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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
The court hearing this matter directs that the following notice be attached to the file:
This hearing is governed by section 278.95 of the Criminal Code:
278.95 … Publication Prohibited. –
(1) A person shall not publish in any document, or broadcast or transmit in any way, any of the following:
(a) the contents of an application made under subsection 278.93;
(b) any evidence taken, the information given and the representations made at an application under section 278.93 or at a hearing under section 278.94;
(c) the decision of a judge or justice under subsection 278.93(4), unless the judge or justice, after taking into account the complainant’s right to privacy and the interests of justice, orders that the decision may be published, broadcast or transmitted; and,
(d) the determination made and the reasons provided under subsection 278.94, unless,
(i) that determination is that evidence is admissible, or
(ii) the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the determination and reasons may be published, broadcast or transmitted.
(2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.
Approved for Publication: s. 278.95(1)(c) of the Criminal Code
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
Respondent
— AND —
M.T.
Applicant
Before Justice C.A. Brannagan
Heard on 27 November 2025
Reasons for Ruling on Stage 1 – Sections 276(2), 278.92(2) & 278.93
Approved for Publication: s. 278.95(1)(c) of the Criminal Code
Mr. C. Penney................................................................................. counsel for the Applicant
Ms. K. Smyth........................................................................... counsel for the Respondent
I. OVERVIEW
The Applicant, M.T., is charged with sexual assault, assault, and failing to comply with a probation order: sections 271, 266, and 733.1(1) of the Criminal Code.
The charges arise from a sexual encounter involving alleged non-consensual anal sex with a female party, Z.M. (“Complainant”), on December 26th, 2024, at a hotel room in Barrie.
M.T. had initially brought a Motion for Directions & Particulars that was heard on October 23rd, 2025. That Motion is described below.
The Applicant then brought this Application pursuant to sections 276(2), 278.92(2), 278.93 and 278.94. It was heard on November 27th, 2025.
This is my ruling on the Application, which determines whether the evidence sought to be adduced by the Applicant is capable of being admissible, pursuant to s. 278.93(1), or what has come to be known as the “Stage One” hearing.
This ruling also resolves issues raised by the Applicant at the Motion.
II. THE MOTION FOR DIRECTIONS & PARTICULARS
- At the Motion, the Applicant sought direction from the court as to whether the following evidentiary items constituted “subject-matter of the charge” evidence:1
a) Electronic communications (i.e., text messages) of correspondence made between M.T. and the Complainant on December 25th and 26th, 2024.
b) Eight “live” photos2 taken by the Applicant of the Complainant, using his iPhone, while M.T. and Z.M. were in the hotel room on the alleged offence date. These live photos depict the Complainant in circumstances that are explicitly sexual in nature.
c) Other allegedly consensual sexual activity that occurred between M.T. and Z.M. inside the Barrie hotel room on December 26th, 2024.
The Applicant additionally sought an Order from the court, pursuant to s. 587(1)(f) of the Criminal Code, directing the Crown to provide detailed particulars relating to both the sexual assault and the breach of probation charges. One of the concerns raised at the Motion related to the question of what sexual conduct was being prosecuted. At that time, the Crown declined to specify the actus reus of the sexual assault charge.
The litigants were ultimately able to come to some agreement and narrow the issues at the Motion. The court was not asked to deliver a ruling at that time.
III. THE 276 / 278.92 / 278.93 APPLICATION
- The issue to be determined at the Stage One hearing is whether the evidence sought to be adduced is capable of being admissible at the trial proper. The admissibility issue itself is addressed at the Stage Two hearing which, in this case, is scheduled to be heard on January 5th, 2026.
