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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(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 complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 Offence.—(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
#23-48120519
BETWEEN:
HIS MAJESTY THE KING
— AND —
C.L.
Ruling on Application to Admit Other Sexual Activity Evidence and
Records in the Possession Of the Defence
Stage 2
Criminal Code Sections 276, 278.93 – 278.94
Before Justice Brock Jones
Heard on February 25, 2026
Written Reasons for Judgment released on March 27, 2026
Edited Reasons Approved For Publication on April 7, 2026
Criminal Code section 278.95
C. Chapin counsel for the Crown
L. Wilhelm counsel for C.L.
M. Stephens………………………….…………………………………… counsel for N.L.
Introduction
1C.L. is charged with three offences against the complainant, N.L. They consist of one count of sexual assault with respect to events that occurred on October 10, 2022; one count of sexual assault with choking relating to events that occurred on January 17, 2023; and one count of assault relating to events that occurred on April 26, 2023.
2C.L. and N.L. were in an intimate partner relationship that began in March 2017 and ended on or about May 5, 2023. They share a child together.1 On November 12, 2024, N.L. contacted [redacted] to report three historical allegations of intimate partner violence and sexual assault.
3C.L. denies each of the allegations. On behalf of her client, Ms. Wilhelm brought an application to introduce evidence of other sexual activity of the complainant under Criminal Code section 276(2) and to introduce private records in the possession of the defence under Criminal Code sections 278.92-94. This evidence consists of his anticipated trial testimony and a magnitude of text messages exchanged by the parties during the course of their relationship, both before and after the dates of some of the alleged offences.
4Mr. Chapin, on behalf of the Crown, and Ms. Stephens, counsel for N.L., oppose the introduction of this evidence, with one exception.
Factual Background
The Alleged Offences
5N.L. alleges that on October 10, 2022, C.L. returned home and wanted to have sex with N.L. She was not interested. They wrestled on the bed for 20-30 minutes while he removed her clothing and attempted to initiate anal sex with her. He did not succeed.
6The second allegation occurred on January 17, 2023. At her residence, he asked her to have sex, and she agreed. In the course of what began as consensual sexual activity, C.L. zip-tied her wrists without her consent, covered her mouth with his hand, and choked her with his arm. She could not breathe or speak, and may have blacked out.
7During her police interview, N.L. stated that she agreed to have sex at first with C.L. on this date so that he would leave her alone. She wanted to concentrate on her work. She stated that sex with him was not enjoyable and she “felt like she was being used every single time.”2
8The third allegation occurred on April 26, 2023. N.L. was pregnant with C.L.’s child. An argument occurred between them. He was packing his personal belongings to leave, and she pleaded with him to stay. At one point during this argument, he grabbed her wrist, which left a red mark.
9Ms. Wilhelm filed, as part of her application materials, a transcript of a statement given by N.L. to Toronto Police Service officers on November 12, 2024. Ms. Wilhelm submits that in order to understand the probative value of the text messages, they must be juxtaposed with what N.L. told the investigating officers.
10In the police statement, N.L. paints C.L. as a controlling man who “kept on kind of pursuing things” with her. They lived at different residences, and he would often show up at her home unannounced and stand outside her door to listen to her phone conversations. She was “terrified” of his conduct and found him to be “creepy”. C.L. would also demand that she “prove” she loved him.
11Regarding their sexual life, N.L. states that he used something akin to coercion, and would “push and push” her and eventually she would just “give in” to his demands for sex. It was “not enjoyable”, it “wasn’t fun”, and she felt like “she was being used every single time.”
12After she became pregnant with their child, she stated that C.L. asked her to have an abortion near the end of April or in early May 2023. At the time of the interview, N.L. expressed concern that C.L. is now seeking access to their son and that their son’s safety is at risk due to various aspects of C.L.’s behaviour.
The Other Sexual Activity Evidence and the Private Records
13C.L. seeks to introduce evidence at his trial regarding how his relationship with N.L. began and that they continued with their relationship throughout the period when N.L. alleges the offences occurred, as well as for a short time after the last allegation of assault. During this period, she became pregnant with his child. According to his account, she actively pursued a committed, exclusive relationship with him, while he generally preferred to keep things casual and was open to pursuing other sexual partners. This created tension in their relationship.
