nunavuumi iqkaqtuijikkut

NUNAVUT COURT OF JUSTICE

La Cour de justice du Nunavut

Citation: R. v. IAN, 2011 NUCJ 09

Date: 2011-05-17
Docket: 15-08-60
Registry: Iqaluit

Crown: HER MAJESTY THE QUEEN

-and-

Accused: IAN

________________________________________________________________________

Before The Honourable Mr. Justice E. Johnson

Counsel (Accused): Thomas Boyd

Counsel (Crown): Leo Lane

Location Heard: Iqaluit

Date Heard: March 22-24, 2011
Matters: Charter Sections 7, 10(a), 10(b), 11(c) and 13;
Criminal Code Section 276, 276.1

REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication)

Restriction on publication:

By court order made under s. 276.3(1) of the Criminal Code, “No person shall
publish in any document, or broadcast or transmit in any way … the contents of
an application made under section 276.1; the evidence taken and the
representations made that will result in the publication of the name or identity of
the complainant.
I. INTRODUCTION

[1] The accused is charged by indictment with attempting to murder

his spouse M.T. He is also charged with assaulting her and
committing aggravated sexual assault while attempting to
suffocate and strangle her to enable him to commit the
aggravated sexual assault. Finally, it is alleged he made threats
to kill her and another person while he forcibly confined her.

[2] The accused challenges the voluntariness of a videotaped

statement he made to the police and has applied for leave to
cross-examine the complainant on her sexual history with the
accused under section 276 and 276.1 of the Criminal Code
(Code). He has also filed a Canadian Charter of Rights and
Freedoms (Charter) application requesting the exclusion of
evidence alleging the police breached his rights under sections
10(a) and 10(b).

[3] I heard evidence at voir dires held in Iqaluit and reserved

judgment.

II. FACTS

[4] The Crown led evidence from the two police officers that had
contact with the accused after his arrest and a civilian guard.
However, the Crown was unable to locate guard Richard
Harrington and he was not called as a witness. Instead, the
Crown led evidence from Dwayne Whitford to explain the efforts
that were made to locate Harrington.

[5] Constable Jeff Henderson testified that he received a call in his

police vehicle while on duty on the afternoon of May 30, 2008,
from the complainant’s brother-in law. He told him the accused
had tried to kill the complainant. Henderson visited the brother-
in-law’s house and spoke with him, the complainant, and her
sister. He was advised that the accused had pulled the
complainant’s hair and assaulted her.
[6] Henderson decided he had grounds to arrest the accused for
assaults and uttering threats. He went to the accused’s house,
arrested him, and placed him in a police vehicle. He then read
the standard police cautions to the accused and searched him.
The accused was under the influence of alcohol but appeared to
understand the cautions. He responded by apologizing for what
had happened. Henderson then read the standard police Charter
warnings for sections 10(a) and 10(b) from a police card and
asked the accused if he wanted to speak to a lawyer. The
accused responded that he did not want a lawyer and Henderson
took the accused back to the police station. He was placed in a
cell at 9:21 p.m. in the evening and was guarded by civilian
guard Richard Harrington. While the accused was being placed
in the cell Henderson heard him say, “Please God I am so sorry
for this domestic.”

[7] The Prisoner report form records that the accused was to be
charged with “attempt murder et al [sic].” It also noted that the
accused had tried to kill his spouse by choking her and that there
was a sexual assault.

[8] Henderson described the accused as being intoxicated, tearful

and upset. He was verbal but not violent. The Prisoner Report
form records the accused as being impaired by alcohol or drugs
because there was an odour of alcohol, slurred speech and
wobbling. It also recorded that he was confused, depressed and
angry.

[9] At 1:10 a.m., Henderson entered the cell and removed the
clothes worn by the accused for forensic testing. He was not
given any replacement clothes and was left naked in the cell with
only a blanket over him.