The Applicant’s Position:
(i) The Evidence Sought to be Adduced (Detailed Particulars)
- In addition to the three items identified at the Motion and as described above at paragraph 7(i)-(iii), M.T. applies to have the following four items adduced into evidence at his trial:
iv. That Z.M. and the Applicant had previously engaged in anal sex on September 19th, 20th, and on December 19th, 2024, despite Z.M. having reported to police that she had never engaged in anal sex with M.T. or with anyone else before.
v. The commercial/transactional nature of the relationship between Z.M. and the Applicant, including the fact that Z.M. had identified herself as an escort to M.T. when they first met.
vi. Habit evidence of M.T. always paying cash to Z.M. in amounts of $150 or $200 after they had sex.
vii. That just before Z.M. made her complaint on December 26th, 2024, Z.M. demanded money for sexual services performed on that date and that M.T. refused to pay her.
Précis of the Proposed Evidence sought to be Adduced
Item #(i), the text messages, can be summarized as follows: On December 25th, 2024, the Complainant sent a text message to the Applicant, asking him if they could see each other the next day. The Applicant responded “ok”. M.T. initiated the text conversation the following morning, December 26th, 2024. He suggested they “do an overnight” and that Z.M. bring a bathing suit. He suggested that “a room would be nice.” He asked Z.M. if “mushrooms would be fun”. Z.M. did not directly respond to M.T.’s suggestions about either a room or an overnight but stated “I’m ready” and conveyed that she’d “love to do mushrooms.” M.T. told Z.M. to “[b]ring your blind fold.” Z.M. responded “Kk”.
Item #(ii), the “live” photos, were submitted to the court on a secure USB, which was made a sealed exhibit on the proceeding. I have viewed the images, in chambers, and without describing their contents here can confirm that they depict the Complainant in sexually explicit circumstances. The metadata accompanying the images supports that they were taken on the alleged offence date during the period when the parties were at the hotel.
Item #(iii), the other allegedly consensual sexual activity that occurred in the hotel room, is set out in detail within the Applicant’s Affidavit, part of the Application Record – Part II.
The Applicant’s Affidavit also describes in detail the evidence concerning Items #(iv), (v), (vi), and (vii).
For the purpose of conducting the evidentiary screening analysis that follows, I note that Items #(i), (ii), and (iii) all relate to the same transaction that occurred leading up to and within the hotel room and therefore may form part of the “subject-matter of the charge”.
Items #(iv), (v), and (vi) are clearly evidence of “other sexual activity”. Although Item #(vii) is said to have occurred inside the hotel room, for the purpose of conducting this analysis I include it in the “other sexual activity” category because it is directly tied to the categories of evidence represented by Items #(iv)-(vi).
(ii) The Proposed Relevance of the Evidence to Issues at Trial
The Applicant seeks the admission of the above-described evidence for reasons of best positioning the court to assess Z.M.’s credibility and reliability at trial: Application Record – Part II, at p. 50, para. 7.1.
M.T. submits that adducing this evidence will show inconsistencies on material aspects of Z.M.’s evidence, will provide evidence of context, and will present as evidence tending to show a motive to fabricate: Application Record – Part II, at p. 50, para. 7.2.
M.T. sets out the detailed particulars of the specific evidence sought to be adduced to show inconsistencies in Z.M.’s evidence at paragraph 7.3 (a) through (i) of his Application Record – Part II. None of the evidence as particularized touches on the “twin myths” prohibited by s. 276(2), except perhaps the alleged prior anal sex.
The “habit” evidence sought to be adduced relates to the relationship between M.T. and Z.M. as being commercial/transactional in nature and is said to provide the circumstantial context that both parties acted in a certain way on the occasion in issue because of the nature of their relationship: Application Record – Part II, p. 52, paras. 7.4-7.7. As the Application is drafted, this evidence would not be adduced for either of the discriminating purposes prohibited under s. 276(2).
The context evidence is said to capture the entirety of the transaction within the hotel room itself, including the commercial/transactional nature of the parties’ relationship: “Without evidence of the transactional nature of their relationship and the payment history, [the Applicant’s] refusal to pay may present as incomplete, implausible, or even bizarre”: Application Record – Part II, p. 52, paras. 7.8-7.18.
The motive to fabricate evidence also ties into the habit and context evidence, insofar as the Applicant claims that the nature of the relationship between the two was commercial/transactional, that he had paid her money for sex in the past, and that because he refused to pay her money for sex in this case, she had a motive to fabricate the sexual assault allegation: Application Record – Part II, p. 55, paras. 7.19-7.25. Again, the stated purpose for seeking to adduce this evidence would be for a reason other than one that offends the “twin myths”.
