WARNING

This appeal is subject to a mandatory publication ban under s. 278.95. This section of the Criminal Code provides:

278.95 (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 of 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(4), 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.

WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4 or 486.6 of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall:

(a) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;

(b) on application made by the victim, the prosecutor or any such witness, make the order; and

(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order;

(b) on application of the victim or the prosecutor, make the order; and

(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall

(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;

(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and

(c) in any event, advise the prosecutor of their duty under subsection (3.2).

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have:

(a) informed the witnesses and the victim who are the subject of the order of its existence;

(b) determined whether they wish to be the subject of the order; and

(4) An order made under this section does not apply in either of the following circumstances:

(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or

(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.

486.6(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.

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,

(a) the person knowingly failed to comply with the order;

(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and

(c) a warning to the individual is not appropriate.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.

COURT OF APPEAL FOR ONTARIO

DATE: 20240111 *

DOCKET: C69071

Before: Zarnett, Thorburn and George JJ.A.

BETWEEN

His Majesty the King Respondent

and

N.G. Appellant

Counsel: Mark C. Halfyard and Colleen McKeown, for the appellant Deborah Krick, for the respondent

Heard: June 7, 2023

On appeal from the convictions entered on June 5, 2019 by Justice Anne E. London-Weinstein of the Superior Court of Justice, sitting without a jury.

Zarnett J.A.:

OVERVIEW

[1] The appellant seeks to set aside his convictions for five sexual offences: sexual assault, human trafficking, receiving a material benefit from human trafficking, receiving a material benefit from selling sexual services, and knowingly advertising an offer to provide sexual services for consideration. [1] He asserts that the convictions are the product of errors relating to the use or admissibility of evidence at trial. He does not contest his conviction for assaulting the complainant, an offence to which he pled guilty. [2]

[2] The offences all took place during a period when the appellant, the complainant, and another woman, T.M.F., were in a three-person relationship. When the complainant entered the relationship, on May 8, 2016, she was a 21-year-old university student. There were several break ups and resumptions of the relationship until it finally ended on December 14, 2016. On that date (as acknowledged in his guilty plea), the appellant physically assaulted the complainant as she tried to retrieve her belongings.

[3] There is no dispute that the trial judge’s findings support each of the convictions under appeal. In summary, she concluded:

a) The appellant had engaged in trafficking of the complainant for the purpose of exploitation, contrary to s. 279.01 of the Criminal Code. During a break in the relationship, the complainant, of her own choice, had begun sex work as an escort. However, after the relationship resumed, the appellant began posting advertisements and engaged potential clients for the complainant, protesting when she did not want to work as much as he wanted her to, and forcing her to work on days she did not feel like doing so. The trial judge found that the appellant used psychological coercion, emotional manipulation, and physical violence to control the complainant, and that a reasonable observer would conclude that the complainant was in danger of physical and psychological harm if she stopped performing sex work.

b) The appellant materially benefitted from the complainant’s sex work, thus committing offences under s. 279.02 and s. 286.2 of the Code. The trial judge found that the complainant financially supported the appellant and T.M.F., rejecting the appellant’s evidence that it was the other way around.

c) The appellant advertised sexual services for consideration, contrary to s. 286.4 of the Code, by posting advertisements for the complainant’s sexual services on a website.

d) On December 2, 2016, the appellant sexually assaulted the complainant contrary to s. 271 of the Code. The appellant was upset with the complainant for speaking to two other men known to be pimps at a nightclub in Ottawa. Purporting to enforce a punishment scheme for misbehaviour, the appellant gave the complainant an ultimatum of oral sex or anal sex. The complainant was tied up and initially performed oral sex. The trial judge rejected the notion that in doing so she was exercising a meaningful choice. The oral sex was not to the appellant’s satisfaction, and he switched to anal intercourse. The trial judge found the complainant did not consent to, and that the appellant knew that she did not want to engage in, anal sex. She found that the complainant “had no ability to choose not to have sex” and that “she did not want to have sex with [the appellant]”. She did not believe the appellant’s evidence that he had asked the complainant if she was okay and went on to find that even if the complainant had indicated she was okay she would only have been acquiescing to the inevitable. The appellant’s belief in a pre-existing punishment scheme afforded him no defence.

