R v TWW

2024 SCC 19

Supreme Court of Canada

Wagner CJ & SCJ; Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau, SCJJ

May 24, 2024

Reported by Faith Wanjiku and Betty Nkirote

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Evidence Law-admissibility-admissibility of evidence of prior sexual activity-where the appellant was charged with the offence of sexual assault against his spouse-where the appellant and the complainant were married but separated at the time of the alleged sexual assault-where the appellant made a pre-trial application to adduce evidence of prior sexual activity between him and the complainant-where the trial court dismissed the appellant’s application-whether evidence of prior sexual activity was necessary to challenge the complainant’s credibility and to provide context to the appellant’s case-Criminal Code, 1985 section 276.

Publication-publication of information relating to a complainant’s prior sexual activity-where the respondent brought a motion for the appeal to be held in camera and for filed materials to be sealed-where the respondent sought an order for protection of information protected by sections 276, 278.93 and 278.95 of the Criminal Code-whether statutory provisions prohibiting publication of information and evidence relating to a complainant’s sexual activity extended to appellate proceedings-Criminal Code, 1985 section 278.95. 

Brief facts

The appellant brought the appeal challenging his conviction for the offence of sexual assault against his spouse. The appellant and the complainant were in a romantic relationship for over 20 years. However, in February 2018, they separated and the appellant moved into the basement of the family home. 

According to a statement made to the police by the complainant, she and the appellant had consensual intercourse on the evening of April 1, 2018 following which the appellant sexually assaulted her the following morning. The appellant filed a pre-trial application seeking to adduce evidence of the sexual activity from the evening of April 1, 2018. However, the trial court dismissed the appellant’s application on the basis that the events of April 1, 2018 were not relevant to the issue of consent on April 2, 2018.

The trial court concluded that the appellant’s application sought to adduce evidence for the prohibited purpose of arguing that the complainant was more likely to have consented to the alleged sexual activity or that she was less worthy of belief. Upon appeal to the Court of Appeal, the majority of the Court of Appeal dismissed the appeal stating that the appellant failed to establish how the evidence of April 1, 2018 sexual activity was fundamental to his defence.

Issues

  1. Whether evidence of prior sexual activity was necessary to challenge the complainant’s credibility and to provide context to the appellant’s case.
  2. Whether statutory provisions prohibiting publication of information and evidence relating to a complainant’s sexual activity extended to appellate proceedings

Relevant provisions of the law

Criminal Code, 1985 

Section 276-Evidence of complainant’s sexual activity 

(1) In proceedings in respect of an offence under section 151, 152, 153, 153.1 or 155, subsection 160(2) or 3) or section 170, 171, 172, 173, 271, 272 or 273, evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant 

(a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or 

(b) is less worthy of belief. 

 Section 276.2-Conditions for admissibility 

(2) In proceedings in respect of an offence referred to in subsection (1), evidence shall not be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94, that the evidence 

(a) is not being adduced for the purpose of supporting an inference described in subsection (1); 

(b) is relevant to an issue at trial; and

(c) is of specific instances of sexual activity; and 

(d) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

Section 278.9-Publication prohibited 

(1) No person shall publish in any document, or broadcast or transmit in any way, any of the following: 

(a) the contents of an application made under section 278.3; 

(b) any evidence taken, information given or submissions made at a hearing under subsection 278.4(1) or 278.6(2); or 

(c) the determination of the judge pursuant to subsection 278.5(1) or 278.7(1) and the reasons provided pursuant to section 278.8, unless the judge, after taking into account the interests of justice and the right to privacy of the person to whom the record relates, orders that the determination may be published. 

