R. v. C.I., 2023 ONCA 576

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(1) , (2) , (2.1) , (2.2) , (3) or (4) or 486.6(1) or (2) 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 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) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

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

(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; and

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

(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.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community.

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.

(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: 20230906

DOCKET: C68700 & C68026

Doherty, van Rensburg and Harvison Young JJ.A.

BETWEEN

His Majesty the King Respondent

and

C.I. and M.G. Appellants

Counsel:

Jassiganth Vamadevan, for the appellant C.I. Mark C. Halfyard and Lindsay Board, for the appellant M.G. Katie Beaudoin, for the respondent

Heard: April 5, 2023

On appeal from the convictions entered by Justice Robert E. Charney of the Superior Court of Justice on October 30, 2019.

Doherty J.A.:

I Overview

[1] The appellants, C.I. and M.G., met the complainant, M.S., and two of her friends at a nightclub. Later that evening, M.G. and C.I. ended up in M.G.’s vehicle with M.S. According to M.G. and C.I., M.S. suggested they have “an orgy” and she eventually engaged in sexual activity with C.I. in the back seat. M.G. remained in the front seat. M.S. testified that she was intoxicated at the time and had very little memory of the events in the vehicle. However, she was certain that she had not consented to any sexual activity with either C.I. or M.G.

[2] The appellants were charged with sexually assaulting M.S. At trial, the Crown argued, consistent with M.S.’s testimony, that M.S. was incapable of giving meaningful consent to the sexual activity on account of severe intoxication. The Crown further submitted that, in any event, M.S. had not consented to the sexual activity. The Crown also submitted that the evidence established that M.G. had aided and/or abetted C.I. in his sexual assault of M.S.

[3] The appellants acknowledged that M.S. was drinking during the evening and seemed “tipsy”. However, they further testified that she was functioning normally and appeared in full control of her actions. Finally, the appellants submitted that even if M.S. did not consent to the sexual activity, or was incapable of doing so, the Crown had failed to prove that the appellants did not honestly believe that M.S. had communicated her consent to the sexual activity.

[4] The jury convicted C.I. and M.G.

[5] The appellants appeal their convictions only.

[6] The appellants advance four grounds of appeal:

• Did the trial judge err by allowing the Crown to ask M.S. leading questions during examination-in-chief, and improperly use prior statements by M.S. to refresh her memory during examination-in-chief?

• Did the trial judge err in holding that counsel for C.I. could not cross-examine M.G. as they were not adverse in interest and, if so, is M.G. also entitled to rely on this error, even though counsel for M.G. at trial did not attempt to question C.I. after C.I. completed his examination-in-chief?

• Did the trial judge err in admitting certain statements made by M.S. in the two days following the alleged assault and, if the statements were admissible, did the trial judge properly instruct the jury on the limited use it could make of those statements?

• Did the trial judge err in excluding evidence proffered by the defence of a video and three photographs depicting parts of the sexual activity between C.I. and M.S. in the back seat of M.G.’s motor vehicle?

[7] The court did not call on the Crown on the ground of appeal alleging improprieties in the examination-in-chief of M.S. The appellants’ submissions are not without merit; however, I am satisfied that the irregularities in the examination-in-chief of M.S. could not possibly have compromised the verdicts returned by the jury. I will say no more about this ground of appeal.

[8] I will summarize the relevant evidence before turning to the remaining grounds of appeal.

II The Evidence

[9] C.I. had worked for M.G.’s stepfather on various occasions and knew M.G. On September 22, 2012, [1] C.I. went to the stepfather’s house to celebrate the stepfather’s birthday. M.G. was also there. They had a few beers and decided to go out to a nightclub.

[10] The three men drove to a nightclub in M.G.’s car. They arrived at about 1:20 a.m. As it turned out, the complainant, M.S., was at the same nightclub with two friends. M.G. knew M.S. because she had previously dated his cousin, B.

[11] C.I., M.G., and his stepfather had not been in the nightclub very long when they began to interact with M.S. and her friends. M.S. accepted the offer of a drink from C.I. She danced with M.G. C.I. and M.G. both testified that, while M.S. had clearly been drinking, she did not seem drunk. They also both testified that she could control herself and carry on a conversation.

[12] A friend of M.S., who was at the nightclub, described her as “drunk”, but not “blackout drunk”. Footage from the video surveillance in the nightclub, taken between about 1:45 a.m. and 2:05 a.m., showed M.S. dancing and walking around the nightclub. At one point, C.I. can be seen pouring a clear liquor into M.S.’s mouth directly from the bottle. At 1:30 a.m., M.S. is seen falling to the floor. About 25 minutes later, M.S. is seen stumbling backwards and requiring assistance to maintain her balance.

[13] As closing time neared, C.I., M.G., and his stepfather decided to go to an after-hours nightclub. M.G. went to get the car. He and M.S. are seen in the video surveillance leaving the nightclub together at about 2:05 a.m. M.G.’s arm is around M.S.’s waist.

[14] M.G. and M.S. returned to the nightclub after getting M.G.’s vehicle. They picked up C.I. and M.G.’s stepfather and drove away from the nightclub. M.S. and the stepfather were sitting in the back seat. M.G. was driving, and C.I. was sitting in the front passenger seat. When they arrived at the after-hours nightclub, the stepfather went directly inside. The other three remained in the vehicle.

[15] According to M.G. and C.I., after the stepfather left the vehicle, M.S. asked the two appellants if they were interested in an “orgy”, and she started to come on to C.I. After some discussion among the three, C.I. moved into the back seat. Part of that discussion was recorded by M.G. The parties agreed that the recording was admissible.

[16] In the recording of the conversation, M.G. asks M.S., “Do you want to do what you told me earlier?” C.I. adds, “If you don’t like it you have to stop now”. M.S. repeatedly asks, “What did I tell you earlier?” M.G. responds, “The whole gang bang”. M.S. says, “What? What did I tell you?”

[17] C.I. then interjects and states that he is “about to jump in the back” and “have my way with this girl … If she wants.” M.G. then asks, “One last time … Are you willing to have sexual relationship with us?” M.S. replies, “Yes” on two occasions and the recording ends. C.I. climbed into the back seat.

[18] The appellants argued that the recording contains an express consent to sexual activity by M.S. The Crown maintained that the tone of M.S.’s voice and her significant delays in responding to some of the questions put to her showed that she was very confused, highly intoxicated, and consequently unable to consent to any sexual activity. The jury had the benefit of listening to the audio recording during deliberations.

[19] After C.I. moved into the back seat, he and M.S. began to engage in sexual activity. C.I. testified that M.S. was an active participant in the sexual activity from the outset.

