WARNING

This hearing is governed by section 278.95 of the Criminal Code:

Publication prohibited

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.

Offence

(2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.

An order has been made under s. 278.95(1)(c) allowing the decision and reasons to be published, broadcast, or transmitted, subject to the order described below.

A non-publication and non-broadcast order in this proceeding has also 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct 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) 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: August 4, 2020

Court File No.: Ottawa 19-DV4754

Between:

Her Majesty the Queen

— and —

G.E.

Before: Justice P. K. Doody

Heard: In writing

Decision on applications under s. 278.93

Released: August 4, 2020

Counsel

Robert Thomson — counsel for the Crown

Dominic Lamb and Jonathan Nadler — counsel for the defendant

Decision

DOODY J.:

[1] Charge and Pre-Trial Motions

[1] The defendant is charged with one count of sexual assault on February 4, 2018.

[2] The defendant has brought a number of pre-trial motions. I have dealt with most of them over the past four weeks. This is an application under s. 278.93 to admit into evidence certain documents relating to the complainant in which she has a reasonable expectation of privacy, and an application to admit into evidence other sexual activity of the complainant.

[3] Two-Stage Process

[3] The Criminal Code provides a two stage process for the determination of the admissibility of evidence of

(a) records relating to the complainant in which she has a reasonable expectation of privacy or

(b) other sexual activity of the complainant.

[4] The first stage is a hearing under s. 278.93 to determine whether the evidence is "capable of being admissible". If so, the matter proceeds to the second stage of a hearing under s. 278.94 to determine whether the evidence is admissible. This is the first stage.

[5] The Crown has also brought an application to admit evidence of other sexual activity of the complainant. Unlike such applications brought by the defence, the Criminal Code does not require any process be followed for such applications by the Crown. I decided, in Trial Management Order No. 1 released July 7, 2020, that the Crown application would be heard at the same time as any hearing under s. 278.94 required to determine the admissibility of the evidence sought to be introduced by the defence which is at issue in this application. It is prudent to consider all such issues at the same time, because each party's application has the potential to affect the other. (R. v. R.V., 2019 SCC 41 at para. 79)

Statutory Context

[6] In December 2018, Bill C-51 came into force. It significantly amended the law relating to trials of individuals accused of sexual offences.

[7] Before those amendments, the Code provided, as it still does, that evidence that the complainant has engaged in sexual activity was inadmissible to support either of the "twin myths". The twin myths, which have no place in our criminal justice system, are that a complainant who has engaged in other sexual activity is more likely to have consented to the sexual activity which is the subject of the charge or is more likely to lie. (s. 276(1))

[8] The Code also provided, as it still does, that evidence that the complainant has engaged in sexual activity other than the sexual activity that forms the subject matter of the charge is inadmissible unless it is

(a) being introduced for a purpose other than one of the twin myths,

(b) is relevant to an issue at trial,

(c) is of specific instances of sexual activity, and

(d) both has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. (s. 276(2))

[9] In determining whether evidence of other sexual activity is admissible, the trial judge was and is required to consider a number of specified factors. Without meaning to suggest that any of those factors are more important than others, they include the potential prejudice to the complainant's personal dignity and right of privacy and the right of the accused to make full answer and defence. (s. 276(3))

[10] Bill C-51 changed the law in a number of ways.

[11] Among other things, the Criminal Code now prohibits the admission into evidence, without leave, of a record relating to a complainant which contains personal information for which there is a reasonable expectation of privacy. Such evidence is inadmissible unless the trial judge determines that it 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. In making that determination, the trial judge must consider a number of specified factors. Those factors are very similar to, but not exactly the same as, the factors to be considered in an application to admit evidence of other sexual activity. They include the right of the accused to make full answer and defence and the potential prejudice to the complainant's personal dignity and right of privacy. (s. 278.92)

[12] Bill C-51 also amended s. 276, which prohibits the admission of other sexual activity of the complainant unless it meets the standard I have described, to provide that

sexual activity includes any communication made for a sexual purpose or whose content is of a sexual nature.

[13] The effect of that amendment is that such a communication, if it is of "sexual activity other than that which forms the subject-matter of the charge", cannot be introduced into evidence unless it meets the standard set out in s. 276(2).

[14] As I have said, neither evidence of other sexual activity of the complainant nor of private records relating to the complainant may be introduced into evidence unless an application is brought under s. 278.93(1) for a hearing under s. 278.94. Subsection 278.93(2) provides:

(2) An application referred to in subsection (1) must be made in writing, setting out detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial … .

Issues on This Application

[15] The questions before me are whether the evidence in issue—whether of records in which the complainant has a reasonable expectation of privacy or of other sexual activity of the complainant—is "capable of being admissible" under s. 276(2) (for other sexual activity) or s. 278.92(2) (for private records relating to the complainant) (s. 278.93(4)).

