COURT OF APPEAL FOR ONTARIO DATE: 20240702 DOCKET: C69815
Simmons, Hourigan and Paciocco JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Jeffrey Reimer
Appellant
Counsel: James Lockyer and Jason Dickson, for the appellant Dana Achtemichuk, for the respondent
Heard: March 26, 2024
On appeal from the convictions entered by Justice A. Duncan Grace of the Superior Court of Justice on May 3, 2021.
Paciocco J.A.:
Overview
[1] Jeffrey Reimer appeals his convictions for sexual assault with a weapon, unlawful confinement and extortion arising from events alleged to have occurred in April 2018 during a date with the complainant, whom he met on a dating website. The parties agree that sexual acts occurred in a motel but provided diametrically opposed accounts of those events. The complainant testified to being coerced into the motel room and then being subjected to acts of forced sex. Mr. Reimer described consensual sexual acts with the complainant after she willingly joined him in the motel room.
[2] After a failed s. 276 application, Mr. Reimer was denied the use at his trial of multiple sexualized text messages exchanged with the complainant, including shortly before the incident that forms the subject matter of the charges, in which they described the sexual activity they wanted to engage in. The trial judge ruled that although the non-sexual communications were admissible, the sexual communications were not because: (1) they were irrelevant; (2) they were being offered for the illegal purpose of proving the complainant consented in advance to the sexual activity that occurred; and (3) their use as evidence depended upon inferences prohibited by s. 276 of the Criminal Code, R.S.C. 1985, c. C-46. None of these conclusions are correct. Although I am unable to conclusively determine whether any of the sexualized text messages should have been admitted, I am persuaded that the trial judge erred in excluding the evidence on these bases.
[3] For this reason, which I explain in greater detail below, I would allow the appeal, set aside the convictions, and order a new trial. I will also address the remaining grounds of appeal, none of which I would accept.
Material Facts
[4] Mr. Reimer and the complainant, who lived in separate nearby cities, met on Plenty of Fish, a dating website, in March 2018. They subsequently exchanged phone numbers and frequent text messages. The Plenty of Fish website profile that Mr. Reimer was using said he was five years younger than he was. His profile photograph was dated, and he was much heavier by April 2018 than his profile disclosed. However, he did disclose in his text exchanges that he was heavier than the profile indicated, and he expressed concern that he was too old for the complainant. In their text exchanges, the complainant was forthcoming in providing personal information, including her place of employment.
[5] Before long, the parties began exchanging sexualized messages and then planned to meet, initially on April 4, 2018. That meeting was cancelled by the complainant because of illness in her family and rescheduled for April 10, 2018. Mr. Reimer agreed to commute to the city where the complainant lived, and to meet at a designated coffee shop at 6:00 p.m. that day. Their accounts diverge as to the purpose of the meeting. The complainant testified it was to be an introductory, in-person visit while her mother watched her young son. The complainant had promised her mother to be back within an hour. She testified that she expected the date could last an hour or two if the conversation went well. Mr. Reimer testified that they planned to have dinner and then attend a motel.
[6] The parties met, as agreed. The complainant testified that she was taken aback when Mr. Reimer arrived at the coffee shop. He was older and heavier than she expected, and “dishevelled”. They both testified that they agreed to go elsewhere for a meal. She got into his car. They both testified that the atmosphere in the car was awkward, and that their limited conversation included a comment by the complainant on Mr. Reimer’s dishevelled appearance.
[7] The parties agree that as they drove, the complainant noticed a sporting goods store and asked Mr. Reimer to stop so that she could purchase a hockey jersey for her young son to honour the Humboldt Broncos bus tragedy. She testified that she was feeling uncomfortable and “wanted a breather, as well”. He stopped as requested and she entered the store while he waited in the car. She described being uncomfortable with Mr. Reimer waiting for her in the car directly outside the door of the store. Surveillance video captured her brief store visit, including her exit from the front of the store until she disappeared from view after walking some distance into the parking lot. The surveillance video is consistent with his testimony that he parked in the lot, and inconsistent with her account that he was waiting directly outside the store.
[8] Mr. Reimer drove to a fast-food restaurant and went through the drive through. The complainant testified that this was unexpected and that she asked him about it. He said she had expressed a preference for that restaurant chain when he had suggested another fast-food restaurant, and that he went to the drive through because, in their text messages, they had discussed getting takeout and going to a motel. None of the text messages between Mr. Reimer and the complainant that were later recovered forensically by the police from their respective cellphones confirm this claim, but it is not contested that the police did not recover all of the exchanged messages. [2]
[9] Mr. Reimer then drove to a nearby motel. The complainant testified that this was unexpected, and that she wondered at first whether he rented the room for his visit and needed to stop there since he had come from out of town. He said she chose the motel, directing him there. The parties agree that she remained in the car while he entered the motel office. It is not contested that he checked in using his own name and credit card. He then drove the car to the front of a motel room, an event captured by a motel security camera.
[10] The complainant testified that she told Mr. Reimer that she was not going to go into the motel room, telling him, “[T]his is not happening”. She said that he told her she was joining him and that if she did not do so he would send her co-workers intimate images and sexual messages that she had sent him. She described him coming around to the passenger side of the car where she was sitting, opening her door, and then guiding her inside by the small of her back. Surveillance video from the motel security camera materially contradicts her account but is consistent with his. It shows Mr. Reimer exiting the driver’s door and going directly to the motel room before opening and holding the motel room door for her as she walked behind him and entered the room. She brought the food.
[11] The complainant testified that after she put the food on a round table, she turned to find Mr. Reimer directly in front of her and, despite her protests, he removed her coat, scarf, and her sweater. She said she ended up on the bed where he held her ankles and removed her boots as he was positioned between her legs. She tried to kick him, but he lifted her dress over her head, and removed her nylons and underwear bottoms. She testified that he bound her wrists together with one leg of the nylons, inserted the reinforced area across her mouth, and stuffed the other end underneath the mattress. She said it was difficult for her to turn her head to the left. She said he removed her breasts from her bra but did not remove her bra, which remained on but under her breasts. She described unwanted oral sex and aggressive vaginal sex that caused her neck to repeatedly strike the headboard. She testified that Mr. Reimer ultimately released her, and as he told her to get dressed, he put her cellphone to her thumb to gain access to it. She testified that when she later looked for information about the appellant on the phone, she saw that all communications with him had been deleted. She testified that she did not delete these messages.
[12] The surveillance video shows Mr. Reimer and the complainant pulling away from the motel unit in his car at approximately 8:30 p.m. She testified that she waited in the car as he pulled up to and then briefly entered the motel office. When he returned to the car, he said he would drive her to a mall so that she could get a hockey jersey for her son.
[13] She testified that when Mr. Reimer dropped her off at the mall, he threw her cellphone to her. Surveillance video from the mall shows her walking through a department store and out of the mall without stopping. She said she went outside because she could feel her phone vibrating, saw it was her mother calling, and did not want to talk in the busy store. She ultimately spoke to her mother outside of the store. During the conversation the complainant was upset and crying, saying she just wanted to come home. Her mother summoned the police, who called the complainant and then met her at the mall, ultimately prompting the investigation that resulted in Mr. Reimer’s arrest.
[14] Mr. Reimer offered a diametrically opposed account in his testimony. He denied threatening to expose the intimate photos and messages from the complainant to her co-workers. He said the only conversation in the vehicle after he checked into the motel was to ask her to grab the bag of food. He said he did not guide her into the room, describing her as willingly accompanying him. He testified that she took off her own coat, scarf, and dress, and rubbed her bottom against him when he joined her after he visited the washroom. He said she removed her own nylons while he undressed, and after some preliminary touching and kissing, she removed her own underwear. He said he removed her bra with one hand during the consensual sexual interaction that followed, which included oral and vaginal sex.