[20] Sometime after C.I. moved into the back seat, he told M.G. to move the car out of the parking lot. As M.G. drove away, he looked in the rear-view mirror and saw M.S. performing fellatio on C.I. When he stopped the vehicle at a stop sign, M.G. used his phone to videorecord M.S. performing oral sex. The defence sought to introduce a video clip showing M.S. performing fellatio on C.I. The trial judge ruled the video inadmissible under s. 278.92 of the Criminal Code, R.S.C. 1985, c. C-46. That ruling is challenged on appeal.

[21] About 30 minutes after M.G. videoed M.S. performing fellatio on C.I., he stopped the vehicle. M.S. was in a seated position straddling C.I.’s waist. Both were nude from the waist down and it appeared that they were engaged in sexual intercourse. M.G. left the vehicle, opened the back door and took pictures of C.I. and M.S. as they were having sex. The defence sought to introduce three photographs at trial. The trial judge ruled the photographs inadmissible under s. 278.92. That ruling is also challenged on appeal.

[22] According to M.G. and C.I., M.S. became very angry when she realized that M.G. was taking photographs. She demanded to be taken home immediately. M.G. and C.I. took her home.

[23] M.S. gave a different version of events in her testimony. She recalled being in the nightclub with two friends drinking and having a good time. According to M.S., she became very drunk and passed out. M.S. testified that she had little, if any, recollection of interaction with M.G. and C.I. at the nightclub. M.S. had a vague recollection of someone in a white shirt offering her a drink. The video surveillance indicates that C.I. was wearing a white shirt.

[24] M.S. had no recollection of performing fellatio on C.I. or engaging in sexual intercourse with him. Her first memory of any sexual activity in the car was lying on the back seat confused and disoriented. M.S. realized that her dress was rolled up above her waist and that she was naked from the waist down. She saw M.G., who she knew, sitting in the front driver’s seat. She saw C.I. beside her in the back seat naked from the waist down. She did not know C.I.

[25] M.S. recalled that C.I. digitally penetrated her while the car was in motion. She also remembered that after the vehicle stopped, C.I. manoeuvred her body and attempted to engage in anal intercourse. This caused M.S. considerable pain and she told C.I. to stop. She recalled that both men laughed.

[26] Based on the times at which the audio recording and video were made, and the photographs were taken, C.I. was in the back seat with M.S. for about an hour and a half (3:05 a.m. – 4:37 a.m.).

[27] M.S. testified that when she woke up the next morning, about five hours after she arrived home, she could recall very little of what had happened the night before. She had a recollection of some sexual activity and was sure that she “didn’t want any of that”. She spoke with one of the friends with whom she had been at the nightclub when she met M.G. and C.I. Later that same day, she contacted B., asking him to speak to his cousin, M.G., and to have M.G. call her so that she could find out from him what had happened the night before.

[28] The next day, B. arranged a telephone conversation between M.S. and M.G. M.S. demanded to know what had happened to her. M.G. told her nothing had happened, but that she was drunk and needed a ride home, so they gave her a ride home. He assured her that no one was naked in the back seat.

[29] In his evidence, M.G. acknowledged that he spoke with M.S. and B. was privy to this conversation. M.G. said he was guarded in what he said to M.S. because he believed B. was listening to the call and that B. was M.S.’s boyfriend. M.G. denied telling M.S. that she was “very drunk”.

[30] The day after M.S. spoke to M.G., she went to the hospital and reported the incident to the police.

III The Grounds of Appeal

A. Did the trial judge err in refusing to permit cross-examination of M.G. by counsel for the co-accused, C.I.?

(i) The Trial Proceedings

[31] M.G. testified in his own defence. When his examination-in-chief was completed, the trial judge invited the Crown to cross-examine M.G. Crown counsel suggested that counsel for C.I. might have some questions. Counsel replied, “Just quickly”, and proceeded to ask M.G. questions about the events in the vehicle. After questions which span two pages in the transcript, the Crown objected on the ground that the questions were in the nature of cross-examination and were repetitive of evidence already given. The trial judge, who had clearly anticipated the Crown’s objection, said to counsel for M.G., “[T]his is not a cross-examination. You’re not adverse in interest to this witness. So, can you explain your questions?”

[32] Counsel replied, “Oh, I’ll curtail … I was just going to ask him what he saw in the back.” The trial judge responded, “This is not a cross-examination. You can ask him what he saw.”

[33] Counsel’s questions continued over the next three pages of transcript. During that questioning, the Crown objected three times – twice because the questions were eliciting evidence that had already been given. In response to the Crown’s objections, the trial judge said, “I’m not going to stop you from asking all … the same questions again, but….”

[34] Counsel for C.I. indicated that he had no further questions for M.G.

(ii) The Error

[35] On appeal, counsel for C.I. (not trial counsel) submits that the trial judge erroneously held that C.I. could not cross-examine M.G. because M.G. was not adverse in interest to C.I. Counsel argues that trial counsel for C.I. “curtailed” his questioning of M.G. in response to the trial judge’s misstatement of the applicable law.

[36] Counsel for C.I. submits that an accused has an absolute right to cross‑examine a co-accused who testifies in his own defence. The right to cross‑examination includes the right to ask leading questions, and revisit evidence already given: see e.g., R. v. Crawford, 1995 SCC 138, [1995] 1 S.C.R. 858, at para. 27; R. v. McLaughlin (1974), 1974 ONCA 748, 2 O.R. (2d) 514 (C.A.), at pp. 520-25; R. v. Gignac and Newman (1976), 1976 ONCA 1426, 30 C.C.C. (2d) 40 (Ont. C.A.), at p. 42; R. v. Jewell (1974), 1974 ONCA 1657, 22 C.C.C. (2d) 252 (Ont. C.A.), at p. 256, leave to appeal refused, 13702 (December 2, 1974); and David Watt, Watt’s Manual of Criminal Evidence (Toronto: Thomson Reuters, 2022), at §20.02.

[37] Counsel further argues that the trial judge’s ruling precluded cross‑examination of M.G., thereby depriving C.I. of the opportunity to elicit evidence that may have been helpful to C.I. in making full answer and defence. Counsel contends that, because of the fundamental nature of the right to make full answer and defence, any improper limitation on an accused’s right to cross‑examine witnesses will almost inevitably result in a miscarriage of justice. As observed in R. v. R.V., 2019 SCC 41, [2019] 3 S.C.R. 237, at para. 86:

Because it is difficult to predict what lines of questioning counsel might pursue and what evidence may have emerged had cross-examination been permitted, a failure to allow relevant cross-examination will almost always be grounds for a new trial. [Citations omitted.]