[16] I am required to engage in only a facial consideration of the issue, and make a tentative decision about the capability of the evidence to be admissible. Courts should be cautious in limiting the defendant's rights to cross-examine and adduce evidence. Unless the evidence clearly appears to be incapable of admissibility the court should proceed to the second stage and hold a hearing under s. 278.94. Any doubts about admissibility under s. 278.93(4) are better left for the evidentiary hearing under s. 278.94 (R. v. Ecker, 96 C.C.C. (3d) 161 (Sask. C.A.); R. v. B.B., [2009] O.J. No. 862 (S.C.J.); R. v. A.M., 2020 ONSC 1846 at para. 28; R. v. Barakat, [2019] O.J. No. 705 at para. 18 (C.J.); R. v. J.S, 2011 ONSC 5367)

[17] The defendant seeks a ruling that the following evidence is capable of being admissible:

(a) certain "Snapchat" messages identified as pages 153 to 161 in the evidence brief filed by the defendant;

(b) text messages dated February 3 to 4, 2018 that are of a sexual nature, identified as pages 185 to 191 in the evidence brief;

(c) text messages of other sexual activity, identified as pages 192 to 214 of the evidence brief; and

(d) evidence of other sexual activity, as outlined in the Notice of Application.

[18] Crown counsel submitted that portions of the Snapchat messages contain evidence of other sexual activity of the complainant. The defendant disputes that. That issue will have to be determined as well.

[19] The defendant served an application seeking admission of this evidence on June 30, 2020. He served Addendums to that notice on July 10, 2020 (relating to the issue described in the preceding paragraph) and July 29, 2020 (relating to the issues set out in subparagraph 17(b) and (c) of these reasons.

Factual Basis for the Applications

[20] The defendant and the complainant were in a relationship that began in the summer of 2016.

[21] In a sworn statement provided to police on January 20, 2019, the complainant said that the parties were in their bedroom at their home and agreed to have sexual intercourse. She said that she began to have consensual sex with the defendant, with him penetrating her from the rear. She is recorded as making the following statements to the officer:

A. Um, and it just was like I just didn't want to anymore, so at that point I was like, no, I can't do this anymore. Like we need to stop.

Q. Okay.

A. And he just kept going.

Q. Okay.

A. And like I was like face down on the bed and he just kept going.

Q. okay.

A. Um, and I like just stood up. Like I was like no, get off, I'm done.

Q. Okay. Um so you tell him to stop and after you tell him to stop, does he just keep going?

A. He just keeps going.

Q. Okay. Do you remember if he said anything to you?

A. From like what I remember it was that like you know, "Just a few more minutes."

Q. Okay.

A. But I don't know if those were the exact words he used but that was the idea that I had from what he said.

Q. Okay. Um, was there any indication that he was going to stop when you asked him to stop?

A. No.

Q. Okay. Um, and when you say he … like so you tell him to stop. You say he keeps going. At that point, his penis is inside of you.

A. Yeah.

Q. Okay. Um, how many times does he continue to thrust?

A. A couple.

Q. A couple.

A. A couple.

Q. A couple.

A. Um, I knew at that point like I had … you know, I had made up my mind that it was done.

Q. Okay.

A. Um, and so after maybe like a couple I just stood up.

[22] This is the basis of the charge before the court.

Evidence of the Defendant

[23] The defendant has provided an affidavit. He swore:

4. Throughout our relationship we engaged in consensual sexual activity on a regular basis.

5. Often [the complainant] would orgasm before I did. Both she and I would want to keep going until I also had an orgasm, unless physical discomfort prevented us from doing so.

6. I would ask her if we should stop after she had orgasmed, as I was aware that it would sometimes cause her physical discomfort if our sexual activity went on too long after her orgasm.

7. If [the complainant] expressed a desire to stop, we would not continue to engage in sexual relations.

8. Sometimes after [the complainant] had orgasmed, she would ask me how much longer it would take for me to reach orgasm.

9. There were times when [the complainant] expressed that the sexual intercourse was beginning to cause physical discomfort and we would then always stop.

10. After the birth of our child in [date withheld], there were multiple occasions from [date withheld] through our breakup in September 2018 where we agreed to prematurely end our sexual intercourse due to physical discomfort.

11. From February 2018 through to our break up in September 2018, we continued to engage regularly in sexual intercourse. During that timeframe, [the complainant] co-slept with our child, [name withheld]. After [our child] was asleep, [the complainant] would often come and find me in the home, or text me to engage in sexual relations.

[24] The defendant has also filed large quantities of documentary evidence in support of this application. That documentation includes statements of the complainant in which she alleges mistreatment by the defendant, and makes reference to their sexual activity. It also includes the documents in issue.