[15] Mr. Reimer claims that after noticing the complainant grimacing during vaginal sex, he asked her if she wanted him to stop, and she said she did not. He testified that in her texts she mentioned that she liked having her hair pulled, so he pulled her hair gently for a few seconds. During cross-examination he said that she asked him to do this during sex. He also testified that during sex he told her, “I own you”, explaining that she had asked him to do so in an earlier text message exchange. He said they cuddled and talked afterwards.
[16] Mr. Reimer denied ever taking possession of the complainant’s cellphone. He testified that after they had finished their sexual encounter, she used her phone to check the time and said she needed to get home to her mother and son. They dressed and left. He said he drove her to a mall because she asked him to drop her off there so she could purchase the hockey jersey for her son. He said he offered to wait and drive her home, but she declined. He also testified that she agreed to text him later to let him know she arrived home safely. Before he left the parking lot he sent her a text message, at 8:42 p.m., which said: “Sorry about my clothes miss you already xoxo.” After driving the considerable distance to his home, and after she failed to text him as she had promised, he sent a text that said, “Well, you must forgot about me its ok if im not for you just tell me night night xoxo.”
[17] Photographs subsequently taken of the complainant’s mouth, chest, arms, wrists, ankles, and feet revealed what the trial judge found to be “extensive bruising and swelling and a significant scratch”. This evidence was consistent with her account of the sexual activity but is not accounted for in his version.
[18] Forensic examination of the complainant’s clothing disclosed “recent damage” to her nylons (a tear in the “front thigh area”) and her bra (a tear between the cups). The complainant was not asked how or when this damage occurred, and no evidence was led as to the condition of her clothing prior to arriving at the motel.
[19] Ultimately, Mr. Reimer was indicted on five charges contrary to the Criminal Code: (1) sexual assault using a weapon, “namely nylons”, contrary to s. 272(2); (2) unlawful confinement, contrary to s. 279(2); (3) threatening with intent to commit sexual assault, contrary to s. 346(1.1); (4) attempting to obstruct justice by deleting evidence from the complainant’s cellphone, contrary to s. 139(2); and (5) using a computer system with intent to commit an offence under s. 430 in relation to the complainant’s computer data, contrary to s. 342.1.
[20] The parties agreed that the recovered non-sexualized text messages could be admitted into evidence at trial. Mr. Reimer brought a pre-trial s. 276 application in writing to also have the recovered sexualized text messages admitted, including exchanges in which the complainant described or agreed with descriptions by Mr. Reimer of the sexual activity they intended to engage in.
[21] Mr. Reimer based his s. 276 application on the submission that the sexualized messages were relevant to two issues at the trial: (1) to unfold the narrative; and (2) to support a reasonable belief in communicated consent defence. He attached transcripts of all of the recovered texts. The balance of the evidence he offered in support of the application, although more abridged than the account offered at trial, did not deviate materially from the central outline of evidence I have just described.
[22] During oral submissions, in circumstances I will unfold, the focus of the s. 276 application was reoriented to include, if not focus upon, the relevance of the sexualized text messages on the issue of consent. The Crown and complainant’s counsel offered no objection and addressed the admissibility of the sexualized texts on that issue in their submissions. In his s. 276 ruling, the trial judge specifically ruled on the admissibility of the sexualized texts on the issue of consent. He denied the application, inviting Mr. Reimer to reapply if circumstances changed. The application was not renewed, and the trial proceeded to conclusion with only the non-sexualized texts being admitted.
[23] When the trial judge ultimately rendered his decision on the charges, he acquitted Mr. Reimer of the two charges relating to his alleged deletion of text messages on the complainant’s phone, namely charges (4) and (5) outlined above in para. 19. Despite accepting the complainant’s testimony that Mr. Reimer used the complainant’s thumb to open her phone, the trial judge had a reasonable doubt about whether Mr. Reimer erased the text messages. The trial judge convicted Mr. Reimer of the remaining three offences and sentenced him to six years incarceration.
[24] In convicting Mr. Reimer of the balance of the offences outlined in para. 19 above, the trial judge expressly rejected his testimony, finding that it did not leave him with a reasonable doubt. He disbelieved Mr. Reimer’s claim that the complainant was the one who suggested the motel, finding it implausible that she would agree to visit the motel with Mr. Reimer less than 40 minutes after being taken aback by his appearance. Moreover, he found that a motel visit did not fit her plan not to be gone for long, and that if she had wanted to go to a motel, she would not have wanted to stop to shop for a hockey jersey during their time limited visit. He found Mr. Reimer’s testimony to be inconsistent with earlier statements he had made relating to: (1) how many times he ejaculated, being either once (first answer provided at trial) or twice (police statement, which he later adopted); (2) the order of the oral and vaginal sex; and (3) the number of directions the complainant gave him during sex, one (to gently pull her hair) or two (to gently pull her hair and to take off her bra). He also found the complainant’s videotaped movements at the mall to be inconsistent with Mr. Reimer’s claim that the complainant went to the mall to look for a hockey jersey. Most significantly, he found that the complainant’s physical injuries were inconsistent with Mr. Reimer’s description of the sexual activity and his claimed treatment of the complainant.
[25] The trial judge believed the complainant’s core account beyond a reasonable doubt. He recognized the problems with her testimony arising from the surveillance video evidence at the sporting good store and the motel, finding that Mr. Reimer did not park his car immediately outside the sporting good store, did not open her car door at the motel, did not guide her into the motel, and did not have sufficient time to have threatened her while they were parked in front of the motel room, as she had testified. The trial judge also recognized that there were likely other inaccuracies in her testimony, given that those contradictions emerged from videos that captured only a small amount of their time together. But he believed her to be credible about the sexual events in the motel. He featured two things in explaining that conclusion. First, he found the images of her injuries and the recent damage to her clothing to be consistent with her testimony about Mr. Reimer’s actions in the motel room. Second, he relied on her demeanour. I will reproduce the extract from his judgement about her demeanour below.
The Issues
[26] The following issues were raised during the appeal:
- Did the trial judge err in finding that s. 276 applied to all sexual communications, requiring all of them to satisfy the s. 276 admissibility requirements?
- Did the trial judge err in finding the sexual communications to be inadmissible on the issue of consent?
- Did the trial judge err in relying on the recent damage to her clothing in assessing the complainant’s credibility?
- Did the trial judge overemphasize the complainant’s demeanour?
- Did the trial judge otherwise err in his credibility assessment of the complainant?
- Did the trial judge err in assessing Mr. Reimer’s credibility?
Analysis
The s. 276 Admissibility Regime
[27] The first two grounds of appeal raise s. 276 issues. I will begin my analysis by setting out the material statutory provisions. Section 276 provides, in relevant part:
(1) In proceedings in respect of an offence under section 151, 152, 153, 153.1 or 155, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant
(a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or
(b) is less worthy of belief.
(2) In proceedings in respect of an offence referred to in subsection (1), evidence shall not be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge … determines, in accordance with the procedures set out in sections 278.93 and 278.94, that the evidence
(a) is not being adduced for the purpose of supporting an inference described in subsection (1);
(b) is relevant to an issue at trial; and
(c) is of specific instances of sexual activity; and
(d) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
(3) In determining whether evidence is admissible under subsection (2), the judge… shall take into account
(a) the interests of justice, including the right of the accused to make a full answer and defence;
(b) society’s interest in encouraging the reporting of sexual assault offences;
(c) 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.
(4) For the purpose of this section, sexual activity includes any communication made for a sexual purpose or whose content is of a sexual nature.