[10] Civilian guard Christina Innakatsik replaced Harrington at 9 a.m.

the following morning. She was on duty when Constable Michael
Simpson entered the accused’s cell at 10:09 the next morning.
[11] Simpson immediately noticed that the accused was naked
except for a blanket. He discovered his clothes had been seized
and that he was not provided with replacement clothes. He
immediately made arrangements to visit the accused’s parents to
obtain other clothing for him. He returned to the cell and gave the
clothes to the accused. The accused agreed to speak with
Simpson and at 10:37 a videotaped statement was taken from
the accused that lasted 37 minutes.

[12] I viewed the video and read a transcript prepared that was an
accurate transcription of the video.

III. ISSUES

A. Was the accused’s statement to the police voluntary?

B. Did the police breach the accused’s rights under section 10(a) and
10(b) of the Charter and, if so, what remedy should be granted?

C. Should I grant leave to the accused to cross-examine the

complainant about their sexual history under section 276 and 276.1?
A. Was the accused’s statement to the police voluntary?

A.1 Crown argument

[13] The Crown acknowledged the obligation discussed in R v

Kacherowski , [1977] AJ No 769, 37 CCC (2d) 257
[Kacherowski], to call all witnesses who had contact with an
accused person who gave a formal statement to the police or
provide a good explanation for their absence. It argues the
witness Dwayne Whitford provided a satisfactory explanation for
Harrington’s absence and relies on R v Settee, [1974] SJ No
317, 22 CCC (2d) 193 [Settee], to argue that the rule is not
absolute. In that case the police officers that escorted the
accused from his cell to the interrogation rooms were not called.
The Saskatchewan Court of Appeal held it was not necessary to
call them because they took no part in the interrogation of the
accused. The Crown is not required to call persons who were
only peripherally involved in the taking of the statement. Similarly
in R v Genaille,[1997] MJ No 341, 116 CCC (3d) 459 [Genaille],
the Manitoba Court of Appeal applied Settee and held it was not
necessary for the Crown to call the officers from the Sheriff’s
Office that escorted the accused from a jail cell to an
interrogation room.

[14] The Crown argues that the accused’s statement was voluntary
under the principles set out in R v Oickle, [2000] 2 SCR 3, 2000
SCC 38 [Oickle]. There were no promises or threats made to the
accused and he had an operating mind as indicated on the
videotape. There was no trickery employed.
[15] The only potential issue of oppression that arose from the
interrogation was the removal of the accused’s clothes. The
Crown distinguished Henderson’s actions in removing his clothes
from the situation in R v Hoilett, 1999 CanLII 3740 (ON CA), 136
C.C.C. (3d) 449 [Hoilett], discussed at para. 59 of Oickle.
Henderson removed the accused’s clothes after he discovered
there was a sexual assault issue. He had no intention of
pressuring the accused into giving a statement and simply
neglected to obtain some new clothing for the accused because
it was late in the night and his shift was ending. Henderson took
no part in the interrogation and when Simpson discovered the
accused had no clothes he immediately obtained some for him
before he started the questioning.

[16] The Crown argues that the statements made by the accused in
the police vehicle and the cells were not addressed to the police
officers. They qualify as emotional utterances that were not
made to a person in authority and were part of the res gestae.
Alternatively, they were part of the post offence conduct. If the
statements were made to persons in authority the accused had
been warned and cautioned and understood his right to remain
silent.

A.2. Defence argument

[17] The accused argues that taking the accused’s clothes was an
oppressive action similar to that discussed in Oickle. It took him
out of his comfort zone and made him vulnerable to police
pressure similar to the tactics used by the American jail in Iraq
called Abu Ghraib 1 . Furthermore, the police provided no
explanation for failing to provide the accused with replacement
clothing and Simpson testified it was not police practice to leave
a prisoner in that condition.

1
This example was raised by Counsel for the Accused during submissions. Many news stories
are available about this issue. One example is: Seymour H Hersh, “Annals of National Security:
Torture at Abu Ghraib” (2004) The New Yorker, online: <
http://www.newyorker.com/archive/2004/05/10/040510fa_fact > [viewed 2011-05-16]
[18] The accused argues the oppression was compounded by the
fact that a female guarded him. He was embarrassed by his
nakedness and asked for the lights to be turned out when he
realized a female guard had taken over from Harrington. The
combined effect of these conditions had a psychological effect on
his state of mind just before the questioning began. It was not
unlike the conditions present in Hoilett.

