


WARNING

The President of the panel hearing this appeal directs that
    the following should be attached to the file:

An order restricting publication in this proceeding under ss.
    486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of
the Criminal Code
provide:

486.4       (1)
Subject to
    subsection (2), the presiding judge or justice may make an order directing that
    any information that could identify the complainant or a witness shall not be
    published in any document or broadcast or transmitted in any way, in
    proceedings in respect of

(a)       any of the following offences;

(i)   an offence under section 151, 152, 153, 153.1, 155, 159,
    160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01,
    279.02, 279.03, 346 or 347,

(ii)  an offence under section 144 (rape), 145 (attempt to
    commit rape), 149 (indecent assault on female), 156 (indecent assault on male)
    or 245 (common assault) or subsection 246(1) (assault with intent) of the
Criminal
    Code
, chapter C-34 of the Revised Statutes of Canada, 1970, as it read
    immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse
    with a female under 14) or (2) (sexual intercourse with a female between 14 and
    16) or section 151 (seduction of a female between 16 and 18), 153 (sexual
    intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross
    indecency), 166 (parent or guardian procuring defilement) or 167 (householder
    permitting defilement) of the
Criminal Code
, chapter C-34 of the
    Revised Statutes of Canada, 1970, as it read immediately before January 1,
    1988; or

(b)       two or more offences being dealt
    with in the same proceeding, at least one of which is an offence referred to in
    any of subparagraphs (a)(i) to (iii).

(2)
In proceedings in respect
    of the offences referred to in paragraph (1)(a) or (b), the presiding judge or
    justice shall

(a)  at the first
    reasonable opportunity, inform any witness under the age of eighteen years and
    the complainant of the right to make an application for the order; and

(b)  on application
    made by the complainant, the prosecutor or any such witness, make the order.

(3)
In proceedings in respect
    of an offence under section 163.1, a judge or justice shall make an order
    directing that any information that could identify a witness who is under the
    age of eighteen years, or any person who is the subject of a representation,
    written material or a recording that constitutes child pornography within the
    meaning of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)
An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community. 2005, c. 32, s. 15;
    2005, c. 43, s. 8(3)(b).

486.6       (1)
Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)
For
    greater certainty, an order referred to in subsection (1) applies to prohibit,
    in relation to proceedings taken against any person who fails to comply with
    the order, the publication in any document or the broadcasting or transmission
    in any way of information that could identify a victim, witness or justice
    system participant whose identity is protected by the order. 2005, c. 32, s.
    15.






CITATION:
R. v. Butts, 2012
          ONCA 24



DATE: 20120113



DOCKET: C52357



COURT OF APPEAL FOR ONTARIO



Rosenberg, Sharpe and Juriansz JJ.A.



BETWEEN:



Her Majesty the Queen



Respondent



and



Christian Butts



Appellant



Timothy E. Breen, for the appellant



Matthew Asma, for the respondent



Heard:
November 8, 2011



On appeal from the conviction imposed by Justice T. Bielby of
          the Superior Court of Justice dated August 11, 2009.



By the Court:




[1]

The appellant was convicted, following a jury trial, of one count of
    sexual assault
and sentenced to forty months imprisonment. He raises two
    grounds of appeal against the conviction:

1)    that the trial
    judge erred by excluding evidence that the complainant had consensual sex with
    another man shortly after the alleged sexual assault; and

2)    that the trial
    judge erred by leaving it open for the jury to consider the complainants incapacity
    to consent as a basis for liability.

1. Exclusion
    of the complainants subsequent sexual conduct

[2]

The 16 year old female complainant first met the appellant, who she knew
    by the name Jamie, approximately one month prior to the alleged sexual assault.
    After the complainant was kicked out of her parents home, her boyfriend, I.O.,
    made arrangements for her to stay at the appellants apartment, where I.O. had
    also recently begun living. On the evening of the alleged sexual assault, the
    complainant, the appellant, I.O. and another friend, M.W., were at the
    appellants apartment.

[3]

The complainant was drinking and vomited in the living room. She
    proceeded to the bathroom, where she vomited again, and then moved to the
    bedroom, where she was upset and crying. A short time later, the appellant went
    into the bedroom. According to the complainant, the appellant then forcibly
    removed her clothing and had non-consensual intercourse with her.

