WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
DATE: 2024 04 15 Newmarket – Central East Information No.: 22-91109230
BETWEEN:
HIS MAJESTY THE KING
— AND —
AZARY MATANOV
Before: Justice M. Townsend
Heard on: February 1, 2024, and March 18, 2024 Reasons for Judgment released on: April 15, 2024
Counsel: N. Cadman, counsel for the Crown F. Fedorsen and A. McQuaig, counsel for the defendant Azary Matanov C. Mazgarean, counsel on behalf of the Complainant
1The Applicant Mr. Azary Matanov stands charged with one count of sexual assault, alleged to have taken place on July 24th, 2022, with respect to the Complainant A.B.
2The matter came before me in two parts: the first being an application under section 278.93(1) of the Criminal Code for a hearing to determine whether evidence is admissible under s. 276(2) and/or s. 278.92(2) – often referred to as Stage One; and the second being an application under section 278.94 as to the admissibility of that proposed evidence – often referred to as Stage Two.
3The Stage One application was heard on February 1, 2024, and the Stage Two hearing was heard on March 18th, 2024. At the conclusion of the Stage One application, I gave an oral ruling that the matter would be proceeding to a Stage Two hearing and indicated that my reasons for such would be included in my Stage Two written reasons.
4The following reasons are for both the Stage One application and the Stage Two hearing.
Overview of the Facts
5Given that the main purpose for which the Applicant seeks to introduce the various pieces of evidence, as will be discussed below, is to challenge the credibility of the Complainant, a more comprehensive than usual overview of the facts is required.
6The Complainant and the Applicant met when they were approximately 18 years of age while on a trip to Florida. Their two groups of friends “hung out” a lot, and they got to know one another. In her statement to the police, the Complainant noted of their first few meetings that the Applicant is a “fairly attractive guy, the attention that he got from women was nothing like I’ve ever seen till this day…you would sit on a, on a, on a bed and there would be a woman literally climbing on him. We would be at a club. They would be shoving each other to dance with him.”
7After this trip to Florida, the two remained acquaintances, and would often run into one another at clubs, or other social outings.
8In her statement, the Complainant told police that on July 9, 2022, the Applicant messaged the Complainant on Facebook, seemingly out of the blue, and commented on one of her pictures. He said something to the effect that the picture of her was quite beautiful. Several days later, there was a missed video call attempt from the Applicant. The Complainant questioned him on this missed call and the Applicant indicated that it was a mistake. The Complainant was not so sure it was an accident.
9Despite this, they began chatting via text message and Facebook Messenger. Right off the bat, the Complainant noted that she noticed that the Applicant was being very “kissy kissy” asking if she wanted kids, and “too much too soon”. This was a bit of a red flag for the Complainant.
10The Applicant asked her out, and the Complainant agreed. They made plans to meet up a couple days hence. According to the Complainant, the Applicant was very eager to meet up, and he was “calling like every day”. The Complainant found it odd that the Applicant was so eagerly talking about wanting to have a family, wanting kids, and thought this might be a ploy to get her more interested in him. She thought he had “baby fever”.
11On an occasion prior to their date, the Applicant went to a bachelor party with his friends. Throughout his time there, the Complainant indicated that he seemed to be intoxicated and was asking for her to send him some pictures. After he sent a picture of him and his friends, the Complainant eventually sent the Applicant a photo of herself which showed the top part of her breasts. The Complainant is wearing a “bralette” garment in the photo. After receiving this, the Applicant asked for a nude photo, to which the Complainant repeatedly declined.
12The Applicant and the Complainant had plans to meet later that Sunday, after the bachelor party. The Applicant picked the Complainant up, and almost immediately he was leaning over and kissing her and grabbing her thigh. This is not something that the Complainant wanted but she forgave the Applicant because she thought that he was likely used to women always wanting affection from him. At one point she tells him to relax, just drive, and she will kiss him later.
13The two of them go to pick up another of the Applicant’s cars, and the Complainant notes that while waiting for the second car to be ready, the Applicant is “gropey and touchy the whole entire time, um, like it’s just bizarre how --, you know, and I was trying to make it seem like okay, it’s fine, right? … not doing anything terrible, so I was trying to just, overlook it.”. They leave the shop in two separate vehicles and drive to the Applicant’s condo underground parking. There is a discussion in the parking garage about what to do next, and the Complainant insists that they go to dinner as that is what she thought was going to happen. The Applicant had planned that they would just get takeout and watch a movie at his place. The Complainant did not want to go up to his condo at that point, the Applicant accused her of “being weird” and said “I’m not trying to fuck you. I’m not going to do anything to you. Why are you being like this?” They then go out for dinner.
