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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
By court order made under subsection 278.95(1)(d) of the Criminal Code, these reasons may be published, broadcasted, or transmitted, despite the restriction on publication set out in section 278.95 of the Code.
Court Information
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
CHRISTOPHER YOUNKMAN
Before: Justice Christine Mainville
Section 278.92 Application – Step 2, heard on October 6, 2025
Reasons for Judgment released on October 29, 2025
Counsel:
- Alexander Merenda — counsel for the Crown
- Jody Berkes — counsel for the Applicant
- Ashley Dresser — counsel for the Complainant
Reasons for Judgment
Facts
1The Complainant and the Applicant met online. A few days later, they arranged for the Complainant to attend the Applicant's home on September 24, 2020.
2At that meeting, they engaged in some consensual sexual activity. However, the Complainant alleges that he did not consent to the anal sex that took place. This constitutes the subject of the sexual assault charge against Mr. Younkman.
3Though the defence has not conceded identity, it has identified the central issue at trial as being consent.
4The Applicant and Complainant exchanged some Signal messages ahead of the meeting and some shortly thereafter. This ruling relates to whether the Applicant can make use of some of these messages at trial.
5After initially taking the position that no records application was required, the defence brought an application under s. 278.92 of the Criminal Code to use four separate documents at trial (Exhibits 1-4 to the application). These documents formed part of the Crown disclosure. They were produced to the defence with the Complainant's consent, but no written waiver was initially obtained.
6Aside from the s. 278.92 application, I ruled that s. 276 was engaged by two of the documents, pursuant to the reasoning in R. v. Reimer, 2024 ONCA 519, at paras. 45-49. That is, I ruled that they constituted "prior sexual activity" that does not form the subject-matter of the charge. These documents were identified for the purpose of these proceedings as Exhibits 1 and 2 to the defence application.
7The Crown conceded Stage 1 in respect of these exhibits – i.e., that the records sought to be adduced were "capable of being admissible" under s. 276(2): see s. 278.93(4) of the Code. The defence has since indicated that it is no longer pursuing any application as it relates to Exhibit 2.
8In the interim, the Complainant retained counsel and the applicability of the s. 278.92 regime to all records was deferred to the Stage 2 hearing, given the possibility of obtaining clearer waivers from the Complainant following independent legal advice.
9The Complainant takes no issue with the admissibility and use at trial of Exhibit 4. He does however object to the admissibility of Exhibits 1 and 3 – messages sent before and after his meeting with the Applicant.
10I have already ruled that s. 276 is not engaged by Exhibit 3, but I must consider its admissibility at trial under s. 278.92.
11As for Exhibit 1, I must address its admissibility and use at trial as it relates to both the s. 276 and 278.92 regimes. The defence also asks me to reconsider my earlier ruling that this exhibit is subject to the s. 276 regime, based on more detailed submissions that its content relates to the subject-matter of the charge.
12The Complainant also provided a written waiver setting out the parameters of what he waives as it relates to the s. 278.92 regime. This waiver is tantamount to a partial waiver and its effect as it relates to use of the records at trial was the subject of dispute.
Legislative Framework
Section 278.92: Records Relating to the Complainant
13Section 278.92(2)(b) provides that a record as defined in s. 278.1 of the Code is inadmissible unless the judge determines, in accordance with the procedures set out in ss. 278.93 and 278.94"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."
14Section 278.1 provides the following definition of "record":
For the purposes of sections 278.2 to 278.92, record means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence.
15This definition sets out a non-exhaustive list of records that generally contain personal information for which there is a reasonable expectation of privacy. As for non-enumerated records, the Supreme Court in R. v. J.J., 2022 SCC 28, at para. 42, explained what might constitute such a record for the purpose of this statutory regime:
Ultimately, we conclude that a non-enumerated record will only be captured by s. 278.1, in the context of the record screening regime, if the record contains information of an intimate or highly personal nature that is integral to the complainant's overall physical, psychological or emotional well-being. Such information will have implications for the complainant's dignity.
