WARNING

The court hearing this matter directs that the following notice be attached to the file:

This hearing is governed by section 276.3 of the Criminal Code:

276.3 Publication prohibited. —(1) No person shall publish in any document, or broadcast or transmit in any way, any of the following:

(c) the decision of a judge or justice under subsection 276.1(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 section 276.2, 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) Offence. — Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.

The court hearing this matter HAS made an order allowing the publication, broadcast or transmission of this decision or determination.

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. —(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

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

486.6 Offence. —(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: September 11, 2018

Court File No.: Ottawa 17-DV6356

Between:

Her Majesty the Queen

— and —

E.D.

Before: Justice P.K. Doody

Heard on: September 4, 2018

Reasons for Decision on s. 276.1 Application

Released on: September 11, 2018

Counsel

David Rodgers — counsel for the Crown

Eric Granger — counsel for the accused

Decision

DOODY J.:

[1] The Charge and Application

[1] The defendant is charged with sexual assault on July 19, 2016. He has applied under s. 276.1 of the Criminal Code to determine whether evidence is admissible under s. 276(2).

Statutory Framework

[2] Sections 276 and 276.1 are as follows:

276 (1) In proceedings in respect of an offence under section 151, 152, 153, 153.1, 155 or 159, 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.

Idem

(2) In proceedings in respect of an offence referred to in subsection (1), no evidence shall 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, provincial court judge or justice determines, in accordance with the procedures set out in sections 276.1 and 276.2, that the evidence

(a) is of specific instances of sexual activity;

(b) is relevant to an issue at trial; and

(c) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

Factors that judge must consider

(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice 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.

Application for hearing

276.1 (1) Application may be made to the judge, provincial court judge or justice by or on behalf of the accused for a hearing under section 276.2 to determine whether evidence is admissible under subsection 276(2).

Form and content of application

(2) An application referred to in subsection (1) must be made in writing and set out

(a) detailed particulars of the evidence that the accused seeks to adduce, and

(b) 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.

Jury and public excluded

(3) The judge, provincial court judge or justice shall consider the application with the jury and the public excluded.

Judge may decide to hold hearing

(4) Where the judge, provincial court judge or justice is satisfied

(a) that the application was made in accordance with subsection (2),

(b) that a copy of the application was given to the prosecutor and to the clerk of the court at least seven days previously, or such shorter interval as the judge, provincial court judge or justice may allow where the interests of justice so require, and

(c) that the evidence sought to be adduced is capable of being admissible under subsection 276(2),

the judge, provincial court judge or justice shall grant the application and hold a hearing under section 276.2 to determine whether the evidence is admissible under subsection 276(2).

Evidence on this Application

[3] The defendant swore an affidavit in which he deposed as follows:

3. My primary defence to this charge is that the incident that I understand [the complainant] is going to describe to the Court never happened. Specifically, there was never a time where I persisted in having sexual intercourse with [the complainant] in the face of any verbal or non-verbal objection.

4. That said, given that I will not be suggesting that I never engaged in sexual intercourse with [the complainant], and I will acknowledge that there were numerous times that [the complainant] and I engaged in sexual intercourse without an explicit verbal discussion of consent, in the event that some elements of [the complainant's] store are accepted (for example, that we engaged in sexual intercourse on occasion in circumstances where she didn't verbally consent), I wish to be able to explain the basis for my belief that all sexual encounters between myself and [the complainant] were entirely consensual throughout the entirety of our relationship.

5. I am seeking to lead evidence on the following points in relation to the prior and subsequent sexual activities between [the complainant] and I:

(a) I commenced a sexual relationship with [the complainant] in July of 2016 after having met [the complainant] via the Tinder app. Prior to meeting in person we had discussed engaging in a sexual relationship via the Tinder app.

(b) On the first occasion that [the complainant] and I got together in person in July 2016, we met up and went to her house. After spending the evening together, I slept over. We were cuddling on a mattress in the basement where I was sleeping. There was touching and advances from both of us, and this ultimately led to sexual intercourse. In light of the prior discussion we'd had on Tinder, the mutual touching and advances, and the lack of any verbal or non-verbal objection, I believed that this was consensual.

(c) After this first night, [the complainant] and I continued to get together at least once per week, if not more often, through the end of August, and we would generally engage in consensual sexual intercourse each time that we got together. While there was never an explicit verbal consent, based on our discussions, prior history, mutual advances and enthusiasm, and lack of verbal or non-verbal objection, I believed that each time we had sexual intercourse it was entirely consensual.