The Respondent Crown’s Position:
During the Stage One hearing, the Crown confirmed that the anal sex was the actus reus at issue in this case, and the subject matter of the sexual assault being prosecuted. This addressed one of the outstanding issues from the Motion.
The Crown maintains that all the text messages sought to be adduced, Item #(i), with one exception, relate to the subject matter of the charge and are admissible. The excepted text, claims the Crown, is the reference to the blindfold, which should be subject to the s. 276 regime, since Z.M. did not mention this in her police statement. The Crown submits that Item #(i) should proceed to the Stage Two hearing: Respondent’s Factum, p. 1, para. 2.
The eight live photos, Item #(ii), are subject to both the 276 and 278.1 regimes. The Crown maintains that because the Complainant made no mention of consensual sex of any kind, that these images do not form the subject matter of the charge: Respondent’s Factum, p. 1, para. 2. Nevertheless, the Crown submits that Item #(ii) should proceed to Stage Two.
The other sexual activity that occurred within the hotel room, Item #(iii), is subject to s. 276 and should not be permitted to advance to Stage Two, as it is not capable of being admitted: Respondent’s Factum, p. 2, para. 2.
The Crown takes the view that Item #(iv) – the alleged prior instances of anal sex – is not capable of being admitted and should not proceed to Stage Two: Respondent’s Factum, p. 1, para. 2.
With respect to the balance of the Items sought to be adduced, #(v)-(vii) – that Z.M. was an escort, that M.T. habitually paid her $150 or $200 after sex, and that in this case he refused to pay her after sex – the Crown submits that these Items should proceed to Stage Two: Respondent’s Factum, p. 2, para. 2.
Notwithstanding the Crown’s position, it is always for the trial judge to exercise their gatekeeping function in respect of these kinds of applications: R. v. Reimer, 2024 ONCA 519, at para. 43.
IV. THE LEGAL FRAMEWORK
A. The Section 278.93 Regime
The defendant must bring an application, pursuant to s. 278.93, where they seek to admit evidence of the sexual conduct of the complainant (other than the sexual activity which forms the subject matter of the charge) or to admit records relating to a complainant that are in the possession or control of the defendant: s. 278.93(1).
There are four criteria that must be met to satisfy the formal requirements of the application: (i) it must be made in writing; (ii) it must set out the detailed particulars of the evidence that the accused seeks to adduce; (iii) it must set out the relevance of that evidence to an issue at trial; and (iv) a copy of the application must be given to the prosecutor and to the clerk of the court: s. 278.93(2).
The hearing of the Stage One proceeding is to be held in camera: s. 278.93(3).
If the formal requirements of the application are met under s. 278.93(2), and only if the court finds that “the evidence sought to be adduced is capable of being admissible under s. 276(2)”, the court “shall grant the application and hold a hearing under s. 278.94 to determine whether the evidence is admissible under subsection 276(2) or 278.92(2)”: s. 278.93(4).
The formal requirements under s. 278.93(2) have been met in this case. The only determination that needs be made is whether the evidence sought to be adduced by M.T. in his trial is “capable of being admissible under s. 276(2)”, or s. 278.92(2).
B. The Section 276 Regime
- Subsection 276 provides:
(1) In proceedings in respect of an offence under section … 271 … evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible 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.
(2) In proceedings in respect of an offence referred to in subsection (1), 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, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94, 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.
(4) For the purpose of this section, “sexual activity” includes any communication made for a sexual purpose or whose content is of a sexual nature.
Section 276 was enacted following the Supreme Court of Canada’s decision in R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R 577. The purpose and rationale for s. 276 is “to protect the integrity of the trial by excluding irrelevant and misleading evidence, protect the accused’s right to a fair trial, and encourage the reporting of sexual offences by protecting the security and privacy of complainants”: R. v. Barton, 2019 SCC 33, at para. 58.