[38] Crown counsel concedes the legal error and acknowledges that C.I. had the absolute right to cross-examine M.G. The Crown invokes the curative proviso in s. 686(1)(b)(iii). Counsel points out that the proviso has been applied by this court to cases in which an accused was denied the opportunity to cross-examine a co‑accused: see e.g., McLaughlin, at p. 525; Gignac and Newman, at pp. 41-42.

[39] Crown counsel contends that, despite the trial judge’s misapprehension of the relevant law, counsel for C.I. was able to ask all of the questions he wanted to put to M.G. There was no functional curtailment of the questioning. Specifically, counsel wanted evidence from M.G. showing that M.S. had assumed a dominant position during the sexual intercourse. Counsel got that evidence from M.G.

[40] Crown counsel further submits that the appellant has not pointed to any potential evidence favourable to C.I. that could have been adduced on cross‑examination that was not already in the trial record. Counsel submits that, just as in McLaughlin, it can be safely said that further questioning of M.G. by counsel for C.I. would not have assisted in C.I.’s defence.

[41] Counsel for C.I. frames the argument in terms of a denial of a right to cross‑examination, leading to a denial of the right to make full answer and defence, rendering the conviction a miscarriage of justice within the meaning of s. 686(1)(a)(iii). The Crown prefers to characterize the argument as one alleging a legal error under s. 686(1)(a)(ii) of the Criminal Code to which the Crown responds by invoking the curative proviso in s. 686(1)(b)(iii). Whichever characterization is used, in the circumstances of this case, the question to be resolved is whether counsel for C.I. was actually precluded from asking M.G. any questions that counsel wanted to ask in order to advance C.I.’s defence.

[42] Leading questions are a staple of cross-examination, and the trial judge made it clear that he would not permit counsel to ask leading questions. However, other than that limitation, the trial judge did not prohibit counsel from putting any questions to M.G. that counsel wished to ask. Counsel, who advised the trial judge before he began his questioning that he would be brief, did not suggest to the trial judge any additional area of questioning that he wished to pursue with C.I. To the contrary, counsel indicated that he had “no further questions” almost immediately after the trial judge said that he would not stop counsel from asking further questions about relevant events.

[43] A prohibition against leading questions can, in some circumstances, impose a significant improper limit on cross-examination. It did not do so in this case. M.G. and C.I. were completely aligned in their defence. An inability to ask M.G. leading questions would have no impact on counsel for C.I.’s ability to elicit the desired answers from M.G.

[44] In this court, counsel for C.I. did not point to any specific questions or line of questioning that could have been put to M.G. which may have produced favourable evidence for C.I. that was not already in the trial record. I accept that it is too much to expect counsel to predict exactly how the examination of M.G. might have gone had the trial judge not improperly limited the kinds of questions counsel for C.I. could ask M.G. However, it is appropriate, when considering the impact of the ruling on the right to make full answer and defence, to consider any potential line of questioning that could reasonably be expected to have produced something of evidentiary value to the questioner’s client. No such questions were suggested to this court.

[45] I am satisfied that the curative proviso can be applied. The trial judge’s misunderstanding of the law governing cross-examination of an accused by a co‑accused proved harmless. In the end, counsel for C.I. was able to ask M.G. the questions that he wanted to put to him. Furthermore, the trial judge’s erroneous prohibition against asking M.G. leading questions had no impact on the scope or effectiveness of counsel’s questioning of M.G. I would not give effect to this ground of appeal.

[46] C.I. also testified at trial. Counsel for M.G. did not ask C.I. any questions. On appeal, counsel submits, however, that if C.I. was improperly denied the opportunity to cross-examine M.G. and is entitled to a new trial, M.G. should also receive a new trial. As I would not give effect to C.I.’s submissions, it is unnecessary to consider whether, had those submissions carried the day, M.G. would also be entitled to a new trial.

B. Did the trial judge err in failing to instruct the jury on the limited use it could make of the complainant’s prior consistent statements?

[47] M.S. testified that she was confused when she woke up the next morning and could not remember most of what had occurred the night before. M.S. wanted to know what had happened to her. She communicated with one of the friends she had been at the nightclub with the night before and told the friend “in brief summary” what she could remember. In reference to the sexual activity that had occurred, she also told her friend, “I didn’t want any of that”.

[48] M.S. continued her attempts to find out what had happened the previous evening by contacting B., M.G.’s cousin. B. and M.S. had dated in the past. They did not have an ongoing relationship at the time.

[49] M.S. communicated with B. several times throughout the day and early evening. She told B. that she wanted him to phone M.G. and find out for her “exactly” what had happened. M.S. told B. that there was someone else in the vehicle with M.G. and that she had not wanted anything to happen while they were in the vehicle. She asked B. for M.G.’s phone number.

[50] The next day, M.G. met with B. and they phoned M.S. M.S. asked M.G. what had happened and told him that she could only remember small parts of the events. M.G. told her that nothing had happened. He indicated that she was drunk and that he and a friend had given her a ride home.

[51] M.S.’s evidence about her efforts in the two days following the alleged assaults to find out what had happened to her was admitted without objection. She was cross-examined on these matters. In closing arguments, the Crown maintained that the evidence supported the contention that M.S. was highly intoxicated during the relevant events, explaining why she was both unable to remember the details, and unable to give any meaningful consent to the sexual activity. The defence countered with the claim that M.S.’s conduct and communications in the days following the alleged assault were explained by her embarrassment about what she had agreed to do with the appellants. She took proactive steps to hide the embarrassing truth from B.

[52] In his jury instruction the trial judge summarized the evidence pertaining to M.S.’s conduct and communication in the two days following the alleged assault. He told the jury they could consider whether that evidence supported M.S.’s testimony that she had blacked out the night before and was too drunk to know what was happening. Counsel did not object to the trial judge’s instructions.

[53] The evidence of M.S. was admissible as evidence of her state of mind. It was open to the jury to find that M.S. was confused and unable to recall events that had occurred only a few hours earlier. That state of mind, as evinced by her confusion and lack of memory, was consistent with her claim that she was very intoxicated when the sexual activity in the motor vehicle occurred a few hours earlier: R. v. F.B.P., 2019 ONCA 157, at paras. 7-8. Significant intoxication, resulting in a loss of memory, while not determinative of an incapacity to consent to sexual activity, is evidence capable of supporting an allegation of incapacity.

[54] The trial judge’s instructions as to the use the jury could make of the evidence, while brief, were correct. A more detailed explanation could have been given. I doubt very much that the appellant would have benefitted from a more elaborate explanation of the potential connection between M.S.’s confusion and inability to recall matters a few hours after the alleged sexual assault, and her degree of intoxication at the time of the alleged sexual assault.