[4] The appellant raises four grounds of appeal about the treatment of evidence which he submits taint these findings and conclusions. First, he submits that the trial judge made a mistake about the contents of a text message sent by the appellant to T.M.F. in November 2016, a mistake that he says played an essential part in the trial judge’s reasoning and rises to the level of a misapprehension of evidence that caused a miscarriage of justice. Second, he argues that the trial judge erred in excluding, under s. 276 of the Code, a printout of WhatsApp messages that were downloaded by the appellant from the complainant’s cellphone that he took and withheld from her after the relationship ended. He submits that the messages were wrongly treated as inadmissible, when the manner in which they were obtained by the appellant ought only to have affected their weight. Third, he submits that the trial judge erred in not permitting the defence to cross-examine the complainant about earlier instances of “sexual punishment”. Fourth, he argues that the trial judge erred in her treatment of two text messages; one that was received by the appellant from a person who was not called as a witness, and the other from T.M.F.

[5] I would not give effect to any of these arguments and would dismiss the appeal.

ANALYSIS

There was no Misapprehension of Evidence That Played an Essential Part in the Trial Judge’s Reasoning

The Mistake

[6] This ground of appeal pertains to a mistake the trial judge made about the content of a text the appellant sent to T.M.F.

[7] On November 19, 2016, T.M.F. sent a text to the appellant saying she no longer wanted the complainant in their relationship. Less than an hour later, the appellant replied by text to T.M.F., saying “Nope we are gonna use her until our feets on the ground straight up” [3] .

[8] When delivering her oral reasons for conviction on June 5, 2019, the trial judge apparently thought the word “continue” appeared in the appellant’s text message. For example, at one point in her reasons, within a larger discussion that I set out below, she said: “the fact that he says, ‘…we’re going to continue to use her’, indicates that this was an ongoing course of action which had already taken place and would be continued in the future” (emphasis added).

[9] The trial judge returned to the text message later in her reasons concerning the human trafficking and material benefits counts. She found that it demonstrated the appellant “had a financial motive to continue to deceive [the complainant ] into believing that they loved her when in fact his motive was to continue to use her or exploit her work in the sex trade for financial gain ” (emphasis added). [4]

[10] The trial judge discovered her mistaken reading of the text message when reviewing her conviction reasons for the purpose of the appellant’s sentencing hearing on January 29, 2020. At the sentencing hearing, she noted that the appellant had not said “We are going to continue to use her” but had said “we are going to use her.” She apologized for the error and added that it “might impact…the analysis in relation to how long the trafficking had been going on. It was only one piece of evidence that I relied on in relation to the whole, but it was incorrect.” [5]

Discussion

[11] The appellant argues, the Crown concedes, and I agree, that in evaluating the argument that there was a material misapprehension of the evidence leading to conviction, the additional reasons containing the correction the trial judge provided on January 29, 2020, should not be considered. After-the-fact justification for a decision cannot be considered by an appellate court; only the original reasons for conviction are germane: R. v. Thompson, 2010 ONCA 463, at paras. 24-26.

[12] Although the trial judge misread the text message to include the word “continue”, I do not agree with the appellant that this meets the stringent test for setting aside a conviction because a mistake about the evidence rises to the level of a misapprehension of evidence that has resulted in a miscarriage of justice.

[13] For that stringent test to be met, the misapprehension of evidence “must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge. Once those hurdles are surmounted, there is the further hurdle…that the errors thus identified must play an essential part not just in the narrative of the judgment but ‘in the reasoning process resulting in a conviction’”: R. v. Lohrer, 2004 SCC 80, at paras. 1-2; R. v. Morrissey, at p. 221. “[A]n error in the assessment of the evidence will amount to a miscarriage of justice only if striking it from the judgment would leave the trial judge’s reasoning on which the conviction is based on unsteady ground”: R. v. Sinclair, 2011 SCC 40, at para. 56.

[14] The trial judge relied on the appellant’s text in relation to the human trafficking and receipt of a material benefit counts. She said, in relation to those counts, that the text was: (i) inculpatory evidence; (ii) a reason not to accept the appellant’s exculpatory evidence that his love of the complainant, rather than exploitation, was the basis of the relationship; and (iii) corroborative of the complainant’s evidence and therefore a reason why concerns about the complainant’s credibility were overcome.