14In his affidavit and oral testimony on the application, C.L. explained that he and N.L. were in an intimate partner relationship that lasted for many years. While there was an argument between him and N.L. on October 10, 2022, they went to bed that night without incident. Nothing sexual occurred. The argument was about N.L.’s belief that he had cheated on her.
15Their relationship continued, but due to N.L.’s allegations of infidelity, C.L. moved out and rented an apartment. He no longer considered them to be a couple, but N.L. would visit him regularly at his apartment, and he would visit her at her residence. She was aware that he had decided to see other women.
16On January 17, 2023, he attended N.L.’s home for a planned movie night. They later engaged in consensual sex. However, the sexual activity that night was nothing like what N.L. alleged to have occurred. He did not use zip-ties, assault her, choke her, or otherwise commit acts of violence against her. They discussed their relationship and N.L.’s desire for them to be committed to one another. They fell asleep in bed.
17The next morning, N.L. was cheerful and texted him flirtatiously and in an intimate manner. Some of these messages addressed whether C.L. would cut other women out of his life, at N.L.’s request. They discussed whether they would be exclusive. She also texted him about non-intimate matters.
18Over the next few days, N.L. continued to express interest in an exclusive relationship. N.L. sent him more intimate text messages, including links to websites where lingerie could be purchased. On February 7, 2023, they attended a tattoo appointment together to obtain matching tattoos as a demonstration of their renewed commitment to one another.
19The parties maintained an on/off sexual relationship until April 26, 2023. On that date, they argued. C.L. denies that any assault occurred. N.L. continued to try to convince C.L. to remain in a relationship with her. She sent him lengthy text messages to that effect. For example, two days later, on April 28, 2023, she sent C.L. a message saying how much she loves him and that she wants to spend her life with him. She persisted in her efforts into March 2024.
20The parties ceased communicating on May 8, 2024.
21C.L. further seeks to introduce text messages in his possession from several months in 2023 between the parties that demonstrate the relationship was different from how N.L. described it in her police statement. The messages were attached to his affidavit as an exhibit. The messages are often flirtatious, include sexual content, and he argues they demonstrate that N.L. was in love with him and desired to be with him forever. They begin January 16, 2023 (the day prior to the second allegation of assault on January 17, 2023) and extend to April 28, 2023 (which was two days after the last allegation of assault).
Position of the Parties and the Complainant
22Ms. Wilhelm submits that the complainant painted a misleading, self-serving picture of her relationship with C.L. in her police statement. N.L. describes C.L. as controlling and abusive. She stated that she was only reluctantly involved in the intimate features of their relationship, often agreeing to his demands just so he might leave her alone afterwards. She also refers to arguments about his infidelity as a catalyst for his anger in her descriptions of both the October 10, 2022, and April 26, 2023, incidents. Furthermore, N.L. revealed an argument over her pregnancy that arose during the April 26, 2023, incident. She informed the police that her decision to ultimately report the assaults was due, in part, to concerns that C.L. was seeking parenting time with their son, and her ongoing fears about his abusive behaviour.
23Therefore, Ms. Wilhem submits, the nature and contours of the parties' relationship are intricately woven into N.L.’s narrative. As a result, they will also be central components of C.L.’s defence. C.L. cannot effectively defend himself against the charges he faces without being able to refer to and explain his version of his relationship with N.L. and how certain events, including her pregnancy, affected it.
24Regarding the protections afforded to complainants enshrined in section 276, Ms. Wilhelm does not seek to introduce any of this evidence to demonstrate that the complainant consented to any of the alleged sexual activity or that she is less worthy of belief in general. Rather, C.L.’s position is that none of the impugned acts occurred. He intends to prove at the trial that N.L.’s description of their relationship, which she provided to the police, is completely belied by the text messages produced for this application. That evidence is relevant to specifically challenging N.L.’s credibility regarding the allegations she has made, and his ability to impeach her on these prior statements, with the text messages, is essential to his planned defence.
25Absent this evidence, N.L.’s anticipated trial testimony could leave me with a distorted impression that she was attempting to distance herself from C.L., when the opposite was occurring. Some of the messages are flirtatious and involve romantic overtures to him. Ms. Wilhelm submits that the probative value of the messages is high and integral to C.L.’s ability to make a full answer and defence. They are necessary for me to arrive at a proper and just determination. Any prejudicial effect is minimal and can be alleviated by appropriate limits on questioning and the use of evidence. Ms. Wilhelm does not intend to ask N.L. about the details of any sexual acts that may arise during her questioning. Any photographs of the complainant that might impact her dignity within the text messages need not be adduced. What is primarily important is their impeachment value, which relies on the statements she made within the messages she sent. Those statements contrast dramatically with the description of the relationship N.L. provided to the authorities, and some of the details of the events surrounding each alleged assault.