16The Court also made clear, at para. 46, that its interpretation of what constitutes a reasonable expectation of privacy in the context of s. 278.1 is specific to that section and is distinct from how the concept applies in the s. 8 Charter jurisprudence. It did accept two principles from the s. 8 jurisprudence, namely:
(1) the person claiming a privacy right must have a subjective expectation of privacy that is objectively reasonable in the circumstances …; and (2) a reasonable expectation of privacy only engages legally recognized privacy interests… Both of these principles establish that the privacy interests at issue must meet a high threshold. (J.J., at para. 47)
17However, the Court did not accept the content-neutral nature of the analysis, which is a feature of the s. 8 reasonable expectation of privacy jurisprudence: J.J., at para. 48. Accordingly, it found that "[r]ecords do not attract a reasonable expectation of privacy simply because of the medium used to convey them. The more important consideration is the sensitivity of the information contained in the record.": J.J., at para. 49.
18On this point, the Court at para. 45 described when "legally recognized privacy interests" will be engaged:
Complainants have privacy interests in highly sensitive information about themselves, the disclosure of which can impact on their dignity. As this Court has observed in the past, the "dissemination of highly sensitive personal information" can result "not just in discomfort or embarrassment, but in an affront to the affected person's dignity" (Sherman Estate v. Donovan, 2021 SCC 25, at para. 7). To reach the level of an impact on dignity, an intrusion on informational privacy must "transcen[d] personal inconvenience by reason of the highly sensitive nature of the information that might be revealed" …
19Finally, the Court observed that "the privacy interests in a record being produced to the accused are different from the privacy interests at play when the accused seeks to have the record admitted as evidence in court": J.J., at para. 50 (emphasis in original).
20Section 278.92(3) provides that the following factors must be considered in determining whether such records are admissible:
(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.
Section 276: Prior Sexual History
21Section 276(2) provides that "evidence shall not be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person", unless the judge determines that the evidence:
(a) is not being adduced for the purpose of supporting an inference described in subsection (1);
(b) is relevant to an issue at trial; and
(c) is of specific instances of sexual activity; and
(d) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
22The prohibited purposes described in subsection (1) are to support an inference that, by reason of the sexual nature of that activity, 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.
23Under s. 276(3), the judge must consider factors that are nearly identical to those enumerated in s. 278.92(3).
24Relevant to our purposes, subsection (4) provides that sexual activity "includes any communication made for a sexual purpose or whose content is of a sexual nature".
25The procedure to be followed is the same as that provided for by the s. 278.92 admissibility regime: s. 278.93(4).
26As indicated above, the only records that remain in issue are Exhibits 1 and 3 to the defence application. The Crown and Complainant oppose their admissibility. They argue that the probative value of the records does not outweigh the prejudice that would be occasioned by admitting them.
The Subject Records
27Exhibit 1 to the defence application is one page of Signal messages exchanged between the Applicant and the Complainant shortly before meeting that same day. The Applicant writes that he knows the Complainant is nervous but not to worry, they will go slow; he wants the Complainant to be comfortable and he can "say stop any time". He adds that the Complainant should just come, and they'll have lunch, adding "And if you want to I'll Uber you home any time."
28The day after the encounter, further messages were exchanged. The defence seeks to make use of an excerpted portion of the messages, identified as Exhibit 3 to the application.
29These include a message from the Applicant to the Complainant that states: "Ok, I'm sorry. We set up the green, yellow, red; do you want to try something different?". The Complainant responds that he doesn't know if he wants to meet. The Applicant goes on to state that he would like to spend time together"dress you up and explore what you want to. But I want you to be happy, and in control. So I'll do whatever you want to feel that way." He asks the Complainant what he thinks and goes on to indicate that he doesn't want to pressure him.
30Given the fact that the bulk of the messages – and certainly the ones of import to the defence – are the Applicant's own words, one might question whether the Complainant can have a reasonable expectation of privacy in those words. I do not however deem it necessary to address this point here and will treat these words as part of a broader conversation between the Complainant and the Applicant that may well engage the Complainant's privacy interest, given my ultimate conclusion that these messages can be used at trial.
31The Applicant submits that these messages are relevant to the issue of consent. He relies on the Complainant's initial statement that does not have the Complainant telling the Applicant to stop when the Applicant would try to penetrate him anally, even though he did say stop in respect of other sexual activity (at which time the Applicant proceeded to stop). The Complainant in his initial statement does describe saying it hurt on various occasions and pushing the Applicant's penis out. But he also describes initially saying nothing and asking whether the Applicant had any STD and whether he should wear a condom. He also indicates that he asked the Applicant whether they can move to a more comfortable spot, that he conveyed he was not sure about the position, and that they "went at it" for a bit.