[15] Because of the way she considered and used the appellant’s text, any mistake about it does not affect the convictions for sexual assault or advertising sexual services. I agree with the Crown that those convictions rested on separate evidentiary premises and the trial judge’s path of reasoning to those convictions was not in any way dependant on how she viewed the text message.

[16] Nor, when read in context, does the trial judge’s mistaken view of the appellant’s text message form an essential part of her reasoning for the convictions on the human trafficking and receipt of material benefits counts. The gravamen of what the trial judge took from the text, which was essential to her reasoning, was the appellant’s stated intention to use the complainant and benefit financially from doing that. Excising “continue” from the portions of her reasons that mistakenly view that word as part of the express content of the text does not leave those convictions on unsteady ground.

[17] The trial judge’s mistaken reading of the text message must be placed in its proper context. In her oral reasons for conviction, the trial judge said:

[The complainant] said that when she began a relationship with [the appellant] and T.M.F., she felt that by escorting she was part of the team and, that all three of them were on the same team. At trial she testified that she later realized that she was used by both T.M.F. and [the appellant]. [The appellant] testified that he loved [the complainant] and T.M.F. and continued to love [the complainant] even as he gave his evidence in this trial. However, the overwhelming evidence in this trial is that while [the appellant] may have convinced [the complainant] that he loved her, his actions toward her, especially during the last part of the relationship in November and December were not motivated by love.

At one point, T.M.F. was so fed up with the state of affairs that she texted [the appellant] and said she could not continue with [the complainant] she wanted to end things. She called [the complainant] a, ‘crazy bitch’. [The appellant] replied in terms that defy the claim that he loved [the complainant] and was not exploiting her work in the sex trade for financial gain. [The appellant] texted to T.M.F., we are going to use her until we get our feet on the ground. Defence counsel ably tried to frame this comment as meaning that [the appellant] meant only that he was going to use the complainant until they could afford an apartment. T he defence argues this comment does not refer to a larger deception about the true nature of the relationship. The defence denies that [the appellant] pretended to be in a relationship with [the complainant] in order to persuade her to support T.M.F. and himself financially through her work in the sex trade.

However, even if defence counsel is correct, at this point in the relationship, clearly, [the appellant] wants to use [the complainant] and to take her money in order to re-establish himself financially. He is aware she has been working in the sex trade and he has benefited financially from this arrangement. In my view, this text reveals that [the appellant] intended to continue to exploit [the complainant] in order to restore himself financially.

The fact that T.M.F. did not want to continue did not deter him from his plan. [The appellant] was in his own words, intent on using [the complainant] financially until he was re-established financially. In my view, this comment rebuts any notion that [the appellant] loved [the complainant]. He wanted to continue to use [the complainant], and so he did, despite his long-term girlfriend’s expressed wish that he lose [the complainant’s] number. I found the use of the word, “continued”, to also suggest that this exploitation was something that had been done in the past, and which was going to be continued. I also found that if [the appellant] had ever truly loved [the complainant], he would not suggest continuing to use her. This is not the type of comment which one would use in relation to a loved one.

[18] In this passage, the trial judge is focussed on the time period in November and December, that is, largely the period from the time of the text forward. And she is focussed on the competing narratives in the trial − the complainant’s version that she was used by the appellant and T.M.F., and the appellant’s version that the relationship was based on love. When the trial judge first refers to the language of the appellant’s text, she did not recite it as including the word “continue”. She quoted it as saying: “we are going to use her until we get our feet on the ground”. It is that language – “ use her ” − which the trial judge states defies “the [appellant’s] claim that he loved [the complainant] and was not exploiting her work in the sex trade for financial gain”.

[19] Throughout the passage, the trial judge draws from the appellant’s stated intention to use the complainant. She considers the defence argument that the text meant only “that [the appellant] was going to use [the complainant] until they could afford an apartment” and concludes that, even if that reading is right, “at this point in the relationship, clearly, [the appellant] wants to use [the complainant] and to take her money in order to re-establish himself financially. He is aware she has been working in the sex trade and he has benefited financially from this arrangement” (emphasis added). Although she followed this by stating that the appellant intended to continue to exploit the appellant, the meaning would be the same without the words “to continue”. Similarly, later in the passage the trial judge stated: “The fact that T.M.F. did not want to continue did not deter him from his plan. [The appellant] was in his own words, intent on using [the complainant] financially until he was re-established financially ” (emphasis added). It is that finding that was essential to her reasoning. Her later statement that “[h]e wanted to continue to use [the complainant], and so he did, despite [T.M.F.’s] expressed wish” would have the same effect if the words “to continue” were removed. The same is true of the trial judge’s statement that “if [the appellant] had ever truly loved [the complainant], he would not suggest continuing to use her”. Removing “continuing” leaves the trial judge’s essential point intact.