26Ms. Wilhelm submits that C.L. has met his burden on this application. She relies on several authorities in support of her client’s position, including R. v. L.S., 2017 ONCA 685. Any potential prejudice associated with this evidence is greatly lessened in this case, as the Crown has taken the position that it will lead to some of the other sexual activity evidence itself during its case in chief, regardless.
27On behalf of N.L., Ms. Stephens opposes the admission of most of the personal evidence C.L. seeks to introduce. She agrees that the text messages exchanged between the parties on January 18, 2023, are relevant for evaluating N.L.’s credibility and satisfy the criteria for admissibility.
28Ms. Stephens warns that in cases involving intimate partner violence, myths and stereotypes about the credibility of women’s claims “have proven particularly tenacious."3 While N.L. does not dispute the relevance of her long-term, volatile relationship with C.L., she argues that the sexual nature of that relationship has no place in the upcoming trial. C.L.’s narrative will not be rendered unlikely if he cannot rely on this evidence. At most, it would serve as "helpful context" which is not enough to meet the threshold requirements of section 276 of the Criminal Code.
29Ms. Stephens further submits that the reasoning in L.S. should not be extended to the facts in this case. The decision is, respectfully, “incongruous with more recent appellate jurisprudence targeting impermissible myth-based reasoning”.4 L.S. was decided two years before the Supreme Court of Canada’s trilogy of judgments in Barton, Goldfinch, and R.V. Those decisions issued a “clarion call to trial judges about the need to exercise greater vigilance in the admission of evidence of other sexual activity.”5 In her submission, she stated that the Court of Appeal’s reasoning in L.S. “is rooted in stereotypes about how a victim would behave if something happened”, which is what the Supreme Court of Canada has found to constitute erroneous reasoning in its post-2017 decisions.6
30During oral arguments, Ms. Stephens recognized the “uphill nature” of her position. She argued that, in the alternative, if I found that L.S. remained good law, I should nevertheless reconsider and refine its application in light of the Supreme Court’s decision of R. v. Goldfinch, 2019 SCC 38, in particular.
31Even if I were to determine that the evidence has probative value, Ms. Stephens argues that any probative value linked to the proposed defence evidence in this case is significantly outweighed by the risk of prejudice to the administration of justice if it is admitted. She does, however, acknowledge that the text messages beginning on January 18, 2023, at 6:17 a.m. and ending at 9:43 p.m. are admissible.7 Furthermore, during questioning, Ms. Stephens acknowledged that evidence that N.L. became pregnant with C.L.’s child is important context and narrative evidence that could be lawfully introduced by either the Crown or C.L.
32On behalf of the Crown, Mr. Chapin largely agrees with Ms. Stephens’ submissions. He agrees that the text messages from January 18, 2023, are admissible. He also agrees with C.L.’s request to introduce evidence that the parties conceived a child in early 2023 and that N.L. was pregnant at the time of the alleged assault on April 26, 2023.8
33Mr. Chapin argues that evidence captured by section 276 of the Criminal Code should rarely be admitted in “denial” cases. This case is no different. Regarding the Court of Appeal’s decision in L.S., Mr. Chapin submits that the case simply does not assist C.L. L.S. held that evidence of a relationship that continued “as if nothing happened” may be considered when determining if an assault occurred. Here, the parties agree that the dynamics of their relationship changed after this date, even if they disagree about the extent of those changes. Mr. Chapin further argued that the evidence on this application showed there was never a truly stable relationship between the parties prior to the assault, as C.L. accepted during cross-examination on his affidavit that they were at most “off and on” almost the entire time they were seeing each other. That too is an important distinguishing feature of the facts in L.S.
34Even he agrees there was a noticeable change in his relationship with N.L. after October 10, 2022 (the date of the first allegation of sexual assault).
35All counsel argued this motion on the basis that the text messages exchanged between the parties constitute private records for the purposes of section 278.1 of the Criminal Code.