[28] It can be seen that s. 276 does not operate in all criminal prosecutions. First, s. 276(2) applies solely to “sexual activity” evidence relating to a complainant that is called by the accused. [3] There is no controversy that the sexualized texts that Mr. Reimer attempted to have admitted constitute sexual activity as defined in s. 276(4).
[29] Second, s. 276 does not apply unless the accused is being tried for one of the offences enumerated in s. 276 (such as the s. 272(2) charge), or one of those enumerated offences could have been particularized in the charging document because that offence is implicated in a charge that has been laid (such as the s. 279(2) charge, where the unlawful confinement allegation entailed being held during an alleged sexual assault): R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at paras. 70-78.
[30] Third, s. 276 does not apply to “sexual activity that forms the subject-matter of the charge”. For s. 276 to be engaged, the complainant’s alleged sexual activity must be “other sexual activity”: R. v. McKnight, 2022 ABCA 251, 416 C.C.C. (3d) 248, at para. 231, leave to appeal refused, [2022] S.C.C.A. No. 341. In R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at paras. 43, 48, Karakatsanis J. referred to such evidence as “previous sexual activity” evidence.
[31] In simple terms, in the trials to which s. 276 applies, s. 276(1) absolutely prohibits evidence from being used to draw what are commonly referred to as “twin-myth” inferences: Goldfinch, at para. 40; R. v. T.W.W., 2024 SCC 19, at para. 25. “The accused must propose a use of the evidence that does not invoke twin-myth reasoning”: Goldfinch, at para. 51. Below, I will describe in some detail the prohibited inference related to consent, identified in s. 276(1)(a).
[32] Section 276(2) makes other sexual activity evidence prima facie inadmissible if called by an accused person: Goldfinch, at para. 40. It sets out cumulative preconditions to admission that the accused must satisfy, effectively creating two distinct hurdles to admission. First, s. 276(2) reaffirms that if the sexual activity evidence is proposed to be called for a purpose prohibited by subsection (1) it cannot be admitted. This is the first hurdle: the accused must offer the other sexual activity evidence for a permissible purpose. Second, even if offered for “other relevant purposes [other sexual activity evidence] must satisfy rigorous criteria”: R v. R.V., [2019] 2 S.C.R. 237, 2019 SCC 41, at para. 2. It must: (1) be relevant to an issue at trial; (2) be of specific instances of sexual activity (as opposed to the complainant’s general character or reputation, for example); and (3) have significant probative value that is not substantially outweighed by the danger of prejudice it poses to the administration of justice, in light of the considerations enumerated in s. 276(3).
[33] In order to discharge the onus of overcoming the prima facie inadmissibility of sexual activity evidence, the accused must apply to the judge [4] for a hearing where they can attempt to meet those two hurdles: s. 278.93. Admissibility therefore requires a two-part process: (1) an application for a hearing into whether the s. 276(2) application is capable of succeeding; and (2) if that application succeeds, an evidentiary hearing to determine whether, based on the evidence presented, the proposed evidence meets the statutory criteria set in s. 276(2): R. v. Choudhary, 2023 ONCA 467, 428 C.C.C. (3d) 380, at para. 20; McKnight, at para. 229.
[34] In this case the trial judge blended the two-part process, as is not uncommonly done. In my view, this practice should be discouraged. The stage one application for a hearing is meant to winnow out applications that, on their face, have no realistic prospect of succeeding, not only to avoid wasteful hearings but to spare complainants from the unnecessary embarrassment and indignity of a s. 276 hearing. The stages of the two-stage process should be kept distinct.
[35] Subsection 278.93(2) sets out the statutory foundation needed to succeed in a stage one application for a hearing:
An application referred to in subsection (1) must be made in writing, setting out detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial, and a copy of the application must be given to the prosecutor and to the clerk of the court.
[36] Subsection 278.93(4) directs judges when to grant a s. 276(2) hearing:
If the judge … is satisfied that the application was made in accordance with subsection (2), that a copy of the application was given to the prosecutor and to the clerk of the court at least seven days previously, or any shorter interval that the judge … may allow in the interests of justice and that the evidence sought to be adduced is capable of being admissible under subsection 276(2) or 278.92(2), the judge … shall grant the application and hold a hearing under section 278.94 to determine whether the evidence is admissible under subsection 276(2) or 278.92(2).
[37] No issues arise in this appeal relating to the hearing itself, so I will not canvas the hearing procedure other than to note that the trial judge in this case did not have the benefit of the majority’s holding in R. v. J.J., 2022 SCC 28, 415 C.C.C. (3d) 285, at para. 100, that complainants do not have right to cross-examine or lead evidence at stage two of the hearing.
[38] With that background, the s. 276 issues that arise in this appeal can be addressed.
A. Did the trial judge err in finding that s. 276 applied to all sexual communications, requiring all of them to satisfy the s. 276 admissibility requirements?
[39] Mr. Reimer argues that the trial judge erred in requiring the sexualized texts to satisfy s. 276 before gaining admissibility because the sexual communications are not other sexual activity evidence. He argues that those communications (or at least the ones after the cancellation of the first proposed meeting on April 4, 2018) are part of the same transaction as the sexual activity that forms the subject matter of the charge since they express the intentions of both parties relating to their in-person meeting and occurred proximate in time to that in-person meeting where the alleged sexual assault with a weapon occurred. He maintains that these communications therefore fall outside of s. 276.
[40] The first complication Mr. Reimer faces in advancing this ground of appeal is that this issue is being raised for the first time on appeal. Instead of contesting the need for a s. 276 application, Mr. Reimer initiated the s. 276 pre-trial application that is the subject of this appeal. The Crown argues that Mr. Reimer should not now be able to argue that the trial judge erred by adjudicating the application that Mr. Reimer initiated.
[41] Mr. Reimer argues that we should nonetheless permit this new issue to be raised for the first time on appeal in the interests of justice. He submits that the issue of whether sexual activity is “other” sexual activity has taken on new importance with the unequivocal extension of the definition of sexual activity to include sexual communications in December 2018, when s. 276(4) was enacted. His underlying theory appears to be that whereas there usually will not be a sufficient connection between previous physical sexual activity and the charged event, by their nature sexual communications can precede the ensuing physical activity but still be so closely linked to it as to be part of the same transaction. He maintains that, for this reason, until recently, there was little authority to alert defence counsel to the possibility that sexual communications occurring prior in time to the charged event may not be other sexual activity. He also points out that if he is correct and s. 276 does not require the exclusion of the evidence, an injustice has occurred given the importance of the sexualized messages to full answer and defence. He asks us to permit this ground of appeal to proceed.
[42] I am not persuaded that this issue could not reasonably have been anticipated at the time Mr. Reimer’s application was heard in September 2020. It arises from the plain language of s. 276(2), and, in McKnight, the Alberta Court of Appeal cited a number of cases decided prior to the s. 276 hearing in this case where this issue was raised or indicated. Nor am I persuaded that functionally this issue is unlikely to arise with physical sexual activity. In Choudhary, the allegedly non-consensual act that formed the subject matter of the charge involved oral, vaginal, and anal sex, which followed consensual kissing. Although the Crown was not relying on the sexual activity of kissing as criminal activity by the accused, Coroza J.A. recognized that this uncharged act of kissing was not “other” sexual activity but formed part of the same transaction as the sexual activity that was the subject matter of the charge: Choudhary, at para. 37. Therefore evidence of this uncharged sexual activity was admissible without a s. 276 admissibility ruling. Similarly, in R. v. Lennox, 2019 ONSC 3844, evidence that the complainant kissed the accused, unzipped his pants, and led him into a supply room where the alleged sexual assault occurred, was not evidence of other sexual activity subject to s. 276, but part of the sexual activity that formed the subject of the charge, even though this sexual activity was not, itself being prosecuted: at para. 26.