[20] Indeed, the only statement that gave an independent meaning to the word “continue” over and above what the trial judge properly drew from the word “use” was her statement that: “I found the use of the word, ‘continued’ ( sic ), to also suggest that this exploitation was something that had been done in the past, and which was going to be continued” (emphasis added). This was an additional conclusion, as indicated by the word “also”. It was, as well, a non-essential conclusion, as the appellant’s statement that there was an intention to use the complainant in November and December, coupled with the findings of actual exploitation resulting in financial benefits to the appellant in that time frame, were all that was required for the convictions, regardless of whether the appellant was also expressly admitting that activity had already taken place.

[21] The trial judge’s conclusions that the appellant “had a financial motive to continue to deceive [the complainant] into believing that they loved her when in fact his motive was to continue to use her or exploit her work in the sex trade for financial gain” would have the same effect if the words “to continue” were removed. I reach the same conclusion regarding her findings that the appellant’s text was: (i) inculpatory evidence on the human trafficking and receipt of benefits counts; (ii) reason not to accept the appellant’s exculpatory evidence that his love of the complainant, rather than exploitation, was the basis of the relationship; and, (iii) corroborative of the complainant’s evidence and therefore a reason why concerns about the complainant’s credibility were overcome. These findings remain intact even with the mistaken reference to “continue” removed.

[22] Accordingly, the trial judge’s mistake about the appellant’s text does not give rise to doubt about the reliability of the convictions for human trafficking and receipt of material benefits. This conclusion is fortified by other findings made by the trial judge on these counts. She found that even before the text was sent, the appellant: (i) relied on the financial contributions of the complainant from her involvement, with his knowledge, in the sex trade, including using her credit card for transportation, lodging, and other expenses; (ii) set up the complainant’s escorting arrangements and took the money from them; (iii) posted photos of the appellant on a website advertising her sexual services; (iv) gave the complainant a quota of sex work to fulfill; (v) sent the complainant to solicit a sports team and took the money she earned; (vi) urged the complainant to work more in the sex trade and argued with her when she did not want to. Following the date of the text, trial judge found the appellant: (i) told the complainant to keep working in the sex trade when she clearly did not wish to; (ii) took cash the complainant had earned from escort work; (iii) directed the complainant to be “in grind mode” and meet her quota before she would be allowed to stop sex work for the day; and, (iv) assaulted the complainant when she tried to leave the relationship in order to “terrorize her”.

[23] Taken together, those findings ground the trial judge’s ultimate findings that (i) the appellant committed human trafficking for the purpose of exploitation since he used psychological coercion, emotional manipulation, and physical violence to control the complainant and a reasonable observer would conclude that the complainant was in danger of physical and psychological harm if she stopped performing sex work, and (ii) that the appellant received financial benefits from the complainant’s sex work. The mistake the trial judge made about the wording of the appellant’s November 19, 2016 text was not essential to these findings; this provides additional support for the conclusion that the mistake was not essential to her reasoning toward conviction.

Conclusion

[24] This ground of appeal therefore fails.

The Trial Judge Did Not Err in Excluding the Printout of WhatsApp Messages

The Issue

[25] During the appellant’s testimony at trial, he said he had taken the complainant’s cellphone from her the night the relationship ended. He did not return the phone to her, and said he took it because he believed it had evidence that would assist him. His trial counsel showed him a printout of messages the appellant said he had downloaded from the cellphone [6] . Although the Crown did not object to the admissibility of some messages, the Crown did object to others including those following December 2, 2016 (the date of the sexual assault) in which the appellant and the complainant discussed further sexual activity . The appellant brought an application to admit the printout of WhatsApp messages under s. 276 of the Code which sets up strict conditions that must be met before evidence of a complainant’s sexual activity, other than that which forms the subject-matter of the charge, can be admitted.