Subsection 276(1) seeks to exclude from trial evidence relied upon to support discriminatory inferences wrought by the “twin myths” – namely, that having engaged in other sexual activity makes a complainant more likely to consent or less worthy of belief: Barton, at para. 55; R. v. J.J., 2022 SCC 28, at para. 5.
Subsection 276(1) applies to both consensual and non-consensual sexual activity involving the complainant: R. v. Darrach, 2000 SCC 46, at para. 33.
Its reach is broad, and it applies to sexual activity both preceding and following the alleged offence, with its purpose being to prohibit all discriminatory generalizations about a complainant’s credibility and disposition to consent: R. v. Goldfinch, 2019 SCC 38, at para. 111; R. v. D.K., 2020 ONCA 79, at para. 52; R. v. L.S., 2017 ONCA 685, at paras. 77-81; Darrach, at para. 34.
With that said, s. 276 does not bar absolutely the use of sexual activity evidence:
Indeed, nowhere does it suggest that sexual activity evidence is prohibited in all cases on the issue of consent or credibility. Section 276(1) prohibits using sexual activity evidence to advance only certain kinds of inferences relating to consent and credibility, namely, those that arise “by reason of the sexual nature of that activity”. Not all inferences that arise from events involving sexual activity derive from the “sexual nature of [the] activity”, including on the issue of consent and credibility.
Reimer, at para. 78.
- The only “other” sexual activity that is exempt from screening under s. 276 is evidence that forms the “subject-matter of the charge”: s. 276(2).
(i) The Subject-Matter of the Charge
As stated, the evidentiary screening function under s. 276 does not apply to “sexual activity that forms the subject-matter of the charge”. For s. 276 to be engaged, the complainant’s sexual activity must be “other sexual activity”: Reimer, at para. 30.
To bypass screening under s. 276, the contours of the “subject-matter of the charge” must be determined: Reimer, at para. 45.
In J.J., the Supreme Court of Canada defined the “subject matter of the charge” as referring to “the components of the actus reus of the specific charge that the Crown must prove at trial”: at para. 66.
This definition, however, cannot be narrowly construed to mean simply the actus reus of the charged offence itself. The meaning includes something more than simply “the isolated and immediate sexualized physical act of the accused that is being prosecuted”: Reimer, at para. 45 (emphases in original).
Rather, the “subject-matter of the charge” includes “the factual conditions that must exist for the offence to be complete”, including “all of the physical acts that constitute a specified charged offence”, encompassing “the entire specific factual event in which the allegedly criminal act occurred”: Reimer, at para. 45.
The fact that the uncharged sexual activity is proximate in time and place, however, is insufficient to meet the standard. Nor is the uncharged sexual activity’s relevance to the charged event sufficient: Reimer, at para. 46.
As the Court of Appeal for Ontario has held in R. v. Choudhary, 2023 ONCA 467, for “other sexual activity” evidence to bypass the s. 276 screening mechanism, it must be “integrally connected, intertwined or directly linked to the sexual activity that forms the subject-matter of the charge”: at para. 29.
Such an assessment is a fact-driven exercise: Choudhary, at para. 28.
To meet the threshold described in Choudhary, the sexual activity in question must be part of the “transaction” that is captured by the charge, though it need not be an element of the charged offence itself: R. v. X.C., 2020 ONSC 410, at para. 38.
The phrase “subject-matter of the charge” in s. 276(2) cannot be construed to read “subject-matter of the offence”. The two terms are conceptually distinct. As Justice Dawe (as he then was) described it in X.C., at para. 37:
In this regard, it [is] important to note that the “charge” in an indictment is somewhat different conceptually from the “offence” that is charged in a count. The Criminal Code provides that indictments shall be divided into “counts” or “charges” [see “count” at s. 2 of the Criminal Code], each of which “appl[ies] to a single transaction” [see s. 581(1) of the Criminal Code]. A “transaction” in this context is understood to mean “a series of interconnected acts extending over a period of time” or “a series of connected occurrences”. Although the charge must allege that the defendant “committed an offence” […] it is “most important … that ‘transaction’ be distinguished from ‘offence’”.