[55] The trial judge did not tell the jury that consistencies between M.S.’s testimony and statements that she made to B. and others in the two days following the alleged assault could not be used to buttress M.S.’s credibility. Nor did he tell the jury that repetition of the same details did not, in and of itself, enhance the credibility of M.S. He certainly could have given those instructions. In some cases, particularly when the Crown introduces evidence of a statement by the complainant which includes a detailed narrative of the alleged assault, those instructions will be necessary: see e.g., R. v. Ellard, 2009 SCC 27, [2009] 2 S.C.R. 19, at para. 42; R. v. L.O., 2015 ONCA 394, 324 C.C.C. (3d) 562, at paras. 37-38; R. v. D.C., 2019 ONCA 442, at para. 24; and R. v. Freedland, 2023 ONCA 386, at paras. 37-42.

[56] I see no risk that the jury would have viewed M.S.’s evidence about her conduct in the two days following the alleged sexual assault as prior consistent statements repeating and, therefore, confirming her testimony. M.S.’s evidence was more obviously connected to her level of intoxication when the relevant events occurred and, by inference, to her ability to consent to sexual activity. The trial judge instructed the jury they could use the evidence for that purpose. The evidence neither repeated M.S.’s narrative of the relevant events nor invited the jury to find confirmation of M.S.’s credibility through the repetition of the same narrative.

[57] The trial judge correctly told the jury that they could use the evidence in assessing M.S.’s level of intoxication during the sexual activity. There was no realistic possibility the jury would use the evidence for anything else. I would reject this ground of appeal.

C. Did the trial judge err in excluding evidence proffered by the defence of a video and three photographs depicting parts of the sexual activity between C.I. and M.S. in the back seat of M.G.’s motor vehicle?

(i) Relevant Statutory Provisions

[58] Section 278.92 governs the admissibility in sexual assault prosecutions [2] of any “record”, as defined in s. 278.1, if that record is in the possession or control of the accused and the accused seeks to adduce that record into evidence. Section 278.1 captures certain documents specifically identified in the section, but also any material that “contains personal information for which there is a reasonable expectation of privacy”. The evidentiary rule created in s. 278.92 renders that evidence presumptively inadmissible at the instance of the accused, unless the accused can establish admissibility under the criteria in s. 278.92(2)(b).

[59] The exclusionary rule is found in s. 278.92(1):

Except in accordance with this section, no record relating to a complainant that is in the possession or control of the accused – and which the accused intends to adduce – shall be admitted in evidence in any proceedings in respect of [sexual assault] ….

[60] Evidence which is presumptively inadmissible under s. 278.92(1) is admissible under s. 278.92(2)(b) if the judge:

… determines, in accordance with the procedures set out in sections 278.93 and 278.94,

(b) … that the evidence is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

[61] Section 278.92(3) sets out a non-exhaustive list of factors that may be taken into account when balancing probative value and potential prejudicial effect under s. 278.92(2)(b). The section reads:

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) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences;

(d) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;

(e) the need to remove from the fact-finding process any discriminatory belief or bias;

(f) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;

(g) the potential prejudice to the complainant‘s personal dignity and right of privacy;

(h) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and

(i) any other factor that the judge … considers relevant.

(ii) The Proceeding at Trial

[62] At the outset of the trial, counsel for M.G. advised the court that he proposed to lead evidence of the audio recording, video and photographs referred to earlier in these reasons. He took the position that none of the material fell within the definition of “record” in s. 278.1, meaning that s. 278.92 had no application to the evidence. Alternatively, counsel submitted that if some or all of the material did fall within the definition of “record” the material was admissible under the test laid down in s. 278.92(2)(b).

[63] The Crown submitted that all of the material fell within the broad definition of record in s. 278.1. Crown counsel conceded that the audio recording was admissible at the instance of the defence under s. 278.92(2)(b), but argued that neither the video, nor the photographs, were admissible.

[64] The audio recording was made on M.G.’s phone at 3:05 a.m. and lasted for about two minutes. The recording preceded any sexual activity in the vehicle. M.G. and C.I. were sitting in the front seats and M.S. was in the back seat. As set out above (para. 18), the appellants argued that M.S. expressly consented to sexual activity with M.G. and C.I during the recorded conversation. The Crown submitted that listening to the conversation provided strong evidence that M.S. was highly intoxicated and unable to give effective consent to sexual activity.

[65] M.G. made the video on his cellphone at 4:07 a.m. The video is 40 seconds long and M.S. is visible on the video for 22 seconds. Her face is visible only for a few seconds. During those few seconds, M.S.’s eyes are closed and her hair is partly covering her face. She is performing fellatio on C.I. There is no sound on the video. Other than M.G.’s evidence that he took the video, there was no evidence about the provenance of the video. It is unknown whether the video was part of a longer video, or if it had been modified or altered in any way.

[66] The three photographs taken at 4:36-4:37 a.m. show M.S. naked from the waist down, straddling C.I., who is also naked from the waist down. In two photographs, C.I.’s hands are on M.S.’s waist; in the third photograph, his hands are by his side. M.S. appears to be having sex with C.I. Neither C.I.’s nor M.S.’s face can be seen in any of the photographs.

[67] M.S. did not agree to the making of the recording, or the taking of the video, or photographs. She was not aware that M.G. recorded the conversation with her in the motor vehicle, or that he made a video of her performing fellatio. M.S. testified that she was also not aware that any photographs were taken. M.G. testified that he took the photographs without M.S.’s consent, but that she became aware that he was photographing her and became angry.

(iii) The Ruling ([R. v. M.G., 2019 ONSC 6120](https://www.canlii.org/en/on/onsc/doc/2019/2019onsc6120/2019onsc6120.html))

[68] The trial judge held that the video and photographs were records within the meaning of s. 278.1 and their admissibility fell to be determined under s. 278.92‑.94. The trial judge further held that he would “assume” that the audio recording, which the Crown and defence agreed was admissible, was a record for the purposes of s. 278.92(2). The trial judge concluded that the defence had met their onus to demonstrate the admissibility of the audio recording, but that they had not established the admissibility of the video or the photographs.

[69] In ruling the video inadmissible the trial judge described its potential probative value as “at best, minimal”. At paras. 35-36, he said:

None of the indicia of impairment or sobriety are apparent from this clip. Her face is visible only for a few seconds, and her eyes are closed. There is no talking. There is no walking. There are no fine motor skills.

Added to this, I do not know whether the 40 second clip is the entire video that was taken at the time, or whether it has been altered or edited by deleting portions taken after the 40 seconds.

