R v. Hanrahan, 2025 SCC 1 is a short oral decision — a mere paragraph dismissing the Crown’s appeal against a sexual assault acquittal. The Supreme Court affirmed the Newfoundland Court of Appeal’s decision (R. v. Hanrahan, 2024 NLCA 9, “NLCA Decision”) and in doing so they affirmed deference to the trial judge’s factual findings at the threshold stage of applications under s. 276 of the Criminal Code.
Facts
Mr. Hanrahan, the respondent, was charged with sexual assault contrary to s. 271 of the Criminal Code, RSC 1985, c C-46. The complainant and respondent were friends. They got together at the respondent’s apartment to watch a movie and drink wine; the complainant decided to sleep over. The complainant testified that after going to sleep in her onesie pajamas, she awoke to the respondent sexually assaulting her. Mr. Hanrahan testified that the complainant initiated foreplay and that sex was consensual. Consent was the central issue at trial (NLCA Decision, para 2).
Mr. Hanrahan and the complainant had previously been engaged in a sexual relationship, but were not at the time of the trial. It was accepted at the start of the trial that their prior sexual history was not relevant and that the jury would not hear evidence about it. This situation changed when under cross-examination that complainant testified that before the day of the sleepover, “this was the closest encounter we had had” (NLCA Decision, paras 5-6).
Mr. Hanrahan viewed this statement as inconsistent with her earlier statement to the police where she acknowledged a prior sexual relationship with the respondent. Mr. Hanrahan considered this inconsistency relevant to the complainant’s credibility and he applied under s. 276(2) to cross-examine the complainant on the existence of the prior sexual relationship (NLCA Decision, para 7).
The trial judge agreed that there was an inconsistency and allowed the s. 276(2) application (NLCA Decision, para 8).
In addition, a key piece of the Crown’s evidence included a series of text messages exchanged between the complainant and Mr. Hanrahan after the sleepover. The text messages contained statements that were highly damaging to Mr. Hanrahan (NLCA Decision, para 3); however, the judge restricted Crown counsel from using the text messages during direct examination of the complainant in order to reduce the possibility that the jury would improperly use the complainant’s text messages for the truth of their contents or as a prior consistent statement (NLCA Decision, para 4).
The jury acquitted Mr. Hanrahan on all charges. The Crown appealed Mr. Hanrahan’s acquittal to the Newfoundland Court of Appeal.
A majority of the Court of Appeal dismissed the appeal. Knickle J.A. would have allowed the appeal. The Crown appealed as of right to the Supreme Court.
Issues
- Did the trial judge err in law in allowing the respondent’s s. 276 application?
- Did the trial judge misapprehend the evidence in finding an inconsistency in the complainant’s evidence?
- Did the trial judge err in admitting evidence of prior sexual history to address the inconsistency?
- Did the trial judge err in refusing to allow Crown counsel to re-examine the complainant following her questioning by defence counsel about the prior sexual history?
- Did the trial judge err in law by unreasonably restricting the Crown’s use of the complaint’s text messages? (NLCA Decision, para 11)
Decision
The Chief Justice delivered the Court’s oral decision. In a brief paragraph, the majority dismissed the Crown’s appeal for substantially the reasons of the majority at the Court of Appeal. Justices Kasirer and Jamal, however, would have allowed the appeal. They substantially agree with the dissenting judge at the Court of Appeal that the trial judge erred in law by admitting the evidence of the complainant’s prior sexual history with the respondent, and that this error had a material bearing on the acquittal (as required by R v Graveline, 2006 SCC 16).
In the analysis below, I address only issues 1a) and 1b) because the other issues are procedural and unique to the trial judge’s management of the testimony in this case.
Section 276 Regime
The section 276 regime was developed as a result of the Supreme Court’s crucial ruling in R v Seaboyer, [1991] 2 SCR 577 [Seaboyer]. In order to respond with the wide-spread problem of the improper use of a complainant’s past sexual history in sexual assault trials, Parliament deemed such evidence presumptively inadmissible and prohibited its use for twin myth purposes — that the complainant’s past sexual history is per se probative to the issues of credibility and consent. However, in order to protect the accused’s constitutional right to a fair trial, the accused may make an application under s. 276(2) in order to admit the complainant’s prior sexual history for a legitimate purpose, such as to impeach the complainant’s credibility if the prior sexual history contains a prior inconsistent statement.