Held

  1. An appellate court ought to ensure that the trial court applied the correct legal principles, considered all the evidence they ought to have, did not admit irrelevant evidence and did not otherwise err in law. No deference was owed in that regard. However, as to the trial court’s determination that the evidence’s prejudicial effect substantially outweighed its probative value, appellate courts ought to defer. 
  2. In reviewing a trial court’s initial section 276 of the Criminal Code ruling, the appellate court ought to only consider the evidence that was before the trial court at the time of its determination on admissibility. 
  3. Other sexual activity evidence could be admissible for issues of credibility or context but the applicant ought to establish a specific use for the information that was permitted by section 276 of the Criminal Code regime. In order to be potentially admissible, the relevance and probative value of the evidence in each case ought to go beyond a general ability to undermine the complainant’s credibility or to add helpful context to the circumstances of the case. It ought to respond to a specific issue at trial that could not be addressed or resolved in the absence of that evidence. The applicant also bore the burden of establishing that any such probative value was not substantially outweighed by prejudicial effect.
  4. Trial court’s ought to guard against improperly widening the scope of when other sexual activity evidence ought to be admitted given that redibility was an issue that pervaded most trials. The same was true of the significance of context. Too broad an approach to credibility and context would cast open the doors of admissibility, overturning Parliament’s specific intention and the court’s longstanding jurisprudence that evidence of other sexual activity would be admitted only in cases where it was sufficiently specific and essential to the interests of justice. Given the specific thresholds set by Parliament and their underlying objectives, something more was required to show that admission was justified. The applicant ought to demonstrate with particularity not only that credibility or context was relevant to an issue at trial but that in the absence of the evidence, their position would be untenable or utterly improbable. 
  5. The appellant was unable to discharge his burden of satisfying the conditions for admissibility of the prior sexual activity evidence. In the instant case, the prior sexual activity evidence had no permissible purpose for either context or credibility. The regime under section 276 of the Criminal Code required trial courts to first consider whether the evidence was inadmissible because it supported an inference relying upon one or both of the twin myths. It was an error of law to admit evidence that supported twin-myth reasoning. The trial court did not err by finding that the evidence would invoke twin-myth reasoning. The fact that the parties here previously had a sexual relationship was uncontested and was admitted. For that reason, there could be no use for the April 1 evidence beyond twin-myth reasoning. The proposed evidence could not provide any greater context for understanding the complainant’s actions on April 2, or whether she did or did not consent beyond unequivocally impermissible reasoning, that if they had had consensual sex on April 1, they did so again on April 2; or, that her denials of consent ought not to be believed based on their prior consensual intercourse. 
  6. The trial court and majority on appeal found that the complainant did not give inconsistent statements about the nature of her relationship with the appellant And there was no reason to interfere with that conclusion. The complainant did not give any inconsistent statements about whether their relationship was sexual or not. The intervener rightly pointed out that it did not follow that the end of a marriage or other romantic relationship signaled the end of a sexual relationship. It was not inconsistent for the complainant to have stated that their marriage was over but that there was other consensual sexual activity after their separation. 
  7. Even if the evidence had some relevance to either context or credibility, the court was not convinced that the trial court made any error in weighing its probative value against its prejudicial effect and would defer to its conclusion on that point. The appellant could not explain why the evidence’s probative value outweighed its prejudicial effect. The relative value of sexual history evidence would be significantly reduced if the accused could advance a particular theory without referring to that history. 
  8. In the present case, nothing turned on whether the appellant and the complainant had engaged in consensual sex the prior night. The appellant’s theory was that their marriage had not broken down and consequently they engaged in consensual sex on April 2. Whether the relationship had ended did not determine the matter. Without any specific evidence on the materiality of the severance of the relationship in the specific circumstances of the instant case, that alone could not establish significant probative value of the prior sexual activity evidence. In contrast, the prejudicial effect of the proposed evidence was clear. The admission of the evidence would invoke and rely on twin-myth reasoning and would prejudice the complainant’s personal dignity and right of privacy. There was no benefit to the truth-seeking function of the trial to be gained.
  9. The relevance and probative value of prior sexual activity evidence could not crystallize until witnesses had begun their testimony and the evidence or the inconsistency or materiality thereof became apparent. Where the evolution of a witness’ testimony at trial resulted in a material change in circumstances, the trial court could, either on its own initiative or by request from either party, revisit an earlier section 276 ruling in light of the new evidence or information. 
  10. The possibility of reconsideration of a pre-trial ruling in no way relieved the defence of its responsibility not only to make out the application at first instance, but also, in the majority of cases, to make a request for reconsideration and articulate the permissible purposes of the evidence in light of the changed circumstances. Generally speaking, absent a request at trial for reconsideration, appellate courts ought to review the merits of a trial court’s section 276 pre-trial ruling in the context of the record on which it was made. However, if the nature of the evidence at trial “cried out for a reconsideration, an appellate court might find that a trial court was required to revisit its prior section 276 ruling of its own motion even without being specifically asked to do so by counsel.
  11. The court was not of the view that the evidence in the instant case cried out for reconsideration. If the appellant was concerned that the complainant’s testimony linked her lack of consent to the parties’ separation, it was open to him to ask the trial judge to reconsider his pre-trial ruling and permit him to argue the relevance of the evidence on that basis. There was the opportunity to do so when, mid-trial, the defence argued that he should be permitted to cross-examine the complainant about further sexual activity that occurred on April 2 after the alleged assault, because the appellant would be advancing an opposing version of events. At the mid-point of the trial, the defence did not seek the admission of the April 1 evidence because the complainant’s evidence on the separation had evolved. Rather, in the defence’s submission, the April 1 evidence was essential because he anticipated the accused would be testifying to further sexual activity that occurred on April 2, after the alleged assault. He also suggested that due to the wording of the charge before the court, all sexual activity between April 1 to April 2 could be seen as the subject-matter of the charge and therefore not subject to section 276 of the Criminal Code at all. 