32The Applicant seeks to put the subject messages to the Complainant to establish that they discussed how the Complainant might communicate that he was not comfortable participating in certain sexual acts – i.e. how he might withdraw consent, stop the activity, and leave at any time. As stated in the application, the messages would show that the parties specifically discussed "safe words to stop" or the "language that would be used to indicate a lack of consent". The Applicant would argue that the Complainant did not use this language and chose not to leave "because he was consenting to the activities that took place in the apartment, including anal sex": Defence application dated September 15, 2025, at paras. 1, 2 and 5.
33But the Applicant's primary position in respect of Exhibit 1 is that it does not engage s. 276, given that the messages are part and parcel of "the sexual activity that forms the subject-matter of the charge". Though I heard from the parties before issuing an earlier oral ruling on this point, I will address this preliminary issue here given that defence counsel asked that it be reconsidered in light of more thorough submissions and additional context for the messages.
34I also address a further preliminary issue relating to the Complainant's waiver, which applies to both records under adjudication.
PRELIMINARY ISSUE #1: Section 276's Application to Exhibit 1
35Exhibit 2, which is no longer a subject of the defence's application, were messages that related more directly to the Applicant and Complainant's sexual preferences for their planned encounter. Though the messages in Exhibit 1 relate more specifically to comfort and stopping the sexual activity being discussed, as opposed to sexual preferences, they formed part and parcel of this discussion relating to the parameters of the upcoming meeting.
36Based on Justice Paciocco's reasoning in Reimer, at paras. 45 to 49, I ruled that these did not form part of the subject matter of the charge. As such, an application under s. 276 was required for them to be adduced at trial.
37The records at issue in Reimer were also messages exchanged by the accused and complainant prior to the sexual encounter that was the subject of the charge. There, the complainant described or agreed with descriptions by Mr. Reimer of the sexual activity they intended to engage in: para. 20. The Court of Appeal considered whether proximate sexual activity that is not the immediate subject of the prosecution will fall outside the purview of s. 276: para. 45.
38It concluded that although the "subject matter of the charge" will encompass "the entire specific factual event in which the allegedly criminal act occurred" and not only "the isolated and immediate sexualized physical act of the accused that is being prosecuted", it "must be part of the specific factual events of which the offence is a component": para. 45. In Reimer, the earlier text messages were not part of "the specific factual events" that included the offending conduct.
39Here, for instance, the specific factual events would capture the entire sexual encounter that unfolded at the Applicant's residence on September 24, 2020, not merely the anal sex that is the subject of the charge. But does it capture messages sent shortly before the Complainant attended the Applicant's home that same day?
40Paciocco J.A. explained that "it is not enough for the uncharged sexual activity to be proximate in time and place to the allegedly criminal act of the accused… Nor is it enough that the uncharged sexual conduct is relevant to the charged event": para. 46. In order "to bypass screening under s. 276, the uncharged sexual activity must be so 'integrally connected, intertwined or directly linked to' that activity – the actus reus of the specific charge – that it is effectively part of the transaction or event that is being prosecuted": para. 46. See also R. v. Choudhary, 2023 ONCA 467, at paras. 29-33.
41The messages in Reimer were found to be subject to the s. 276 regime, on the basis that "the sexualized messages were exchanged before the parties came together. Those texts speak about the motel visit as a future event. … [They] are simply too remote in time and too distinct in nature from the charged events to avoid s. 276 scrutiny": para. 49.
42Exhibit 2 in the present case fell more clearly within these parameters. There is an argument to be made that, on its own, Exhibit 1 could be distinguished from Reimer on the basis that the messages do not constitute "other sexual activity" but rather form part of the subject-matter of the charge. The connection between this series of messages and the ensuing events, a very short while later, is indeed greater than in Reimer. It also appears that what was discussed is not as distinct in nature from the charged events than was the case in Reimer, though it is difficult to fully appreciate this at this stage of the proceedings.
43And though the Exhibit 1 messages are about the anticipated sexual encounter that soon followed, unlike in Reimer, they are not sexualized in nature. But s. 276 applies to "any communication made for a sexual purpose". And limits placed on sexual activity still engages the s. 276 regime, based on the reasoning in R. v. Kinamore, 2025 SCC 19. At para. 64 of that case, Wagner C.J. found that "evidence that the complainant has not previously engaged in, or prefers not to engage in, any sexual activity, certain types of sexual activity, or sexual activity under particular circumstances" forms part of a complainant's sexual history and is thus presumptively inadmissible.