[43] Even though I am not persuaded by Mr. Reimer’s submissions that this issue could not readily have been anticipated at the time of trial, the s. 276 exclusionary ruling played an important role in his trial. In my view, an injustice would occur if Mr. Reimer is correct that the exclusionary rule relied upon to deny him access to the sexualized communications did not apply and he is not permitted to raise the issue on appeal. A trial judge is not assigned a gatekeeping role for all evidentiary rules, but they are with s. 276 applications. Because this gatekeeping role lies with the trial judge not the Crown, in Barton, the Crown was permitted to advance a s. 276 exclusionary argument for the first time on appeal: at para. 68. I appreciate that the interests at stake are different where a complainant loses the benefits of s. 276 because of the failure of the participants to raise s. 276 at trial where it does apply, but in my view compelling interests of justice are also engaged if a trial judge relies on s. 276 to exclude evidence required for full answer and defence where s. 276 does not apply. I would therefore consider this issue on its merits for the first time on appeal, to determine whether this error in fact occurred.
[44] Having considered this ground of appeal, I would reject it. In my view, the trial judge was correct to vet the admissibility of the sexualized messages under s. 276 because the exchange of those messages was not part of the subject matter of the charges at Mr. Reimer’s trial. I do accept that, as the foregoing examples from Choudhary and Lennox illustrate, there are cases where proximate sexual activity that is not the immediate subject of a prosecution will be sexual activity that forms the subject matter of the charge, and therefore exempt from having to meet s. 276 scrutiny to gain admissibility: Choudhary, at paras. 25-26; Lennox at para. 26; see also McKnight, at paras. 259-60. However, this is not such a case.
[45] In deciding whether proximate sexual activity that is not the immediate subject of a prosecution will fall outside of the purview of s. 276, the place to begin is by characterizing the “subject matter of the charge” the accused is facing. In R. v. J.J., at para. 67, the majority explained that, in s. 276, this phrase relates to the “components of the actus reus of the specific charge that the Crown must prove at trial”. In understanding this, it is important to appreciate that although the term actus reus is commonly understood to be describing the physical act that an accused has engaged in – such as the act of touching in a sexual assault prosecution – the actus reus concept extends to all of the physical elements of the offence, including the factual conditions that must exist for the offence to be complete. In the offence of sexual assault, for example, the touching must be sexual in nature and must be without the consent of the complainant: see Criminal Code, ss. 265, 271. Therefore when the majority referred in R. v. J.J. to the “components of the actus reus of the specific charge that the Crown must prove at trial” it was not simply referring to the isolated and immediate sexualized physical act of the accused that is being prosecuted. It is obvious that it could not have been, because s. 276 itself contemplates that even sexual activity by the complainant can fall within the subject matter of the charge. In order to capture all of the physical acts that constitute a specific charged offence, the “subject matter of the charge” must therefore be understood as encompassing the entire specific factual event in which the allegedly criminal act occurred. In McKnight, the Alberta Court of Appeal put it well. It explained that, “[t]o fall within the scope of ‘sexual activity that forms the subject-matter of the charge’”, and thereby fall outside the scope of s. 276 scrutiny, “at the very least, the ‘sexual activity’ must be part of the specific factual events of which the offence is a component”: at para. 254.
[46] To meet this standard, it is not enough for the uncharged sexual activity to be proximate in time and place to the allegedly criminal act of the accused: McKnight, at para. 255. Nor is it enough that the uncharged sexual conduct is relevant to the charged event. As Coroza J.A. made clear in Choudhary, to bypass screening under s. 276, the uncharged sexual activity must be so “integrally connected, intertwined or directly linked to” that activity – the actus reus of the specific charge – that it is effectively part of the transaction or event that is being prosecuted: at para. 29. Generally, the sexual activity must also be “closely connected by time and circumstance to be considered to be part of the same transaction”: R. v. X.C., 2020 ONSC 410, at para. 39, per Dawe J. (as he then was).
[47] The standard I have just described does not provide a generous gateway to admitting evidence of sexual activity without the need for a s. 276 inquiry. It must be remembered that any sexual activity on the part of the complainant can attract prohibited inferences, and much of that sexual activity will have no relevance or real probative value. The role that s. 276 plays in weeding out problematic evidence of sexual activity would be undermined if too broad an approach is taken. Moreover, it will complicate litigation if parties routinely or even commonly seek to skirt s. 276 applications with advance rulings that sexual activity that is not the immediate subject of a prosecution is nonetheless part of the “subject matter of the charge”. A s. 276 application already requires a two-part process that invariably protracts sexual offence trials, despite the heavy public interest in resolving sexual offence allegations quickly. The law should not invite frequent resort to a third stage of the s. 276 procedure.
[48] In R. v. J.J., the Supreme Court of Canada instructed that, for the purposes of interpreting s. 278.1, which addresses the admissibility of records relating to the complainant including those in possession or control of the accused, evidence should not be found to fall outside of the screening regime unless it is clear that it is not a record: at para. 104. I agree with Coroza J.A.’s comment in Choudhary that the same approach should be taken under s. 276. Previous sexual activity that is not the immediate subject of the prosecution should be characterized as other sexual conduct and vetted for admission under s. 276 unless it is clearly integrally connected, intertwined, or directly linked to the event being prosecuted. I endorse Coroza J.A.’s view that “if a judge harbours some reservations [about this] they should act with caution and proceed with a s. 276 analysis”: Choudhary, at para. 34.
[49] I am not persuaded that this is a clear case where the sexualized texts that were exchanged between the parties forms part of the subject matter of the charges Mr. Reimer faced at the trial. Quite the contrary. Although I am persuaded that at least some of those sexualized texts are relevant to the subject matter of the charge, they are not part of the specific factual event itself, in which Mr. Reimer allegedly sexually assaulted the complainant with the use of a weapon, while she was unlawfully confined. The sexualized texts were exchanged before the parties came together. Those texts speak about the motel visit as a future event. In my view, the sexualized texts are simply too remote in time and too distinct in nature from the charged events to avoid s. 276 scrutiny. I would not give effect to this ground of appeal.
B. Did the trial judge err in finding the sexual communications to be inadmissible on the issue of consent?
[50] The majority decision in R. v. T.W.W., at paras. 21-22, confirms that on appellate review, relevance determinations and the application of legal principles raise questions of law to be decided on a correctness standard, without deference being owed to the trial judge. However, deference must be given to a trial judge’s evaluation of whether the prejudicial effect of the subject evidence substantially outweighed its probative value: R. v. T.W.W., at para. 21. In this case the trial judge did not exclude the evidence based on that discretionary evaluation. He excluded it because he found it to be irrelevant and its admission contrary to legal principles. A correctness standard therefore applies in reviewing his s. 276 determination. I agree with Mr. Reimer that each of the trial judge’s bases for excluding the sexualized texts are incorrect. In my view, his determination that all of the sexualized texts are irrelevant is wrong and he erred in arriving at his related conclusions that the admission of the proposed evidence would: (1) violate the contemporaneity requirement for consent, and (2) be based on a prohibited inference. Before I explain these conclusions, I will address a more formal objection raised by the Crown.
Consent Was Properly Considered by the Trial Judge
[51] In opposition to this ground of appeal the Crown argued that the admissibility of the sexualized texts on the issue of consent was not before the trial judge because Mr. Reimer applied in writing only to have that evidence admitted on the issues of narrative and his belief that the complainant had communicated her consent. It argues that he should not be able to raise this new argument for the first time on appeal.