14Throughout dinner, the Complainant says that the Applicant is constantly bringing up and joking about going back to his condo after dinner. In her statement to the police, the Complainant phrased it as follows: “I said I am not going to your condo, that is not the situation that I want to be put in, period. And he goes, he goes what, are you afraid to have sex with me or something? And I’m like this isn’t about me not wanting to have sex with you. This is the fact that it’s inappropriate to just assume that I’m going to go to your condo. I’m like I’m okay to have sex with you down the line…”
15After dinner a huge thunderstorm rolled in, and because of the work that he had just done on the exterior of the car the Applicant wanted to get his vehicle home right away. The Complainant understood. They get to the underground parking lot and the Applicant says that he cannot drive her home right now because of the storm. So the Complainant – after assurances from the Applicant that nothing was going to happen – agreed to go to his condo to watch a movie.
16The moment that they get in the apartment, the Complainant said that the Applicant “starts kissing me and becoming pushy. Um, so he-, I'm not being arguing with him, you know, kissing him back thinking, okay, this, this isn't anything more than has happened already, so this isn't, you know, that bad.”
17Eventually, “he walks me back into a couch and he sits me down and somehow he was sitting down next to me, kissing me, and he keeps on putting my hand on his penis through, through the pants. He's also done that in the car, by the way, twice.” The Applicant started “unbuckling his pants. And that is the moment that I knew what was happening at this point.”
18The Complainant said that she then “went into survival mode, like the adrenaline hit in. And as he's then buckling [sic] his pants, I start scanning the condo of like, okay, how do I escape this, right? If I run, what's going to happen? So I noticed okay, so there's knives in the kitchen, I have to pass by that. He can get a weapon if he chases after me, right? I wear flip flops so I have to get my purse and my shoes and run barefoot. If I make it out the door, there's elevator that I have to wait for….If I want to skip the elevator, I don't know where the, the, the, the stairs are because once again, it's not a straight hallway building…I don't know if I'm going to be in, in corridors…If I make it downstairs, there is no business or anywhere I have to run at the bottom of the building, it’ll just be me in a thunderstorm, in a weird suburb, running from this dude who is probably faster than me, right? So I realized and, I mean, this is in seconds, I realized running is not an option.”
19The Complainant told police that at this point she thought “I'm not getting out of this if he doesn't get something that he wants. So I realized, okay, if I, I don't even know what the formal word for it, if I give him a hand job…If he ejaculates, then he most likely won't have the capacity to rape me…or do anything further, right? So I-, he pulled out his penis. And I'm talking about from the time I walked in, to the time I was on the couch, it was about three minutes. … “touching his penis and within three seconds, he puts his hand on the back of my head and starts pushing down. Not violently, but basically telling me what I need to do. Um, at this point, I, I, I wasn't going to fight him and I wasn't going to start a confrontation because he's already gotten in my face. He's already done all these things. … I start performing oral sex on him. And then he-, so he's still sitting on couch. I'm still sitting on the couch...And he kind of taps me and points to the ground for me to get on my knees in front of him. … he ejaculates in my mouth without even giving me a warning. Nothing. I get up. I go to the bathroom to spit it out and he just buckled up his pants…he was done. Um, he walks over to the kitchen.”
20After this, the Complainant asks to be driven home, but the Applicant said that because it is still raining he did not want to drive her home yet. They put on a movie and watch it on the couch.
21When the movie had finished, the Applicant went to his room and changed his clothes. Almost immediately upon returning he pulled his penis out. After the Complainant asked him if he was serious, the Applicant was adamant that he wanted oral sex. The complaint obliged, but eventually started presenting that her jaw was sore, said “this isn’t happening” and the Applicant reluctantly agreed to drive her home.
22The Complainant told police that the Applicant drove her home and “the moment that he pulled up in front of my house, I was polite, gave him a kiss and the moment I was out, I slammed the door and just ran.”
Affidavit of the Applicant
23On this Application, the Applicant provided two affidavits. An initial affidavit dated December 27th, 2023 and a supplemental affidavit dated March 5th, 2024.