(d) We started to see less of each other in September because [the complainant] went back to school, and the sexual relationship only ended because I chose to break up with [the complainant] around the end of September.

[4] The defendant did not file any evidence about what the complainant was expected to testify to at trial. Instead, he summarized her expected evidence in his written argument. Crown counsel also summarized the expected evidence of the complainant in his written argument.

[5] After I suggested to counsel that the application could only be determined in the context of what the complainant's evidence would be, both counsel agreed that a combination of the relevant portions of each party's written argument, as set out below, accurately describes the complainant's expected evidence and could be used as the basis to determine this pre-trial application.

[6] The defendant's written argument describes the anticipated evidence as follows:

It is expected that the complainant will testify at trial to the following effect:

(i) After inviting the Applicant over to her home on July 18, 2016, having invited him to sleep over, and having engaged in sexual intercourse with him on two occasions that evening, the complainant went down to the basement of her home, where the Applicant was sleeping, to wake him up around 8:00 am on July 19, 2016.

(ii) They cuddled, and he wished to have sex. The complainant claims that she refused to engage in intercourse, and the Applicant continued to kiss the complainant and fondle her vagina and breasts, and she fell asleep on the mattress.

(iii) The complainant claims the Applicant removed her shorts, moved her underwear to the side, and inserted his penis in her vagina. She woke up and asked him to stop approximately four times because it hurt, and he continued to have intercourse with her for 5-10 minutes in the missionary position. He did not wear a condom and ejaculated on her stomach.

(iv) The complainant then made breakfast for the Applicant, and he left her residence to go to work at approximately 10:00 am.

[7] Crown counsel's written argument describes the anticipated evidence as follows:

2. The complainant alleges that on July 18, 2016, [name of defendant] the Applicant, spent the night at her residence. They had been dating for a few months. She slept in her bedroom, and the Applicant slept in the basement.

3. The complainant went to wake the Applicant at approximately 8:00 AM the next morning. They engaged in cuddling. The Applicant attempted to engage in sexual activity, but the complainant refused, and told him she was too tired. The Applicant kissed and touching the Complainant's vagina and breasts.

4. The complainant was tired, and fell asleep in the basement. While the complainant slept, the applicant inserted his penis into her vagina.

5. The complainant woke up while this was occurring, and asked the applicant to stop approximately 4 times, as the intercourse was painful for her.

6. The applicant did not stop, and continued to engage in vaginal sex in the missionary position for 5-10 minutes. The applicant did not wear a condom and ejaculated on the complainant's stomach.

7. Afterwards, the complainant made the applicant breakfast, and he left her residence to travel to work.

8. Sometime after, the parties exchanged text messages. On July 19, 2016, the applicant messaged the complainant "we both consented". The complainant replied with "True…you still woke me up ahahah". The complainant explained that she responded this way because she did not know what to say.

9. On October 3, 2016, the applicant indicated that "I know what caused it [complainant's name]. I have sexsomia."

10. On October 16, 2016, the applicant sent a number of messages on Facebook Messenger to the complainant. The content included: "I told you I couldn't control it [complainant's name]….its not a secret that I have sexsomia…It sucks that you were a victim of it but I cant do anything but alologize which I've done." [ sic ]

276.1 Requirements Established

[8] I determined that the conditions precedent to an evidentiary hearing set out in s. 276.1(4) have been met. The application was made in writing and properly served and filed on August 2, 2018, more than a month before the hearing.

[9] I considered the submission of Crown counsel that the evidence was not of specific instances of sexual activity. The affidavit of the defendant does set out one specific instance of sexual activity on the first night the defendant and the complainant returned to her apartment.

[10] I also considered the decision of the Court of Appeal in R. v. L.S., 2017 ONCA 685 at paragraph 83, where the court held that if the accused seeks to adduce evidence of a general nature, describing the relationship between himself and the complainant, the specificity requirement speaks to factors relevant to identifying the relationship and its nature and not to details of specific sexual encounters. Insofar as relationship evidence is concerned, the required specifics would include reference to the parties to the relationship, the relevant time period, and the nature of the relationship. The affidavit of the defendant meets that standard.