Law and Analysis
36Criminal Code section 276 prohibits the introduction of other sexual activity evidence for either of the twin myths. Evidence that the complainant has engaged in previous sexual activity with the accused (or any other person) is not admissible to show that the complainant is (1) more likely to have consented to the subject matter of the charge or (2) less worthy of belief.
37Other sexual activity may be admissible if it meets four criteria:
(1) First, that it is not being adduced for the purpose of supporting either of these two prohibited inferences;
(2) Second, that it is relevant to an issue at trial;
(3) Third, that it is of specific instances of sexual activity; and
(4) Fourth, it has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
38In determining whether the proposed evidence is admissible under section 276(2), section 276(3) lists the criteria to be considered:
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. whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;
d. the need to remove from the fact-finding process any discriminatory belief or bias;
e. the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;
f. the potential prejudice to the complainant’s personal dignity and right of privacy;
g. the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and
h. any other factor that the judge, provincial court judge or justice considers relevant.
39There is no dispute that the sexualized texts that C.L. seeks to adduce constitute sexual activity, as section 276(4) expands the definition of other sexual activity to include communications “made for a sexual purpose or whose content is of a sexual nature.” However, while some of the text messages sought to be admitted are clearly sexual in nature, many are not. Nevertheless, the defence submits that they too are relevant to the trial, and it would be artificial to separate them from the messages that engage section 276 protections. Ms. Wilhelm argues that the entire text message conversation between the parties must be considered when interpreting and assessing its probative value.
40Criminal Code section 278.92 governs the admissibility in sexual assault prosecutions of any “record”, as defined in section 278.1, if that record is in the possession or control of the accused and the accused seeks to adduce that record into evidence. Records for this purpose include material that “contains personal information for which there is a reasonable expectation of privacy”. All parties argued the application on the basis that N.L. has a reasonable expectation of privacy in the entire collection of text messages sought to be introduced into evidence. The records are presumptively inadmissible unless C.L. can establish that the criteria in either section 276(2) or section 278.92(2)(b) have been met. The evidence must be relevant, refer to specific instances of sexual activity (where applicable), and have significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice: sections 276(2)(a)-(d) and 278.92(b).
41In determining whether evidence is admissible undersection 278.92(2), the judge shall take into account the factors listed in either section 276(2) or section 278.92(3), depending on the characterization of the messages. However, it is worth noting that the factors are essentially the same in both subsections: see R. v. Younkman, 2025 ONCJ 565, at para. 23. An additional factor contained in section 278.92(3) is consideration of “society’s interest in encouraging the obtaining of treatment by complainants of sexual offences”: see sub (c).
42In R. v. C.I., 2023 ONCA 576, the Court of Appeal commented on the importance of trial courts acting as responsible gatekeepers when deciding these applications, especially in light of the values these provisions of the Criminal Code are meant to protect:
92Sexual assault trials pose unique and difficult problems associated with the balancing of probative value against prejudicial effect. Historically, the courts have failed to achieve an appropriate balance in sexual assault cases both by overstating the probative value of certain kinds of evidence tendered in those cases, and by understating the potential harm to the integrity of the trial process caused by the admission of that evidence: J.J., at para.1; R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at para. 33; R. v. L.S., 2017 ONCA 685, 40 C.R. (7th) 351, at para. 79.
94The admissibility inquiry mandated by s. 278.92(2)(b) seeks to preserve the accused’s right to make full answer and defence, but not at the expense of admitting evidence that will prejudice the proper administration of justice by misleading the trier of fact, infringing on the fundamental rights of complainants, or unduly interfering with the achievement of broader societal goals: R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R 443, at paras. 19, 41-43.