A.3 Analysis

[19] I am satisfied the Crown provided a reasonable explanation for

the failure to produce Harrington as a witness. Furthermore, he
had no involvement in the questioning of the accused. As
recorded in the guard book, the accused was asleep for most of
the time that Harrington guarded him.

[20] I am also satisfied that there no threats or promises made to the

accused and there was no trickery used to obtain the confession.

[21] The sole issue is whether there was an air of oppression created
when the accused was left naked in the cell from one o’clock in
the morning until the next day around ten o’clock when Simpson
first saw him and took steps to obtain other clothes.

[22] In Hoilett the accused was charged with sexual assault. He was
arrested at 11:25 p.m. while under the influence of crack cocaine
and alcohol. After two hours in a cell, two officers removed his
clothes for forensic testing. He was left naked in a cold cell
containing only a metal bunk to sit on. The bunk was so cold he
had to stand up. One and one-half hours later he was provided
with some light clothes, but no underwear and ill-fitting shoes.
Shortly thereafter, at about 3:00 a.m., he was awakened for the
purpose of interviewing. In the course of the interrogation, the
accused nodded off to sleep at least five times. He requested
warmer clothes and a tissue to wipe his nose. However, both
requests were refused.
[23] Hoilett testified and admitted knowing that he did not have to talk,
and that the officers had made no explicit threats or promises.
He said he believed the police would give him some warm
clothes and cease the interrogation if he talked to them.

[24] In the case at bar the accused did not testify and defence
counsel can only speculate about his psychological state. He
argues I should infer that the lack of clothing left him vulnerable
to police questioning and contributed to an overall air of
oppression.

[25] I am satisfied that the lack of clothing did not distress the
accused because a blanket covered him and he was asleep for
most of the time he was guarded by Harrington.

[26] Although I believe he was embarrassed when he discovered a

female had replaced Harrington, I am satisfied there was no air
of oppression as occurred in Hoilett.

[27] Simpson immediately took steps to rectify the mistake made by

Henderson and obtained other clothes from the accused’s
parents. He seemed comfortable as he waited for Simpson to
start the questioning. The omission to provide clothing was not a
police tactic to soften him up for questioning as appears to have
been the case in Hoilett. Furthermore, Simpson treated the
accused respectfully and politely and questioned him after he
had a good sleep. Hoilett on the other hand was mistreated and
questioned at 3 a.m. in the morning while he was very tired and
uncomfortable.

[28] I am satisfied the confession was voluntary and is admissible in

evidence at the trial.
[29] I am also satisfied that the statements in the police vehicle and
while being placed in the cell were made to persons in authority.
However, the accused had already been arrested and cautioned
when he made the statement in the police vehicle. It was
spontaneous and was not elicited by Henderson. The statement
in the cells took place after the accused had been given his
Charter rights and had declined to speak to counsel. It was also
spontaneous and not elicited by Henderson.

[30] While the accused was under the influence of alcohol,

Henderson testified that he appeared to understand the cautions.
Since the accused did not testify there is no evidence to
contradict him. I am satisfied the statements were voluntary and
are admissible in evidence.

B. Did the police breach the accused’s rights under section 10(a)
and 10(b) of the Charter, and if so, what remedy should be
granted?

B.1 Defence argument

[31] The accused abandoned the argument under section 10 (b) of

the Charter. He only argues that he was not properly informed of
the charges he faced and did not understand his right to be
silent.

[32] Henderson testified that he arrested the accused for assault and
making threats. The accused’s statement about being sorry for
“this domestic” while being placed in cells indicates he believed
that he was charged with assault. There was no further contact
with the police until Simpson started the questioning and it is
reasonable to assume that the accused started the interview
believing that he was only facing an assault or threat charge.

