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Abstract: Transcript of the Ruling on an Application under Section 276 of the Criminal Code
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R. v. Keevik, 2010 NWTSC 03 S-1-CR2009000033 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - vs. - STANLEY KEEVIK _________________________________________________________ Transcript of the Ruling by the Honourable Justice J. E. Richard, on an Application under Section 276 of the Criminal Code, at Yellowknife in the Northwest Territories, on January 4th, A.D., 2010. _________________________________________________________ APPEARANCES: Ms. J. Walsh: Counsel for the Crown Mr. H. Latimer: Counsel for the Accused ---------------------------------------- Charge under s. 271 Criminal Code of Canada An order has been made banning publication of the identity of the Complainant/Witness pursuant to Section 486.4 of the Criminal Code of Canada Official Court Reporters 1 THE COURT: On this application, the 2 accused seeks a ruling on the admissibility of 3 evidence that he wishes to adduce at his jury 4 trial - evidence of previous consensual sex 5 between he and the complainant. 6 At the trial the complainant is expected to 7 testify that on or about September 27th, 2008, 8 she was sexually assaulted by this accused who 9 was at the time an acquaintance or friend of 10 hers. At the trial the accused is expected to 11 raise the defence of consent to the sexual 12 assault. 13 On this application, the accused has 14 provided evidence of a statement made by the 15 complainant to the investigating RCMP officer two 16 days after the alleged assault. That evidence is 17 in the form of a transcript of her statement 18 which is in a question and answer format. After 19 a series of questions and answers about the 20 alleged incident, the police officer asked this 21 question: 22 Question: Had you and Stanley 23 ever been sexually involved before? 24 Answer: No. 25 On this application the accused gives 26 evidence, both in affidavit form and viva voce, 27 that he and the complainant had had consensual Official Court Reporters 1 1 sex on a prior occasion, specifically in June or 2 July of 2008, at a specific motel room in 3 Yellowknife. 4 On this application, the accused seeks a 5 ruling of the Court under Section 276.2 that 6 would allow his counsel at trial to: 7 (a) ask the complainant in cross-examination 8 whether she had engaged in prior sexual activity 9 with the accused, 10 (b) adduce evidence of her statement to the 11 police when she denied prior sexual activity with 12 the accused, 13 (c) adduce evidence from the accused that 14 the accused and complainant had engaged in prior 15 sexual activity in June or July of 2008 in the 16 motel room. 17 Section 276.1 requires the accused to set 18 forth in his written application the relevance of 19 the proposed evidence to an issue at trial. The 20 grounds of relevance stated in this accused's 21 written application can be summarized as follows: 22 1. The evidence is necessary to show that 23 the complainant is careless with the truth and 24 thus it would be dangerous to believe her under 25 oath, and 26 2. The evidence is necessary to show the 27 true relationship between the parties as Official Court Reporters 2 1 circumstantial evidence in the case. 2 I will deal with the second ground in the 3 accused's written application. 4 With due respect, this is simply a 5 disingenuous attempt to circumvent the statutory 6 law of evidence which states that evidence of 7 prior sexual activity is not admissible to 8 support an inference that the complainant is more 9 likely to have consented to the sexual activity 10 that forms the subject matter of the charge 11 before the jury. There is no merit in the 12 submission that the mere fact of a prior sexual 13 relationship between accused and complainant is 14 relevant to an issue at trial. 15 The other claimed ground of relevance is 16 more problematic. 17 The accused wishes to show that the 18 complainant lied to the police officer about 19 their prior sexual activity and hence is a 20 witness who ought not to be believed by the jury. 21 He submits that the proposed evidence is thus 22 relevant to an issue at trial and that issue is 23 the credibility of the complainant. 