[52] I do not accept this submission because the relevance of the sexualized texts to the issue of consent is not a new issue raised for the first time on appeal. Although the issue of consent was not formally specified in the application, the relevance of the sexualized text messages to the issue of consent was in fact raised, argued, and adjudicated at trial.
[53] The content of the factum filed in support of his application alerted everyone that Mr. Reimer proposed using the sexualized texts as evidence of consent. It set out the defence theory that the complainant communicated her consent by “stating what she wanted [Mr. Reimer] to physically do with her and that the sex acts he performed with her were in accordance with her encouragement and suggestions or instructions”, and that the “expression of consent has to be considered in the context of the text communications”.
[54] When the Crown cross-examined Mr. Reimer during the application hearing, it asked Mr. Reimer about the issue of consent, including whether the complainant “communicate[d] any words or words to the effect of a clear interest in engaging in any sexual activity with [him].” Mr. Reimer answered affirmatively and referred to comments he claimed the complainant made en route to the motel about the sexualized text messages.
[55] During oral submissions at the hearing, after defence counsel addressed the similarity between what took place in the motel and what was described in the sexualized texts, the trial judge challenged defence counsel’s contention that he was relying on the belief in communicated consent defence, commenting that, “It sounds like the defence is actual consent”. The trial judge also noted that Mr. Reimer’s affidavit and testimony was that “this was an issue of consent”. He continued, “[T]here’s no grey area in terms of the versions” that could possibly give rise to a belief in consent defence. Much of the exchange that followed was about the issue of consent.
[56] In its s. 276 submissions the Crown not only addressed the issue of consent but focused upon it. From the outset it argued that this application was, in substance, about consent, submitting that the sexualized text messages ought to be excluded because they “fall squarely on the twin myth” relating to consent and are being offered to suggest that “past consent equals present consent”. It emphasized in its submissions that these past messages “offer nothing to assist with the determination of consent”.
[57] Counsel for the complainant adopted these arguments, commenting that the Crown submissions cover “much of the same arguments [she] would cover.” She addressed the issues identified explicitly in the application, of narrative and mistaken belief in communicated consent, but did not stop there. She also argued that the text messages had no possible relevance in determining whether the case has been proved beyond a reasonable doubt having regard to the conflicting versions offered by the complainant and Mr. Reimer: “The legal analysis should be what happened and whether or not there was, as my friend points out, contemporaneous and ongoing consent.”
[58] When the trial judge delivered his s. 276 decision, he ruled explicitly on the relevance and admissibility of the sexualized messages on the issue of consent after dedicating a material part of his ruling to the consent issue.
[59] In my view, the fact that the trial judge ruled on this issue after receiving submissions undermines the Crown argument that Mr. Reimer is attempting to advance a new and different s. 276 application on appeal than the one advanced at trial.
[60] I would note that the Crown did not rely on s. 278.93(2) and 278.93(4) in seeking to prevent this ground of appeal from proceeding. Together these provisions (reproduced in paras. 35 and 36 above) arguably support the proposition that an applicant may not advance a ground of relevance during an application unless they have set out the “detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial.” In R. v. T.W.W., at para. 36, the majority of the Supreme Court of Canada reaffirmed that specificity is required “so judges can apply the scheme in a way that protects the rights of the complainant and ensures trial fairness”. The implications of ss. 278.93(2) and 278.93(4) were not fully argued before us so I will not engage them fully. I will say, however, that the trial judge recognized that, in substance, the application was actually about the relevance of sexualized text messages to the issue of consent, and he permitted this issue to be considered during the application in circumstances that raised no apparent prejudice to the parties and no evident trial fairness concerns.
Relevance and the Issue of Consent
[61] In his arguments on appeal, Mr. Reimer conceded that the trial judge’s decision that the sexualized text messages are not relevant to a defence of mistaken belief in communicated consent is correct. This concession was well-taken. This defence lacked an air of reality because the diametrically opposing versions before the trial judge left no room for the possibility of a mistaken understanding about what the complainant communicated: R. v. Davis, 1999 SCC 638, [1993] 3 S.C.R. 759, [1999] S.C.J. No. 67, at para. 85. The real issue was whether the Crown had met its burden of proving that the complainant had not consented, despite Mr. Reimer’s account that she did so.
[62] Instead, Mr. Reimer submitted that the trial judge erred by not finding the sexualized messages to be relevant to “narrative”, arguing that they show what the parties contemplated when they met up, and that the complainant “was carrying on with the intentions she had continually expressed in her texts”. With respect, these arguments, also made before the trial judge, are not arguments about “narrative”. As the trial judge recognized, they are arguments about “consent”. Before I address the errors that the trial judge made in rejecting the admission of the messages on this basis, I will explain why the theory of narrative does not provide a basis for the admission of s. 276 evidence.
[63] In order to be admissible under s. 276, sexual activity evidence must be “relevant to an issue at trial”: s. 276(2)(b). In R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 47, Rothstein J. explained the theory of narrative: “Evidence that is not adduced to prove a live issue, or support the prosecution’s [or defence’s] case, but that is merely provided to complete the narrative may be admitted even if it does not satisfy the strict requirements of relevance.” Put otherwise, “narrative” evidence is simply background information that is received even though it is not relevant to an issue at trial, because it enables testimony to unfold in a natural and comprehensible fashion. Therefore s. 276 applications should not be granted on the theory that the sexual experience evidence is relevant to “narrative”. The accused must show that the sexual experience evidence is relevant to an identified live issue in the case.
[64] At trial and before us, although Mr. Reimer misapplied the “narrative” label, he argued that at least some of the sexualized texts were relevant to the live issue of consent. In dismissing the application on the issue of consent, the trial judge provided the three related reasons I have outlined. First, he found that “the text messages have no relevance on the issue of consent,” and said that the complainant’s reference to the prior communications before even arriving at the motel is of “no relevance.” Second, he reasoned that since consent must be provided at the time of the sexual activity, text messages about prior consent cannot be relevant. Third, he found that the proposed uses of the text messages contravened the prohibited inference relating to consent, saying, “[T]he sexual content of the pre-meeting texts is only important if used to suggest that the complainant was more likely to have consented because she had expressed interest in engaging in sexual relations with the defendant in the days leading up to their encounter. That is one of the twin myths.” In my view, each of these three conclusions is mistaken.
At Least Some Sexualized Texts Are Relevant to Consent
[65] A number of the sexualized texts have obvious relevance on the issue of consent. As indicated, after the meeting was scheduled, the parties exchanged sexualized text messages describing what they intended to do when they met. A sample will suffice.
[66] On April 4, 2018, the day of the cancelled meeting, the complainant texted, among other things, “Mmmm I can’t wait to straddle you as you grab my ass and pound my pussy from under me.”
[67] On April 9, 2018, the day before the rescheduled meeting of April 10, 2018, Mr. Reimer texted, “Mmm tear me apart.” The complainant responded, “I fully intend on it tomorrow”.
[68] On April 10, 2018, Mr. Reimer sent three successive messages to the complainant telling her that Santa is coming, and she needs to “suck his candy cane”, “feed [him] those huge tits”, and that he was ready to “suck [her] lips”. The complainant replied, “Soooo excited baby.” She told him that she hadn’t yet decided what to wear. He responded, “Your bra good for me”. She replied, “Lol thats no fun I love having it taken off,” and “[s]omething easy to take off”. He messaged, “Xoxo need your lips on me” and she replied, “Same baby.” He messaged, “Mmm yes tonight you be draining my cock.” She replied, “Mmmm”. He said, “You are delicious cant wait to taste you.” A short time later she said she was rushing and told him that she loved him.