[4]

After this incident, the complainant returned to the living room. She
    was still upset and went for a walk with M.W. The complainant admitted, in a
    statement to the police, that she engaged in consensual intercourse with M.W. in
    a stairwell approximately 1-2 hours after the alleged assault.

[5]

At the outset of the trial, the appellant's trial counsel brought a
Seaboyer
application for an order pursuant to the
Criminal Code
, s. 276, to
    permit the appellant to lead evidence of the subsequent sexual encounter with
    M.W. The trial judge disagreed with the defence counsel`s argument that the
    evidence of the subsequent sexual encounter [was] relevant to the narrative of
    events and would assist the jury in understanding how the events unfolded. He
    dismissed that application on the ground that, in the absence of expert
    evidence [as] to how the complainant was supposed to have acted within an hour
    or two of the alleged assault, the evidence of the subsequent sexual conduct
    had little probative value.

[6]

M.W. was then called by the defence and testified that when the
    complainant and the appellant were in the bedroom, he heard sounds of giggling,
    laughing and what sounded like two people engaged in consensual sex. Crown
    counsel cross-examined M.W. to the effect that the complainant wanted to be
    left alone when she was in the bathroom, despite the attempts by M.W. and I.O.
    to comfort her. Crown counsel also questioned M.W. about how the complainants
    emotional state could change so rapidly from being upset in the bathroom to
    apparently giggling and having consensual sex with the appellant. She also
    asked questions about the complainants emotional state after her sexual
    encounter with the appellant. For example:

Q.        Right, Now, Im going to suggest to you
    that when you went out into that stairwell with her, she was not behaving
    normally at first, was she?

A.        She was  she was pretty straightforward.
    Like, she was talking to me

Q.        You were

A.        and

Q.        Im sorry.

A.        She was talking to me and I was just
    trying to cheer her up and she was slowly getting back to normal, and she was
    laughing with me. We were cracking jokes

Q.        Right.

A.        and everything seemed fine.

Q.        Which would make sense because youre a
    friend of hers; correct?

A.        Mhmm.

Q.        Right. But when you first went out there
    with her, she was still upset; right?

A.        Yes.

Q.        Yes. And you were concerned that she may
    not be okay; correct?

A.        Yes.

...

Q.  So you did have some concerns about [the
    complainants] emotional state in that stairwell, didnt you?

A.

Yes, I did.

Q.        Yes. And that evening, throughout the evening,
    youve already told us that [the complainant] wanted you and [I.O.] to leave
    her alone when she was in the bathroom; correct?

A.        Thats correct.

Q.        Right. She really didnt want to be
    around anybody that evening, did she?

A.        At that  at the moment in the bathroom,
    she didnt want to be around anybody while she was crying.

[7]

Crown counsel also asked the following questions about the complainants
    boyfriend:

Q.        you knew that she and [I.O.]
    had been in a relationship; correct?

Q.        And Im going to suggest to
    you that they were in fact in a relationship on this particular date?

Q.        she and [I.O.] were fine
    with each other that night; isnt that correct?

[8]

These questions elicited evidence that the complainants boyfriend was
    present in the apartment that night and the complainants relationship with him
    that night was fine.

[9]

Following the cross-examination, the appellants trial counsel renewed
    the
Seaboyer
application on the ground that the Crown was advancing the theory
    that the complainants emotional condition was such that she would not have
    consented to sex. The appellants counsel argued that the evidence that she had
    engaged in consensual sex with M.W. very shortly thereafter, when she was still
    in an emotional state, should now be admissible. The Crown argued that the
    cross-examination was targeted at undermining M.W.s credibility.

[10]

The trial judge dismissed the second
Seaboyer
application on the
    basis that the objection of the defence counsel was to suggestions made by the
    Crown and not to actual evidencebefore the court. As such, any resultant
    prejudice could be dealt with by instructions to the jury. The trial judge also
    cautioned Crown counsel not to suggest in her jury address that it was
    unreasonable to think a person can go from being on the floor to having, you
    know, giggling sex a half an hour later. In response to a question from Crown
    counsel, the trial judge clarified that he was instructing Crown counsel to
    avoid any reference to the time element between the floor and the bedroom. He
    also stated that there was no evidence about human behaviour, how behaviour
    changes over time, et cetera before the court and to therefore stay away from
    that point.