43To properly assess the probative value of the evidence C.L. seeks to adduce, I must identify the live issues at his trial: see C.I. at para. 103. As I understand the parties' positions, the primary issue will be whether the Crown can prove beyond a reasonable doubt that any of the assaults occurred, which will turn largely on assessing the credibility and reliability of the witnesses. C.L. is anticipated to deny the first and third events in their entirety and is expected to deny that the second event on January 17, 2023, occurred as it was described by N.L. in her police statement. While his affidavit filed on this application stipulates that some consensual activity occurred that day, he denies that any of the violent actions N.L. alleges ever happened. I accept that, notwithstanding his position that a sexual act occurred between him and N.L. on this date, he is not seeking to rely upon the prior sexual activity evidence between them to suggest that N.L. was more likely to consent to sexual activity on this date. Rather, he is effectively denying that the alleged sexual assault occurred at all, as N.L. has described a totally different encounter than what he recalls.9
44This application, like so many others, involves various forms of “relationship evidence.” Prof. L. DuFraimount describes the tension surrounding the admissibility of this form of evidence in her case comment entitled, R. v. Goldfinch and the Problem of Relationship Evidence, 55 CR-ART 282 (2019):
Relationship evidence raises conflicting fundamental concerns. On the one hand, evidence of an ongoing sexual relationship between the accused and the complainant carries the potential to invite prohibited reasoning. Judges and juries may be tempted to reason that the relationship entitles the accused to sexual access to the complainant, an idea that was reflected in the marital exemption to the offence of rape that remained in the Criminal Code until its repeal in 1983. Equally, triers of fact may understand consent to sexual activity within a relationship as continuing or irrevocable, contrary to the legal definition of consent as the complainant's subjective "voluntary agreement" to engage in the particular sexual activity at the very time it occurs. On the other hand, excluding evidence of an ongoing relationship may impair the accused's right to full answer and defence by causing triers of fact to misinterpret interactions between the accused and the complainant. Human interactions are shaped by the relationships in which they occur and requiring triers of fact to adjudicate factual issues without knowledge of the nature of those relationships may be both unworkable and unfair.
45In Goldfinch, the appellant sought to introduce evidence of a “friends with benefits” relationship between himself and the complainant. Karakatsanis J., writing for a majority of the Supreme Court, held that evidence that the accused and the complainant were "friends with benefits" was inadmissible because its only purpose was to invite the prohibited inference that the complainant's consent on prior occasions made it more likely that she consented on the date of the alleged sexual assault: see paras. 4 and 47. However, the door was not fully closed for the introduction of relationship evidence. At para. 63, the majority noted that “[e]vidence of a sexual relationship may also be relevant when complainants have offered inconsistent statements regarding the very existence of a sexual relationship with the accused.” Further, at para. 65 the majority acknowledged that “[t]here will, of course, be circumstances in which context will be relevant for the jury to properly understand and assess the evidence.”
46Similarly, as noted in R. v. Reimer, 2024 ONCA 519, sexual activity evidence (including sexualized text messages) is not prohibited in all cases where the primary issue is one of credibility: see para. 78. 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”: see para. 78. Where the evidence does not invite discriminatory reasoning or “trade on sexism”, but instead permits a “logical, permissive inference”, the evidence can be admitted: see para. 83.
47In L.S., the complainant alleged she had been raped by the appellant. He denied the allegation. After the alleged incident, the relationship between the parties continued as if nothing had happened. The appellant brought an application to adduce evidence “of the sexual history of the relationship both before and after the alleged incident”: see para 52. The appellant indicated that the “context of the relationship”, including its intimate nature, was “relevant to the features of the offences that were allegedly committed”: see para 51. The trial judge denied the application. Justice Doherty held that this was an error and explained why evidence of the nature of the relationship between the parties could be relevant in this context at paras. 88-89:
I think that evidence that the relationship between E.K. and the appellant, including the sexual component of the relationship, carried on as it had before the alleged assault was relevant to whether the assault occurred. The defence could argue that evidence that the sexual component of the relationship carried on as before, supported the defence position that the parties carried on as if nothing had happened because nothing had in fact happened.
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.
48C.L.’s position is that the evidence he seeks to admit is relevant in this case with respect to N.L.’s credibility, given the live issue of conflicting narratives about the nature of the parties’ relationship when they were together. He does not seek to use the evidence for myth-based reasoning and does not raise the defence of consent, as he denies that any of the assaults occurred at all. The evidence could therefore be applied lawfully if its use is controlled, as explained in each of these prior authorities.
49Relevance, however, will not always be sufficient to pass the threshold test for admissibility. The Supreme Court of Canada in R. v. T.W.W, 2024 SCC 19, cautioned against trial judges casting too wide a net when evidence of other sexual activity is presented for context or assessing a witness’s credibility. At paras. 27-28, the Court wrote the following regarding when the issue of the complainant’s credibility is raised by the defence as a basis for admission (my emphasis added):
In order to be potentially admissible, the relevance and probative value of the evidence in each case must go beyond a general ability to undermine the complainant’s credibility … it must respond to a specific issue at trial that could not be addressed or resolved in the absence of that evidence.