It is in that light that Justice Dawe concluded that “‘sexual activity’ … can properly be considered to ‘form the subject matter of the charge’ if it is part of the ‘transaction’ that is captured by the charge, even if the ‘sexual activity’ in question is not in itself an element of the charged offence”: X.C., at para. 38.
Judicial statements on the ‘single transaction rule’ set out in s. 581 of the Criminal Code provide support for Justice Dawe’s dovetailing of the “subject matter of the charge” with the “transaction” in which the offence is allegedly committed.
(ii) The Single Transaction Rule
- In R. v. Manasseri, 2016 ONCA 703, the Court of Appeal analyzed the term “transaction” and the phrase “a single transaction”, noting that they were not synonymous with a single occurrence or event. The Court said of the term “transaction”:
69… A word of quite comprehensive import, evasive of precise legal definition, “transaction” takes its meaning from the statutory context in which it appears and as the justice of each case demands, rather than by any abstract definition. …
70In its grammatical and ordinary sense, the noun “transaction” refers to a physical operation, an action or process. …
71The term “transaction”, as well as the phrase “same transaction”, are not indigenous to s. 589(a) of the Criminal Code. They dwell elsewhere. For example, “transaction” appears as part of the phrase “a single transaction” in s. 581(1), one of several general provisions prescribing the content of counts contained in an indictment. …
In R. v. C.K., [1999] O.J. No. 4590 (C.A.), a case involving sexual offences, the Court found at paragraph 7 that the phrase “single transaction” was “not synonymous with a single incident, occurrence or offence”.
Citing to its earlier decision in R. v. Hulan, 1969 CanLII 306 (ON CA), [1969] 2 O.R. 283 (C.A.) – also a sexual offences case – the Court clarified that a single count in an indictment may refer to several acts and, although each of them could constitute a separate offence, that would not necessarily violate the single transaction rule: C.K., at para. 8.
The question of whether evidence is admissible in respect of a single transaction that is the subject of a count in an indictment, where multiple acts are alleged across a period covered by the indictment, depends on several factors. Those factors include: the circumstances of the offending; the relationship between the victim and defendant; the place where the offending occurred; the patterns of conduct alleged; and the fact that the subsequent acts could be seen as an extension, prolongation or continuation of the defendant’s original intention: C.K., at paras. 8-10.
In R. v. Sandhu, 2009 ONCA 102 – another case involving sexual offences – the Court cited to s. 581 of the Code, and to its decision in Hulan, confirming that a single transaction may encompass several separate incidents over a lengthy period. In that case, the Court cited the relationship between the victim and the appellant, the place where the offending occurred, the pattern of conduct alleged, and the prolonged period of offending as rationale for including multiple acts in a single transaction: at paras. 19-23.
The various factors described above, as distilled from Hulan, were made clear in R. v. Rocchetta, 2016 ONCA 577, at para. 44, where the Court identified those which could constitute a single transaction:
A series of acts that are sufficiently connected will make up a single transaction for the purposes of s. 581(1). The sufficiency of the connection will depend on the circumstances. The requisite connection may be established by the proximity in time or place of the acts, the identity of the parties to the acts, the similarities of the conduct involved in the acts, the ongoing relationship of the parties to the acts, or other factors tending to show that each act is properly viewed as part of the larger whole.
Similarly, the Supreme Court of Canada in R. v. Sundman, 2022 SCC 31, in resolving the issue of what a “single transaction” was in the context of a constructive first-degree murder case involving unlawful confinement, found that “[w]hen a single transaction is found, there will necessarily be a temporal-causal connection. Likewise, when a temporal-causal connection is found, there will necessarily be a single transaction”: at para. 39.
The Court of Appeal for Ontario has addressed the question of prejudice that may arise in respect of the single transaction rule, clarifying that the rule’s purpose is “to ensure that an accused is aware of the charge against him or her and is able to make full answer and defence. The validity of a count is to be assessed in light of this purpose”: R. v. Kanagarajah, 2018 ONCA 121, at para. 23.