[11]

The trial judges ruling prevented the defence from establishing in the
    re-examination of M.W. that despite the complainants upset state and her
    fine relationship with her boyfriend who was there that night, she had she
    engaged in consensual sex in the stairwell shortly afterwards.

[12]

In his jury address, trial counsel for the appellant suggested, among
    other things, that the complainant was upset with her family, depressed, sick
    from drinking and that her relationship with I.O. was not really on. He
    suggested that what you have here is all the makings for someone being open to
    looking for comfort and acceptance, if even momentarily, in the intimacy of a
    sexual encounter.

[13]

Crown counsel, in her jury address, stated that it was the Crowns
    theory that the appellant saw the complainant in a weak and vulnerable state
    and preyed upon her to his own advantage. Crown counsel pointed out that the
    complainant trusted both M.W. and I.O. She had known M.W. for some time and
    I.O. was her boyfriend. The appellant was different; the complainant had only
    known him for a very short time and she testified that she had no romantic or
    sexual interest in him.

[14]

As to defence counsels suggestion that the complainant was seeking
    comfort from the appellant, Crown counsel responded:

Once again, ladies and gentlemen, I urge you to
    rely upon your common sense. The evidence from [the complainant] is that she
    was dating [I.O.] She was having problems with her parents because they did not
    approve of [I.O.] She did not stop seeing [I.O.] despite the problems it caused
    with her parents. She was in fact, living with [I.O.] at Jamies place. Her loyalty
    is to Jamie [sic].

[15]

Crown counsel went on to refer to the attempts by M.W. and I.O. to
    comfort the complainant in the bathroom to bolster her argument that it was
    unlikely she would seek comfort from the appellant:

M.W. further said I.O. was trying to comfort [the
    complainant] and that she expressed the desire to be left alone. Further, M.W.
    himself said he tried to comfort [her] and she again wanted to be left alone.
    Does it make any sense whatsoeverthat if [the complainant] does not want the
    comfort of her boyfriend and her close friend that she would want the comfort
    of the defendant, a man she barely knew a man she referred to as only an
    acquaintance, in whom she had no sexual or romantic interest?

I urge you to find, ladies and gentlemen, that that
    suggestion defies common sense. [The complainant] denies ever wanting comfort
    from Jamie and it is clear from the evidence of [M.W.] she wanted comfort from
    nobody. She wanted to be alone.

[16]

Crown counsel then said the following, which, when read in the context
    of the cross-examination and overall theory of the case, could leave the
    impression that it was the Crowns position that given her emotional and
    mental state on the night in question, the complainant would not have
    consented to sex with anyone. This was combined with a reference to the sanitized
    version of the encounter between the complainant and M.W. in the stairwell:

[The complainant] described for you
    her emotional and mental state on the evening in question. She told you how she
    tried to fight off Jamie but was unsuccessful. She was a very young girl in an
    extremely vulnerable state. She was not seeking comfort. She was seeking only
    to be left alone so she could sober up. Jamie was nine years older than her. He
    saw her weakened condition and he decided to use it to his own advantage. [M.W.]
    himself confirms that when [the complainant] left that bedroom and went out in
    the stairwell, she was angry - at Jamie.

[17]

Defence counsel did not object to Crown counsels jury address and did
    not suggest that she had violated the trial judges order. Neither counsel
    raised any objections to the jury charge.

Analysis

[18]

We agree with the trial judge`s finding that, as per s. 276(1) of the
Criminal
    Code,
the excluded evidence, standing on its own, was not admissible to
    prove that because the complainant had consented to sex on another occasion she
    was more likely to have consented to sex with the appellant.

[19]

It may be that all Crown counsel meant to suggest through her
    cross-examination and jury address was that given the complainants emotional
    and mental state and her only passing acquaintance with the appellant, she
    would not have consented to sex with the appellant on the occasion in question.
    However, the cross-examination must be viewed in conjunction with Crown
    counsels jury address.