Trial judges must guard against improperly widening the scope of when other sexual activity evidence should be admitted given that, as Karakatsanis J. noted in Goldfinch, “credibility is an issue that pervades most trials” (para. 56)… Too broad an approach to credibility … would cast open the doors of admissibility, overturning Parliament’s specific intention and this Court’s longstanding jurisprudence that evidence of other sexual activity will be admitted only in cases where it is sufficiently specific and essential to the interests of justice. Given the specific thresholds set by Parliament and their underlying objectives, something more is required to show that admission is justified…
50The Supreme Court clarified that evidence of other sexual activity will be admissible when it goes to “the fundamental coherence of the defence narrative” and when, in the absence of the evidence, the defence position would be “untenable” or “utterly improbable”: see para. 28. Furthermore, evidence of other sexual activity must be “sufficiently specific” and “essential to the interests of justice.”
51The proposed defence evidence in this case could be interpreted as presenting a diametrically opposed version of the parties’ relationship to that described by N.L. in her police statement. The text messages begin following the alleged January 17, 2023, assault and continue to April 28, 2023. The messages include the following:
N.L. asking C.L.: “miss me?”
Heart symbols and romantic emojis sent by both participants
N.L. asking C.L. whether he was deleting contacts on his phone for her
References to C.L. as “my love”
Questions from N.L. about whether he loved her
Images of lingerie she sent to him that she could purchase, some with the caption “sexy lingerie”
Expressions from both C.L. and N.L. that they love one another
“Selfies” and other images of them together
N.L. expressing her wish to be his “future wife.”
52On April 28, 2023, N.L. sent a very long text message about her feelings for C.L., how the uncertainty about their relationship status has been affecting her, and her ongoing desire for them to be in a committed relationship in the future. This final message post-dates the final allegation of assault by approximately two days.
53In N.L.’s police statement, she explained that she felt “used” in the relationship, did not enjoy their intimacy, and was the victim of repeated acts of physical and sexual violence. She would often give in to C.L.’s demands for sexual gratification just to be left alone later. I agree with Ms. Wilhelm that the text messages appear to starkly challenge the version of the relationship described by N.L. The messages may prove essential to C.L.’s ability to make a full answer and defence, as they present an invaluable source for impeachment purposes. They may demonstrate significant inconsistencies in N.L.’s evidence regarding how she viewed the romantic and intimate aspects of her relationship with C.L., including whether a consensual sexual relationship truly existed between them at all: Goldfinch at para. 63. They also seemingly clash with how she described the context surrounding each of the alleged assaults. They address a live issue at the trial and include specific details to rebut the complainant's description of central features of her narrative that were provided to the police to explain how and why the assaults occurred. They therefore provide more than a mere basis for a “general ability to undermine the complainant’s credibility”: see T.W.W. at para. 27.
54Ms. Wilhelm submits, and I agree, that adducing the text messages will enable C.L. to mount a precise and focused challenge to N.L.’s credibility regarding the specific allegations of assaultive behaviour she has made and how she is anticipated to describe how she felt about C.L. during the relevant time period. Her characterization of their intimate relationship will be an integral component of her anticipated testimony. In her police statement, she referred to the ongoing difficulties in her relationship with C.L. when explaining why she believed C.L. assaulted her, how she chose to respond to the abuse she was experiencing, and why she ultimately chose to report him to the authorities. This is very different from cases where defendants have brought applications that only address general credibility concerns of the complainant and the records in question have no direct bearing on any of the allegations of fact that must be proven by the Crown at trial: see, for example, R. v. A.G., 2025 ONSC 2453, at para. 25.
55The Manitoba Court of Appeal’s decision in R. v. Derksen, 2023 MBCA 85 (leave to appeal refused: [2023] SCCA No. 501), is instructive. The appellant was charged with sexual assault and sought to introduce prior sexual activity evidence. That evidence included that he had engaged in a “romantic” relationship with the victim for approximately a year and a half before the offence date. The appellant did not deny that the sexual encounter underlying the charges occurred, but took the position that it was consensual: para. 38. He argued that without the prior sexual history evidence, he would be unable to advance his primary defence of consent or an alternative defence of honest but mistaken belief in communicated consent: para. 46.