[69] Evidence is “relevant” if it “has any tendency to prove or disprove a fact in issue”: R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475, at para. 18. This is the standard that applies to the relevance requirement in s. 276 applications. It was described in the context of s. 276 by Doherty J.A. in R. v. L.S., 2017 ONCA 685, 354 C.C.C. (3d) 71, at para. 89:
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.
[70] Given their timing, context, and content, the illustrative text messages reproduced in paras. 66-68 above were statements made or adopted by the parties about what they intended to do during their pending meeting. Even though individuals can say things that they do not really mean or change their minds, it is an incontrovertible proposition of logic and human experience that a statement of present intention to do an act at a future time increases the likelihood that the speaker will engage in that act on that future occasion. Because of the sound logical foundation for this kind of reasoning, the law of evidence has recognized a hearsay exception that admits statements of present intention as evidence that the speaker later carried out that intention. That exception was re affirmed in R. v Starr, 2000 SCC 40, [2000] 2 S.C.R. 144. There the Crown sought to rely on a statement made by the deceased to his girlfriend shortly before his death that he was going to go out with Starr, as evidence that Starr was with the deceased when he died, and therefore had the opportunity to kill him. The majority affirmed this long-standing exception, although it excluded the evidence in that case because, among other things, the deceased may have had real motive to lie to his girlfriend about his intentions. That outcome does not change the salient fact that in Starr the Supreme Court of Canada adopted the logical relevance of the very line of reasoning that emerges in this case and found it compelling enough to embed this kind of inference in a fixed hearsay exception. The fact that the complainant communicated an intention to engage in consensual sexual acts with Mr. Reimer when they got together, is logically relevant to the likelihood that she did so when they got together.
[71] The Crown argued before us to the contrary that the complainant may simply have been engaging in fantasy role playing when exchanging the sexualized messages, with no intention to carry forward. That is entirely possible, and it would be open to a trier of fact to accept that theory at the end of a trial. But it would also be open to a trier of fact to find that some of the sexualized texts, including the ones I use to illustrate the point, represent serious expressions of intention, increasing the likelihood that the complainant later acted consensually. As Doherty J.A. pointed out in the passage from R. v. L.S. quoted above, evidence does not have to establish a fact to be relevant, nor need it be determinative. It must simply have some tendency in logic to increase the probability of the inferred fact. Some of the statements in the sexualized communications clearly meet the standard of relevance required for admission. The trial judge was wrong in law to hold otherwise.
[72] In addition, Mr. Reimer testified that en route to the motel the complainant spoke about doing the things described in the sexualized texts. Once again, if the complainant indeed made this statement, it would be relevant on the issue of consent as a statement by her of her present intention to consensually engage in those described acts a short time later at the motel. Derivatively, the sexualized texts referenced in that statement would also be relevant since they provide the details of the acts she communicated her intention to engage in. The fact that a trier of fact could choose to disbelieve Mr. Reimer’s claim that this conversation even occurred does not change the relevance of his testimony about the complainant’s alleged comment, or of the texts it incorporated. Credibility, weight and relevance are distinct concepts.
[73] Mr. Reimer advanced a further relevance argument before us that I would reject. He submitted that a number of the sexualized messages became relevant because of the evidence at trial. For example, the complainant testified that during sex Mr. Reimer was “pounding” into her. Mr. Reimer argued before us that this made relevant her prior text messages in which she asked him to “pound” her during sex. Similarly, he argued that her sexualized text message telling him that she couldn’t wait for him to “claim ownership of [her] body” would corroborate Mr. Reimer’s testimony that he told her during sex that he owned her because she asked him to do so in the texts. I would reject this submission because the s. 276 application that is the subject of this appeal was brought pretrial. The testimony said to give these messages relevance had yet to occur and is not relevant to the correctness of the trial judge’s pretrial ruling: R. v. T.W.W., at para. 23.
The Relevance of the Text Messages Does Not Offend the Contemporaneity Rule
[74] I am also persuaded that the trial judge erred by accepting the submissions of the Crown and complainant’s counsel that the earlier expressions of consent were not relevant as a matter of law because consent must be given at the time of the sexual touching (the “contemporaneity rule”). This rule has no application to the lines of reasoning I have described. Neither of those lines of reasoning depend upon the theory that the consent the complainant expressed earlier was the consent provided in the motel. They depend, instead, on the theory that her earlier statements of intention to consent are relevant to the question of whether she did, in fact, consent during the meeting in the motel room. The Alberta Court of Appeal rejected a similar overextension of the contemporaneity rule in McKnight. The Alberta Court of Appeal commented, at para. 261, that this kind of error “conflates the law of consent with the law of evidence.” The Court in McKnight, at para. 261, cited Professor Lisa Dufraimont’s observation made in “Myth, Inference and Evidence in Sexual Assault Trials” (2019) 44:2 Queen’s L.J. 316, at p. 328, that “the fact that consent must be contemporaneous does not mean that evidence relevant to the factual question of consent must also be contemporaneous.” R. v. Ewanchuk, 1999 SCC 711, [1999] 1 S.C.R. 330, 131 C.C.C. (3d) 481, at para. 26, is one of the leading authorities insisting that consent must relate to the complainant’s subjective state of mind at the time of the sexual activity. Yet in that decision Major J. recognised, at para. 29, that, “the complainant’s words and actions, before and during the incident” can be considered in determining whether a complainant has consented at the time of the sexual activity. So long as the earlier words or action are relied upon because they have a tendency in logic and human experience to support the likelihood that the complainant consented at the time of the sexual activity, they are not rendered legally irrelevant by the contemporaneity rule. In my view, the trial judge misapprehended the contemporaneity rule, erring in law.
The Relevant Lines of Inquiry Are Not Prohibited Inferences
[75] The trial judge also erred in concluding that the relevance of the sexualized texts depended upon the twin myth relating to consent, codified in s. 276(1)(a). The twin myth relating to consent prohibits “the inference that the complainant’s prior sexual activities, by reason of their sexual nature, make it more likely that she consented to the sexual activity in question” (emphasis added): Barton, at para. 100. The relevance of the sexualized texts I have described above does not derive from the sexual nature of the complainant’s activity of sexting. It derives instead from the fact that those texts communicated the complainant’s intentions about what she would do and agree to at the upcoming meeting. The inference that follows – that she may have acted consistently with her stated intention – does not depend upon judgments about her sexual character, disposition or propensity, or assumptions that she is more likely to consent to sex with Mr. Reimer because in the past she agreed to sext with him. Relevance does not derive from the sexual nature of the activity of sexting. It derives from her stated intentions relating to the specific occasion in question. In my view, the trial judge misunderstood the prohibited inference, thereby making a mistake of law.
[76] There are passages to be found in jurisprudence, including appellate jurisprudence, that if read in isolation from the body of authority on point can be misunderstood as suggesting that s. 276 prevents using previous sexual behaviour from drawing any inferences about consent or credibility. This is not the law. As I will explain, not only does the text of s. 276 say otherwise but the Supreme Court of Canada has made it plain, in jurisprudence that has never been overruled, that in some, albeit rare, cases the constitutional right of the accused to make full answer and defence will require the admission of such evidence.
[77] I will begin with the statutory language. Section 276(1) provides in material part (emphasis added):
[E]vidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant
(a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge, or
(b) is less worthy of belief.
[78] The text of the provision does not bar the use of sexual activity evidence absolutely. Indeed, nowhere does it suggest that sexual activity evidence is prohibited in all cases on the issue of consent or credibility. Section 276(1) prohibits using sexual activity evidence to advance only certain kinds of inferences relating to consent and credibility, namely, those that arise “by reason of the sexual nature of that activity”. Not all inferences that arise from events involving sexual activity derive from the “sexual nature of [the] activity”, including on the issue of consent and credibility. Proceeding on the assumption that they do would render the limiting phrase “by reason of the sexual activity” meaningless yet it is this limiting phrase that saved s. 276 from being struck down because of unconstitutional overreach.