44In any event, I am not prepared to revisit my earlier ruling based on the arguments advanced and the withdrawal of Exhibit 2. Justice Paciocco made clear that "[p]revious sexual activity that is not the immediate subject of the prosecution should be characterized as other sexual conduct and vetted for admission under s. 276 unless it is clearly integrally connected, intertwined, or directly linked to the event being prosecuted. … '[I]f a judge harbours some reservations [about this] they should act with caution and proceed with a s. 276 analysis'": para. 48. See also Choudhary, at para. 33.
45Having heard submissions on the merits of the s. 276 application and given the parallels between Exhibit 1 and the messages at issue in Reimer, I will err on the side of caution and consider the application on its merits.
PRELIMINARY ISSUE #2: The Complainant's Waiver in Relation to the Section 278.92 Regime
46Several decisions of the Ontario Superior Court of Justice have found that the defence is entitled to assume, in the absence of evidence to the contrary, that the Crown obtained waivers before disclosing any documents to which a privacy interest could attach: see R. v. McFarlane, 2020 ONSC 5194 (per Stribopoulos J.); R. v. J.K., 2021 ONSC 7604 (per Schreck J.); R. v. Martiuk, 2022 ONSC 5577 (per Goldstein J.).
47A waiver was indeed obtained in this case, though it was not initially in writing and its parameters were unclear. The written waiver that was subsequently obtained for the purpose of these proceedings states that the Complainant is only waiving his privacy rights in respect of disclosure to the accused, not use at trial, but he understands that some judges have interpreted a more limited waiver as being all encompassing, such that the document can be used without the need for an application.
48The above cases stand for the proposition that where there is a waiver, or it can be presumed based on disclosure and the absence of evidence to the contrary, no application under s. 278.92 of the Code is required. That is because the privacy interest in the documents is no longer such that they constitute a record under s. 278.1.
49Justice MacFarlane however took a different position in R. v. Gallan, 2024 ONSC 5338, based on the fact that McFarlane and J.K. had been rendered prior to the Supreme Court's decision in J.J., and that Martiuk had merely followed these earlier decisions. Gallan found that there must be an express waiver not merely as it relates to disclosure to the accused, but "of the specific protections of the Code pertaining to the admissibility of records": para. 15. The Crown urges me to follow Gallan.
50I do not need to resolve which of these two lines of cases I should follow. Given the principles set out in R. v. Pringle #7, 2024 ONSC 4084, the result in my view would be the same.
51In that case, Molloy J. deemed herself bound by the decisions in McFarlane, J.K. and Martiuk: Pringle #7, at paras. 9 and 53. However, in that case, the written waiver signed by the complainant specifically referenced disclosure to the accused and stated that the complainant's privacy rights remained protected by s. 278.92, and that the accused would need to apply to the court before making use of the records at trial: para. 13. Though the defence was therefore initially entitled to assume, based on the disclosure, that no application was required, Molloy J. deemed the wording of the waiver to be "evidence to the contrary", such that an application was required: paras. 53 and 66.
52In the present case, apparently accounting for Molloy J.'s comments in Pringle #7, the written waiver also states that the Complainant is only waiving his privacy rights in respect of disclosure to the accused, but effectively notes that this may be interpreted as a broader waiver despite the indication that the Complainant maintains his privacy interest as it relates to use of the document at trial.
53This language allows for a more informed waiver than was the case in Pringle, but it is questionable whether it conforms to the Crown's duty under s. 278.2(2). It is also not particularly helpful in resolving the issue flagged by Molloy J. at para. 66 of her decision. There, Molloy J. found that the waiver was not fully informed because the Crown advised the complainant that they were "waiving their privacy rights under s. 278.2(2) (not 278.1) and that this [did] not mean the material disclosed [would] be admissible at trial without an admissibility hearing." Molloy J. questioned why the Crown would continue to advise the complainants in this manner after J.K. and Martiuk.
54In this case, the Complainant is at least aware that disclosure of the document to the accused may mean that use can be made of it at trial. While it would certainly have been preferable to canvass a full waiver with the Complainant, I am inclined to view the waiver obtained as significantly diminishing if not extinguishing any expectation of privacy the Complainant may still have in the communications.