[11] I also considered the submission of Crown counsel that the proposed evidence did not meet the requirement that it be relevant to an issue at trial. A trial court ought to take a cautious approach to establishing the limits of the first stage of the s. 276.1 inquiry, and should leave such doubts as may exist regarding the admissibility of the proposed evidence for a hearing stage (R. v. Ecker (1995), 96 C.C.C. (3d) 161 (Sask. C.A.), referred to in R. v. LeBrocq, 2011 ONCA 405 at para. 8). Furthermore, the requirement of relevance does not mean that the proposed evidence has to establish or refute a fact in issue – it means only that the proposed evidence, as a matter of common sense and human experience, has some tendency to make the existence or non-existence of that material fact more or less likely. (L.S., para. 89) I concluded, at the initial stage, that there was a reasonable argument that at least the proposed relationship evidence was relevant to the issue of whether the Crown had proven that the offence took place. I will elaborate on this later in these reasons.

[12] I also considered the submission of Crown counsel that the proposed evidence did not have significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice, as required by s. 276(2)(c).

[13] The requirement that the evidence have "significant probative value" means that the evidence must have more than "trifling relevance" and is capable, in the context of all of the evidence, of leaving the fact finder with a reasonable doubt. This serves to exclude evidence that, even though not used to support the two inferences forbidden by s. 276(1), would still endanger the "proper administration of justice". The requirement that the significant probative value is not "substantially" outweighed by the danger of prejudice to the proper administration of justice serves to protect the accused by raising the standard for the judge to exclude evidence once the accused has shown it to have significant probative value. (L.S., at para. 89; R. v. Darrach, 2000 SCC 46 at paras. 39-41)

[14] I concluded, applying the Ecker principle described above, that I should leave a final determination of the issues of s. 276(2)(b) and (c) to the evidentiary hearing.

[15] Crown counsel did not cross-examine the defendant. Nor did he or the defendant call any additional evidence.

The Defendant's Position

[16] The defendant submitted that the proposed evidence was admissible for the following purposes and not for either of the twin myths described in s. 276(1):

(a) the evidence of an ongoing sexual relationship, including after the alleged rape, is circumstantial evidence which is relevant to the issue of whether anything offensive occurred on the date alleged by the complainant;

(b) the evidence of an ongoing relationship is also relevant to establish the context of the defendant's proposed evidence; and

(c) all the evidence set out in the affidavit of the defendant is necessary to establish the defence of mistaken belief in consent if the court concludes that the defendant and the complainant had sexual intercourse on July 19, 2016, that the complainant never gave an explicit verbal "yes" to that sexual intercourse, that the complainant did not in her own mind consent, and the court rejects or is unable to accept as proven beyond a reasonable doubt the complainant's anticipated evidence that she said "no" to sexual activity and that the sexual activity was initiated and occurred while she was asleep.

Analysis

(a) The Evidence of an Ongoing Sexual Relationship is Admissible

[17] In my view, this issue is determined by the Court of Appeal decision in L.S.

[18] In that case, the complainant testified that she and the defendant had returned from a party. Their four month old son was with her parents. They were lying on the bed when the defendant asked her if she wanted to have sex. She said no. The defendant asked why not, and she said she did not feel like it. The defendant persisted and started to remove the complainant's clothing. She tried to cover herself with the blanket. The defendant climbed on top of her and inserted his penis into her vagina. She started to cry. The defendant said "how can you not like that?" The complainant continued to cry and refused to look at the defendant, although he told her to look him in the eyes and say she "wasn't enjoying it." The complainant said nothing and remained motionless. She did not assist the defendant in removing her clothing. Nor did she physically resist. The defendant ejaculated into her vagina.

[19] The defendant in L.S. testified that he did not recall any specific morning in the relevant month when he and the complainant returned from a party in the early morning. He testified that they would not have left their son with the in-laws to go to an overnight party when he was so young. He denied that he had ever had sex with the complainant when she was crying, or that she had ever said that she did not want to have sex. He testified that if the complainant had ever refused to have sex, he would not have had sex with her. He also testified that if she had ever started to cry when they were having sex, he would have asked her what was wrong and tried to comfort her. It was his evidence that the incident described by the complainant never happened.

[20] The trial judge denied the defendant's application under s. 276.2 for an order allowing him to adduce evidence of consent by the complainant with the defendant in similar circumstances to those which formed the basis of the charge.

[21] The affidavit of the defendant made no reference to any specific instances of sexual activity between the defendant and the complainant. He submitted at trial that the evidence was relevant to the complainant's credibility on the issue of consent, the availability of the defence of mistaken belief in consent, and to place the allegation in the proper context of a relationship between the defendant and the complainant which included regular consensual sexual intercourse both before and after the alleged assault.