[70] Having calibrated the probative value as “minimal”, the trial judge turned to the other side of the evidentiary equation in s. 278.92(2)(b) and considered the potential danger of prejudice to the administration of justice should the evidence be admitted. In addressing potential prejudice, the trial judge focused primarily on the negative impact of the admission of the evidence on M.S.’s personal dignity and right of privacy – one of the factors identified in s. 278.92(3). The trial judge was satisfied that admitting the video “would result in significant prejudice to the complainant’s personal dignity and right of privacy”: at para. 39. The very personal nature of the content of the video, combined with the taking of the video without M.S.’s knowledge or consent, provided strong support for the trial judge’s assessment of the prejudicial effect of the admission of the evidence on M.S.’s personal dignity and privacy.

[71] The trial judge was also satisfied that admitting the video, even though it had minimal probative value, would humiliate and degrade M.S. and, in doing so, potentially discourage other victims from reporting sexual assaults. This form of societal prejudice is also specifically identified in s. 278.92(3).

[72] On the trial judge’s findings, the video failed both sides of the evidentiary balancing required under s. 278.92(2)(b). The evidence did not have “significant probative value”, and the danger of prejudice to the proper administration of justice if the evidence was admitted “substantially outweighed” the probative value.

[73] The trial judge addressed the admissibility of the photographs in a single paragraph. In his view, the photographs had even less probative value than the video. The potential of the photographs to humiliate M.S., while undermining her personal dignity and privacy, was much the same as the video.

[74] The trial judge understood from counsel’s submissions that the defence sought to use the photographs primarily to impeach M.S. if her description of the sexual activity deviated from the sexual activity shown in the photographs. The trial judge could not assess impeachment value until he heard M.S.’s testimony. In his reasons for excluding the photographs, the trial judge left open the possibility of reconsidering that ruling. As it turns out, M.S. said nothing that could have warranted the use of the photographs to impeach her credibility. M.S. testified that, because of her intoxicated state, she could not recall performing fellatio or engaging in sexual intercourse with C.I. She did not deny doing so. Given M.S.’s testimony, the photographs had no impeachment value. Counsel for the appellants did not suggest otherwise in this court.

(iv) The Conduct of the Trial After the Ruling

[75] Although the trial judge ruled the video and photographs inadmissible, the jury was aware of the existence of both and heard evidence relating to the contents of both. It was put to M.S. in cross-examination that she was aware that photographs and a video had been taken showing her engaged in sexual activity with C.I. and that she made up a story about being intoxicated so her boyfriend would not be angry with her. M.S. repeatedly denied this suggestion. She testified that she had no knowledge of the video or the photographs until immediately before the trial.

[76] M.G. testified that he took the video and the photographs. He had forgotten all about them until he came across them by chance shortly before the trial. M.G. did not offer any explanation for taking the video or the photographs. In his evidence, M.G. described the fellatio and sexual intercourse in some detail. When asked by counsel how he could recall the details of something that had occurred seven years earlier, M.G. indicated he had used the video and the photographs to “refresh my memory”.

[77] C.I. testified that he too watched the video before testifying and that it had helped him refresh his memory. He described the position of M.S. during the oral sex in detail.

[78] Crown counsel did not cross-examine either appellant on their description of the fellatio or sexual intercourse between C.I. and M.S. Crown counsel did suggest there was sexual activity not captured on the video and photographs referred to by the appellants in their evidence-in-chief. In closing argument, counsel for both appellants stressed that the appellants’ descriptions of the fellatio and sexual intercourse went unchallenged.

[79] In his instructions, the trial judge repeated his mid-trial instruction to the effect that he had ruled the video and the photographs inadmissible, and the jury should not speculate about what either might show. The trial judge told the jury that the evidence of what had happened in the back seat must come from the testimony of the complainant and the appellants. That testimony included the appellants’ evidence that their recollections as to what had occurred were refreshed by looking at the video and the photographs.

[80] Although the video and photographs were ruled inadmissible, the appellants, through their testimony and counsel’s submissions, were effectively able to place their version of what could be seen on the video and in the photographs before the jury. [3]

(v) The Arguments on Appeal

[81] The appellant initially advanced three submissions:

• None of the material constituted a record as defined in s. 278.1;

• The trial judge made various procedural errors in the conduct of the admissibility inquiry required under s. 278.92-.94; and

• The trial judge erred in ruling the video clip and photographs inadmissible under s. 278.92(2)(b).

[82] Subsequent to the trial, and the launching of this appeal, the Supreme Court of Canada released its reasons in R. v. J.J., 2022 SCC 28, 81 C.R. (7th) 1. The court considered the meaning of “record” as defined in s. 278.1: J.J., at paras. 42, 54, 65-67, 70. In light of these reasons, the appellants accept that the video and photographs fall within the definition of “record” and have abandoned that ground of appeal.

(a) Alleged Procedural Errors

[83] The trial in this matter began soon after the enactment of s. 278.92 (S.C. 2018, c. 29). The trial judge did not have the benefit of the detailed roadmap to the relevant provisions provided by the Supreme Court of Canada in J.J. Some aspects of the procedure followed by the trial judge – with the concurrence of counsel – are inconsistent with the law as set down in J.J. However, I am satisfied that none of the appellants’ procedural complaints merit reversal of the conviction.

[84] The appellants submit that the trial judge “erred in allowing the Crown to see the purported records” before stage two of the application. That is not what happened. The defence, on its own initiative, chose to turn the material over to the Crown before the application began. The defence did not ask the trial judge to rule on whether the Crown could see the material at the outset of the application and the trial judge never made any such ruling.

[85] The appellants next submit that the trial judge erred in allowing the complainant, through counsel, to participate throughout the application into the admissibility of the material proffered by the defence. As pointed out in J.J., the admissibility inquiry in s. 278.93 proceeds through two stages. At the first stage, the defence must apply for an evidentiary hearing. To get a hearing, the defence must show that the evidence is “capable of being admissible under s. 276(2)”. [4] The complainant has no standing at this stage of the inquiry: Criminal Code, s. 278.93(1), s. 278.93(4).

[86] If the evidence passes through the first stage of the inquiry, the trial judge must then hold a hearing to determine the admissibility of the evidence under s. 278.92(2)(b). At the hearing stage of the admissibility inquiry the complainant is not a compellable witness and does have standing: Criminal Code, s. 278.94(2); J.J., at paras. 87-90.

[87] Before the trial judge, the application to admit the evidence focused first on whether the material fell within the meaning of “record”, thereby engaging the evidentiary rule in s. 278.92(1) and, second, on the ultimate admissibility of the evidence under s. 278.92(2)(b). The trial judge did not consider, and was not asked to consider, whether the evidence was “capable of being admissible” under s. 278.93(4).