Analysis
The Crown can only appeal an acquittal on a question of law — in other words, the Crown cannot appeal an acquittal on the basis of factual findings that do not rise to the level of a legal error. Factual findings are generally owed deference on appeal. As a result, the Crown argued here that the trial judge made a legal error in allowing the respondent’s s. 276 application because he misapprehended the evidence: according to the Crown, the complainant’s statement on cross examination was not inconsistent with her prior statement to the police about her past sexual history with the respondent. It was at best equivocal. Thus, the s. 276 evidence was not adduced for a legitimate purpose, and it was not relevant to an issue at trial.
One may be forgiven for being confused as to the source of the legal error. The trial judge agreed with the respondent that the complainant’s statement on cross-examination was inconsistent — a factual finding. He determined that such inconsistency is probative to the question of the complainant’s credibility — a non-twin myth purpose. The sole issue at trial is consent and therefore the complainant’s credibility is crucial and a relevant issue at trial.
The trial judge therefore admitted the evidence under s. 276(2): (a) it is not being admitted for a twin myths purpose (it is admitted to impeach credibility), (b) it is relevant to an issue (the complainant’s credibility on the question of her lack of consent), (c) is of specific instances of sexual activity (localised to the complainant’s statement the police to about the existence of a past sexual history with the respondent), and (d) the past sexual history has significant probative value that is not substantially outweighed by the danger of prejudice.
The Crown did not dispute the trial judge’s understanding or application of the law, they dispute the judge’s apprehension of the evidence — the statement in question is not inconsistent, it’s ambiguous, equivocal, they said. But misapprehension of evidence is a factual error, or at best error of mixed fact and law (if the misapprehension is based on a legal error). If there was an error in the in classifying the statement as inconsistent, it is a factual error, not legal. As a basis to impugn the trial judge’s s. 276 analysis, this argument risks elevating a factual determination to the level of a legal error on which to overturn an acquittal.
This case is not really about s. 276 applications. It is about deference — deference to the trial judge’s apprehension of the evidence. Because it was possible to say that the complainant’s statement was ambiguous, the Crown argued that the trial judge made a legal error in his determination on the s. 276 application. This analysis undercuts the principle of deference to trial judge’s factual findings. Moreover, it puts the bar for admission of past sexual history far too high. Seaboyer was clear — past sexual history may need to be admitted in order to safeguard the accused’s constitutional rights to a fair trial.
Sometimes the probative value of past sexual history will outweigh the danger of prejudice and potential of twin myth reasoning. In Goldfinch, 2019 SCC 38, the Supreme Court said that evidence of a prior sexual relationship may be relevant when a complainant has offered inconsistent statements regarding the very existence of a sexual relationship with the accused (para 63). The standard for admission of such evidence cannot be so high that it is effectively premised on the question of whether an appellate court will deem the statement entirely unequivocal.
The intervenor the Attorney General of Ontario however asked the Court to establish such a dangerous new legal rule:
It is the Attorney General of Ontario’s position that it is not enough to show that the complainant was possibly inconsistent. The inconsistency must be clear and unambiguous. Anything less than a clear inconsistency on a material point cannot be capable of justifying the admission of other sexual activity evidence under s. 276 of the Criminal Code. Statements by the complainant that are ambiguous, equivocal, non-categorical, or open to multiple interpretations lack sufficient probative value and do not adequately bear on the complainant’s credibility to justify admitting other sexual activity evidence for impeachment purposes. (Factum of the Intervenor Attorney General of Ontario, para 3).
What is the standard of ambiguity? Who should determine whether a statement is “equivocal, non-categorical, or open to multiple interpretations”? Should equivocality now operate as a legal standard to be decided on appeal? As applied to the case at hand, the trial judge did not find the statement to be ambiguous and “possibly inconsistent,” he found it to be in fact inconsistent. The Court of Appeal found the statement ambiguous; they acknowledged that it is reasonably capable of more than one interpretation and that in such cases, the trial judge’s determination is owed deference (NLCA Decision, para 63). According to the Ontario AG’s rule, however, the fact that this statement on appeal could bear more than one interpretation (i.e. as either inconsistent with her prior statement to the police, or not inconsistent because the complainant was speaking temporally about the status of her relationship at the point in time just before the incident) should be sufficient to set aside the s. 276 application as erring in law regardless of the trial judge’s determination.
This is a dangerous logic that the Supreme Court was right to reject out of hand. It is a welcome sign that these arguments received so little traction at the top court and that the bedrock principle of deference to a trial judge’s factual determinations was affirmed. It is worth observing that these arguments did appear to have some sway with two Justices of the Court — Kasirer and Jamal JJ.
This article was edited by Alexandre Cachon.