[22] The defendant was convicted. He appealed, arguing that he should have been allowed to cross-examine the complainant and lead evidence on "the usual practices and frequency of sex in their relationship." He submitted that evidence that he and the complainant regularly engaged in consensual sexual activity before and after the alleged assault would make his professed inability to recall the specific events described by the complainant more credible, and that had the jury regarded him as more credible, his defence of mistaken belief in consent would have been bolstered.

[23] The Court of Appeal noted that the defendant had failed to identify any specifics or details of alleged sexual activity in his affidavit. He had thus failed to comply with s. 276.1(2)(a), which provides that evidence of other sexual activity of the complainant can only be admitted if the defendant offers "detailed particulars of the evidence." Doherty J., however, writing for the court, went further. He wrote at para. 73:

I also see no relevance, based on the material filed in support of the application, to any fact in issue of evidence of specific instances of other sexual activity involving E.K. and the appellant, or the details of their sex life. The appellant's submission that evidence including details of other consensual sexual activity could somehow make the appellant's assertion that the incident alleged by E.K. never happened more credible, makes no sense to me. This was not a case in which the appellant testified that whatever sexual incident E.K. was talking about, must have been consensual, but that because of the many consensual sexual encounters they had, he could not recall the details. The appellant insisted that the encounter described by E.K. did not and could not have happened as it was entirely inconsistent with the nature of their sexual relationship.

[24] The Court of Appeal thus held that the details of the other sexual activity between the complainant and the defendant was not relevant to the issue of whether the Crown had proven beyond a reasonable doubt that the sexual activity described by the complainant had occurred as she testified.

[25] Justice Doherty went on, however, to hold that the trial judge should have allowed the defendant to lead evidence of the relationship between the defendant and the complainant, including the relevant time period and the nature of the relationship. He held that this evidence met the standard I have set out at paragraph 13 of being of more than "trifling relevance", and was capable of leaving the jury with a reasonable doubt. He wrote (footnote omitted):

86 … Relevance is fact-specific. It depends on the material facts in issue, the evidence adduced, and the positions of the parties. The appellant was charged with sexual assault, arising out of a specific incident described by the complainant as occurring in early May 2009. On E.K.'s evidence, the appellant raped her over her clear objections. On the appellant's evidence, the incident never happened. As the trial judge told the jury, their verdict turned on whether the Crown had proved that the incident described by E.K. occurred.

87 On the evidence heard by the jury, the appellant and E.K. had a spousal relationship that began sometime before the alleged sexual assault and carried on long after the alleged sexual assault. In her evidence, E.K. acknowledged that after the sexual assault, she and the appellant carried on as if nothing had happened. It was the defence position that in fact nothing had happened.

88 I think that evidence that the relationship between E.K. and the appellant, including the sexual component of the relationship, carried on as it had before the alleged assault was relevant to whether the assault occurred. The defence could argue that evidence that the sexual component of the relationship carried on as before, supported the defence position that the parties carried on as if nothing had happened because nothing had in fact happened.

89 I do not suggest that evidence that E.K. and the appellant continued a relationship that included consensual sexual intercourse after the alleged assault demonstrated that the assault did not occur. Different people will react differently to the same event. However, to acknowledge that evidence that the relationship continued as before was far from determinative of whether the assault occurred, is not the same as holding that the evidence is irrelevant.

[26] The same analysis applies in this case. The complainant will testify that the defendant placed his penis in her vagina while she was asleep and that, after she woke up, she told him to stop four times. The defendant will testify, as he swore in his affidavit, that the incident as described by the complainant never happened. The Court of Appeal has held that in such a situation, the defendant is entitled to introduce evidence of the nature and duration of his relationship with the complainant, and that the relationship continued after the alleged event. Such evidence does not seek to rely on either of the twin myths – that women who have consented on other occasions are more likely to have consented during the events in issue, or that women who have consented on other occasions are more likely to be less credible. A jury can be warned against using the evidence for that purpose. I will ensure that I do not do so.

[27] Crown counsel submitted that there is no probative value to such evidence. He relied on the decision of the Supreme Court of Canada in R. v. A.R.J.D., 2018 SCC 6, in which the Court upheld the decision of the Alberta Court of Appeal which had held that the trial judge had erred by determining the complainant's credibility "solely on the correspondence between her behaviour and the expected behaviour of the stereotypical victim of sexual assault." In my view, this did not mark a change in the law from that explained and applied in L.S. It is wrong to determine a complainant's credibility "solely" on such things as whether she continued the relationship with the defendant after the alleged incident as it had been before. Different people react differently. But such evidence is relevant in the sense in which I am bound to determine this issue.