[88] There was no possible prejudice to the appellants from the manner in which the evidentiary hearing proceeded. Assuming the appellants are correct that M.S. was erroneously given standing on the argument of whether the material constituted a “record”: J.J., at paras. 68-72, counsel for M.S. made no submissions on that issue. In any event, both parties now agree that the trial judge was correct in holding that the video and photographs were records. The audio recording was admitted as requested by the defence, and with the consent of the Crown. As I read J.J., at paras. 64-66, the audio recording was also a “record” for the purposes of s. 278.92. The “standing” afforded to counsel for M.S. on the issue of whether the material amounted to a “record” had no impact on the substance of the trial judge’s ruling or the fairness of the inquiry conducted by the trial judge.

[89] There was also no prejudice to the appellants from the trial judge’s failure to conduct a separate initial inquiry into the potential admissibility of the evidence. No one suggested that inquiry was necessary. It seems that all parties at trial assumed the material was “capable of being admissible”. That assumption, if anything, inured to the benefit of the appellants. Once the trial judge concluded the material constituted a “record”, the evidentiary inquiry focused exclusively on the ultimate admissibility of the evidence. M.S. was entitled to participate in the determination of that issue: s. 278.94(2); J.J., at paras. 97-98.

[90] The appellants’ procedural arguments cannot succeed.

(b) Did the Trial Judge Err in Excluding the Evidence?

The Operative Principles

[91] Managing the tension between the probative value of relevant evidence and the potential for that evidence to prejudice the proper administration of justice is a central theme of the law of criminal evidence: J.J., at paras. 129-30; see also R. v. Corbett, 1988 SCC 80, [1988] 1 S.C.R. 670, at p. 714; R. v. Mohan, 1994 SCC 80, [1994] 2 S.C.R. 9, at pp. 20‑21; Matthew Gourlay et al., Modern Criminal Evidence, (Toronto: Emond, 2022), at pp. 7-15. Balancing the probative value against the prejudicial effect ultimately falls to the trial judge in the exercise of her discretion. Until relatively recently, the scope of that discretion was shaped almost entirely by judicial precedent.

[92] Sexual assault trials pose unique and difficult problems associated with the balancing of probative value against prejudicial effect. Historically, the courts have failed to achieve an appropriate balance in sexual assault cases both by overstating the probative value of certain kinds of evidence tendered in those cases, and by understating the potential harm to the integrity of the trial process caused by the admission of that evidence: J.J., at para.1; R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at para. 33; R. v. L.S., 2017 ONCA 685, 40 C.R. (7th) 351, at para. 79.

[93] Beginning in the 1980s, Parliament fashioned a series of evidentiary rules governing the admissibility of certain kinds of evidence in sexual assault trials. While those provisions maintained the probative value/prejudicial effect analysis, they tailored that analysis to reflect the specific concerns associated with the admissibility of certain kinds of evidence in sexual assault cases. Section 278.92 is the most recent of these statutory provisions.

[94] The admissibility inquiry mandated by s. 278.92(2)(b) seeks to preserve the accused’s right to make full answer and defence, but not at the expense of admitting evidence that will prejudice the proper administration of justice by misleading the trier of fact, infringing on the fundamental rights of complainants, or unduly interfering with the achievement of broader societal goals: R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R 443, at paras. 19, 41-43.

[95] Evidence that is subject to s. 278.92(2)(b) is admissible at the instance of the defence if that evidence is:

• relevant;
• has significant probative value; and
• the significant probative value is not substantially outweighed by the danger of prejudice to the proper administration of justice.

[96] Relevance sets a low bar. Evidence is relevant to a fact in issue if it directly or indirectly makes the existence of that fact more or less probable: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 108, per Martin J. (dissenting, but not on this point); R. v. Evans, 2019 ONCA 715, at paras. 184-85; R. v. Watson (1996), 1996 ONCA 4008, 30 O.R. (3d) 161, at p. 172 (C.A.). Relevance is a prerequisite to the admissibility of any and all evidence offered in a criminal proceeding: J.J., at para. 126.

[97] The video and photographs depict a part of the actus reus of the offence. They are relevant to the charge. Evidence must, however, be more than merely relevant to be admissible under s. 278.92(2)(b). A finding of relevance engages the balancing of probative value and prejudicial effect described in s. 278.92(2)(b). Some relevant evidence will be excluded as a result of that balancing. As explained in Darrach, at para. 43, when considering the comparable provision in s. 276(2), “Section 276 is designed to exclude irrelevant information and only that relevant information that is more prejudicial to the administration of justice than it is probative.”

[98] Probative value refers to the ability of evidence to prove or disprove a fact in issue. Probative value is measured by reference to the significance in the litigation of the fact to which the evidence is directed, and the ability of that evidence to prove or disprove that fact.

[99] Prejudice in s. 278.92(2)(b) encompasses several diverse considerations. The prejudice assessment must have regard to the impact of the exclusion of the evidence on the accused’s right to a fair trial, but also the impact of the admission of the evidence on the fundamental rights of the complainant and broader societal concerns.

[100] Assessment of the probative value of evidence, for the purposes of determining admissibility, will usually be relatively straightforward. The assessment requires some limited weighing of the evidence, bearing in mind, however, that the trial judge is concerned with probative potential, while the ultimate determination of probative value is for the trier of fact.

[101] Assessing the danger of prejudice to the proper administration of justice can be a more complex and nuanced task. Competing and, to some extent, irreconcilable points of view must be taken into account. It ultimately falls to the trial judge to weigh and balance the probative value of the evidence and the potential prejudice to the administration of justice should the evidence be admitted. In doing so, the trial judge must have regard to the nature of the issues raised and the factual matrix disclosed in the evidence: Goldfinch, at para. 69.

[102] The admissibility of evidence under s. 278.92 is deemed to be a question of law for the purposes of determining appeal rights: Criminal Code, s. 278.97. Despite this characterization, the admissibility of evidence offered under s. 278.92 lies very much in the exercise of the trial judge’s discretion. Assuming the trial judge correctly applies the applicable legal principles, does not misapprehend material evidence, does not fail to consider relevant evidence, and does not arrive at an unreasonable result, this court will defer to the trial judge’s ruling: Darrach, at para. 71; R. v. Ravelo-Corvo, 2022 BCCA 19, 79 C.R. (7th) 128, at para. 29; R. v. MacKay, 2021 BCCA 446, at para. 63; R. v. J.L., 2019 ONCA 523, at para. 31; R. v. Graham, 2019 SKCA 63, at para. 69; R. v. Shafia, 2016 ONCA 812, at paras. 231-34; and R. v. M.T., 2012 ONCA 511, 95 C.R. (6th) 223, at para. 54.

Application of the Principles to this Case

[103] To properly assess probative value, one must identify the live issues. There were two live issues at this trial:

• Did the Crown prove beyond a reasonable doubt that M.S. did not consent to sexual activity in the vehicle?
• If the Crown proved the absence of consent, did the Crown also prove beyond a reasonable doubt that the appellants did not honestly believe that M.S. had communicated her consent to the sexual activity?