24In these affidavits, the Applicant does not necessarily take issue with the sequence of events, however he characterizes the expressions of affection as reciprocal, consensual, and equally provided on both his part and that of the Complainant.
25The Applicant outlines that there were phone calls, one in particular proximate in time to when the Complainant sent him a photo of her breasts, where there was some explicit sexual conversation. The conversation surrounded the Complainant’s breasts, and that the Applicant was at times touching himself thinking about her breasts.
26The Applicant denied in his affidavit that he was “pushing” the Complainant for nude photos of her, and in fact did not ask her to send him the partially topless photo that she sent.
27After the Applicant says that the engaged in consensual sexual activity at his condo, he drove her home, and at her place they kissed inside the vehicle, he opened the door for her, she got out and they kissed again before she went to her home.
Evidence sought to be Admitted
28There are three primary pieces of evidence that the Applicant seeks to use at trial:
(1) Text messages and Facebook Messenger messages between the Applicant and the Complainant, including a “topless” selfie sent to the Applicant (“The Texts and Selfie”)
(2) A phone conversation between the Applicant and the Complainant in the early morning hours of July 24th, 2022. (“The Phone Call”)
(3) A kiss that occurred between the Applicant and the Complainant when the applicant dropped the complainant off at her residence after the alleged sexual assault. (“The Kiss”)
Stage One
29Originally included within the Applicant’s materials on both the Stage One and Stage Two application was reference to:
(1) An interaction on July 24, 2022, between the Applicant and Complainant at a mechanical garage when the parties went to pick up the Applicant’s vehicle, namely the Applicant putting his arm around the Complainant and the Complainant putting her arm around the Applicant and hugging him; and
(2) An interaction on July 24, 2022, while the Applicant and Complainant were inside the Applicant’s vehicle, and they held hands.
30Upon consideration by all parties at submissions on Stage One, it was agreed that these two situations form part of the subject matter of the alleged ongoing offence between the Applicant and the Complainant and ought not to be included on this application. I agree.
31At the conclusion of submissions, I ruled on February 1, 2024, in accordance with s. 278.93 of the Criminal Code that the three pieces of evidence referenced above under the section Evidence Sought to be Admitted, are capable of being admissible under s. 278.92(2) of the Code and the matter ought to proceed to a Stage Two hearing.
32Subsection 278.93(1) provides that an accused may make an application to the court for a hearing to determine whether evidence is admissible under ss. 276(2) or 278.92(2).
33This application must:
(a) Be made in writing, setting out detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial (see: s. 278.93(2));
(b) Be considered by the judge in the absence of the jury and the public (see: s. 278.93(3));
(c) Be served on the prosecutor and the clerk of the court with at least seven days notice, or any other shorter interval as allowed in the interests of justice (see: ss. 278.93(2) and 278.93(4)); and
(d) Result in a determination as to whether the evidence is capable of being admissible under ss. 276(2) or 278.92 (2) (see: s. 278.93(4))
34Section 278.92(2) provides:
The evidence is inadmissible unless the judge, provincial court judge, or justice determines, in accordance with the procedures set out in section 278.93 and 278.94,
(a) If the admissibility of the evidence is subject to section 276, that the evidence meets the conditions set out in subsection 276(2) while taking into account the factors set out in subsection (3); or
(b) In any other case, that the evidence is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
35At Stage One, I must determine whether the evidence sought to be introduced by the Applicant is capable of being admissible, taking into account the threshold tests set out in s. 278.92(a) and (b) and the applicable factors in s. 278.92(3). If at this stage, I so find that the evidence is capable of being admissible, then the matter proceeds to a Stage Two hearing to determine if the evidence is admissible.
36More often than not, at Stage One if the application is proper in its form, content, and timing of service, and if the Applicant can point to a legitimate use with which it will make of the evidence at trial, a court is statutorily mandated to grant the application and to proceed to a Stage Two hearing. See: R. v. D.S., 2024 ONCJ 1400 at para. 26; R. v. Camino-Ruiz, 2024 ONSC 145 at para. 42; R. v. Goldfinch, 2019 SCC 38 at para. 106; R. v. J.J., 2022 SCC 28 at para. 28.
37The threshold test at Stage One is a relatively low one. My task at this stage is only to determine if the evidence sought to be adduced by the Applicant “is capable of being admissible".
