R. v. Clermont

Lamer J.‑‑This appeal raises only one question, that of whether the similar fact evidence presented by the Crown at respondent's trial was admissible.

The Facts

On June 3, 1982, after trial by a judge and jury, respondent was convicted of raping L. Following his arrest for this incident, he made an extra‑ judicial statement to the police in which he admitted having had sexual relations with the complain­ant. He also admitted that she had resisted. However, he added that "in the fury of passion, I perhaps did not realize what was happening".

Clermont, who appeared on his own behalf, cross‑examined the complainant at length, seeking to make her admit that she had consented to having sexual relations. He took advantage of this cross‑examination to state himself that she had consented. Essentially, the accused made the following two arguments: "I think she consented, and if she did not, I can tell you her actions were such that I honestly believed she had consented". In response to the extrajudicial statement and the statements made in court, the Crown led similar fact evidence of a rape committed by respondent some five years earlier in allegedly similar circumstances. The present appeal raises the question of whether this evidence was admissible.

Superior Court Judgment

Following a voir dire, Rothman J. of the Superior Court ruled that the earlier incident was sufficiently similar to be regarded as a similar fact. He allowed it to be presented to establish that the accused intended to have sexual relations with the complainant in spite of her having refused consent and to counter a defence of honest belief in consent. While realizing the prejudice to the accused that could result, he allowed the evidence because, as he said, "it is evidence that is highly relevant to an issue before the jury". In his charge to the jury Rothman J. said, regarding the use they should make of this evidence:

I wish to talk to you about the similar fact evidence or the so‑called similar fact evidence given by [S.] concerning the events she described following her meeting the accused at a "Laundromat" in February of 1975. The first principle that I must give you here is that you are not to use the evidence of the [S.] incident to infer that the accused is a person whose character or disposition is such that he is likely to have committed the offence in the present case. That is not its purpose and you are not to conclude that because of the acts he did with Miss [S.] he must have committed the crime charged in the present case. The guilt or innocence of the accused in this case must be decided on the evidence supporting the charges against him in this case and not what he may have done in the past. He is not being tried today for the events that occured [sic] in 1975 as described by Miss [S.]. The sole purpose, the only purpose for which this similar fact evidence may be used relates to the intention of the accused and whether or not he knew that madam [L.], the complainant in this case, was not consenting. That is the sole purpose for which that evidence may be used and the questions that you will have to ask yourself will be the following: did the accused intend to have intercourse with madam [L.] without her consent? Was his association with madam [L.] an innocent association between two consenting adults or did the accused intend to have sexual intercourse with her without her consent? If madam [L.] was not consenting, as she says she was not in her evidence, did the accused know that she was not consenting? Now, you will recall that in his statement, the accused stated that although madam [L.] told him to stop and although she struggled, he did not realize what was happening in the fury of his passion. The Crown has tendered this similar fact evidence to establish a pattern of similarity and to rebut a defence of innocent association or a defence of mistake in the present case. In short, the only purpose of this evidence is to rebut a defence of honest belief in consent. You are therefore entitled to consider the evidence of Miss [S.] not for the purpose of inferring that the accused was the kind of person likely to commit this kind of crime, but for the purpose of determining the intention of the accused as regards madam [L.] and whether he honestly did not realize she was not consenting as he suggests in his statement. You are entitled to infer from the evidence, although you are not required to do so, that the similarities in the two cases are such that the acts in both cases were committed by the same person and that the intention was the same in the both cases. It is entirely for you to decide whether such an inference should be made.

...

It will be for you to consider whether these similarities are sufficiently similar sufficiently striking in their similarity so that the acts must have been committed by the same person with the same intention in each case. If you conclude that that is the case, then the evidence of Miss [S.] may assist you in deciding what was the intention of the accused in the present case and whether or not the accused knew or realized that madam [L.] was not consenting, if you believe that she was not consenting.

Quebec Court of Appeal

A majority of the Quebec Court of Appeal (Bisson J.A. and Chevalier J. (ad hoc)) reversed this decision and ordered that a new trial be held: (1985), 46 C.R. (3d) 68. Chevalier J. doubted the similarity of this evidence (at p. 85):

[TRANSLATION] Assuming, as my two brethren did, that essentially the Crown was only trying to establish in the case at bar that the victim did not consent, I consider that most of the similarities found by the trial judge to exist between the two events are not significant and have no connection with the fundamental question of deciding whether she consented.

Bisson J.A. said (at p. 83):

[TRANSLATION] As we know, the key issue was the absence of consent.

I do not see how the absence of consent by a victim raped four years and eleven months earlier can aid in establishing the absence of consent by another victim, almost five years later.

He also considered that the five years which had elapsed between these two incidents deprived the similar fact evidence of any probative value. This evidence, which was likely to cause irreparable damage to the accused, should not in the opinion of Bisson J.A. have been allowed.

Finally, Turgeon J.A., dissenting, concluded that the evidence was relevant to establish the mens rea of the accused and would have dismissed the appeal.

The Law

I would dismiss this appeal. In light of the admissions made by the accused in the case at bar, the only elements left to be proved by the Crown were that the complainant did not consent and the accused's intent to disregard that lack of consent or his recklessness as to whether she was consenting or not. The fact that another complainant had not consented is of no relevance as to whether L. consented or not. In this, I agree with Bisson J.A. of the Court of Appeal. There remains the mens rea of the accused to ignore the absence of consent, that is his intent to have sexual relations despite L's failure to consent, or his recklessness as to whether she consented or not. Though very relevant, evidence of an earlier rape is not admissible when its only probative value is to establish that the accused is someone capable of disregarding the absence of consent by his victim, and that therefore he should not be believed when he says that she did consent or at least that he honestly and reasonably believed she had (Morris v. The Queen, [1983] 2 S.C.R. 190). This would in fact be its sole probative value in the present case.

It would have been otherwise, having regard to the particular circumstances, if for example the earlier rape had been similar in that the accused had alleged a belief in consent in similar circumstances. That evidence would then be led to counter the credibility of the accused in his defence of an honest mistake as to consent, and as such would be admissible, subject of course to the court balancing its probative value as evidence against the obvious damage caused the accused by evidence of a prior record for rape (see Sweitzer v. The Queen, [1982] 1 S.C.R. 949). In the present case however, there is nothing to indicate that the accused alleged a mistake as to his victim's consent in the earlier incident. The evidence of the earlier incident is therefore clearly not admissible.

For this reason, I would dismiss the appeal and uphold the order by the Court of Appeal for a new trial.