[26] The Crown argued that the printout of messages had not been authenticated as required by the Canada Evidence Act, R.S.C., 1985, c. C-5 (“CEA”), the messages were incomplete and had been edited, and the grounds for admitting messages of a sexual nature under s. 276 of the Code had not been made out. The Crown noted that the messages were not found on the appellant’s own cellphone − the WhatsApp application had been deleted from it on or prior to December 14, 2016.

[27] The trial judge decided not to admit the printout of messages. She gave oral reasons at the time, stressing that the messages were taken from a phone that the appellant had withheld from the complainant while also noting concerns about the completeness of what the appellant was proffering. She said she was not completely foreclosing another consideration of the messages after interaction the parties might choose to have with the Gatineau police about what was actually on the cellphone. She indicated that written reasons would follow.

[28] No written reasons were given, nor did the appellant make a further or renewed application about the messages.

[29] In her reasons for conviction, the trial judge referred to her decision not to admit the messages. She acknowledged that the messages were “strongly suggestive” that the complainant wanted to have further sexual activity with the appellant after the date of the sexual assault, but reiterated that their exclusion was warranted. Allowing the appellant to undermine the credibility of the complainant by relying on material from a cellphone he had stolen from her was “fundamentally unfair” and “tipped the balance in favour of exclusion”. The prejudice to the complainant’s privacy rights exceeded any probative value of the messages. That probative value was “negligible” since the complainant was “psychologically dependent” on the appellant, thus explaining her willingness to continue a relationship with him following a sexual assault. In any case, the appellant’s own evidence established his culpability for sexual assault.

[30] The appellant argues that the trial judge’s reasoning was flawed. He submits the trial judge should not have excluded the evidence simply because it was illegally obtained. Any concerns about the completeness of the messages went only to weight, not to admissibility. And the trial judge was wrong to use her ultimate findings − for example her finding that the appellant’s liability for sexual assault was established on his own evidence − to assess the probative value of the messages.

Discussion

[31] The trial judge did not err in ruling the printout of WhatsApp messages inadmissible.

[32] I do not interpret the trial judge’s ruling to be that the act of the appellant stealing the complainant’s cellphone made evidence from it per se inadmissible. But that conduct was a relevant consideration in assessing whether the printout that the appellant proffered could overcome the two respects in which it was admissibility-challenged.

[33] Admissibility concerns arose because, first, and regardless of its content, the printout purported to represent the contents of an electronic document. The CEA sets out requirements for proof of an electronic document. A party seeking to admit an electronic document must prove its authenticity − that it is what it purports to be: CEA, s. 31.1. And it sets out certain presumptions about what constitutes the best evidence of the electronic document. A printout will be presumed to be the best evidence of the electronic document if it has been “manifestly or consistently acted on, relied on or used as a record of the information recorded or stored in the printout”: CEA, s. 31.2(2).

[34] The second admissibility concern arose because in large part the printout purported to be of messages of a sexual nature which were inadmissible under s. 276 of the Code unless certain conditions were met.

[35] The trial judge’s concerns about the way the appellant acquired the cellphone was relevant to both of these admissibility concerns.

[36] On the question of whether what was proffered was the best evidence of an authentic electronic document, the printout did not benefit from the presumption in s. 31.2(2) of the CEA. It was relevant, to whether the printout was in fact the best evidence, that the appellant had stolen the complainant’s cellphone and put himself in a position where only he controlled its contents, especially when considered with the following other factors. The appellant did not offer the cellphone in evidence. Nor did he pursue obtaining the cellphone from the Gatineau police or attempt to verify its concordance with the printout, although given that opportunity. He raised the printout only in his own evidence, not having questioned the complainant about it when she testified [7] . And the contents of the printout could not be verified by reference to his own cellphone, although he was the other party to some of the purported messages, as the WhatsApp application had been deleted from his cellphone on or before December 14.

[37] Similarly, the fact that the appellant was purporting to introduce evidence from a cellphone he had stolen and withheld from the complainant, in circumstances where he was in a position to manipulate its contents, was relevant to whether the evidence should be admitted under s. 276(2) of the Code, particularly because s. 276(3)(b) of the Code expressly permits the court, in determining whether to admit such evidence, to consider “society’s interest in encouraging the reporting of sexual offences”. The trial judge had raised with defence counsel during argument whether people would be deterred from reporting sexual offences if an accused was allowed to benefit from withholding a complainant’s cellphone in a sexual assault and exploitation case. In that context, I interpret the statement in her reasons for conviction that it had struck her as fundamentally unfair that “the accused would be able to rely on material from a phone which he stole from the complainant in order to use it to undermine her credibility at trial…” to relate to that very consideration.