[104] Proof that a complainant did not consent to the sexual activity in issue is part of the actus reus of the crime of sexual assault. Consent refers to the “actual subjective consent in the mind of the complainant at the time of the sexual activity in question”: R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 23. Consent describes a complainant’s state of mind as it relates to the sexual touching in issue. Consent is a subjective concept: R. v. G.F., 2021 SCC 20, 71 C.R. (7th) 1, at para. 32; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 89.

[105] Consent is defined in s. 273.1(1) as “the voluntary agreement of the complainant to engage in the sexual activity in question.” Consent requires a conscious decision of an operating mind capable of understanding the nature and scope of the proposed sexual activity and the identity of the proposed partner. In addition, consent requires that the complainant appreciate that he or she has a choice as to whether to engage in that activity: G.F., at paras. 55-56.

[106] An unconscious person cannot consent to sexual activity. Nor can a person who, for any reason, lacks the mental capacity to provide the informed voluntary consent to the sexual activity in issue required by the Criminal Code: s. 273.1(2)(a.1)(b); J.A., at paras. 24-26. Intoxication can result in incapacity.

[107] The Crown argued that M.S. was incapable of consenting to any sexual activity on account of her high degree of intoxication. The Crown also argued, relying on M.S.’s testimony, that she never gave her consent to any sexual activity. Both arguments are offered in aid of the same claim – the complainant did not consent to the sexual activity in issue. Logically, one would consider capacity first and move on to the question of whether the complainant actually consented, only if the Crown failed to prove incapacity. The two issues are, however, very closely connected and often engage a consideration of the same evidence. If the trier of fact is satisfied that the Crown has proven either that the complainant was incapable of providing consent, as defined in the Criminal Code, or that she did not consent, the non-consent component of actus reus will have been established: G.F., at paras. 60-64.

[108] The video could not assist the jury in determining whether M.S., in her own mind, had consented to performing fellatio, much less consented to the rest of the sexual activity in the vehicle. Apart from the fact that the video shows M.S. performing fellatio, nothing in the 22 seconds during which M.S. is visible could reasonably provide any insight into her subjective state of mind as it related to her participation in the activity. The 22-second glimpse of the sexual activity between C.I. and M.S. shows that M.S. was conscious and capable of some physical movement during the 22 seconds she appears on the video. The video says nothing about the rest of the hour and a half she was in the back seat. Evidence that M.S. was conscious and, to some extent, mobile for a very brief part of the sexual activity in issue clears the very low bar of relevance on the issue of consent, but barely moves, if at all, the probative value needle.

[109] The main point of the appellants’ argument at trial was not that the video provided evidence that M.S. had actually agreed to the sexual activity. The defence relied on other evidence for that proposition (the testimony of the appellants and the audio recording). The defence offered the video as evidence to support its contention that M.S. had a level of consciousness and physical control that was inconsistent with any claim that she was incapable on account of intoxication of providing the requisite consent.

[110] The trial judge appreciated that the appellants relied on the evidence to refute the claim that M.S. was very intoxicated. In a passage referred to earlier in these reasons (see para. 69), the trial judge neatly summarized the several factors which led him to conclude the video had “minimal probative value” as it related to M.S.’s level of intoxication or her capacity to consent. I see no error in the factors the trial judge considered and would not characterize as unreasonable his conclusion with respect to the very limited probative value of the evidence. I would defer to his assessment.

[111] The appellants also submit that the trial judge erred in taking into account possible tampering with the video when considering its admissibility. The appellants contend that tampering issues are a matter of weight for the jury and cannot affect admissibility. In aid of this submission, the appellants rely on authorities dealing with the authentication of electronic documents for admissibility purposes under s. 31.1 of the Canada Evidence Act, R.S.C. 1985, c. C-5; see e.g., R. v. C.B., 2019 ONCA 380, 146 O.R. (3d) 1, at paras. 63-72.

[112] I cannot accept the appellants’ submissions. The trial judge was not concerned with the authentication of the video. No one suggested that the video was not taken at the time and place alleged. Under s. 278.92(2)(b), the trial judge was obliged to weigh, to some extent, the probative value of the evidence. The appellants chose to lead no evidence about the video, other than that M.G. had taken the video. The trial judge was left to assess the probative value of the evidence without knowing whether the entire video had been produced, or whether it had been altered or edited in some way. Those questions, all of which were logically relevant to the probative value of the video, could have been addressed by the appellants on the application to admit the evidence. After all, the appellants created the video and offered it into evidence.

[113] The onus was on the defence to establish the admissibility of the video. To do so, the appellants had to establish that the evidence had more than minimal probative value. Questions about whether the video produced by the appellants was part of a longer video, or had been edited or altered in some way, were logically germane to an evaluation of the potential probative value of the video and properly taken into account in performing the balancing of probative value and prejudicial effect required under s. 278.92(2)(b).

[114] In addition to finding that the video had “minimal probative value”, the trial judge also found “significant prejudice” to M.S.’s personal dignity and right of privacy were the video to be admitted. Given the nature of the contents of the video, and that it was taken by the appellants without M.S.’s knowledge or consent, the trial judge’s findings are unassailable. Whatever transpired in the vehicle, M.S. was the victim of a serious invasion of her personal privacy by the appellants. She did not know she was being recorded, videoed or photographed in circumstances that were humiliating and degrading. Admitting the video would further compromise M.S.’s personal dignity and her right to privacy and, in doing so, create a real danger of prejudice to the proper administration of justice.

[115] The video was properly excluded.

[116] The photographs capture only a second or two of the prolonged sexual activity in the car. It is impossible to draw any inference about M.S.’s state of mind, or her level of intoxication, from the photographs which do not even show her face. To suggest that M.S.’s positioning on top of C.I., and the placement of his hands in one of the photographs, somehow speaks to M.S.’s level of sobriety, or shows her to be a willing participant in the sexual intercourse, places far too much significance on the body positions of C.I. and M.S. for a second or two during the sexual activity which took place over the span of an hour and a half.

[117] At trial, it was suggested that the photographs also had probative value in that they contradicted M.S.’s evidence that C.I. attempted to have anal intercourse with her. The photographs capture the activity in the back seat at a precise moment in time. They say nothing about any sexual activity that occurred at any other time during the hour and a half M.S. was in the back seat with C.I. The appellants did not press this point during the argument of the appeal.

[118] As with the video, I would defer to the trial judge’s assessment of the photographs and their potential probative value. The photographs carried the same danger of prejudice to the proper administration of justice as did the video. The photographs were properly excluded.

[119] The appellants also submit that the video and photographs could have assisted the jury in determining whether the Crown had proved beyond a reasonable doubt that the appellants did not believe that M.S. had communicated her consent to the sexual activity with them. The trial judge did not address this argument in his reasons.

