Nowlin

Narrative: Lecture 4

Narrative as Helpful to Defence

In Brooks, a Canadian soldier was convicted at standing Court Martial of sexually assaulting a female soldier while on duty in Bosnia.

He was alleged to have forced intercourse on her in the early morning hours following a party both attended.

Brooks

He appealed his conviction on several grounds, including the fact that he was not allowed to call evidence of prior sexual activity by the complainant – arguably barred by s. 276.

The proposed evidence was to the effect that the complainant had told people at the party that she was going to masturbate and that it would only take her 5 minutes.

Brooks

Argued that this was not sexual reputation evidence, or evidence of prior sexual activity, but was rather part of the description or narrative of the events as they transpired at the party.

Bennett J.A. agreed. For him it was “general discussion occurring in a room with a number of people” and “could have been corroborative of Brooks’ position that she was receptive to the notion of sexual activity, particularly … Brooks’ evidence that when J.V. had woken up, she said she was horny earlier.”

Brooks

Bennett J.A. was therefore of the view that the “narrative evidence” could be admissible regarding the credibility of the evidence of the accused, as well as the consent of the complainant.

Robinson: Ont.C.A.

Robinson on trial for sexual assaults, allegedly consent (or belief therein) on several counts. Wished to call evidence of their prior sexual history under s.276.

The trial judge found that s. 276 had been met, and that the evidence was necessary so that “the jury could properly understand the relationship between [the two].”

Robinson

The trial judge reasoned that the jury could not properly understand the defence of consent to some of the unusual acts without knowing that the complainant had previously consented to such conduct during the course of the relationship.

The trial judge warned the jury against the prohibited uses of the evidence, and, as regarding the permitted narrative use, directed them that the evidence could be applied to the issue of consent “in the context of the total narrative or story between accused and complainant.”

The Ontario Court of Appeal agreed.

Nowlin: doesn’t this allow Robinson to do indirectly what he cannot do directly under s. 276? Ie. to allow prior sexual history evidence in as narrative, to allow, for example, the jury to form a position on the issue of consent using a “contextual view” of the relationship, is no more nor less than allowing prior sexual history to inform the complainant’s credibility on the issue of consent, all in the name of narrative.

Similar Fact v. Narrative

Similar Fact v. Narrative

Similar Fact v. Narrative

Harrassment Cases

Criminal harrassment cases in particular lend themselves to historical relationship evidence.

Criminal harrassment is repeated conduct that leads to the complainant reasonably fearing for their safety, and where the complainant feels harrassed by the repetitive behavior, to the knowledge of the offender.

Courts have accepted that background or relationship evidence between complainant and accused can properly inform the issue of the reasonableness of the complainant’s fear, as well as the accused’s state of mind.

Ryback

Was charged with harrassment between December 1993 and February 1994. The evidence began in 1992 with attendances at her workplace with gifts, then a police warning in 1992, and then a maternity leave by the complainant.

When she returned to the workplace in 1993, the visits recommenced.

Admissible? Yes.

Admissible regarding his intent (had been warned) as well as the reasonableness of the complainant’s fears.

In essence, his knowledge that the complainant was harrassed (or recklessness thereto) could only be assessed in light of the previous activity and warnings.

The Court continued …

Point

This is not narrative evidence, but rather, evidence relevant to the substantive elements of the offence, even if outside of the strict dates of the Indictment.

Nowlin: Can the Dangers of Possible Misuse of Narrative Evidence be Adequately Dealt with Through Jury Charge?

Conclusion