[38] I also reject the argument that the trial judge should have viewed concerns about the completeness of the printout as going only to the weight of the evidence.

[39] It is true that the threshold for admissibility of an electronic record under s. 31.1 of the CEA is low: R. v. C.B., 2019 ONCA 380, at para. 67. Where there are “various strands of evidence…capable of supporting a finding that the text messages were what they purported to be” a trial judge errs by insisting on direct evidence from the sender or on expert forensic evidence to establish admissibility: at paras. 74-77. But that was not the situation in this case. Here, the trial judge was concerned with whether the printout the appellant proffered was the complete, that is, the accurate and genuine, version of messages that were actually on the cellphone on the dates they purported to be, in circumstances where the appellant had taken and withheld the cellphone from its owner. As the trial judge noted, the position may have been different if the appellant had returned the cellphone, and the concern might have changed if the messages were downloaded from the phone now apparently in the possession of the Gatineau police, but neither eventuality occurred. This type of authenticity and best evidence concerns were properly considered as pertaining to admissibility.

[40] The trial judge concluded that in any event the probative value of the messages was negligible and was outweighed by the prejudice of admitting them. The appellant’s argument that the trial judge intermixed her ultimate findings into this question is superficially correct but does not reveal a substantive error. The probative value of the messages had to be assessed in light of the live issues in the case. By the time the printout was offered in evidence, during the appellant’s testimony, the issues had crystallized.

[41] The messages that were of a sexual nature − that were “strongly suggestive” that the complainant wanted to have further sexual activity with the appellant after December 2, the date of the alleged sexual assault − could not bear on the question of whether she consented to sexual activity with the appellant on December 2 without engaging in twin myth reasoning proscribed by s. 276(1) of the Code. Nor would the messages that did not engage s. 276 have presented a different picture of the overall relationship than that otherwise in evidence, as the appellant now contends. It must be remembered that defence counsel at trial had not even tried to introduce the messages through cross-examination of the complainant and had, in argument, referred to the messages as “relevant” but “not terribly germane”.

[42] In those circumstances, the trial judge was entitled to find that the probative value of the messages as described on the printout was negligible. That finding is not tainted by her references to the appellant’s guilt on the sexual assault charge having been established on his own evidence.

Conclusion

[43] Accordingly, I reject this ground of appeal.

The Trial Judge Did Not Err in Her Refusal to Permit Cross-Examination on Prior Instances of “Sexual Punishment”

[44] Prior to trial, the appellant applied under s. 276 of the Code for, among other relief, permission to cross-examine the complainant on what he alleged were two earlier incidents, during the three-person relationship, in which the appellant or T.M.F. were “sexually punished” for a relationship transgression, with the complainant in the role of a “punisher”. According to the appellant, there was an agreement in place that if the appellant, T.M.F. or the complainant committed a relationship transgression, they had to perform a sexual act to the satisfaction of the others; the transgressor would have no say in the punishment.

[45] The trial judge denied this request and dismissed this aspect of the s. 276 application. She found the proposed evidence legally irrelevant − it was an attempt to advance a defence of prior consent, or to buttress a defence of honest but mistaken belief in consent based on prior consent. Both were legally impermissible.

[46] The appellant argues that the trial judge misunderstood the purpose of the proposed evidence. He says that defence counsel at trial disavowed any reliance on prior consent. Instead, he says the purpose of the evidence was to show that the complainant understood that she had a choice not to agree to participate in the punishment, and that this was relevant to how the parties communicated about the issue of consent within the parameters of the sexual punishment scheme.

[47] I do not accept this argument. A trial judge’s decision on a s. 276 application is entitled to substantial deference on appeal: R. v. M.T., 2012 ONCA 511, at para. 54. I see no error in her analysis of the potential relevance of the proposed evidence and in the exercise of her discretion to exclude it.