[79] R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, was the second and most recent case in which the Supreme Court of Canada was called upon to adjudicate the constitutional validity of s. 276. The version of s. 276 that was before the Darrach court, which has not been subject to material amendment since that decision, was enacted in response to the Supreme Court’s earlier decision in R. v. Seaboyer, 1991 SCC 76, [1991] 2 S.C.R. 577, where the majority struck down a prior version of s. 276 because of its unconstitutional overreach. The prior version of s. 276 was so broad that it purported to exclude evidence of a complainant’s prior sexual activity, even in circumstances where it was relevant and bore significant probative value that was not substantially outweighed by the risks of prejudice it presented. One of the illustrations that McLachlin J. (as she then was) provided of sexual activity evidence that would be unconstitutional to exclude involved evidence relevant to the issue of consent. The hypothetical example was a highly specific pattern of previous conduct by a complainant who engaged in consensual sex in order to extort money from her sexual partners by later threatening to claim that she was sexually assaulted if they did not pay: Seaboyer, at pp. 615-16. By using this illustration to demonstrate that former s. 276 went farther than the Charter allows, McLachlin J. necessarily recognized that an accused person, charged under similar factual circumstances, would have a constitutional right to such evidence, even on the issue of consent.
[80] In Darrach, Mr. Darrach argued that current s. 276(1) contravened the Charter because, contrary to the constitutional balance identified in Seaboyer, it purported to impose a blanket prohibition, including on the issues of consent and belief in consent, the issues in his case. Gonthier J., for the Court, found that this was not so. After noting at para. 1, that s. 276 “essentially codifies” Seaboyer, he said, at para. 32:
Far from being a ‘blanket exclusion’, s. 276(1) only prohibits the use of evidence of past sexual activity when it is offered to support two specific, illegitimate inferences… namely that a complainant is more likely to have consented or that she is less worthy of belief ‘by reason of the sexual nature of [the] activity’ she once engaged in.
[81] In describing the inferences that are caught by s. 276(1), Gonthier J. focused on the limiting phrase, “by reason of the sexual nature of that activity”. He explained that this “is a clarification by Parliament that it is inferences from the sexual nature of the activity, as opposed to inferences from other potentially relevant features of the activity, that are prohibited” (emphasis added): Darrach, at para. 35; see also R. v. T.W.W., at para. 26, where this passage is reproduced. Of tremendous significance, in Darrach, at para. 58, Gonthier J. explicitly recognised that there are rare cases where other sexual activity will be relevant to consent without engaging twin myth reasoning.
[82] Gonthier J.’s description of the prohibited inferences in Darrach, at para. 32 - “that a complainant is more likely to have consented or that she is less worthy of belief ‘by reason of the sexual nature of [the] activity’ she once engaged in” – is also instructive. This is essentially the same articulation of the prohibited inferences that was repeated in Barton, and that I rely upon in para. 75 above. Because its constitutional validity was directly in issue in Darrach, Gonthier J. went on to explain the operation of the legislation in detail. He said its function is to remove “discriminatory generalizations about a complainant’s disposition”: Darrach, at para. 34. This is in keeping with the fact that the prohibited inferences were historically based upon judgmental and sexist inferences about the character of “unchaste” women arising from the sexual nature of their past activity: Seaboyer, at p. 604.
[83] The following are illustrations of prohibited lines of reasoning that flow from the sexual nature of the activity: (1) that “unchaste” women are more likely to have consented (R. v. Osolin, 1993 SCC 54, [1993] 4 S.C.R. 595, at pp. 670-71, quoting Seaboyer, at p. 604; R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 101; Barton, at para. 56); (2) that by reason of her past sexual activity a complainant has a “disposition to consent” (Darrach, at para. 34) or a general “propensity to consent” (Barton, at para. 55); (3) that “because the complainant had consented to sex with [the accused] in the past, in similar circumstances, it was more likely she had consented on the [occasion] in question” (Goldfinch, at para. 47); and (4) “because the complainant had ‘typically’ consented to sex … in the past, she was more likely to have done so on this… occasion” (Goldfinch, at para. 72). I am not suggesting that this is an exhaustive list. I provide it to illustrate that the relevance of the sexualized texts that communicated the kind of activity the complainant intended to engage in during her pending date with Mr. Reimer does not derive its relevance from twin-myth reasons. Mr. Reimer was not relying on the sexual nature of the complainant’s act of engaging in sexting as proof that she likely consented in the motel. Nor was he relying on the fact that the complainant had consented in the past to engage in the sexual act of sexting with him. To put it in the terms used by Gonthier J. to describe permissible inferences, he was relying on other “relevant features of the activity”, namely, the statements that she had made in those texts about what she intended to do in the future, during the pending meeting from which the charges ultimately arose: Darrach, at para. 35. In my view, there is nothing discriminatory in inferring that her stated intention to engage in consensual sexual activity on that future occasion has a logical tendency to increase the likelihood that she consented in the motel room. This inference does not trade on sexism, and it is not built on myths about female sexuality. The evidence yielded a logical, permissive inference, and the trial judge erred in finding otherwise.
Remaining Issue
[84] I want to be clear about what I have said so far. I am not saying that the trial judge erred by denying the s. 276 application and failing to admit the sexualized texts. I am saying that he erred in excluding all of the sexualized texts for erroneous reasons. At least some of the sexualized communications support relevant non-prohibited inferences that do not violate the rule that consent must be contemporaneous and therefore may have been capable of admission.
[85] As the result of his erroneous conclusions that none of the sexualized texts could be admitted under s. 276 because of the first admissibility hurdle and their lack of relevance to an issue at trial, the trial judge did not go on to consider a crucial aspect of the second admissibility hurdle, namely, whether Mr. Reimer satisfied him under s. 276(2)(d) that the probative value of this evidence is significant and not substantially outweighed by the danger of prejudice to the administration of justice it may present, in light of the considerations listed in s. 276(3). In my view, we are not in a position to resolve that issue because we have not had the benefit of the trial judge’s analysis of s. 276(2)(d), and we did not receive full argument on this question. In these circumstances, I will not venture my opinion on the ultimate admissibility of this evidence.
The Curative Proviso Cannot be Invoked
[86] The Crown argued before us that if the trial judge erred in his s. 276 ruling, the curative proviso in s. 686(1)(b)(iii) should be applied. It submits that because Mr. Reimer testified about sexualized messages in spite of the ruling no substantial wrong or miscarriage of justice occurred as the result of any legal error that may have occurred in excluding sexualized texts. Specifically, Mr. Reimer testified that: he asked the complainant when they initially met if he could kiss her, because they had discussed doing that in their text messages; they had shared information in the texts about the risk of sexually transmitted disease; once she was in the car the complainant asked to do what they discussed in the texts, including getting a motel; and he relied on an unrecovered text he claimed the complainant had sent to explain why he pulled her hair. It is indeed surprising to see that this testimony was provided without objection or intercession given the exclusionary ruling, but I would not apply the proviso.
[87] First, the trial judge mistakenly concluded that the sexualized texts could not be considered without contravening the contemporaneity rule and engaging in a prohibited inference. It follows that even if he believed Mr. Reimer’s testimony about these sexual communications, the trial judge would have proceeded on the erroneous basis that he could not act on that testimony.
