COURT OF APPEAL FOR ONTARIO
Gillese, Sossin and Monahan JJ.A.
BETWEEN
His Majesty the King
Respondent
and
E.F.
Appellant
Nicholas Xynnis, for the appellant
Heather Fregeau, for the respondent
Heard: January 22, 2026
On appeal from the conviction entered by Justice R. Dan Cornell of the Superior Court of Justice, sitting with a jury, on October 21, 2022.
REASONS FOR DECISION
I. Overview
1Following a trial by judge and jury, the appellant was found guilty of having sexually assaulted the complainant in an incident that took place on May 22, 2013 (the "Incident"). He appeals against conviction.
2Of the three grounds of appeal set out in his factum, the appellant abandoned the third at the outset of the oral hearing of the appeal. His primary focus was on the first ground, namely whether the trial judge erred in his s. 276 ruling. He also made very short submissions (both in writing and orally) on the second ground of appeal, concerning the guilty plea of another participant in the Incident.
3After hearing the appellant's oral submissions, the court found it unnecessary to call on the Crown to respond. We advised the parties that the appeal was dismissed, with reasons to follow. These are the promised reasons.
II. Background
a. The Incident
4The appellant and complainant were good friends. They met in high school and remained close throughout college and university.
5On May 22, 2013, the appellant and complainant exchanged texts in which the appellant invited the complainant to join him at the rural family property of his male friend P.G. The complainant testified that the appellant suggested having a "threesome" in numerous text messages. The complainant repeatedly responded that she was not interested in that.
6The complainant went to the property. She, the appellant, and P.G. sat around a fire but it was cold. To warm up, the appellant pulled his truck up to the fire, and he and the complainant sat on the tailgate. She testified that he started kissing her, which made her uncomfortable, and then suggested they move to an ice hut that would block them from the wind.
7On the complainant's version of events, once inside the ice hut, the appellant again raised the prospect of a threesome and the complainant again told him she was not interested in that and did not want it. After some sexual activity, the appellant either called out to P.G. or left the ice hut and returned with him. P.G. entered the ice hut at which point he and the appellant were on opposite sides of the complainant: one was in front of her and the other was behind her. They spun her back and forth, one penetrating her vaginally while the other received oral sex. The complainant's evidence was that it happened "very fast", and she struggled to breathe. She called out: "I'm done. I can't do this". The appellant laughed and said: "You're not done until we say we're done". The appellant then got more aggressive and penetrated the complainant anally, which was so painful she screamed.
8The sexual activity ended when the appellant ejaculated and left the ice hut. P.G. told the complainant she did not have to continue if she did not want to. She testified that she immediately confirmed she did not want to, and P.G. left the hut.
9The complainant also testified that she lost control of her bodily functions during the Incident. She used her clothing to clean up the blood, urine, and feces dripping from her. She returned to the fire for a brief time with the appellant and P.G. and then drove home. She was shocked and ashamed and felt it was easier to just pretend nothing had happened. Her injuries from the Incident included bruising to her hips, waist, and thigh, and vaginal and anal tearing.
10The complainant reported the Incident to the police in 2018. She explained that it had taken her a long time to process what had happened because the appellant had been her friend. She had been seeing a counsellor who helped her deal with the event and prepared her to report the assault.
11At trial, both the appellant and P.G. testified that the sexual activity which took place in the Incident was consensual. The appellant also maintained that no anal penetration occurred.
b. The July Incident
12A few weeks later, in July of 2013, the complainant reached out to the appellant when she was upset about a breakup she was going through. They saw each other in person that day but the complainant never again saw the appellant (the "July Incident").
c. P.G.'s Guilty Plea
13Before the appellant's trial, P.G. pleaded guilty to simple assault in relation to the Incident. He acknowledged he had touched the complainant without her consent. On May 12, 2021, he received a 12-month conditional sentence.
14The Crown contemplated calling P.G. as a witness at the appellant's trial. The trial judge ruled against this. P.G. was subsequently called as a defence witness.
15In anticipation that P.G.'s evidence would be that the sexual encounter during the Incident was consensual, the Crown applied to cross-examine P.G. on his guilty plea. The trial judge permitted the Crown to cross-examine P.G. but, in recognition of the potential dangers of admitting that evidence, he insisted that P.G. be given an opportunity to explain why he pleaded guilty. The trial judge also canvassed the Crown's proposed questions in advance of their being put to P.G.; he did not permit questioning on the underlying facts of the plea. Further, the trial judge strictly limited the permissible uses of this evidence in his jury instructions.
III. The s. 276 Application
16The appellant brought a s. 276 application for permission to question the complainant about sexual activity that occurred between the complainant, the appellant, and a male third party during the July Incident. He contended that evidence was relevant because it went to the complainant's credibility. She said the assault on May 22 was the most terrifying thing that had ever happened to her, and she was fearful of the appellant afterwards – yet she reached out to him in July, only a few weeks after the Incident, and spent time with him.