[48] For the purpose of a charge of sexual assault, consent means “the voluntary agreement of the complainant to engage in the sexual activity in question”: s. 273.1(1) of the Code. It requires the conscious agreement of the complainant to “every sexual act in a particular encounter ”: R. v. J.A., 2011 SCC 28, at para. 31. At the actus reus stage, the absence of consent is determined solely by reference to the complainant’s subjective state of mind at the time of the touching; the accused’s perception of whether there was consent is irrelevant at this stage: R. v. G.F., 2021 SCC 20, at paras. 25-26; R. v. Barton, 2019 SCC 33, at para. 87. At the mens rea stage, the focus shifts to whether the accused knew of, was wilfully blind or reckless as to, the lack of consent: Barton, at para. 87. In some circumstances, an honest but mistaken belief that there was consent is exculpatory. But the range of beliefs that may exculpate an accused are limited by the common law and the Code: R. v. Ewanchuck, at para. 28; G.F., at para. 1; Code, s. 273.2. A mistake in law about what constitutes consent − such as a belief that broad advance consent is sufficient − is not exculpatory. “[A] belief that the complainant gave broad advance consent to sexual activity of an undefined scope will afford the accused no defence, as that belief is premised on a mistake of law”: Barton, at para. 99.

[49] In light of these principles, the trial judge was correct to exclude the evidence. It is hard to see it as possibly related to anything other than the question of whether the complainant gave consent, or the accused’s state of mind about consent, exactly as the trial judge found. But as she also found, it could not permissibly relate to either. Evidence about prior occasions of punishment could not be used for the purpose of showing the complainant was more likely to have consented to the oral and anal sex that occurred on December 2, 2016, because s. 276(1) of the Code renders inadmissible evidence of extrinsic sexual activity to support an inference that the complainant is more likely to have consented to the sexual activity that is the subject of the charge by reason of her consent to sexual activity on another occasion. The evidence of what occurred in the past was not itself evidence of consent to “every sexual act in a particular encounter ” that is, the oral and anal sex on December 2, 2016. Nor could the appellant’s belief in the existence of an agreement for unspecified sexual punishment, and prior episodes of it, have been relied on by the appellant as broad advance consent to the specific sexual acts that occurred on December 2, 2016.

[50] The appellant’s argument that the prior episodes could show whether the complainant believed a person had a choice whether to undergo sexual punishment is unavailing. Under s. 276(2)(b) of the Code, evidence of extrinsic sexual activity is inadmissible, even where its purpose is not to support one of the twin myth inferences, if it is not relevant to an issue at trial. The issue of whether the complainant gave voluntary agreement − consent − on December 2 could not be affected by that kind of evidence. If the complainant believed she had a choice to consent, and did not consent, then there was an absence of consent. If the complainant believed that she had no choice about whether to consent, and therefore did not consent, the result is the same − there was an absence of consent.

[51] I therefore reject this ground of appeal.

The Trial Judge Did Not Improperly Rely on Two Text Messages

[52] The appellant argues that the trial judge improperly relied on two text messages.

The Mr. S. Message

[53] In the course of her reasons, the trial judge referred to an exchange of text messages between the appellant and a friend of his, Mr. S., a couple of weeks after the relationship with the complainant ended. She said:

“Mr. [S.] a friend of T.M.F. and [the appellant], sent a text to [the appellant] asking him if he could make money from [the complainant] now that she was no longer involved with [the appellant]. Why should a stranger make money from her and not a friend, was the import of that message. [The appellant] does not respond by saying, “I don’t know what you’re talking about”, denying that he was making money from [the complainant]’s services. Instead, he texts, “Hey, do your thing. She’s not my girl. Test the river if you can keep your head above water.”

Mr. [S.] it must be remembered, was at the Westin with [the complainant] and [the appellant], and spent time with them there. [The complainant] was escorting while at the Westin. I found that this evidence corroborated [the complainant]’s claim that she turned the money she earned at the Westin over to [the appellant]. Mr. [S.] understood the nature of the relationship between [the complainant] and [the appellant] and T.M.F. As I indicated earlier, I found as a fact that [the appellant] was deceiving [the complainant] into thinking he loved her when, in fact, he and T.M.F. were exploiting her to make money in the sex trade. Therefore, given that deception, the statement by Mr. [S.] confirms that [the appellant] was receiving a material benefit from his exploitation of [the complainant]”.

[54] Mr. [S.] was not called as a witness. The appellant argues that the trial judge should not have relied on the contents of his text message, as it was hearsay.