55In R. v. McKnight, 2019 ABQB 755, at paras. 39-44, the Alberta Queen's Bench found that a complainant maintains a reasonable expectation of privacy in written communications turned over to the Crown where the Crown subsequently decides to disclose them to the accused (without any waiver). However, the Court also held, at para. 43, that there is no such expectation of privacy where the complainant discloses them to both the Crown and the accused – in that context, at the preliminary inquiry:
Fairness must require that if a Complainant is willing to release information in order to further a criminal prosecution, then the Accused should be entitled to use the information in the preparation of his defence: Mills at para 106. Therefore, I find that a Complainant no longer has any reasonable expectation of privacy in the electronic communications which she turned over at the preliminary inquiry.
56Here, the messages were voluntarily provided to the police, with the expectation and agreement that they be turned over to the accused. This is unlike a circumstance where the complainant disclosed the documents to the police or the Crown, with no clear understanding that that would mean disclosure to the accused, and potentially admission at trial.
57Still, what was provided is not a full waiver. Like in Pringle, it is explicit that the Complainant is not waiving his rights as it relates to the use of the messages at trial. There, this constituted "evidence to the contrary" requiring an admissibility hearing under s. 278.92.
58On that basis and given the line of cases that find that the admissibility provisions must be explicitly waived for no hearing to be held, I take the partial waiver as constituting "evidence to the contrary" such that an application under s. 278.92 is required.
59The defence argues that this waiver was not provided along with disclosure of the messages and other documents provided by the Complainant to the police. As such, it was entitled to assume that there was a waiver and no application was required.
60Just as was the case in Pringle, I agree that the defence was entitled to assume, based on the disclosure, that no application was required. As stated by Molloy J., the defence should certainly be informed of any waiver and the scope of any waiver at the time disclosure is made: para. 66. That would enable defence counsel to assess its scope, whether there is any "evidence to the contrary", and accordingly, whether an application should be brought. Without this information, the defence is entitled to assume waiver. This would avoid later delays and wasted expense should that assumption turn out to be inaccurate.
61However, this does not mean that the waiver presumption cannot be rebutted. In Pringle #7, the written waiver was also not disclosed earlier to the defence – it was only provided to the defence during the records proceedings: see paras. 7, 9 and 66. Despite that being the case, Molloy J. found that this established "evidence to the contrary", such that an application was required.
62The same scenario arises here. Although the waiver is phrased differently, and the Complainant here was put on notice that the evidence may be deemed admissible even though he did not consent to admissibility at trial, ultimately, he explicitly does not purport to waive the application of the regime on this point. I will therefore turn to address the application on its merits.
EXHIBIT 1: Admissibility under ss. 276 and 278.92
63The defence relies on the reasoning in Reimer to submit that the Signal chats filed as Exhibit 1 are relevant to the issue of consent. It argues that their relevance does not derive from any prohibited reasoning or the sexual nature of the texts. In its submission, the messages "specifically provide for the Complainant to withdraw consent, stop any activity (sexual or otherwise), and leave the premises at any time he desires", yet "[d]espite being advised that all he had to do was ask for the activity to stop, [the Complainant] never asked", thereby making them relevant to cross-examination on the issue of consent: Defence application dated September 15, 2025, at paras. 6 and 8; Defence application dated September 22, 2025, at para. 10.
64In other words, the Applicant would use the messages to show that he had specifically conveyed to the Complainant that he could take any of these avenues should he not feel comfortable or not wish to take part in any of the sexual activity. If the Complainant did not resort to any of these avenues that he had specifically provided for, the defence would argue that that is because the Complainant was in fact consenting to the activity at the relevant time. Or, at least, that the Crown will not have proved lack of consent beyond a reasonable doubt.
65The Complainant acknowledges that he has a reduced expectation of privacy in the messages given that he voluntarily gave them to the police and preserved them over the years, with the express purpose of supporting his claim of sexual assault. He also acknowledges that the prejudice to his personal dignity is minimal given that the specific text exchange is not salacious and does not discuss specific sexual acts: Complainant's Response, at paras. 27-28.
66However, the Complainant argues that "the probative value in resolving the issue at trial (consent) and the potential misuse of the proposed evidence in encouraging bias and reasoning prejudice … results in an out-sized danger to the proper administration of justice": Complainant's Response, at para. 29.
67In particular, the Complainant argues that "[t]he admission of the text exchange could result in the trier of fact improperly thinking that the Applicant would have acted in the way he said he was going to act in the text exchange, without the benefit of hearing his version of events subject to the rigors of cross-examination" should the Applicant not testify, which might be expected given that he has not conceded identity: Complainant's Response, at para. 25.