38The Applicant submits that the main issue for which this evidence is sought to be adduced at trial is with respect to the credibility and reliability of the complainant. Statements made by the Complainant on a prior occasion which may be inconsistent with testimony at trial, or with the statement given to the police are relevant to the issue of credibility, engage an accused's right to a fair trial and the right to make full answer and defence.
39I find that the evidence sought to be introduced at trial by the Applicant is capable of being admissible under ss. 276(2) or 278.92 (2) and the matter will proceed to a hearing at Stage Two.
Stage Two
40Section 278.94 sets out the procedural requirements for a hearing to determine whether evidence is admissible under ss. 276(2) or 278.92(2). Such hearings must be conducted in the absence of the jury and the public.
41The Supreme Court of Canada in R. v. J.J., 2022 SCC 28 at paras. 88 and 171 reiterated that “(t)he complainant is not a compellable witness at the hearing but may appear and make submissions”, and that the judge must, “as soon as feasible, inform the complainant who participates in the hearing of their right to be represented by counsel”.
42In accordance with s. 278.94(4) of the Criminal Code, the judge must determine at the conclusion of the hearing whether the evidence, or any part of it, is admissible under s. 276(2) or s. 278.92(2) and must provide reasons for that determination. These reasons:
(a) must state the part of the evidence that is to be admitted” if only part of the evidence is to be admitted: s. 278.94(4)(a)
(b) must state the factors in s. 276(3) or in s. 278.92(3) that affected the determination: s. 278.94(4)(b)
(c) must state the manner in which the evidence is expected to be relevant to an issue at trial” if all or any part of the evidence will be admitted: s. 278.94(4)(c)
(d) must be entered in the record of the proceedings or, if the proceedings are not recorded, must be provided in writing: s. 278.94(5)
43The crux of the argument on the Stage Two voir dire relates to item (c) above – the relevance of the evidence to an issue at trial.
44In recognizing that there is a difference between evidence that is relevant to an issue at trial and evidence that is determinative of an issue at trial, Moldaver J.A. (as he then was) stated the following in R. v. L.S., 2017 ONCA 688, [2017] O.J. No. 4589 (C.A.) at para. 89:
I do not suggest that evidence that E.K. and the appellant continued a relationship that included consensual sexual intercourse after the alleged assault demonstrated that the assault did not occur. Different people will react differently to the same event. However, to acknowledge that evidence that the relationship continued as before was far from determinative of whether the assault occurred, is not the same as holding that the evidence is irrelevant. Evidence does not have to establish or refute a fact in issue to be relevant; it need only, as a matter of common sense and human experience, have some tendency to make the existence or non-existence of that material fact more or less likely. There is a big difference between evidence that is relevant and evidence that is determinative: see R. v. A. (No. 2), [2001] 2 W.L.R. 1546, at para. 31 (H.C.). This evidence was relevant.
45In separate concurring reasons in R. v. Goldfinch, 2019 SCC 38, [2019] S.C.J. No. 38 at para. 88, Justice Moldaver at the at the Supreme Court of Canada reiterates that it is trite law that any evidence that falls within the realm of s. 276 of the Criminal Code is inadmissible if it supports either of the inferences known as the “twin myths”. Namely, that the complainant, (a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or (b) is less worthy of belief. See also paras. 90 and 91:
90 Stated succinctly, this provision prohibits the use of sexual activity evidence to support one of the twin myths identified by this Court in R. v. Seaboyer, [1991] 2 S.C.R. 577. In doing so, it gives effect to the principle that these myths "are simply not relevant at trial" and "can severely distort the trial process" (R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, at para. 33). Accordingly, if the sole purpose for which sexual activity evidence is being proffered is to support either of the twin myths, it will be ruled inadmissible under s. 276(1) -- it is as simple as that.
91 But that does not mean sexual activity evidence will always be ruled inadmissible. Where the accused can identify a legitimate purpose for introducing the evidence -- one that does not involve twin-myth reasoning -- admission remains a possibility. …
46Section 276 of the Criminal Code governs the admissibility of evidence of sexual activity on the part of a complainant in a trial for sexual assault and other enumerated sections of the Criminal Code. Ss. 276(1) and 276(2) together create an exclusionary rule that is subject to exceptions. The general rule is that evidence which meets the following criteria is excluded:
(a) The evidence is evidence of sexual activity, this includes communications made for a sexual purpose or that are sexual in nature.
(b) The sexual activity is activity other than the activity that forms the subject matter of the charge.