[55] I do not accept this argument.

[56] Where an accused person has engaged in a text conversation with another person, the statements by the accused are admissible as an exception to the hearsay rule. The statements by the other party to the conversation are generally admissible only as context − to understand what the accused person was saying − but not for the truth of their contents. But if it is apparent that the accused is adopting the other person’s statements, or the factual premises of them, as true, those statements can also be treated as an admission by the accused and therefore as admissible for their truth: David M. Paciocco, “Proof and Progress: Coping with the Law of Evidence in a Technological Age” (2013) 11 CJLT 181, at p. 213.

[57] Although the trial judge did not expressly say that the appellant adopted statements of [Mr. S.] as true, in effect that is how she proceeded. She did not simply rely on the statements of Mr. S. She found, as she was entitled to, that Mr. S. had been exposed to the nature of the relationship the appellant had had with the complainant, and was asking if he could now do what he understood the appellant had been doing − make money off the complainant’s sex work. She considered what the appellant said in response to being asked whether it was okay for Mr. S. to make money off the complainant, now that the relationship between the appellant and the complainant had ended − “Hey, do your thing”, as well as what he did not say. He did not express any surprise, lack of understanding, or disagreement with being asked the question. In effect, she found that the appellant accepted as true the factual premise of the question posed by Mr. S.

T.M.F.’s Message

[58] The appellant also argues that the trial judge wrongly treated a text message sent by T.M.F. to the appellant on December 4, 2016 as corroborative of a sexual assault having occurred on December 2, 2016.

[59] In the text message, T.M.F. had said she was “proud of [the complainant] for keeping on trucking”. When she testified, T.M.F. said she meant she was proud of the complainant for putting up with the tiring and discouraging nature of the sex work trade. The trial judge did not believe T.M.F.; instead, she considered the message supported the inference that T.M.F. knew what occurred on December 2 but was not candid with the court in her description of what she meant.

[60] I agree with the Crown’s argument that the trial judge considered the text message only in the context of her assessment of T.M.F.’s credibility. The trial judge did not use the text message to corroborate that a sexual assault occurred on December 2, 2016. As the trial judge found, the appellant was liable for sexual assault based on his own testimony.

Conclusion

[61] I therefore reject this ground of appeal.

DISPOSITION

[62] For these reasons I would dismiss the conviction appeal. Although the notice of appeal sought leave to appeal sentence, a notice of partial abandonment was filed by the appellant abandoning the sentence appeal. Accordingly, I would dismiss the sentence appeal as abandoned.

Released: January 11, 2024 “B.Z.” “B. Zarnett J.A.” “I agree. Thorburn J.A.” “I agree. J. George J.A.”

* These reasons were released only to the parties on January 11, 2024, in order to allow submissions as to whether the reasons should be published, with or without redactions, in light of s. 278.95 of the Criminal Code, R.S.C. 1985, c. C-46. After considering the submissions received, which did not object to full publication, we have determined that it is in the interests of justice for this court to exercise its inherent jurisdiction and publish these reasons on January 23, 2024, without redaction: R. v. N.H., 2021 ONCA 636, 158 O.R. (3d) 294.

[1] The appellant also pled guilty to a s. 145 breach for failing to comply with the terms of his recognizance while on release pending trial. The conviction for receiving a material benefit from selling sexual services was conditionally stayed pursuant to the principle in R. v. Kienapple, [1975] 1 S.C.R. 729 . The appellant was acquitted of charges of theft and uttering a threat.

[2] The trial judge imposed a global sentence of 7 years imprisonment (less 90 days credit for pre-sentence custody and the conditions of his bail pending trial).

[3] One minute later, he sent T.M.F. another text, reminding her, among other things, that the apartment they occupied was in the complainant’s name and about how long it would take to find alternate accommodations.

[4] The trial judge approved the release of her reasons for conviction on October 2, 2019 without correcting the references to “continue”.

[5] The same points were made in the trial judge’s reasons for sentence dated October 2, 2020.

[6] It later emerged through submissions by defence counsel that the cellphone had come into the possession of the Gatineau police after interactions they had with the appellant. In reply, Crown counsel told the trial judge that the Crown had no knowledge of the cellphone being held by the Gatineau police.

[7] The appellant proposed that the complainant be recalled to testify if the printout was admitted.