68If the Applicant does testify, the Complainant further argues that the admission of the text messages would run afoul of the evidentiary rule against oath helping or prior consistent statements: Complainant's Response, at para. 24.
69But my understanding of the use to which the Applicant seeks to put the messages is not, as counsel to the Complainant contends"as evidence that in the moment he was prepared to stop if the Complainant indicated a lack of consent": Complainant's Response, at para. 22. It is to put to the Complainant that, considering this exchange, if he did not consent to the sexual activity in the moment, he would have availed himself of one of the "outs" that the Applicant had expressly laid out for him.
70Of course, it is always open to a person to stop or refuse sexual activity at any time – this does not have to be expressed by the accused to make it an available option. And despite these options being available, victims of sexual assault do not always resort to them, be it because of shock, intimidation, incapacity, or any number of reasons. The Complainant may well fully explain why he did not resort to these avenues, if he in fact did not.
71But the issue here is the relevance of the fact that the Applicant had, just prior to the encounter, indicated that the sexual activity could cease at any time should the Complainant make it known that this is what he wished, by means of certain avenues being made readily available to him. The tenor of the Complainant's initial statement, which was filed as part of this application, is that although he initially communicated to the Applicant that he was not comfortable with a particular sexual act or wanted it to stop, he did not feel comfortable doing so and did not do so once the Applicant began engaging in anal sex.
72In this context, the Signal messages can serve to challenge the Complainant on whether he consented to this sexual activity. The Applicant may use them to suggest to the Complainant that he knew the Applicant was receptive to stopping the sexual activity at any time, that he could simply state as much, or ask to leave at any time, and he would be free to go, and that the fact that he did not do so is because he consented to that sexual activity. I deem the evidence relevant for this purpose, which goes to the central issue at trial: whether the Complainant consented to anal sex.
73This purpose does not engage twin myth reasoning. It is not being adduced to support an inference that, by reason of the sexual nature of that activity (the earlier communications), the Complainant is more likely to have consented to the sexual activity that forms the subject-matter of the charge (the anal sex), or is less worthy of belief: see, in that regard, Reimer, at para. 75.
74Nor does it rest on any discriminatory belief or bias. I also do not see a risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility even if this were a jury trial, which it is not. And as acknowledged by the Complainant, the potential prejudice to his personal dignity and right of privacy is minimal. I note again that most of the exchange in question comprises the Applicant's own words, not the Complainant's. I therefore do not believe that permitting the use of this evidence undermines society's interest in encouraging the reporting of sexual assault offences.
75On the other hand, there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case. The interests of justice, including the right of the accused to make a full answer and defence, weighs in favour of permitting the evidence to be used.
76The tests set out in ss. 276(2) and 278.92(2) are met. The evidence in my view has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
77Counsel for the Complainant says that there was a further discussion, following this message exchange, where he made clear that he did not want anal sex. This would certainly be relevant to any defence of mistaken belief in consent. And it is relevant to whether he did in fact consent to this activity or not. But it is not decisive of the issue of whether he subjectively consented in the moment and does not take away from the relevance of the messages. Naturally, the determination of relevance cannot presuppose which version of events the trier of fact will accept.
78Of course, the messages – or the fact that the Complainant would not have said stop or tried to leave – are similarly not determinative of the issue of consent. But that is not the test. They need only be relevant to an issue at trial: Reimer, at paras. 69 and 71.
79The messages in Exhibit 1 can therefore be put to the Complainant to suggest actual consent at the relevant time.
80Counsel to the Complainant points to the fact that the Applicant has taken one portion of the messages out of the context of the larger text exchange. Given the purpose of the regime which incentivizes the narrow admission of evidence of prior sexual activity, I do not think counsel can be faulted for excerpting only those portions that are of clear relevance to the defence. Certainly, if they are out of context, the Complainant can state as much in response to any questions asked in relation to the messages. And additional messages can be reviewed and deemed relevant to enable the Complainant to respond. But this does not undermine the adjudication of the admissibility of the select messages that I have before me.
EXHIBIT 3: Admissibility under s. 278.92
81Exhibit 3 relates to Signal messages exchanged between the Applicant and the Complainant the day after the alleged sexual assault. They include an apology and reference by the Applicant to a system of "green, yellow, red" that they would have set up. There are further expressions by the Applicant of the fact that he wants the Complainant to be "happy, and in control", and that he will "do whatever [the Complainant wants] to feel that way". The only message from the Complainant is one where he expresses that he doesn't know if he wants to meet.