[88] Second, Mr. Reimer’s references in his testimony to some of the sexualized texts is no substitution for their admission into evidence. Without admitting into evidence what the exchanged texts said, any statement the complainant may have made about wanting to do what those texts said would entirely lack context. Moreover, Mr. Reimer’s claims about what was in the texts were left unsupported and may not have been credited when they otherwise might have been had the texts been admitted. In my view, the cryptic, decontextualized, and isolated references Mr. Reimer made to the sexualized texts cannot possibly substitute for their admission or ameliorate the risk of a substantial wrong or miscarriage of justice.
[89] I would find the errors I have described, reject the invitation to apply the proviso, allow this ground of appeal and order a new trial.
C. Did the trial judge err in relying on the recent damage to the clothing in assessing the complainant’s credibility?
[90] I would deny this ground of appeal. I am not persuaded that it was unreasonable for the trial judge to rely on the damage to the complainant’s clothing in the absence of evidence that it was not damaged prior to events in the motel. To be sure, such evidence would have strengthened the support that the damaged clothing gives to the complainant’s account, but its absence did not deprive the torn clothing of all of its probative value. The fact remains that there was evidence that this damage was both recent and consistent with the complainant’s account. The judge was entitled to consider this, and I am unable to say that he gave it undue weight.
D. Did the trial judge overemphasize the complainant’s demeanour?
[91] The trial judge relied upon the complainant’s emotional state when testifying. He did not simply find that her state of upset while testifying was consistent with her reliving the event and therefore provides some support for her testimony. He found that she was reliving the event, which is a finding that necessarily embeds a finding that the sexual assault happened as she said. Put otherwise, this was a determinative finding. In the passage addressing her demeanour he said:
I am well aware of the danger of over-emphasizing demeanour. It is, however, a proper consideration. In this case, [the complainant] recounted the details of the parties’ sexual encounter through tears and despite occasional sobs. The period from 6:30 to 8:30 p.m. on April 10, 2018 was being relived despite the feelings of fear, horror, revulsion and humiliation they engendered.
[92] Mr. Reimer argues that despite the caution he gave himself, the trial judge placed undue weight on demeanour by going this far. Had I been satisfied that the trial judge relied solely on the complainant’s demeanour in finding that she was reliving the event, I would have accepted Mr. Reimer’s submission that the trial judge gave demeanour undue weight. But I am not persuaded that he did so, despite the wording of this paragraph in isolation. Significantly, before moving on to demeanour and finding that she was reliving the experience he gave a separate and weighty reason for coming to that conclusion, namely, the corroborating injuries the complainant sustained. Based on those injuries it would have been entirely appropriate for the trial judge to conclude that he believed the complainant, and to then recognize that her emotional upset was attributable to her reliving that experience. I cannot rule out that the trial judge reasoned in this permissible fashion and would therefore deny this ground of appeal.
[93] Before I leave this issue, even though demeanour is a permissible consideration, I would reiterate the caution that judges should take in considering demeanour in judging credibility: R. v. E.H. 2020 ONCA 405, 389 C.C.C. (3d) 380, at para. 91; R. v. Rhayel, 2015 ONCA 377, 324 C.C.C. (3d) 362, at paras. 85-89. In my view, this is particularly important with emotional upset while testifying, given that emotional presentation can vary with maturity, culture, personality, neurodivergence, or even mental health. A judge is apt to lack a baseline for evaluation as well. In my view, judges should be extremely cautious about relying on emotional upset as an indicium of truthfulness.
E. Did the trial judge otherwise err in Assessing the complainant’s credibility?
[94] Mr. Reimer argued that the trial judge’s assessment of the complainant’s credibility was inadequate because he addressed her inconsistencies piecemeal. In my view, a fair reading of the trial judge’s reasons show that his determination of the complainant’s credibility was done cumulatively. In substance, Mr. Reimer is effectively suggesting that given the nature, clarity, and consistency with which the complainant’s account was contradicted by the only available surveillance video, it was unreasonable for the trial judge to accept her testimony about the events in the motel room.
[95] I would not give effect to this ground of appeal. The trial judge found formidable support for the complainant’s essential account in her injuries, and Mr. Reimer’s defence counsel conceded at trial in written submissions that she was a good witness. We are obliged to defer to the trial judge’s assessment.
F. Did the trial judge err in assessing Mr. Reimer’s credibility?
[96] Mr. Reimer argues that the trial judge erred in assessing his credibility by misapprehending the timeline, finding his final text message to be “mystifying”, and by relying on injury photos that were never shown to Mr. Reimer as a central basis for rejecting his credibility. I am not persuaded that the trial judge erred. None of these complaints undermine the trial judge’s conclusion, which he was entitled to reach on the evidence before him.
[97] With respect to the timeline, I agree with Mr. Reimer that the complainant was not gone long beyond the one to two hours time period she expected to be away. However, this does not undermine the trial judge’s conclusions that, given the window available to her, it was unlikely that the complainant would have asked to get a motel room, even with takeout food, or that she would take a shopping detour en route, and another shopping detour on her way home after telling Mr. Reimer that she had to get home to her mother and her son. The trial judge did not misapprehend the timeline. He drew rational inferences from the timeline about the plausibility of Mr. Reimer’s testimony that were open to him.
[98] With respect to the final text, whether or not I would agree that it was “mystifying”, the trial judge was entitled to find it to be implausible that Mr. Reimer would have sent this message if his testimony was true. Mr. Reimer testified that he asked the complainant to let him know when she arrived home safely but, when she did not respond to his text, he did not ask her about her safety in his subsequent message. There was therefore a rational basis for the inference the trial judge drew. That being so, there is no basis for concluding that the trial judge misapprehended the evidence. Even if he had misapprehended this evidence, it did not lead to a miscarriage of justice. There is simply no basis for finding that this line of reasoning played an essential part in the decision to disbelieve Mr. Reimer beyond a reasonable doubt: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2.
[99] With respect to the injury photos not being shown to Mr. Reimer, I am not persuaded that this undermined the fairness of the trial or compromised the trial judge’s assessment of Mr. Reimer’s credibility. The failure of the Crown to confront Mr. Reimer with these photos was not a violation of the rule in Browne v. Dunn (1893), 6 R. 67 (H.L.). The rule in Browne v. Dunn is meant to prevent evidence from being used to contradict answers provided by a witness in their testimony where it would be unfair to do so without giving that witness a chance to explain the apparent contradiction. Mr. Reimer did not testify about whether the complainant was injured. Therefore, the photos were not being used to contradict any answers he had given. They were being offered instead as circumstantial evidence supporting the Crown case.
[100] Moreover, by the time Mr. Reimer began testifying, the injury photos had already been put into evidence. If his lawyer believed that Mr. Reimer could have offered relevant defence evidence on this subject, he could have asked him about the injuries depicted in the photos, or had him comment on the photos themselves, but he did not do so.
[101] I would deny this ground of appeal. The trial judge’s decision to reject Mr. Reimer’s evidence is entitled to deference.
Conclusion
[102] I would allow the appeal because of the s. 276 errors, set aside the convictions, and order a new trial.
Released: July 2, 2024 “J.S.” “David M. Paciocco J.A.” “I agree. Janet Simmons J.A.” “I agree. C.W. Hourigan J.A.”
[1] This appeal is subject to publication bans pursuant to ss. 486.4 and 486.6 of the Criminal Code, R.S.C. 1985, c. C-46. [2] The compilation of text messages recovered from Mr. Reimer’s phone and the compilation of text messages recovered from the complainant’s phone each contain messages not found on the other. [3] Common law principles tracking the content of s. 276 apply if the Crown leads evidence of a complainant’s sexual history: R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 80; R. v. R.V., 2019 SCC 41, [2019] 3 S.C.R. 237, at para. 78. [4] The statutory regime is applied by judges, provincial court judges or justices as defined in the Criminal Code. For simplicity I will use the term “judge” inclusively.