[120] The mens rea of sexual assault requires that the accused know that the complainant is not consenting to the sexual activity in issue. Recklessness or wilful blindness as to the absence of the consent will suffice: Barton, at para. 87. The requisite mens rea is not established if the accused honestly, even if mistakenly, believes that the complainant has communicated her consent to the sexual activity: Barton, at paras. 90-92.

[121] Parliament has, however, limited the honest but mistaken belief in consent defence in sexual assault cases by providing in s. 273.2(b) that the defence is not available if “the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting”.

[122] The honest but mistaken belief in consent “defence” has two parts. First, there must be an honest belief in communicated consent; second, the accused must have taken reasonable steps in the circumstances to ascertain whether the complainant was consenting. As explained by Moldaver J. in Barton, at para. 104:

Section 273.2(b) imposes a precondition to the defence of honest but mistaken belief in communicated consent – no reasonable steps, no defence. It has both objective and subjective dimensions: the accused must take steps that are objectively reasonable, and the reasonableness of those steps must be assessed in light of the circumstances known to the accused at the time. [Citations omitted.]

[123] The appellants advanced an honest but mistaken belief in consent defence. That defence was based on the appellants’ testimony that they believed M.S. was consenting to the sexual activity, and on the evidence of the recorded conversation with M.S. The appellants argued that the conversation both demonstrated M.S.’s consent to the sexual activity and, in the circumstances, constituted reasonable steps taken by the appellants to ascertain her consent.

[124] The honest but mistaken belief in consent defence was properly left with the jury. The question on appeal is whether the appellants can demonstrate that the video and/or the photographs would have sufficiently augmented that defence to warrant admissibility under s. 278.92(2)(b).

[125] Neither the video nor the photographs had any relevance to whether the appellants took reasonable steps to ascertain whether M.S. was consenting to the sexual activity. I accept that both may have some relevance to the accused’s belief with respect to whether M.S. was consenting. However, I would hold that the probative value of the video and the photographs on that issue is minimal. I reach that conclusion for much the same reason that I find the video and the photographs of minimal value as evidence of M.S.’s state of mind. At their most probative from the defence perspective, the video and the photographs showed that M.S. was conscious and able to move. There were also no indications in the video or photographs that M.S. was being coerced, resisting, or expressing any disagreement with the sexual activity in progress. However, as cogently pointed out in Barton, at para. 118, the defence of honest but mistaken belief in consent is predicated on the complainant’s affirmative communication of her consent to the accused. The failure of the complainant to resist, say “no”, or “cry out” cannot justify a belief in consent by an accused.

[126] There was a legitimate risk that admitting the evidence of the video and the photographs would prejudice the integrity of the trial by inviting the jury to misconstrue the requirements of an effective consent in sexual assault allegations in the manner cautioned against in Barton.

[127] The evidence was not admissible under s. 278.92(2)(b) in support of the claim that the appellants honestly believed M.S. had communicated her consent to the sexual activity.

(vi) The Application of the Curative Proviso

[128] Although I am satisfied the trial judge did not err in excluding the video and photographs, I am also satisfied that, even if they were admissible, their exclusion did not cause any substantial wrong or miscarriage of justice. I come to that conclusion because of the manner in which the evidence unfolded in this case, and, in particular, the way in which the trial judge allowed the defence to effectively incorporate the video and photographs into the viva voce evidence of the appellants.

[129] The jury knew that M.G. had videoed and photographed parts of the sexual activity in the back seat of the vehicle. The trial judge ruled that the defence could elicit evidence from the appellants during their testimony that they had refreshed their memory from the video and the photographs. Both appellants gave that evidence. To emphasize the connection between M.G.’s testimony and the contents of the video and the photographs, his counsel asked M.G. how he could possibly recall the details of events that had occurred seven years earlier. M.G., more than once, indicated he was relying on the video and the photographs to “refresh his memory”.

[130] The jury would inevitably have understood from the evidence of the appellants that the video and photographs depicted the sexual activity as described by the appellants in their testimony. The Crown did not challenge in cross-examination the descriptions of that sexual activity given by the appellants. It was the Crown’s position that whatever occurred was non-consensual.

[131] Apart from showing that M.S. was conscious and capable of physical movements, neither the video nor the photographs supported any inference about her subjective willingness to engage in sexual activity with C.I. or offered any insight into her level of intoxication. The appellants’ testimony, unchallenged on this point, established that fellatio and sexual intercourse had occurred. Viewing the video and photographs in the context of the rest of the evidence the jury heard would add nothing to the word pictures provided by the appellants in their testimony.

[132] The circumstances here are similar to those found in R. v. L.S., 2017 ONCA 685, 40 C.R. (7th) 351. In L.S., the trial judge excluded, under s. 276(2), evidence of the relationship between the accused and the complainant before and after the alleged sexual assault. For reasons that are irrelevant here, this court held the trial judge erred in excluding that evidence. However, the court dismissed the appeal based on the evidence which had been admitted before the jury. That evidence made the nature of the relationship between the appellant and complainant, before and after the alleged sexual assault, crystal clear. The excluded evidence, offered as evidence of that same relationship, was in essence redundant. The court said, at para. 101, “[t]he improper exclusion of the ‘relationship’ evidence effectively kept nothing of substance from the jury”.

[133] I come to the same conclusion in respect of the trial judge’s exclusion of the video and the photographs in this case.

IV Conclusion

[134] I would dismiss the appeal.

Released: September 6, 2023 Doherty J.A.

I agree. K. van Rensburg J.A.

I agree. A. Harvison Young J.A.

[1] This case did not go to trial until 2019. M.G. was out of the country until 2017. Charges were not laid until 2017 due to a misplaced forensic report. The indictment was preferred in December 2018, the trial began in October 2019, and the jury convicted on October 30, 2019.

[2] The exclusionary rule in s. 278.92 not only applies to sexual assault prosecutions, but also to the admissibility of any record as defined in s. 278.1 in any proceeding “in respect” of any of the offences identified in s. 278.92(1): R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at paras. 70-77.

[3] With the benefit of the reasons in R. v. J.J., 2022 SCC 28, 81 C.R. (7th) 1, at paras. 76-81, it is arguable that references in the evidence to the use of the video and the photographs to refresh a witness’s memory, followed by the eliciting of that witness’s memory, constitutes adducing evidence of the contents of the video and the photographs, thereby making the evidence subject to the exclusionary rule in s. 278.92(2). We need not decide that issue on this appeal.

[4] In J.J., at para. 24, the majority pointed out that the reference to s. 276(2) in s. 278.93(4) was a drafting error and that the reference should be to s. 278.92(2).