[33] At the beginning of the interview the accused was alone and tried
to read some papers upside down that were on the desk. It is
reasonable to assume he was trying to find more about the
charges. However, the court is unable to determine what he was
looking at because the papers were not entered as exhibits.
[34] Innakatsik testified that the accused was very emotional and
upset when he finished the interview. Simpson told her to check
on him every five minutes instead of the usual 15 minutes
because the accused was now aware of the charges he was
facing.

[35] Simpson testified that the usual reason for the more frequent
checking was because of suicidal ideation. However, he could
not recall why he told Innakatsiak to check more frequently.
Nevertheless he accepted the accuracy of her evidence. The
accused argues that Simpson was not being forthright about his
intentions and knew there was some issue about the accused’s
understanding of the charges.

[36] The accused argues this evidence supports his argument that he
was not aware of the seriousness of the charges when Simpson
interviewed him. As indicated at p.6 of the transcript, Simpson
told the accused he would allow him to talk. This statement
combined with the confusion about the charges suggests the
accused was also confused about his right to silence.

[37] Section 10(a) entitles the accused to know and understand the
specific charges he was facing. His confusion about the charges
would have a major impact on his knowledge about the jeopardy
he was facing when he started the interview.

B.2 Crown argument

[38] The Crown argues the accused is simply speculating about his
understanding of the charges. He could have explained his
confusion by testifying but chose not to do so.

[39] The videotaped interview demonstrates that Simpson carefully

and patiently explained each of the charges the accused was
facing before asking him to give his version about what
happened.

[40] The Crown argues Simpson was credible when he testified about
the reason for the more frequent checking. He could not
remember why and accepted Innakatsiak’s evidence.
[41] The accused was fully aware of the charges and his right to
speak to counsel but waived his rights and freely spoke with
Simpson.

B.3 Analysis

[42] In R v Latimer, 1 SCR 217, [1997] SCJ No 11 [Latimer], Lamer

C.J. noted that the purpose of section 10(a) of the Charter was
as follows:

[28] Section 10(a) of the Charter provides the right to be informed

promptly of the reasons for one's arrest or detention. The purpose of
this provision is to ensure that a person "understand generally the
jeopardy" in which he or she finds himself or herself: R. v. Smith,
[1991] 1 S.C.R. 714, at p. 728. There are two reasons why the Charter
lays down this requirement: first, because it would be a gross
interference with individual liberty for persons to have to submit to
arrest without knowing the reasons for that arrest, and second, because
it would be difficult to exercise the right to counsel protected by s.
10(b) in a meaningful way if one were not aware of the extent of one's
jeopardy: R. v. Evans, [1991] 1 S.C.R. 869, at pp. 886-87.

[43] Since the accused has abandoned the section 10(b) argument
the sole focus of my inquiry is whether he generally understood
the jeopardy he was facing when he began the interview. Lamer
C.J. noted that in considering section 10(a) a court should look
beyond the exact words used by the police and focus on whether
what the accused was told was sufficient to permit him to make a
reasonable decision to decline to submit to arrest or alternatively
to understand his right to counsel under section 10(b) as held by
the Court in R v Evans, [1991] 1 SCR 869, 63 CCC (3d) 289
[Evans].
[44] Henderson told the accused he was being arrested for assault
and making threats and advised him of his right to silence and
right to counsel. The accused declined a lawyer and was placed
in cells while the police further investigated the allegations. It was
only later in the evening after the police conducted a more
comprehensive interview with the complainant that they
discovered that there was a potential sexual assault as well.
There is no direct evidence that the accused was informed of the
reason for his clothes being seized. It is a reasonable inference
that the accused was aware that more charges were likely
coming.

[45] The accused acknowledged at the commencement of the

interview that he had read the charges. Simpson then described
the first charge as attempted murder and asked the accused if he
had any questions. The accused responded that he wanted to
make a comment but he was stopped by Simpson and told that
he wanted the accused to be aware of a number of things before
he said anything. The accused then said he was going to kill
himself and asked if he could get help. Simpson said they could
talk about that after the interview and he would see what he
could do for him, although he could not promise anything.