(c) The evidence of sexual activity is adduced by or on behalf of the defence.
(d) The evidence is tendered to support one of the twin myths.
47Sections 276(2) and 276(3) together create an exception to the general exclusionary rule. S. 276(2) provides the basis upon which evidence of sexual activity may be admitted. The court must be satisfied of the follow factors:
(a) The evidence is not being adduced to support one of the twin myths;
(b) The evidence is relevant to an issue at trial;
(c) The evidence is of specific instances of sexual activity; and
(d) The evidence has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
48Factors to be taken into account at a Stage Two proceeding are outlined at s. 278.92(3):
In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account:
(a) the interests of justice, including the right of the accused to make a full answer and defence;
(b) society’s interest in encouraging the reporting of sexual assault offences;
(c) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences;
(d) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;
(e) the need to remove from the fact-finding process any discriminatory belief or bias;
(f) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;
(g) the potential prejudice to the complainant’s personal dignity and right of privacy;
(h) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and
(i) any other factor that the judge, provincial court judge or justice considers relevant.
Analysis
49The Applicant seeks admission of the evidence on this trial for the two main purposes of putting the evidence of the Complainant in context within the whole of the relationship, and to challenge the credibility of the Complainant.
50Two primary considerations in determining the admissibility of evidence at a Stage Two hearing are the protection of the interests of the Complainant versus. the ability of the Applicant to make full answer and defence. While these two considerations are often thought of as potentially competing, that is not necessarily the case. It is absolutely possible to ensure the protection of the Complainant’s interests at trial, ensuring their dignity remains respected, safeguarding against any “twin myth” reasoning, and protecting the privacy interests of the Complainant all the while ensuring that the interests of justice are taken into account including of course the Applicant’s right to make full answer and defence to the allegations before the Court.
51The Applicant submits that the three pieces of evidence at issue on this Application (The Texts and Selfie, The Phone Call, and The Kiss) are relevant to give context to the description of the relationship by the Complainant, and to challenge the credibility of the Complainant with respect to the anticipated testimony and statements given to the police.
52Counsel for the Complainant submits, quite properly, that we ought not to be dissecting the minutia of a complainant’s life in the context of a sexual assault case, and points to the very powerful first paragraph of the Supreme Court of Canada in R. v. J.J., supra:
The criminal trial process can be invasive, humiliating, and degrading for victims of sexual offences, in part because myths and stereotypes continue to haunt the criminal justice system. Historically, trials provided few if any protections for complainants. More often than not, they could expect to have the minutiae of their lives and character unjustifiably scrutinized in an attempt to intimidate and embarrass them, and call their credibility into question — all of which jeopardized the truth-seeking function of the trial. It also undermined the dignity, equality, and privacy of those who had the courage to lay a complaint and undergo the rigours of a public trial.
53Counsel for the Complainant, supported in this proposition by Crown Counsel, further submits that the probative value of the potential use sought by the Applicant of this evidence is not outweighed by the potential prejudicial effect of this evidence.
54With respect, I disagree. In a judge alone trial, the risk that admissible evidence will be improperly used is diminished significantly. Counsel can be satisfied that the evidence will be used only for the stated purposes referenced by the Applicant, and pursuant to the factors included at s. 278.92(3).
55In this case, the dangers of “twin myth” reasoning with respect to the proposed use of the evidence is all but non-existent given the judge alone nature of the trial, and the purposes for which the Applicant seeks to use the evidence.
56Given the limited use of the proposed evidence, the privacy interests of the Complainant and the dignity of the Complainant can all continue to be protected throughout cross-examination. It is important for the trier of fact to have the relationship between the Applicant and the Complainant put in context with respect to certain statements made by the Complainant to the police, and this contextual analysis adds to the probative value of the proposed evidence. “Twin Myth” reasoning will never be engaged.
Conclusion
57The Applicant seeks pursuant to s. 278.92(2) the admission of and the use of three proposed pieces of evidence (The Texts and Selfie, The Phone Call, and The Kiss) for the dual purposes of providing context to the relationship between the Complainant and the Applicant, and to assess the credibility of the complainant.
58The Application is granted. I find these three pieces of evidence to be admissible at this Stage Two hearing, after taking into account the factors included within s. 278.92(3) and a further finding that the probative value of the proposed use of the evidence outweighs any potential prejudicial effect.
59The evidence shall be admitted.
Released: April 15, 2024 Signed: Justice M. Townsend