. Second, to rely on the preliminary inquiry evidence would make E.S. a compellable witness in the s. 276 application brought at trial, which is explicitly prohibited by what was then s. 276.2(2).[2]
The Crown’s question about a “romantic relationship” was not a request for information about sexual activity. The Crown never intended to “open the door.” She asserted in her submissions that she would gain no advantage whatsoever by doing so. It did not suspend the operation of s. 276 throughout the preliminary inquiry. The inaction of the Crown and the preliminary inquiry judge during cross-examination when the improper questions were asked similarly did not negate s. 276 protection.
Issue 2: The Section 715 Application
If the trial judge allowed the appellant’s s. 276 application, it would have ended the trial because E.S. was unavailable to be cross-examined on the alleged instances of prior sexual history. However, because E.S. was unavailable to testify for the Crown at trial, the trial judge was then required to determine whether E.S.’s preliminary inquiry testimony was admissible at trial under s. 715 of the Criminal Code.
The court stated that the purpose of s. 715 is to preserve valuable evidence that would otherwise be lost; it is not designed to permit counsel to second guess tactical decisions made earlier in the proceedings. The fact that defence counsel declined to pursue certain lines of inquiry during the preliminary hearing does not mean the evidence should be excluded now that cross-examination is unavailable.
The Court concluded from the trial record that admission of ES’s preliminary inquiry testimony did not adversely on the fairness of the trial. There was therefore no reason for the trial judge to exercise her discretion to exclude it.
Issue 3: Misapprehension of the Evidence
The Court found that the trial judge did not misapprehend the evidence or rely on any stereotypical reasoning in how she assessed ES’s credibility. Her reasoning throughout was sound and strongly supported her conclusion on the core factual issue described above. This ground of appeal was also dismissed, and the appellant’s conviction was upheld.
[1] Explanation taken from http://www.thecourt.ca/r-v-goldfinch-scc/
[2] This section has now been replaced by s. 278.94(2), which provides: “The complainant is not a compellable witness at the hearing but may appear and make submissions.”
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