[46] Simpson then told the accused the second charge was
aggravated sexual assault stating:
“The second charge is what they call Aggravated Sexual Assault
without a firearm, so there was some sexual activity that was sort of
serious in nature. Does that make sense?”

[47] The accused responded “Yeah” and Simpson moved on and

described the next charge as overcoming resistance to the
commission of an indictable offence. He told the accused he was
not familiar with the charge stating:
“…but there was something criminal going on and you were sort of
involved in it and we’ll talk about contacting a lawyer and they can go
over some of these charges with you as well.”
[48] Simpson told the accused that the fourth charge was uttering
threats and told him that charge was about the accused making
a threat to people about possibly hurting them.

[49] Simpson then asked the accused if he understood those four

charges and the accused responded in the affirmative. Finally
Simpson explained the failure to comply with an undertaking
charge.

[50] Simpson then explained to the accused that there was a 24-hour
Legal Aid number where he could get legal advice free of charge.
He told him if he wanted to speak to a lawyer, Simpson would
leave the room so that he could have some privacy. He then
asked the accused if he understood all he had said and the
accused responded in the affirmative. Simpson asked the
accused if he wanted to make a call and the accused responded
in the negative. Simpson said “I would strongly advise” when he
was interrupted by the accused who said:

“They are going to say “Don’t say anything.” And I’m right here, I’m
in the position, that I did something really wrong, I scared her and I’m
gonna do what, I’m going to cooperate as best as I can and make it as
easy as possible.”
[51] After Simpson said he understood the following questions and
answers took place:

IN: I know I did something wrong—

MS: -Right, I appreciate that-
IN-and I am willing to make a statement.
MS: Okay fair enough. So you’re, ‘cause I would strongly suggest you
do call.
IN: They’re going to say, “Just don’t say anything.”
MS: Okay.
IN: They’ll say,“Don’t say a word”, but I did something really wrong
and I want to get punished for it cause-
MS: Okay, let me read the final part. So basically as you know, you
know, I gave you the reasons why you are here and you don’t need to
say anything, right. You have no, I’m going to read this by word so I
have it all down. You have nothing to hope from any promise or
favour and nothing to fear from any threat whether or not you say
anything. So anything you do say is used in as evidence, okay. So
anything you say, like I’m writing things down, we tape things-
IN: Yeah
MS-of course, we’re at the police station, so I just want you to be
aware what we say gets recorded and it gets to be used later in court.
IN: Yeah
MS: Are you aware of that?
IN: Yes.
MS: Do you understand that?
IN: Yes.
MS: Okay so having said that do you still not wish to contact a
lawyer?
IN: No.
MS: Are you sure?
IN: Yes.
MS: Okay. All right cause I would strongly advise that you do so, so
just for the record, okay. Cause I want to make sure everything is fair
for you, okay…

[52] I am satisfied that the accused was fully aware of the jeopardy
he faced and of his right to speak to counsel. He had sufficient
previous experience with the criminal justice system to know he
would be advised not to say anything and, accordingly, did not
want to speak to a lawyer. He declined to speak to a lawyer
despite the persistent advice of Simpson to do so.
[53] Simpson carefully reviewed with the accused each charge he
was facing and the accused indicated he understood. Simpson
was unable to explain the nature of the charge under section 246
and suggested the accused contact a lawyer to obtain assistance
on it. While the accused may have initially understood that he
was only charged with spousal assault he should have been fully
aware after the discussion with Simpson that he was facing very
serious charges. Since he did not testify there is no evidence to
contradict the video statement reviewed above and it is pure
speculation that he was confused and did not understand his
jeopardy.

[54] As a result I am satisfied his section 10(a) rights were not

breached.

C. Should I grant leave to the accused to cross-examine the

complainant about their sexual history under section 276 and
276.1?

C.1 Factual background

[55] As held in R v Darrach, [2000] SCJ No 46, 2000 SCC 46

[Darrach], section 246.1(2)(a) requires the accused to file an
affidavit with “detailed particulars” of the evidence he seeks to
adduce from the complainant.