  12. There were several reasons why section 278.95 of the Criminal Code did not support the respondent’s proposition. A plain reading of the text suggested that it was aimed not at courts but at other entities who would otherwise publish a court’s decisions, such as law reporters, media outlets and reporters, and the general public. Section 278.95(1) of the Criminal Code prohibited publication by a person while section 278.95(2) of the Criminal Code created an offence for every person who contravened subsection  1.  
  13. The definition of every person in the Criminal Code, while specifically including His Majesty and organizations, did not mention courts. Person was not a defined term in the Criminal Code and was defined in the Interpretation Act, R.S.C. 1985simply as including a corporation. Applying the ordinary sense of the word person, clearly would not include a court. It was notable that some neighbouring provisions to section 278.95 of the Criminal Code made specific reference to a judge, provincial court judge or justice and that a court of appeal was a defined term in the Criminal Code that was used throughout section 2 of the Criminal Code. Importantly, a court could not be found guilty of the offence created by section 278.95(2) of the Criminal Code. It was thus not evident on a plain reading that a person could reasonably be expanded to include judges, justices, or courts of appeal. The wording of section 278.95 of the Criminal Code also stated that it was only the judge or justice who made a decision under section 278.93(4) or 278.94(4) of the Criminal Code who could order the publication, broadcast or transmission of otherwise prohibited information. That indicated that the power to displace the presumptive statutory prohibition was limited to trial judges who had the ability to make such orders in trial proceedings.
  14. The scope and application of section 278.95 of the Criminal Code ought to also be interpreted in light of its scheme and object. Section 278.95 of the Criminal Code was situated among a series of provisions dictating the procedural requirements where the accused sought to obtain or adduce evidence relating to a complainant in which there was a privacy and personal dignity interest. Those issues were matters of evidentiary admissibility, an issue which did not typically arise in appellate proceedings. The purpose of those procedural provisions as a whole was to provide a means of ensuring that the substantive protections against improper use of other sexual activity evidence were enforced. Their primary focus was aimed at thwarting attempts to bring distorting evidence into the trial in the first place. Read in that context, the objects of section 278.95 of the Criminal Code could be understood as furthering the goal of keeping improper evidence out of trial proceedings by restricting the publication of evidence and information that would ordinarily occur in the normal course of a trial and entrusting the decision as to whether publication of the section 278.93(4) of the Criminal Code decision or section 278.94(4) of the Criminal Code determination was appropriate to the judge or justice who had the benefit of hearing all submissions on the admissibility of the proposed information or evidence. In that respect too, section 278.95 of the Criminal Code seemed primarily concerned with the conduct of trial proceedings.
  15. The court was satisfied that the sexual nature of the evidence in the instant case touched on the complainant’s dignity and right of privacy, and that publication of that type of information gave rise to a serious risk of affront to the public interests of personal privacy and dignity. Privacy and personal dignity were public interests that had been recognized in Canadian jurisprudence including in cases involving sexual offences. Protecting the complainant’s privacy and personal dignity as far as practicable, promoted the objectives of the Criminal Code’s statutory protections for complainants in encouraging reporting of offences, participation in the process, and overall confidence in the administration of justice. 
  16. However, the court was not persuaded that that risk could only be addressed through the requested orders. An applicant seeking a limiting order ought to articulate why the serious risk to the complainant’s privacy and dignity warranted a greater restriction on court openness than would be occasioned by an alternative measure. The respondent had not established that the risk to the complainant’s privacy and dignity required a sealing order or in camera hearing. Sealing orders and in camera hearings were greater incursions on court openness compared to publication bans, because they more absolutely limited public discourse on the subject information by preventing access to the protected material entirely. 
  17. The court was not persuaded that the circumstances of the instant case justified those measures. The court was mindful of the fact that the trial proceedings were sealed and held in camera, as required by sections 278.94 and 278.95 of the Criminal Code and that the bulk of the file in the Court of Appeal was also under seal and the hearing held in camera, with public reasons. However, there were alternative measures that sufficiently protect the complainant’s privacy and dignity.
  18. With respect to the request for a sealing order, the full contents of the Court’s file did not need to be sealed in order to protect the complainant’s privacy and dignity. That could be accomplished in the instant case by banning publication of any information about or reference to the nature of the sexual activity other than that which formed the subject-matter of the charge and the court would make such an order. That balanced respect for the goal of restricting publication of the details of section 276 of the Criminal Code applications with the court’s task as an appellate court to provide guidance to lower courts. The request to hold the hearing in camera was also a greater restriction than was necessary. Proceeding in camera at the trial level pursuant to section 278.94 of the Criminal Code permitted counsel in all cases to freely and vigorously argue the merits of the application where the information and evidence sought to be adduced could be highly prejudicial and its value was untested. In contrast, the instant appeal dealt with a question of law and counsel were able to argue their case without heavy reliance on information and evidence that was mandatorily protected under section 278.95 of the Criminal Code. The publication ban that the court would impose under its implied jurisdiction, the statutory one imposed under section 486.4 of the Criminal Code and the use of initials for the appellant were further measures that protected the complainant’s privacy and dignity on the instant appeal.