24 In order for the jury to consider this use 25 of the proposed evidence for the purpose for 26 which the accused says he intends it, the jury 27 will have to embark on a collateral inquiry; Official Court Reporters 3 1 i.e., to consider the evidence of the 2 complainant's denial of prior sexual activity 3 when questioned by the investigating police 4 officer versus the accused's evidence at the 5 trial that there was indeed prior sexual 6 activity. And the jury will have to accept the 7 accused's evidence and decide that prior sexual 8 activity did occur before the jury could then 9 make very limited use of that finding on the 10 issue of weighing the credibility of the 11 complainant as a witness at the trial. 12 There is a real danger that the jury, in 13 embarking on that collateral inquiry, will be 14 distracted from their main inquiry and that is 15 whether the prosecution has proven that there was 16 non-consensual sexual activity on September 27th, 17 2008 as alleged in the Indictment. 18 The factual determination of whether or not 19 there was sexual activity between the complainant 20 and the accused in June or July 2008 would be as 21 difficult or more difficult for the jury to 22 resolve than the factual issues directly related 23 to the charge in the Indictment. 24 Although one can understand the 25 investigating police officer asking the question 26 he did of the complainant during the taking of 27 her statement, it was not a necessary question Official Court Reporters 4 1 nor was it relevant to the allegation she was 2 making against the accused. The topic of prior 3 sexual activity was not part of the complainant's 4 narrative in giving her statement to police but, 5 rather, was a collateral question or collateral 6 topic raised by the police officer during the 7 interview. This distinguishes the present case 8 from the factual situation in the Crosby decision 9 in the Supreme Court of Canada where the topic of 10 prior sexual activity was inextricably tied in 11 with the complainant's narrative in her statement 12 to the police about the charge under 13 investigation. 14 The claim of relevance of the proposed 15 evidence is tenuous at best. Its probative value 16 is substantially outweighed by its prejudice in 17 the sense that it will undoubtedly lead the jury 18 away from its main task and more importantly 19 there is a risk that the jury will make improper 20 use of the proposed evidence; i.e., to draw the 21 impermissible inferences that the Seaboyer rules 22 and the Section 276 rules were designed to 23 prohibit; that is, that by reason of prior sexual 24 activity the complainant is likely to have 25 consented to the sexual activity which forms the 26 subject matter of the charge before the jury. 27 In all of the circumstances, I find that Official Court Reporters 5 1 there is not a reasonable prospect that the 2 proposed evidence will assist the jury in 3 arriving at a just determination of this case. 4 When one looks at the words in the accused's 5 affidavit filed in support of his application, it 6 appears that the accused holds the view that the 7 mere fact of prior sexual activity means that the 8 complainant is less worthy of belief when she 9 asserts a complaint of sexual assault. 10 For more than 20 years the Courts in Canada 11 have stated that that is an improper inference or 12 line of reasoning. Parliament, in Section 276, 13 confirmed that it is an improper inference. In 14 the circumstances of the application before the 15 Court today, the Court has a duty to remove such 16 discriminatory reasoning from the fact-finding 17 process. 18 I take into account these and the other 19 factors listed in subsection 276(3) of the 20 Criminal Code, including the right of the accused 21 to make full answer and defence. 22 Upon careful consideration of the evidence 23 and the submissions on this application, I find 24 that the accused has not established that the 25 proposed evidence has significant probative value 26 that is not substantially outweighed by the 27 danger of prejudice to the proper administration Official Court Reporters 6 1 of justice. It is my ruling that the proposed 2 evidence is inadmissible at the accused's jury 3 trial. 4 I will just add that a criminal trial is a 5 dynamic process and in as much as this ruling is 6 made in advance of the actual trial evidence, any 7 such ruling on admissibility is subject to being 8 revisited as the actual trial evidence unfolds. 9 10 ------------------------------------- 11 12 13 14 Certified to be a true and accurate transcript pursuant 15 to Rules 723 and 724 of the Supreme Court Rules, 16 17 18 19 20 ____________________________ 21 Lois Hewitt, CSR(A), RPR, CRR Court Reporter 22 23 24 25 26 27 Official Court Reporters 7
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