56The trial judge denied the application, and the decision was upheld on appeal. However, the Court of Appeal explained that the evidence might have been relevant to the victim’s credibility due to the disputed nature of the prior relationship between the parties: see para. 42. The appellant failed in his application at trial because he did not establish a proper foundation to challenge the victim’s credibility with this proposed evidence. His application did not establish the “relevance of the sexual nature of the relationship to an issue at trial with the required precision to be admissible”. By contrast, I find that Ms. Wilhelm has drafted her client’s application with the appropriate level of precision on a relevant issue.
57Indeed, this case is more like two other reported decisions where defence applications were granted. In R. v. A.S., 2024 ONSC 3662, the accused faced charges of possessing child sexual abuse material and sexual assault. He sought to introduce two documents provided by the complainant: a poem and a letter. In her police statement, the complainant stated she never wanted a romantic relationship with the accused and described him as a “work friend”: see para. 14. The poem described him as “the love of my life,” while the letter included a drawing with the caption, “Us madly in love watch a lovely sunset”: see paras. 7-11. Bordin J. granted the s. 278.92 application, finding the documents admissible. The accused was allowed to cross-examine the complainant regarding these documents for the “limited purpose of establishing any inconsistency”: see para. 63.
58In R. v. Neveau, 2025 ONCJ 77, the accused faced two counts of sexual assault. The defence sought to introduce evidence that the complainant asked Mr. Neveau’s girlfriend if she and Mr. Neveau would engage in a threesome hours before the alleged incident. Weinstein J. determined that “the evidence of the threesome proposal was relevant to the complainant’s credibility as it could reveal inconsistencies in her statements to police”: see para. 5. The defence was allowed to cross-examine the complainant on (1) whether she propositioned C.E. and Mr. Neveau for a threesome, (2) whether she was sexually interested in C.E., and (3) whether her sexual interest led her to fabricate her allegations: see para. 32.
59None of which is to say that the text messages at issue in this application are likely to be determinative of any contested matters at trial. They will presumably be explained by both N.L. and C.L. when they are inevitably asked to testify about their accuracy, the context in which they arose, and what each meant to communicate when they took part in the conversations. N.L. may have a compelling explanation for the messages that does not detract from her credibility whatsoever. There is no inviolable rule about how a victim of intimate partner violence or sexual assault will react to traumatic events. The messages are but one piece of evidence to be placed in the context of the broader body of evidence to be presented at the trial. N.L. may also dispute the authenticity or accuracy of the text message conversation as it was presented at this hearing, and a voir dire under section 31.1 of the Canada Evidence Act may be required. I will hear submissions from the parties in this regard prior to the commencement of the examination of N.L. after they have had the opportunity to review this ruling.
60Nevertheless, I am satisfied that the messages, once properly authenticated, provide context likely vital to evaluating the witness testimony in this case. They can be used for a legitimate purpose, and not a myth-based one. They will assist me in determining whether a material fact in issue – here, the very assaults themselves – is more or less likely to have occurred. Again, they may not prove to be determinative. But, as the Court of Appeal explained in Reimer, that is not required to pass the threshold test for admissibility: see para. 71.
61In R. v. Hussein, 2026 SCC 2, the Supreme Court of Canada held that “[t]here are no degrees of relevance”: see para. 27. Relevance does not require a “minimum probative value”, and evidence will be relevant when it has “some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would be in the absence of that evidence”: see Hussein, supra; Reimer, supra. Importantly, the standard for excluding relevant evidence is heightened when it is led by the defence: Hussein at para. 28, citing R. v. Seaboyer, 1991 76 (SCC), [1991] 2 S.C.R. 577, at pp. 610-11.
62I conclude that C.L. will be unable to properly present his defence without reliance on the text messages, placing him in the very “untenable” position the Supreme Court described in T.W.W. The admission of the messages would not be unduly prejudicial to N.L.’s dignity or privacy interests. There are no intimate images of N.L. in the messages that C.L. wishes to adduce. The presentation of the messages will not demonstrate discriminatory beliefs or bias, and their admission, for the very limited purposes sought by the defence in this case, will not deter other complainants from reporting alleged sexual offences. Ms. Wilhelm has undertaken not to ask N.L. about the details of any sexual acts that do not form the basis of the charges her client is facing.
63Importantly, C.L. does not seek to rely on the messages for a “twin-myth” purpose. While I recognize the concerns raised by Mr. Chapin and Ms. Stephens, just because evidence could be used for prohibited reasoning does not mean it cannot also be used lawfully for other potentially relevant purposes: see Darrach, at para. 35; Reimer at paras. 75-83.