[20]

Even though Crown counsel did not violate the trial judges order, the
    effect of the cross-examination and the jury address was to suggest that one
    reason the complainant would not have consented to sex with the appellant was
    because she still had a relationship with her boyfriend, I.O. Another effect
    was to suggest that the complainant would not have had sexual relations with anyone
    at all because of her emotional and mental state at the time. However, a brief
    time after she was allegedly sexually assaulted by the appellant and at a time
    when she was still said to have been in an emotional condition, the complainant
    had consensual sexual relations with M.W.

[21]

Having excluded M.W.s evidence about what really happened in the
    stairwell from the evidentiary record, the Crowns cross-examination of M.W.
    and closing statement had the net effect, even if unintended, of presenting the
    jury with a misleading picture of crucial aspects of the incident that gave
    rise to this charge. The jury was left with the Crowns distorted narrative
    that the complainant was too upset to have consensual sex at a time relevant to
    the charge and that she would not have consensual sex with the appellant
    because she remained loyal to her boyfriend.

[22]

The problem that arose is not unlike what occurred in
R. v. Clarke
(1981), 63 C.C.C. (2d) 224 (Alta. C.A.). In that case, the accuseds statement
    to the police had been excluded as being involuntary. In that statement, the
    accused had told police that he had a blackout the day of the killing. There
    was other evidence that many months later the accused had said the same thing
    to a jailhouse informant. In his closing, Crown counsel had suggested the
    accused all of a sudden spoke about the blackout and that it was the first
    time that we have heard about this. While the facts are more egregious in
Clarke
than in this case, the principle stated at pp. 238-39 is applicable here:

To leave the jury with the impression that blackout
    was a concoction that first arose two months after the killing and was
    therefore a circumstantial contribution to the proof of guilt cannot stand.
I
    recognize counsel's obligation to comment on nothing but the admissible evidence
    during closing submissions. But this responsibility should not be inverted to
    encourage jurors to make findings in conflict with undisputed facts which did
    not reach their attention simply because of trial safeguards.
It is not
    possible to say what role a finding of concoction may have played in the jury's
    deliberations. [Emphasis added.]

[23]

Similarly, it cannot be said what role Crown counsels suggestions about
    the effect of the complainants emotional condition played in the jurys
    deliberations. What can be said, however, is that the complainants emotional
    condition formed a central plank in the Crowns theory that the complainant
    would not have consented to have sex with the appellant. If the jury accepted
    that argument because they believed the complainants loyalty was to I.O. or
    because she was not capable of having consensual sex when in an emotional or
    upset condition, the jury would have reached its verdict on a distorted view of
    the facts.

[24]

In our view, the excluded evidence became relevant to the Crowns
    particular theory of the case. Had the Crown not advanced a theory that was
    inconsistent with the excluded evidence, there would have been no problem.
    However, given the manner in which the Crown chose to present its case, the
    excluded evidence acquired significant probative value to the defence on the
    inferences to be drawn from her upset state and loyalty to her boyfriend. That
    probative value was not substantially outweighed by any danger of prejudice to
    the proper administration of justice. In our respectful view, the trial judge
    erred by permitting this distortion to occur and at the end of the day, the
    appellant was denied a fair trial.

[25]

For that reason we conclude that that the accused was denied his right
    to a fair trial.

2. Did the
    trial judge erred by leaving incapacity to consent with the jury?

[26]

Given our conclusion on the first issue, strictly speaking it is not
    necessary for me to consider this issue. In any event, we am satisfied that
    there was no error. Defence counsel raised the issue in his jury address and
    told the jury that the trial judge would be defining consent and that there can
    be no consent if the person is so drunk you dont know what youre doing. The
    trial judges instructions to the jury on consent were correct. He later made
    it clear that it was the Crown theory that the complainant did not in fact
    consent; there was no suggestion that the Crown relied on incapacity as a
    result of intoxication. There was no objection to the charge and no submission
    from defence counsel in the pre-charge discussion that the trial judge should
    not deal with the issue. In our view, the defence was not prejudiced by the
    trial judges correct definition of consent.

Disposition

[27]

Accordingly, we would allow the appeal, set aside the conviction and order
    a new trial. It goes without saying that the admissibility of the evidence of
    the complainants subsequent sexual conduct will have to be assessed afresh at
    the new trial in the light of the evidence and positions taken by the parties.

M. Rosenberg J.A.

Robert J. Sharpe J.A.

R.G. Juriansz J.A.

RELEASED: January 13,
    2012