[28] I conclude that the defendant will be allowed to adduce evidence, including by cross-examination of the complainant, that he and the complainant were in a relationship which included regular consensual sexual intercourse before and after the alleged sexual assault.

[29] This evidence is admissible for the purposes set out in the Court of Appeal decision in L.S. This includes the purpose of establishing the context of the relationship in which the alleged event occurred. In his written material, defence counsel sought to adduce evidence of the particulars of the sexual encounters between his client and the complainant to establish this context. During the course of argument, he abandoned that position and submitted that the "relationship evidence" as the Court of Appeal described it in L.S. would suffice for this purpose. I agree.

(b) Evidence of Specific Sexual Acts Between the Complainant and the Defendant is Not Admissible

[30] The defendant submits that, even though his position, and his evidence, will be that the events described by the complainant never happened, he should be permitted to tender evidence to support the defence of mistaken belief in consent should the court find that the events described by the complainant did occur, that she did not consent, but that she did not say "no" and she was not asleep. Defence counsel submits that if the court gets to that point, he should be permitted to tender evidence that when his client engaged in regular acts of sexual intercourse with the complainant, there was never an explicit verbal communication of consent. Defence counsel submits that this evidence would be relevant to support a finding that the defendant honestly and reasonably believed that the complainant was consensual.

[31] I do not accept this submission.

[32] Consent requires that the defendant affirmatively communicate by words or conduct her agreement to engage in sexual activity with the defendant. A defendant cannot assert that he believed that the complainant was consenting solely on the basis of her silence, passivity, or ambiguous conduct. (R. v. Ewanchuk, [1999] 1 S.C.R. 330 at para. 49)

[33] Consent also requires a conscious, operating mind. A person who is asleep cannot consent. (R. v. J.A., 2011 SCC 28)

[34] The defence of honest but mistaken belief in consent (or, to be more accurate, that the Crown has not proven beyond a reasonable doubt that the defendant knew that the complainant was not consenting) requires that the defendant meet an "evidentiary burden" or show an "air of reality" to his belief by being able to point to evidence upon which a properly instructed trier of fact could form a reasonable doubt. (Ewanchuk, at para. 56)

[35] There is no such evidence in this case. Nor would evidence that no explicit verbal consent was given on other occasions of consensual sexual acts between the complainant and the defendant constitute such evidence. A submission of a mistaken belief in consent based on such evidence would come perilously close to, if not be equivalent to, the myth that persons who consent on other occasions would consent on this occasion as well.

[36] But I do not have to reach that conclusion to reject such evidence. There is no evidence that the complainant engaged in any conduct on the occasion in issue upon which a properly instructed trier of fact could form a reasonable doubt about whether the complainant had communicated by words or conduct her agreement to engage in sexual activity.

[37] The complainant will testify that she was asleep, woke up to find the defendant's penis in her vagina, and told the defendant to stop 4 times, to no avail. The defendant has sworn that the incident did not happen.

[38] This is effectively the same situation as was before the Court of Appeal in L.S. In that case, the complainant testified that after returning from a party, she and the defendant were lying in bed. He asked her if she wanted to have sex. She told him no. Despite that, he forced himself on her. She gave no indication that she was consenting. The defendant testified that the incident never happened.

[39] The Court of Appeal held that on that evidence, there was no air of reality to the mistaken belief in consent claim. The real issue in that case, as in this case, is whether the events alleged to form the basis of the crime charged ever took place.

[40] Doherty J.A. went on to hold that evidence of the details of other sexual encounters between the appellant and the complainant in L.S. did not assist the appellant in advancing a defence of mistaken belief in consent. He wrote at paragraph 74:

Without some indication of the specific nature of the evidence to be adduced, and some explanation of how the specifics impacted on the appellant's state of mind at the relevant time, evidence merely describing the details of other consensual sexual activity between E.K. and the appellant cannot inform an assessment of the appellant's state of mind at the time of the alleged incident.

Conclusion

[41] The defendant will be permitted to adduce evidence of the nature of the relationship between him and the defendant, when it began, and when it ended. This may include evidence that the relationship included regular consensual sexual acts between them. The defendant will not be permitted to adduce evidence of the details of any other sexual acts between him and the complainant. In particular, he will not be permitted to tender evidence that when his client engaged in regular acts of sexual intercourse with the complainant, there was never an explicit verbal communication of consent.

Released: September 11, 2018

Justice P.K. Doody