R. v. Craig

2012 BCSC 2188 R. v. Craig

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Craig, 2012 BCSC 2188 Date: 20120928 Docket: 149472-3 Registry: Victoria Regina v. Aaron Edward Douglas Craig Before: The Honourable Mr. Justice Bracken Oral Ruling Re Cross-examination of Complainant Counsel for the Crown: J. Gillings and L. Baskerville Counsel for the Accused: C. Brennan Place and Date of Trial/Hearing: Victoria, B.C. September 28, 2012 Place and Date of Judgment: Victoria, B.C. September 28, 2012 [1] THE COURT: As is often the case with a trial of this nature, certain evidentiary issues arise and they arise at unexpected times. [2] In this case, we are with a jury and have the jury waiting and, as a result, a ruling needs to be made quickly, although these are issues that have been floating around in this case throughout the voir dires that we have held. [3] The issue that has arisen is that the complainant in this case, who is the first witness, has now finished her examination in chief. Before cross-examination commences, Mr. Brennan, as counsel for the defence, has raised certain issues that he wishes to canvass in the course of his cross-examination. Some of those issues are objected to by the Crown. [4] The first issue, and I will deal with them in the reverse order from counsel, is the issue of whether or not the prior sexual history of the complainant can be explored. The materials that were put

in, in examination in chief, were certain email communications between Mr. Craig and the complainant. Some of those relate to a prior sexual history to which the complainant has admitted to or asserted as something that is part of her life. [5] The defence wishes to explore that further and has raised the issue that if this falls into an exception, as pointed out in McWilliams; where the Crown has raised an issue of prior sexual history, then the defence should be allowed to explore it. [6] The references to the case law in McWilliams, in my view, are not cases that are similar to the issue that arises here for a couple of reasons. One, the first is the issue of relevance. In this case, the sexual assault and sexual interference are alleged to have taken place involving a victim who was under the age of 16 years. The alleged victim was said to be 13 years. Therefore, consent or any issues of credibility surrounding consent are not relevant. [7] Secondly, the issue with respect to Internet luring, as that charge is often referred to, Count 3 on the indictment, the gravamen of that offence is with respect to the communication by means of a computer system for a sexual purpose. One of the issues raised by Mr. Brennan in his submission is that the nature of this individual's sexual history is such that, once explored and developed through cross-examination, would lead someone,

perhaps the jury, the trier of fact in any event, to believe that she could not be as young as 13 and must be much older. [8] The difficulty with that argument, as Ms. Gillings for the Crown has pointed out, is that the accused cannot be misled by something that he did not know, and what he knew was what was contained in the communications. If he has any ability to form a belief, then that argument is already open to Mr. Brennan, based on the communications as they currently exist. [9] So I am not inclined to allow any further cross-examination or any cross-examination on the prior sexual history, with the exception of asking the complainant whether or not she is the author of the communications. [10] An issue raised by me was whether or not she could be asked whether or not what she said was true, and just so it is clear, I am not prepared to allow that question or questions like that to be put. [11] The next series of issues are collectively placed under the title of problems of the complainant. There are issues with respect to the complainant's life, with respect to the use of alcohol, the use of drugs, discipline both at home and at school, and perhaps the most contentious of these issues are a history of self-harm by cutting herself and perhaps issues of suicide or suicide ideation. [12] I am prepared to allow cross-examination on the complainant's use of alcohol and

drugs. I am prepared to allow questions on the discipline at home, insofar as that may be relevant with respect to any deception or fabrication or lies that she may have told, and with respect to any issues of credibility and discipline at her school. [13] I am not prepared to allow any questions on self-harm or suicide or psychological problems or emotional problems. The issue there, it seems to me, is one that has the dangerous aspect of allowing a jury to misuse that information to come to an erroneous decision. [14] I refer to the decision of R. v. Sims (1994), 87 C.C.C. (3d) 402, at p. 421, as referred to in R. v. J.H.S., 2007 NSCA 12, and particularly in the dissenting reasons of Mr. Justice Saunders. [15] The quoted passage from p. 421 of Sims is as follows: Evidence which is relevant to some issue before the court, and which is not excluded by any rule of evidence, is admissible. While the accused is protected by a rule of policy which excludes evidence of his or her [bad] character, except in certain well defined circumstances, evidence of the character of third parties, including that of the alleged victim of a crime, is not the subject of any similar proscription [citations omitted]. Thus, if the character of the victim of an alleged crime is relevant to some issue before the court, evidence tending to establish that character is admissible. [16] At para. 53 of

J.H.S., Mr. Justice Saunders stated: In summary, there is no exclusionary rule that would disallow evidence describing the bad behaviour or character of the complainant, similar to that barring disreputable character evidence against an accused. Because there is no rule excluding the complainant's own evidence about her conduct, the test for admissibility will depend on relevance, and weighing probative value against prejudicial effect. [17] Here the areas that I am not prepared to allow cross-examination on, in my view, are not relevant because they would lead to a stereotypical thinking that someone such as the alleged victim here, because she had emotional problems, should not be believed. Likewise, it seems to me that the nature of that behaviour is such that it could lead to misuse of that information by the jury, and therefore, I am not prepared to allow it. [18] So the cross-examination can canvass areas of drug use, alcohol use, discipline at home and at school, but there will be no questions allowed with respect to cutting, emotional problems, or psychological problems, including any suicide ideation. "J. K. Bracken, J." The Honourable Mr. Justice Bracken