[56] At the commencement of the application, I noted the accused

had not filed the requisite affidavit. I suggested to counsel that I
proceed in the same fashion as Spies J. did in R v BB, [2009] OJ
No 862, 2009 CarswellOnt 1082 [B.B], by permitting the accused
to file a late affidavit. Both agreed and the application was
adjourned until later in the week.

[57] The Crown objected to the affidavit filed by the accused because
it did not provide sufficient particulars of the alleged sexual
activity and I gave the accused a further opportunity to file a
supplementary affidavit.
[58] The Crown argued that the supplementary affidavit was still
defective because it did not link the evidence to the proposed
defences. I overruled the objection and held that the accused
had satisfied the first stage of the application and permitted the
Crown to cross-examine the accused on the affidavit.

[59] Paragraph 2 of the supplementary affidavit deposes that the

accused learned that the complainant alleged that he wrapped a
pillowcase around her head.

[60] Paragraph 3 deposes that at the trial the accused expects to

testify that it was common for them to engage in sex play that
involved tying her up with items like sheets and clothing. They
engaged in this type of activity on the date of the offence.

[61] Paragraph 4 states that this evidence is relevant to his belief that
the complainant was consenting to the activities that took place
on that date.

[62] Paragraph 5 states that the accused was advised by his lawyer
that the evidence about these activities is relevant to the charges
of attempt murder, aggravated sexual assault, and the charge
under section 246.

[63] Paragraphs 6 and 7 depose that choking the complainant during

lovemaking was a common feature of their consensual sexual
relationship for many years.

[64] Paragraph 8 deposes the complainant and the accused

participated in a ritual where he would carry her up the stairs for
sex as if he was overcoming her resistance.

[65] Paragraph 9 deposes that this evidence is relevant to the issue

of consent or honest but mistaken belief in consent.
[66] The accused was extensively cross-examined by the Crown on
the affidavit and his evidence about the sexual activity can be
summarized as follows:

(a) The accused and complainant had been in a common-law

relationship for 7 years prior to the date of the alleged
offences;
(b) They had a very active sexual relationship that included daily
intercourse;
(c) In 2002, they engaged in sexual experimentation with pseudo
rape where he would tie her hands over her head so she
could not move. This activity happened about once a week;
(d) In 2004, the accused read about the use of choking during
sex to enhance sexual pleasure and the complainant agreed
to try it. She seemed to really enjoy it and it became a regular
feature of their sexual activity. The accused would sometimes
use his hands and sometimes would use a pillowcase. During
the choking the complainant would lose consciousness for
about 15 seconds. Sometimes she would hold her breath as
an alternative;
(e) The pseudo rape often involved the accused treating the
complainant roughly when he grabbed her arms and pulled
her hair. Sometimes the rough treatment caused some
bruising and hair loss. The sex was usually initiated by the
accused picking up the complainant and carrying her up to
the bedroom.
[67] On the evening of the alleged offences they hot-knifed some
marijuana and he asked her if she wanted to have sex. She
agreed and he picked her up and carried her to the bedroom.
She performed oral sex on him and then he tied her up and
started to put on a condom. She got upset because he wanted to
use a condom. He believes that she thought he used the condom
because he suspected she might have had sex with someone
else and was protecting himself so he would not catch a sexually
transmitted disease. He then performed oral sex on her and
concluded she had sex with someone else. He asked her if she
had sex with someone else. She started yelling and then began
swinging her arms and kicking him. The sex stopped and one of
their children woke up. The complainant went to check on the
child while the accused sat on the bed. The complainant came
back and offered to perform oral sex. The accused declined and
pulled the complainant’s hair as he brought up her past
relationships. The complainant denied having sex with other
men. The accused responded he knew something was going on
and would find out eventually. The evening ended when the
police got involved. No consensual rough sex occurred that
evening.

