Amy McQuaig

The accused, Azary Matanov, charged with sexual assault, brought a two-stage application under sections 278.93(1) and 278.94 of the Criminal Code to determine the admissibility of certain evidence (text messages, a selfie, a phone call, and a kiss) at trial.

The evidence was sought to provide context to the relationship with the complainant and to challenge her credibility.

The court granted the Stage One application, finding the evidence capable of being admissible, and subsequently granted the Stage Two application, finding the evidence admissible.

The court emphasized that in a judge-alone trial, the risk of improper use of evidence is diminished, and the probative value of the evidence for context and credibility outweighed any potential prejudicial effect, without engaging "twin myth" reasoning.

The applicant, J.L., sought leave to introduce electronic records and cross-examine the complainant, B.M., regarding their contents, as well as to testify about them, pursuant to section 278.94 of the Criminal Code.

The records included Facebook messages from November 2015 suggesting prior sexual activity, messages from April 2016 discussing sleeping arrangements and having a flirtatious tone before the alleged assault, and messages from April 2016 (the day after the alleged assault) and later, which discussed the sexual encounter and the complainant's departure.

The Crown and complainant's counsel objected to admissibility.

The court found the November 2015 messages relevant as a specific instance of sexual activity and potentially contradictory to the complainant's police statement.

The April 2016 pre-assault messages were found relevant for impeachment value and to provide context for the complainant's decision to come to the applicant's residence.

The April 2016 post-assault messages were deemed relevant as a potential prior inconsistent statement regarding the complainant's departure.

The court applied the factors under s. 276(2) of the Criminal Code, concluding that the records were not being adduced for prohibited inferences, had probative value, were necessary for full answer and defence, and would not prejudice the administration of justice or have a chilling effect.

All three sets of communications were admitted as evidence, and the applicant was permitted to cross-examine the complainant and testify regarding them.

The accused was charged with operating a motor vehicle with a blood alcohol concentration equal to or exceeding 80 milligrams of alcohol in 100 millilitres of blood, contrary to section 320.14(1)(b) of the Criminal Code.

The Crown sought to rely on a Certificate of a Qualified Technician to prove the breath test results.

The defence challenged the admissibility of the Certificate on the grounds that the accused was not properly served with notice of the Certificate as required by section 320.32(2) of the Criminal Code.

The trial judge found that the Crown failed to prove on a balance of probabilities that proper service had been effected and ruled the Certificate inadmissible.

However, the trial judge exercised discretion to permit the Crown to reopen its case to call the Qualified Technician as a witness.