64Regarding the other sexual activity evidence sought to be introduced, I conclude that it is admissible. Providing context about the parties’ relationship will be essential to C.L.'s defence. While the parties agree there was a change in their relationship after October 10, 2022, they differ, in my view, on the extent of that change and its causes. C.L.’s expected testimony is that even if the relationship was not exactly the same after this date, he and N.L. maintained an intimate relationship and that she wished for it to continue. This could be relevant to determining whether the assaults happened.
65I respectfully reject Ms. Stephens’ submission that the decision of the Ontario Court of Appeal in L.S. should no longer be relied upon, as it is arguably at odds with the Supreme Court of Canada’s subsequent jurisprudence. L.S. continues to be cited by courts across Canada in applications of this nature, including appellate courts: see, for example, R. v. D.K., 2020 ONCA 79, at para. 52; R. v. A.S., 2024 ONSC 3662, at paras. 32 and 55; R. v. Callahan-Tucker, 2025 NSCA 35, at para. 78; R. v. B.J., 2025 ABCA 57, at para. 8. I note that the Supreme Court of Canada itself, in its 2025 decision of R. v. Kinamore, 2025 SCC 19, also cited L.S. approvingly for the proposition that “evidence of consensual sexual activity between the complainant and the accused that follows an alleged assault may be relevant to whether the alleged assault occurred”: see para. 70. However, the Supreme Court cautioned that in cases where such evidence was admissible, undue weight should not be placed on it, and it “would be wrong to rely on such evidence to infer necessarily and conclusively that the assault did not occur”.10Accordingly, I will apply that caution should Ms. Wilhelm make such an argument on C.L.’s behalf during closing arguments at the conclusion of the trial.
66Additionally, I find that some evidence regarding the conception and birth of N.L.’s child with C.L. is admissible. Neither the Crown nor the defence will be able to present their cases accurately without providing background information about these events. In fact, N.L. told the police that one of her reasons for coming forward was concern about C.L. having access to their son. Addressing this topic will inevitably involve some evidence of “other sexual activity.” Although the Crown did not file a Kinamore application, the evidence is now admissible following the defence's section 276 application, so either side may present it as they see fit when questioning their witnesses.
Conclusion
67I find that the proposed evidence has significant probative value that is not substantially outweighed by any potential prejudice to N.L. or to the proper administration of justice. It thus meets the tests established by sections 276(2) and 278.92(2)(b).
68Certain limits will be imposed on the lawful use of this evidence at the upcoming trial. Ms. Wilhelm does not intend to introduce any messages that contain intimate images of N.L., and none will be allowed, regardless. No specific details related to any previous sexual activity between the parties are admissible. Evidence of other sexual activity is restricted to the period of the parties’ relationship and should only be described in general terms. Cross-examination of the complainant must follow these guidelines.
Released: March 27, 2026
Edited Reasons Approved For Publication on April 7, 2026
Criminal Code section 278.95
Signed: Justice Brock Jones
Footnotes
- A publication ban is in place with respect to the identity of N.L. Identifying her child could identify N.L, and therefore I ordered that the publication ban extends to the child’s name as well: see R. v. P.L., 2024 ONSC 2280, at para. 66.
- Transcript of Statement of N.L., given on November 12, 2024, at p. 12
- Factum of the Complainant, page 5, at para. 10.
- Factum of the Complainant, page 10, at para. 17
- Ibid.
- Ibid.
- Factum of the Complainant, page 15, at para. 26.
- It is noteworthy that the Crown took the position during the hearing that it did not need to bring a Kinamore application to rely on any of this contextual evidence, even though it intended to do so when questioning N.L. in chief during the trial. I expressed my reservations about the correctness of this position during oral argument. What followed was a fascinating discussion among all counsel and the court, which led me to conclude that there remains much uncertainty about the necessity of these applications in a post-Kinamore world. However, as there was no application before me, I make no formal decision in that regard. Furthermore, I want to commend Mr. Chapin for his forthright approach to this thorny issue during questioning and the very helpful submissions of Ms. Stephens about the extent of the Supreme Court’s decision in Kinamore regarding Crown-led “other sexual activity” evidence.
- While the third allegation is of a simple assault (that is, not a sexual assault), the parties argued this application as if the screening regime found in section 278.92 applied to all of the counts on the information.
- My emphasis added.