[68] On re-examination, the accused indicated that when he restricted

the blood flow to the complainant’s brain by choking her he also
knew she was breathing. He did not enjoy using a pillowcase to
choke the complainant but did it to give her pleasure. He also
slapped her sometimes when she requested him to do it.

C.2 Defence arguments

[69] The accused argues that the facts of this case are very similar to
those in B.B. and that the reasoning of Spies J. in paragraphs
20, 21 and 22 should be applied to this case. In that case, Spies
J. was satisfied that the cross-examination of the complainant
about her sexual history with the accused would not violate the
twin rape myths.
[70] The accused argues that this evidence is relevant to
understanding the broad parameters of the long-term sexual
relationship between them. If he is not able to cross-examine the
complainant about the past relationship he will not be able to
make full answer and defence.

C.3 Crown arguments

[71] The Crown argues that the accused admitted in cross-

examination that there was no consensual rough sex on the
evening of the alleged offence. As a result any questioning about
the past sexual history is irrelevant. The defence is that the
complainant consented and the cross-examination should be
restricted to what occurred on the date of the alleged offence.

C.4 Analysis

[72] In B.B, the accused deposed in his affidavit that there were at
least two occasions between March and August 2007 when he
and the complainant engaged in consensual activity that included
bondage and both vaginal and anal intercourse. The complainant
would initiate the activity and the accused would tie her hand to
the headboard and put a scarf over her eyes.
[73] During cross-examination on the affidavit. Spies J. described the
evidence from B.B., as follows:

[13] With respect to August 11, 2007, he testified that some time
between 12 and 1:00 p.m. in the afternoon, he and Ms. E. B. had
consensual sexual intercourse in the master bedroom of the townhouse
where Ms. E. B. was living, involving both vaginal and anal
intercourse. Mr. B. testified that Ms. E. B. initiated sexual activity and
asked him to "do it with a scarf". He knew what she meant based on
the prior occasions when they had used a scarf during sexual
intercourse. According to Mr. B., one of them grabbed a scarf from the
closet in the bedroom and at some point, he used the scarf to tie Ms. E.
B.'s wrists together and then tie her hands to the bars of the headboard
of the bed. Mr. B. was then cross-examined about the prior occasions
involving bondage that he alleged had occurred. He stated that the first
time this occurred, Ms. E. B. had asked that he tie her hands to the
frame of the bed with a scarf and that he was prepared to do so as long
as it pleased her. When Ms. E. B. first came up with the idea, it was
new for the two of them in their relationship. Mr. B. was unable to
specify a day or a time for the first or last occasion prior to the alleged
sexual assault. The only evidence he was able to give was consistent
with the evidence he gave concerning what he alleges happened on
August 11, 2007. According to Mr. B., on each occasion it was Ms. E.
B. who initiated the use of the scarf. It was only after considerable
cross-examination, when he was asked if he could recall any other
details, that he advised that a scarf was also used to cover Ms. E. B.'s
eyes and that he wore a condom on August 11, 2007.
[74] In granting leave to cross-examine the complainant, Spies J.
noted that Darrach did not suggest that evidence of prior sexual
activity could never be relevant. She then noted a number of
cases had held such evidence was relevant to show the
development of a relationship between the parties from a
platonic one to a sexual one. These included R v MM, [1999] OJ
No 3943, 44 WCB (2d) 186 [MM], R. v. Temertzoglou, [2002] OJ
No 4951, 56 WCB (2d) 184 [Temertzoglou], and R v Strickland,
[2007] OJ No 517, 72 WCB (2d) 787 [Strickland]. She concluded
with a reference to Professor Galvin’s article 2 stating:

[19] In addition I reviewed portions of Professor H.R. Galvin's article,

"Shielding Rape Victims in the State and Federal Courts: A Proposal
for the Second Decade,"… which was extensively referred to with
approval in Seaboyer. Professor Galvin is of the view that although
evidence of prior consensual relations between the accused and the
complainant is offered to prove consent, its probative value rests on
the "nature of the complainant's specific mindset toward the accused
rather than on her general unchaste character" and that excluding such
evidence arguably denies the accused a fair opportunity to rebut the
charges against him.