(iii) The Dovetailing of “Subject Matter of the Charge” and “Single Transaction” in Sexual Assault Cases
That the “subject-matter of the charge” should be construed as encompassing the transaction-as-a-whole – that is, the “transaction” that relates to the subject count on the indictment – finds support in the appellate courts’ analyses of that term.
In those decisions, the courts have emphasized as relevant the following factors: proximity in time or place; the identities of the parties to the acts; the nature of the parties’ relationship; and proper consideration of the larger whole – that is, the series of interconnected acts extending over a period of time, or the series of connected occurrences that constitute the transaction itself.
To repeat the point, the Supreme Court of Canada put it simply: “when a temporal-causal connection is found, there will necessarily be a single transaction”.
To view the phrase “subject-matter of the charge” narrowly as being the actus reus of the charged offence only, to the exclusion of other potentially relevant evidence arising from the same transaction, could both distort the fact-finding process and unduly prejudice the defendant’s ability to mount a full answer and defence.
To narrowly define the “subject-matter of the charge” to the actus reus of the offence only could result in the court engaging in an artificial parsing of the evidence. As Justice Dawe cited with approval in X.C., “at some point parsing each moment in a sequence of events and defining it as a separate activity becomes ridiculous”: at para. 38.
In my view, the legal analyses in Reimer, Choudhary, and X.C. pertaining to the “subject-matter of the charge” dovetail neatly with the various analyses pertaining to the “single transaction” rule. Both analyses deal with questions concerning discrete occurrences/events, insofar as proximity to and connectedness of time and place are concerned, and seek to ensure that the offence in question is not dislocated from the broader factual matrix within which it is situated.
Coroza J.A.’s statement in Choudhary that the “other sexual activity” must be “integrally connected, intertwined or directly linked to the sexual activity that forms the subject-matter of the charge” to bypass the s. 276 screening mechanism is similar to that of Justice Dawe’s where, in the context of a sexual assault charge, the transaction to which the charge relates is “understood to mean a ’series of interconnected acts extending over a period of time’ or ‘a series of connected occurrences’.”
The Choudhary decision itself references “transactions” as being relevant to the assessment, including questioning whether the activity constitutes “one single unbroken transaction” or whether it forms part of “an unbroken chain of events”: at paras. 35-37.
Although His Honour does not use the word, Justice Akhtar stated the test concisely in R. v. Kebede, 2023 ONSC 1851 in what seems to refer to the broader “transaction” in which the “subject-matter of the charge” arose:
34In my view, the [Supreme] Court’s pronouncement [in J.J., at para. 67] that evidence that forms the subject matter of the charge is limited to “the components of the actus reus of the offence” should be read as including any evidence forming the surrounding circumstances, both before and after the incident, and/or that which directly links to the actus reus of the offence. That evidence need not immediately precede the allegations or, as per the court in McKnight, arise on the same day as the offence.
35As noted in McKnight, the question of whether the activity has a direct link to the actus reus must be resolved in a contextual fashion. For example, if a complainant tells police that she had no interest in the accused but he asserts that she told him that she wanted to have sex with him the day prior to the assault and made specific arrangements to meet up with him for that purpose, this would be exempt from the requirements of s. 276.
- I agree with the view that what constitutes the “subject-matter of the charge” should be resolved in this contextual, wholistic way.
C. The 278.92 Regime
Section 278.92(1) establishes the general prohibition against adducing into evidence any “record” relating to a complainant that is in possession or control of the accused in cases involving various enumerated sexual-related offences.
Section 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.
- Section 278.92(2) presumes the inadmissibility of the subject-evidence, unless the court determines its admissibility in accordance with the procedures established in ss. 278.93 and 278.94:
a. if admissibility is subject to s. 276, then that evidence must meet the preconditions for admissibility as set out in s. 276(2), while taking into account the factors set out in s. 276(3); or
b. in any other case [i.e., s. 278.1 private "records" evidence], 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.