 

Per Cote and Moreau SCJ (dissenting opinion)

  1. Throughout the trial, trial courts ought to remain attentive to the evolving nature of the evidence. Even when trial courts had decided not to admit evidence in a ruling under section 276 of the Criminal Code, their role with respect to that evidence did not end there. Trial courts could revisit pre-trial rulings on their own motion as the evidence evolved during trial, provided that they gave the parties an opportunity to make submissions on the issue. 
  2. The complainant’s trial testimony left the trier of fact with the impression that she was unlikely to consent to sex with the appellant after their separation. To be clear, the court was not suggesting that the mere fact of separation made consent more or less likely. Rather, the complainant’s trial testimony suggested that according to that particular complainant, consent was improbable in the context of separation. In other words, her testimony transformed the neutral fact of separation into an element that supported the conclusion that she did not consent to the sexual activity.
  3. The testimony ought to have opened the door to cross-examination of the complainant regarding her consensual sexual activity with the appellant on April 1 for two limited purposes; first, to neutralize the suggestion that the complainant was unlikely to consent after the separation and second, to test her credibility on that point.
  4. The April 1 evidence did not derive its relevance from twin-myth reasoning. Its purpose would not be to suggest that the complainant was more likely to consent to sexual activity on April 2 because she consented under similar circumstances i.e., those of the separation — on April 1. Nor would it suggest that she was inherently less worthy of belief because she and the appellant engaged in other sexual activity. Rather, the purpose of the evidence would be to dispel the impression — created by the complainant’s trial testimony — that she would not have consented to sex with the appellant given their separation and his relationship with another woman.
  5. A mere assertion that evidence of prior sexual activity was relevant to the context of a relationship or to credibility was not sufficient. In general, whether or not a relationship had previously included a sexual component was not relevant to determining whether a complainant had consented to a particular instance of sexual activity. The accused ought not be allowed to suggest that the complainant was more likely to have consented to the sexual activity in question because she had previously consented in the context of the same relationship. Trial courts ought to remain vigilant in ensuring that relationship evidence did not serve that prohibited purpose, which would fall squarely within twin-myth territory.
  6. However, the situation changed when the evidence suggested that because of the platonic nature of a particular relationship, the complainant would be unlikely to consent. In such circumstances, when left unchallenged, the complainant’s testimony regarding their relationship with the accused could become potentially devastating to the accused’s position. The instant case was one such case. Without the April 1 evidence, the complainant’s testimony would leave the trier of fact with the impression that the separation and the appellant’s relationship with another woman made his narrative untenable or utterly improbable. 
  7. The complainant herself brought the sexual nature of the relationship into question by implying that she was unlikely to consent to sex with the appellant during their separation. However, from the complainant’s police statement, that implication was not accurate. She had told the police that the two had consensual sexual intercourse on April 1, a couple of months after they separated. Before the complainant’s trial testimony, the April 1 evidence was not relevant. However, her testimony created a material change in circumstances that triggered the trial court’s obligation to revisit its pre-trial ruling. 
  8. The trial court ought to have allowed the appellant to cross-examine the complainant about the consensual sexual activity of April 1, as that evidence satisfied the criteria set out in section 276 of the Criminal Code. It was not being adduced for the purpose of supporting one of the twin myths and was relevant for two specific purposes. The evidence also pertained to specific instances of sexual activity. 
  9. Moreover, the evidence had significant probative value that was not substantially outweighed by the danger of prejudice to the proper administration of justice. That balancing exercise depended in part, on how important the evidence was to the accused’s right to make full answer and defence. Nonetheless, in the instant case, the appellant’s right to make full answer and defence tilted the balance in favour of admitting the evidence. A limiting self-instruction outlining the evidence’s permissible uses which were narrowly circumscribed — would mitigate the potential prejudice.