[75] Spies J. held that the evidence of the accused concerning prior
sexual intercourse including bondage was relevant to issues at
trial as required by section 276(2)(b). She was also satisfied that
such evidence did not involve the twin myth reasoning prohibited
by section 276(1) because the sexual activity took place within
the context of a married couple. Noting the accused and
complainant were married and recently separated, Spies J.
concluded the jury would not have properly understood the
defence of consent to sexual activity involving bondage without
knowing that the complainant had consented to this type of
activity during marriage.

2
HR Galvin, “Shielding Rape Victims in the State and Federal Courts: A Proposal for the Second Decade”
(1986) 70 Minn L Rev 736.
[76] Finally, Spies J. was satisfied the evidence had significant
probative value that was not substantially outweighed by the
danger of prejudice to the proper administration of justice as
required by section 276(2)(c). She then considered the factors
specified in section 276(3) and concluded the evidence was
necessary for the accused to make full answer and defence to a
very serious allegation of sexual assault stating:

[24] This right is not outweighed by society's interest in encouraging

the reporting of sexual assault offences. There is no issue of
discriminatory belief or bias. Although the evidence may be
considered out of the usual, it is not shocking or otherwise prejudicial
to the complainant. Given the account the complainant will have to
give of the sexual assault she alleges occurred on August 11, 2007, I
do not believe permitting Ms. Kancharla to ask her a few general
questions to determine her position, with respect to the evidence of
Mr. B. about the two prior occasions of bondage, will significantly
impact her right of privacy or her personal security. As it is the fact of
bondage that is relevant, there will be no need to ask particularly
detailed questions about this prior sexual activity and this further
intrusion of her privacy interests will be relatively minimal. I have
already made an order prohibiting publication of the complainant's
name and identity. For the reasons given, there is a reasonable
prospect that this evidence will assist in arriving at a just determination
in this case. The substantial probative value of this evidence is not
outweighed by the danger of prejudice to the proper administration of
justice.

[77] In the case at bar the evidence from the accused was sufficiently
detailed to satisfy section 276(2) (a).

[78] In balancing “significant” probative value against the “danger of

prejudice” specified by section 276(2) (b), I must, as directed by
Darrach, consider whether the evidence is not so trifling as to be
incapable, in the context of all the evidence, of raising a
reasonable doubt. It is not necessary for the defence to
demonstrate strong and compelling reasons for the admission of
the evidence.
[79] The accused testified that he carried the complainant to the
bedroom and tied her up as they had done in the past. However,
he also stated that they did not engage in rough sex. I inferred
this meant that he did not engage in the choking activity. If this is
correct, the evidence of past rough sex that involved choking
with a pillowcase during sex is not relevant to counts 1,2,3,4 and
6. It may be relevant to counts 5 and 7.

[80] I am satisfied that the section 276(2) (b) is also satisfied in this
case and that the evidence is necessary for the defence to make
full answer and defence.

[81] I now turn to the factors in section 276(3). I find myself in the
same position as Spies J. and do not believe permitting defence
counsel to ask the complainant a few general questions about
their sex practices that involve bondage or sadomasochism will
significantly impact her right to privacy or her personal security.
Since this is a judge alone trial the risk of the invasion of privacy
rights is minimal and I will be able to control the extent of the
cross-examination without the risks posed by a jury trial.
IV. CONCLUSION

[82] The statements of the accused are admissible in evidence.

[83] The Charter application is dismissed.

[84] The accused is permitted to cross-examine the complainant on

the alleged consensual sexual activity with the accused involving
bondage and sadomachism in the period 2002 to the date of the
offence.

[85] Pursuant to section 276.3(1), I order that no person shall publish

in any document, or broadcast in any way the contents of the
application under section 276.1, the evidence taken and the
representations made that will result in the publication of the
name or identity of the complainant.

Dated at the City of Iqaluit this 17th day of May, 2011

____________________
Mr. Justice Earl D. Johnson
Nunavut Court of Justice