- Where there is overlap between s. 276 evidence and private records under s. 278.1, the Supreme Court in J.J has clarified that:
34… At some point in the process, the presiding judge may determine that the proposed evidence is both s. 276 evidence and a private record under s. 278.1 (e.g., an email containing an explicit photo of a prior sexual interaction). If the judge determines that the evidence falls under both categories, then it should be treated as s. 276 evidence.
The text messages are electronic communications relating to the Complainant. They fall within the definition of “record”, given that, as a whole, the body of communications relates to M.T. and Z.M. making plans to meet at a hotel to, according to M.T., have a sexual encounter. As such, the text messages contain “personal information for which there is a reasonable expectation of privacy”: J.J., at para. 61. The text messages are therefore both “records”, pursuant to s. 278.1, and communications made for a sexual purpose, s. 276(4).
The contents of the eight “live” photos depict the complainant in explicitly sexual circumstances and are non-enumerated private records under s. 278.1. Their contents are of an intimate and highly personal nature that is integral to Z.M.’s overall physical, psychological and emotional well-being: J.J., at para. 42.
In discussing non-enumerated records of the sort at issue here, the Court in J.J. found that:
65One type of non-enumerated record that will often engage a reasonable expectation of privacy is a record of an explicit sexual nature that is not covered by s. 276 (for example, explicit communications, videos or photographs of a sexual nature relating to the subject matter of the charge). Complainants may have a reasonable expectation of privacy in these types of records, given the dignity concerns that can arise.
67Accordingly, the only records of an explicit sexual nature that could be subject to the record screening regime outside of the s. 276 context would be records pertaining to the complainant, in the possession or control of the accused, that relate to the sexual activity which forms the subject matter of the charge.
V. APPLICATION OF THE LAW TO THE FACTS
M.T. seeks to adduce at his trial text messages between Z.M. and M.T. leading up to their meeting at the hotel, eight “live” photos taken of Z.M. by M.T., and evidence that the two engaged in consensual sexual activity during their time at the hotel - Items #(i), (ii), and (iii), respectively.
I find that each of these identified Items is “integrally connected, intertwined [and] directly linked to the sexual activity that forms the subject-matter of the charge,” such that they form part of a single transaction. I find that they do not need to be screened under s. 276.
The text messages, Item #(i), and the live photos, Item #(ii), however, require additional scrutiny. Although I find that both are part of the subject matter of the charge, I also find that the contents of each attracts a reasonable expectation of privacy. Both Items are records of a sexual nature, that are not subject to s. 276 screening, but which do remain in the possession or control of M.T., and are therefore subject to s. 278.92.
I find that the text messages are relevant to an issue at trial and have potential significant probative value. The danger of prejudice to the proper administration of justice is negligible. They are capable of being admitted at the trial proper.
The live photos are of an intimate and highly personal nature that is integral to preserving Z.M.’s dignity and well-being. Z.M. retains a very high reasonable expectation of privacy in them.
While the Item #(ii) photographs may be relevant to an issue at trial, I find at this stage that any probative value they may have is substantially outweighed by the risk of prejudice to the proper administration of justice. This finding is made on a without prejudice basis, and I invite the Applicant to revisit this should it become necessary to do so at a later date.
Item #(iii) is sexual activity that is said to have occurred inside the hotel room. It is “integrally connected, intertwined or directly linked to the sexual activity that forms the subject-matter of the charge” and forms part of the transaction to which the charge relates.
Items #(iv) through (vi) are clearly evidence of “other sexual activity”. Although Item #(vii) is said to have occurred inside the hotel room, it is directly tied to the categories of evidence represented by Items #(iv) through (vi).
Item #(iv), the prior sexual activity including anal sex, in my view comes perilously close to running afoul of the twin myths. By reason of the sexual nature of that activity, M.T. seeks to rely on it to show that Z.M. is less worthy of belief as it relates to the charged offence before this court – insofar as she is said to have told police in her statement that she has never had anal sex before. It has the potential to undermine the integrity of the trial as being misleading. In my view, that evidence is incapable of being admissible on this record.