Appeal dismissed; Cote and Moreau SCJJ dissenting. 

Orders 

  1. Any information about or reference to the nature of sexual activity of the complainant which was at issue in the instant proceeding, other than that which formed the subject-matter of the charge, would not be published, broadcasted or transmitted; and 
  2. The parties ought to file, within 30 days, versions of their factums for posting on the court’s website in which any information about or reference to the nature of sexual activity of the complainant at issue in the instant proceeding other than that which formed the subject-matter of the charge, and any information that could identify the complainant would be redacted.

 

Relevance to Kenyan jurisprudence 

Section 34 of the Sexual Offences Act, Cap 63A Laws of Kenya (Sexual Offences Act) provides thus: 

34-Evidence of character and previous sexual history

(1)No evidence as to any previous sexual experience or conduct of any person against or in connection with whom any offence of a sexual nature is alleged to have been committed, other than evidence relating to sexual experience or conduct in respect of the offence which is being tried, shall be adduced, and no question regarding such sexual conduct shall be put to such person, the accused or any other witness at the proceedings pending before a court unless the court has, on application by any party to the proceedings, granted leave to adduce such evidence or to put such questions.

(2) Before an application for leave contemplated subsection (1) is heard, the court shall direct that any person, other than the complainant, whose presence is not necessary, may not be present at the proceedings.

(3) The court shall, subject to subsection (4), grant the application referred to in subsection (1) if satisfied that such evidence or questioning—

(a)relates to a specific instance of sexual activity relevant to a fact in issue;

(b)is likely to rebut evidence previously adduced by the prosecution;

(c)is likely to explain the presence of semen or the source of pregnancy or disease or any injury the complainant, where it is relevant to a fact in issue;

(d)is not substantially outweighed by its potential prejudice to the complainant's personal dignity and right to privacy; or

(e)is fundamental to the accused's defence.

While referring to the above section, the court in Said Salim v Republic [2021] eKLR observed as follows:

Our understanding of this provision is that where a party wishes to advert to a complainant's sexual history, leave of court must first be sought and granted. Nevertheless, such leave is only required in cases where the previous sexual experience under reference does not relate to the present offence for which a person is being tried. In other words, leave is not necessary if the evidence in question relates to the same transaction and offence being tried. As stated by this Court in S.J v. Republic [2016] eKLR; the 'section deals with the evidence of character and previous sexual exploits of the complainant.' In this case the previous conduct or character of the complainants was not an issue whatsoever.”

Further, in Sahali Omar v Republic [2017] eKLR, the court held as follows:

The other issue of law raised by the appellant was with regard to the evidence of the appellant's previous sexual experiences. According to Mr. Nabwana, the witness' testimony pertained to acts perpetrated in 2009 while the medical reports adduced in evidence bore dates in March, 2010. In view of that, he said, the court ought not have relied on the oral testimony of the witnesses, for it pertained to evidence on the appellant's sexual history, which evidence was adduced without leave of court as required under section 34 of the Sexual offences Act. 

Consequently, whenever an accused person intends to introduce evidence of a complainant’s previous sexual history, the law requires them to first obtain leave of the court. The accused is also required to establish that such evidence is relevant and of probative value. Also, for evidence of previous sexual history of a complainant to be admissible, the accused person must demonstrate a specific use for that evidence that is permitted by section 34 of the Sexual Offences Act. 

This case is therefore relevant to Kenyan legal system as it enlarges Kenyan jurisprudence on admissibility and use of evidence of prior sexual activity of a complainant. The case also sets out specific factors that an accused person is required to establish in order for evidence of prior sexual activity to be admissible.