82The defence takes the position that these messages do not constitute a "record" under s. 278.1 such that the s. 278.92 regime is not engaged. As indicated above, this issue was initially left for later determination, once the position of the Complainant was obtained.
83The Complainant and Crown take the position that Exhibit 3 is a record, and that it does not meet the test for admission given that its prejudice exceeds its probative value.
84The Court in J.J. provided a framework for assessing whether material qualifies as a non-enumerated record that must be vetted under the record screening regime. I should consider both the content and context of the record: J.J., at para. 55.
85J.J. directs judges, when assessing context, to "apply a normative and common-sense approach. Whether a communication or document is a 'record that contains personal information for which there is a reasonable expectation of privacy' must reflect societal understandings about the fundamental right to be free from unwanted intrusion into our personal lives": para. 57.
86Pursuant to J.J., at paras. 58-60, three non-exhaustive factors should be considered in assessing context:
(1) the reason why the complainant shared the private information in question;
(2) the relationship between the complainant and the person with whom the information was shared; and
(3) where the record was shared and how it was created or obtained.
87As explained in J.J., at para. 76"[w]hether a person reasonably expects privacy is necessarily a normative question that is to be answered in light of the norms of conduct in our society". Ultimately"[e]xpectations of privacy are contextual and must be assessed in light of the "totality of the circumstances": J.J., at para. 76. Information that is not highly sensitive or highly personal will attract a lesser degree of privacy: J.J., at paras. 45, 53.
88The messages here are one-on-one communications between the Complainant and the Applicant. They were created in the private domain. The fact of an adversarial relationship between them, as reflected by these criminal proceedings, does not serve to undermine any reasonable expectation of privacy in the records: J.J., at para. 62; R. v. T.A., 2020 ONSC 2613, at paras. 26-31.
89Still, as set out above, the Complainant acknowledges that he has a reduced expectation of privacy in the messages given that he preserved them and voluntarily provided them to the police, for the purpose of supporting his claim of sexual assault. He also waived disclosure of the messages to the Applicant for this purpose. Like Exhibit 1, the exchange is not salacious and the prejudice to the Complainant's personal dignity is minimal.
90Moreover, all but one of the messages in the single page of the Signal Chat relied on are from the Applicant. They largely bear on the Applicant's own preferences and wishes, and do not contain personal information about the Complainant. The only message from the Complainant is about not being sure he wants to meet. This is not information of a personal nature. As stated in J.J., at para. 53"the scheme is not intended to catch more mundane information, even if such information is communicated privately."
91In my assessment, based on both context and content, Exhibit 3 does not "contain information of an intimate or highly personal nature that is integral to the complainant's overall physical, psychological or emotional well-being" or that "will have implications for the complainant's dignity". As such, it does not constitute a record under s. 278.1 of the Code. No application under s. 278.92 was therefore required and the defence is permitted to make use of Exhibit 3 at trial.
92In any event, and should I be mistaken about Exhibit 3 not being a record, the message that I understand the Applicant wishes to rely on is the one relating to the "green, yellow, red" system. The relevance of this message is the same as those in Exhibit 1. While this message post-dates the events at issue, it is written in the past tense. Clearly, the implication is that this system was discussed in advance of the alleged sexual assault. I understand that the defence intends to put this to the Complainant for the same purpose as described above. I would therefore have found, based on the reasoning above related to Exhibit 1, that its probative value is also sufficiently significant to outweigh any prejudice that may result from its use.
93In some contexts, evidence relating to the subject-matter of the allegation will constitute a record under s. 278.1. Indeed, as set out in J.J., at paras. 65-67, 71, explicit communications that relate to the subject matter of the charge will often attract a reasonable expectation of privacy. But this communication is not, as acknowledged by the Complainant, explicitly sexual or salacious in nature.
94Again, if the Complainant requires additional messages to place these in context, that will not offend the provision. The defence seeks to rely on the messages for a particular purpose. If the Complainant would benefit from surrounding messages, that would not change the defence's purpose, and it can certainly be accommodated.
Conclusion
95The Applicant may make use of Exhibit 3 to its application. It may also make use of Exhibit 1 for the purpose described above.
Released: October 29, 2025
Signed: Justice Mainville