Item #(v), the commercial/transactional nature of the relationship between M.T. and Z.M. is central to understanding the reason why the parties found themselves at the hotel where the alleged offence occurred. It is not being adduced for a twin myth purpose. It is capable of being admissible and can proceed to Stage Two.
Item #(vi), the habit evidence that M.T. would pay Z.M. money in exchange for sexual services, ties into the commercial/transactional nature of the relationship. It is not being adduced for a twin myth purpose. It is capable of being admissible and can proceed to Stage Two.
Item #(vii), M.T.’s refusal to pay money to Z.M. for sexual services rendered, is also directly connected to Items #(v) and (vi) and speaks directly to the alleged motive to fabricate. It is not being adduced for a twin myth purpose. It is capable of being admissible and can proceed to Stage Two.
VI. DISPOSITION
- The s. 278.93 application is allowed in part, as follows:
a) Items #(i), (ii) and (iii) are “subject-matter of the charge” evidence and do not require s. 276 screening.
b) The Application as it concerns Item #(i) is allowed. The text messages will proceed to the Stage Two hearing for argument as to admissibility at trial.
c) The Application as it concerns Item #(ii) is dismissed without prejudice.
d) The Application as it concerns Item #(iii) is “subject matter of the charge” evidence.
e) The Application as it concerns Item #(iv) is dismissed.
f) The Application as it concerns Items #(v), (vi) and (vii) is allowed. These evidentiary Items will proceed to the Stage Two Hearing for argument as to admissibility at trial.
Released: 31 December 2025
Signed: Justice C.A. Brannagan
APPENDIX – THE EVIDENCE SOUGHT TO BE ADDUCED
ITEM #
DESCRIPTION
PURPORTED USE
(i)
Text messages between the parties from December 25th and 26th, 2024
Z.M. contacted M.T., seemingly to ‘hook-up’. These text messages are the direct cause bringing Z.M. and M.T. together on December 26th, 2024
(ii)
The eight “live” photos of the Complainant in sexually explicit circumstances
Offered as compelling evidence of what was occurring in the hotel room. These images are said to contradict Z.M.’s police statement that the only sexual activity that occurred in the hotel room was her being anally raped by M.T.
(iii)
Other alleged consensual sexual activity that occurred inside the Barrie hotel room on December 26th, 2024
Context evidence, insofar as this evidence goes to the heart of specific facts and issues relating to M.T.’s defence, which can only be resolved if reference can be
made to the commercial/transactional nature of M.T.’s and Z.M.’s relationship
(iv)
Alleged anal sex between M.T. and Z.M. on September 19th, 20th,
and December 19th, 2024
Z.M. told the police in her statement that she had never had anal sex before, with M.T. or with anyone else. The Applicant wishes to testify to specific instances of anal sex they had before as a means to contradict her evidence and challenge her credibility on this point.
(v)
The commercial/transactional nature of the relationship between Z.M. and M.T., including the fact that Z.M. had identified herself as an escort when they first met
These were commercial sexual services, which are said to go to the heart of the applicant’s defence. For the court to assess what happened in this case, it must have the context of the relationship.
(vi)
Habit evidence of M.T. always paying cash to Z.M. in amounts of $150 or $200 after they had sex
Because of M.T.’s
and Z.M.’s commercial/transactional relationship, he would always pay her money after she provided him with sexual services. This is relevant to the failure to pay on this occasion and the alleged motive to fabricate.
(vii)
M.T.’s refusal to pay Z.M. money for sexual services provided on December 26th, 2024
Motive to fabricate – M.T.’s refusal to pay Z.M. led to her making this allegation, which is said to be false.
Footnotes
- See “Appendix – The Evidence Sought to be Adduced”, at the end of this Ruling for an itemized list of evidentiary materials sought to be adduced by the Applicant, alongside their purported use at trial. For future applications of this nature that involve a multiplicity of evidentiary items, Counsel is encouraged to prepare such a chart to facilitate these proceedings.
- The Applicant explains, at paragraph 6.8 of his Application Record, that a “live” photo presents on an iPhone as a moving picture.