Court of Appeal for Ontario

Date: 2025-04-10
Docket: COA-24-CR-0064
Coram: Miller, Zarnett and Madsen JJ.A.

Between:
His Majesty the King (Respondent)
and
Conal Quinn (Appellant)

Appearances:
David Butt, for the appellant
Catherine Weiler, for the respondent

Heard: 2025-04-07

On appeal from the conviction entered on October 27, 2023, by Justice Jennifer Penman of the Superior Court of Justice, sitting without a jury, with reasons reported at 2023 ONSC 6033.

Reasons for Decision

Introduction

[1] This is an appeal from a conviction for sexual assault. At the conclusion of oral argument, we dismissed the appeal with reasons to follow. These are those reasons.

Background

[2] At the time of the offence, the appellant was a police officer. He met the complainant on March 20, 2021, while investigating her allegation that she had been threatened. After the investigation had concluded, he attended her apartment again on March 21, 2021, in full police uniform. A sexual encounter took place; the sole issue at trial was whether the encounter was consensual. The trial judge found that the complainant did not consent and convicted the appellant. She later sentenced him to a term of four years in custody.

[3] The appellant raises four grounds of appeal.

First Ground of Appeal: Section 276 Application

[4] First, he submits that the trial judge erred in dismissing his application under s. 276(1) of the Criminal Code of Canada, R.S.C. 1985, c. C-46. The application sought permission to elicit evidence of the appellant’s assertion that immediately before their sexual encounter the complainant (i) told the appellant about sexual activity she previously engaged in with her former boyfriend and others while using methamphetamine (“meth”) and (ii) asked him if he was okay with “that” (referring to the prior activity while on meth).

[5] The trial judge found that the application passed the first step of the s. 276 process, but after conducting a hearing under s. 278.94, she concluded that the evidence was not admissible as it would be adduced for a proscribed twin myth purpose and, in any event, its limited probative value did not outweigh the danger of prejudice to the proper administration of justice.

[6] We see no reversible error in the trial judge’s conclusions.

[7] The appellant conceded before the trial judge that the only basis on which he could contend that the prior sexual activity had probative value on the issue of the complainant’s consent that did not engage twin myth reasoning was if his proposed expert was permitted to testify. The proposed expert would opine on the relationship between meth use and sexual impulsivity. While we do not necessarily agree that twin myth reasoning would have been avoided if the expert evidence had been admitted, it is unnecessary to consider that point further. As we explain below in relation to the second ground of appeal, the trial judge properly refused to admit that expert evidence, undercutting any basis for this argument.

[8] The appellant also argues that the evidence had relevance in a different respect that did not engage twin myth reasoning. He submits that the combination of the complainant telling the appellant about past sexual activity and her question about whether he was “okay” with that adds up to an expression of interest by her in sexual activity with the appellant. This, it is argued, was supportive of the appellant’s narrative that it was the complainant who initiated the sexual encounter.

[9] The difficulty with this argument is that since the evidence of prior sexual activity forms an integral part of the allegedly relevant combination, it is subject to the same presumptive inadmissibility as applies to the prior sexual activity evidence on its own. Even assuming that the combination provides a path to relevance that avoids twin myth reasoning, the trial judge’s conclusion that its potential probative value did not outweigh the prejudice still stands as a bar to its admission and is entitled to deference: R. v. T.W.W., 2024 SCC 19, paras 21-22.

[10] The potential probative value of this evidence was highly questionable. There was no evidence that the complainant was using meth at the time of her encounter with the appellant, so it is difficult to see how a question concerning her prior activities with others while on meth constituted an expression of interest in very different sexual activity in different circumstances with the appellant. On the other hand, the prejudice in the form of an intrusion on the personal dignity and right of privacy of the complainant was clear. As this court stated in R. v. MacMillan, 2024 ONCA 115, para 51 (quoting with approval a statement of the trial judge in that case):

A woman is entitled to express her sexual preferences, discuss her sexual history, wear sexually suggestive clothing, be flirtatious or express herself in a sexually suggestive way without fear that those words and acts may be used as a substitute for consent or to undermine any complaint she may make that she was sexually assaulted.

[11] This is not a case like R. v. Reimer, 2024 ONCA 519, which dealt with the admissibility of a statement of present intention to engage in the near future in specific sexual acts with the accused. Nothing about either the description of prior sexual activity or the question about whether the appellant was “okay” with it falls into that category.

[12] We therefore reject this ground of appeal.

Second Ground of Appeal: Exclusion of Expert Evidence

[13] The appellant’s second ground of appeal is that the trial judge erred in not permitting his expert to testify. The expert’s proposed evidence about the effect of meth on sexual impulsivity was entirely dependent on whether the complainant was using meth on the day of the offence. The trial judge found that the threshold relevance criterion was not satisfied because there was no evidence on which to find that the complainant was on meth at the time of the sexual encounter. This was a proper basis to refuse to admit the evidence: R. v. M.C., 2014 ONCA 611, para 101.

[14] The appellant submits that the trial judge failed to consider that the expert would himself establish the necessary factual underpinning for his opinion by opining on whether behaviour of the complainant that had been observed by the appellant, such as excitement and mood swings, was consistent with meth use.

[15] We see no merit in this submission, given the answers the expert gave on cross-examination about what conclusions could properly be drawn from observed behaviour of this type.

Third Ground of Appeal: Sufficiency of Reasons

[16] We also see no basis for the appellant’s third ground of appeal that the trial judge’s reasons for disbelieving the appellant were deficient because her observations about his attempts to cover up his visits to her were inconsistent. The trial judge found that the appellant engaged in a subterfuge so that the officer who had worked with him on the threat investigation would believe there would be no further contact with the complainant, allowing the appellant to stay in contact with her without that officer’s knowledge. This is not inconsistent with the fact that the police service generally could track the appellant’s movements, had they wanted to. Nor does it detract from the trial judge’s careful review of all of the evidence on the basis of which she rejected the appellant’s testimony.

Fourth Ground of Appeal: Vitiation of Consent

[17] The fourth ground of appeal concerns the trial judge’s alternative finding that even if there had been consent, it would have been vitiated as it was induced by a misuse of a position of trust or authority: Criminal Code, s. 273.1(2)(c). The appellant’s quarrel with this finding is derivative of his other appeal grounds, rather than an assertion of a freestanding error. Given that the other grounds fail, this ground necessarily fails.

[18] In oral argument the appellant raised a concern about the breadth of the implications of the trial judge’s analysis of s. 273.1(2)(c). The trial judge’s analysis was obiter, given her finding that there was no consent. Nothing in her reasons should be taken as detracting from the leading authorities on the question of vitiated consent due to abuse of a position of trust and authority, such as R. v. G.F., 2021 SCC 20, paras 35-36; and R. v. Snelgrove, 2018 NLCA 59, aff’d 2019 SCC 16.

Conclusion

[19] Accordingly, the appeal is dismissed.

“B.W. Miller J.A.”
“B. Zarnett J.A.”
“L. Madsen J.A.”

Publication Ban

[1] This appeal is subject to publication bans pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.