17The application judge ruled inadmissible the evidence of sexual activity that took place during the July Incident. He pointed out that the complainant maintained she had not consented to the sexual activity on either occasion, while the appellant asserted that both events were consensual. He then addressed several dangers that would arise if evidence of the sexual activity that occurred during the July Incident was admitted.
18Because the appellant was not charged with any sexual offence arising from the July Incident, admission of that evidence could result in the jury getting sidetracked on the issue of consent to the July Incident. In addition, admission of that evidence might be used by the jury to conclude the complainant was more likely to have consented to the sexual activity in the Incident or was less worthy of belief. The application judge also noted the jury could use the evidence to apply a discriminatory belief or bias. He further noted the harm that admission would cause to the complainant's personal dignity and right of privacy.
19The appellant also argued that the evidence should be admitted pursuant to R. v. Seaboyer, [1991] 2 S.C.R. 577. He maintained there was a "pattern of conduct" and considerable idiosyncratic evidence associated with both events. The application judge found this problematic because the complainant claimed that both occasions were non-consensual. This was not a case where there was any suggestion the complainant had communicated her consent in the past to a threesome involving extensive sexual activity, let alone having done so in some distinctive or idiosyncratic manner.
20The application judge found the appellant's objective could be accomplished without resort to the evidence of sexual activity in the July Incident. The appellant's main objective was to challenge the complainant's credibility when she said she was terrified by the events of the Incident yet, she had reached out to him after the Incident and spent a day in his company. The application judge ruled that this could be put to the complainant without reference to the sexual activity that took place in the July Incident. The application judge relied on R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, as support for such an approach.
21The application judge concluded that the evidence of sexual activity during the July Incident sought to be elicited had no legitimate purpose; had little or no probative value; and, if admitted, could create a real danger of prejudice to the proper administration of justice. He dismissed the application.
IV. The Grounds of Appeal
22In his factum, the appellant raised the following three grounds of appeal.
- Did the trial judge err in denying the s. 276 application?
- Did the trial judge err in permitting P.G. to be asked about his plea of guilty to assault?
- Did the trial judge err by not charging the jury that the complainant had a motive to fabricate her allegation and that the appellant did not have an obligation to explain anything?
23As previously noted, the appellant abandoned the third ground. Thus, it need not be addressed.
V. Analysis
1. No basis to interfere with the s. 276 ruling
24The appellant takes issue with the application judge's assessment of the probative value and prejudicial effect in his s. 276 ruling. That ruling, however, is entitled to deference: R. v. T.W.W., 2024 SCC 19, 492 D.L.R. (4th) 193, at paras. 21-22.
25The application judge considered the relevant factors under s. 276(3) and concluded the evidence had no legitimate purpose and little probative value. Further, he found that admitting the evidence of later sexual contact between the appellant and complainant would likely support a prohibited inference.
26It will be recalled that, on the application, the appellant submitted the sexual activity which took place in the July Incident was necessary to undermine the complainant's credibility because she said the Incident caused her to be terrified of the appellant. However, the application judge found the complainant's assertion could be challenged in cross-examination by raising her subsequent contact with the appellant in the July Incident. In the circumstances, the application judge found, introducing evidence of a second threesome was unnecessary to achieve the defence objective. What mattered was the complainant's voluntary contact with the appellant following the Incident, not whether sexual activity took place during the July Incident.
27The defence complied with the application judge's ruling. And, in closing, defence counsel noted that the complainant and appellant had seen each other after the Incident "without incident or negative interaction".
28The trial judge's determination of the weighing of probative value and prejudicial effect is entitled to deference. We see no basis for appellate interference. Accordingly, this ground of appeal is dismissed.
2. Cross-examination on the guilty plea was properly permitted
29The appellant submitted that the trial judge erred in allowing the Crown to cross-examine P.G. on his guilty plea. We do not accept this submission.
30A non-accused witness may be cross-examined on their prior discreditable conduct. Although P.G.'s plea had no relevance to the appellant's guilt or innocence, it was relevant to his credibility: R. v. King, 2022 ONCA 665, at para. 141, leave to appeal refused, [2022] S.C.C.A. No. 438. The trial judge recognized the potential risks of admitting the evidence, tightly circumscribed its permissible uses, and strictly limited its permissible uses in his jury instructions.
31There is no basis for appellate interference with the trial judge's approach to this discretionary issue.
VI. DISPOSITION
32For these reasons, the appeal is dismissed.
"E.E. Gillese J.A."
"L. Sossin J.A."
"P.J. Monahan J.A."
Footnotes
- This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.