Crown Application to Admit Evidence of Other Sexual Activity

[25] Crown counsel has applied to admit evidence of other sexual activity of the complainant. That is not in issue on this ruling. It is, however, part of the context which must be considered. As the Supreme Court of Canada has said, it is prudent to consider both the Crown's proposed use of the evidence and any challenges proposed by the defendant at the same time. (R. v. R.V., 2019 SCC 41 at paras. 79-82) This will, as the Supreme Court has also held, "establish the parameters of any sexual relationship evidence that the Crown seeks to adduce" and trigger defence counsel to bring an application if they wish to elicit evidence going beyond the scope of that proposed by the Crown. (R. v. Goldfinch, 2019 SCC 38 at para. 145)

[26] Crown counsel has applied to adduce a sentence from a message sent by the complainant to a friend, in which she wrote to her friend that she had said certain things to the defendant. That text message is undated and is said to have been sent February 4, 2018 (the day after the alleged offence). It is found on pages 157 and 158 of the Evidence Brief of the defendant, and is part of the Snapchat messages sought to be adduced by the defendant.

[27] In the passage in issue, the complainant wrote:

… this is what I said.

I guess just like 2 things and I'm soft and I'm not looking to argue with you. I just love you and want you to know how I'm feeling.

I feel uneasy about this morning like I need our home to be my safe place where I don't feel pressure or added stress like. I know you just love me and want to show me in a sexual way but I really need you to think of my heart and what I've been through and maybe not push so hard. We had sex last night and it was amazing. And I just didn't want to this morning. And not because anything was wrong or I didn't think it would be good I just didn't want to and that has to be okay with you. I understand saying no might make you feel upset and I've been trying to make it more of a priority lately because I know you need it but my answer isn't always going to be yes and I need salesman [defendant's name] to quiet his voice and I need amazing husband [defendant's name] to just be compassionate with me and understand it's not you.

[28] I have italicized and underlined the sentence Crown counsel seeks to adduce.

[29] Crown counsel submits in his application to admit the evidence that this sentence is admissible under the Seaboyer test on the following basis:

(a) It informs the sentences that immediately follow "And I just didn't want to this morning. And not because anything was wrong or I didn't think it would be good I just didn't want to and that has to be okay with you."

(b) It is a prior consistent statement admissible to rebut the allegation by the defendant that the allegation was fabricated to support her position in family law litigation that arose after the parties separated in September 2018;

(c) It is admissible to undermine an argument that the complainant has created false or revisionist memories in her head;

(d) The statement "I feel uneasy" is admissible to show the complainant's state of mind at the time;

(e) The statement rebuts the assertion by the defendant that the complainant did not complain at the time of the alleged sex assault;

(f) Its probative value is not substantially outweighed by the danger of unfair prejudice because:

(i) It is not being adduced for its truth;

(ii) It is not being adduced to support either of the twin myths;

(iii) It will not undermine the defendant's right to make full answer and defence because the interests of justice are enhanced by a full understanding of the messages in question;

(iv) It supports society's interest in encouraging the reporting of sexual assault offences because it does the opposite—it supports the complainant and makes her less susceptible to certain arguments, such as that she made up the allegations for family law purposes;

(v) Although evidence of other sexual activity will tend to prejudice the complainant's right to privacy, the sentence in issue is "narrowly circumscribed evidence that intrudes at the lower end of the spectrum of intrusions into the complainant's right to dignity and privacy: and

(vi) The complainant has waived her rights under s. 278.3 for the production of these specific messages.

[30] This sentence is the only evidence of other sexual activity which the Crown seeks to adduce.

The Evidence in Issue

(a) "Snapchat" Messages Identified as Pages 153 to 161 in the Evidence Brief

[31] The messages in issue are between the complainant and a friend. They appear to have been sent between February 4 and 8, 2018.

[32] At paragraph 12 of his Notice of Application dated June 30, 2020, defence counsel wrote:

12. In this case, the Snapchat messages are:

• Not evidence of other sexual activity and would not be advanced for any twin myth purpose as they are messages about the alleged assault; and

• Have the requisite probative value as they are messages from directly after the incident and describe what happened.

[33] At paragraphs 33-45 of his Notice of Application dated June 30, 2020, defence counsel wrote:

33. On January 11, 2019, [the complainant] contacted police (on the emergency 911 call system) to report ongoing fears she had regarding the Applicant. She reported that no specific threats were made that day but that the Applicant was historically abusive, and he had recently been making mention of having connections to a biker gang and potentially had a firearm. During this call, she made no mention of the alleged incident.

Transcript of 911 Call dated January 11, 2019, page 1, Tab A

34. She added that they were currently in the midst of family law proceedings where she was requesting full custody of their daughter and only five hours of supervised access for the Applicant each week.

Transcript of 911 Call dated January 11, 2019, page 3, Tab A

35. A police officer attended her residence later the same day and at that time [the complainant] presented the officer with a 13 page typed statement disclosing to the officer in attendance a litany of allegations including general allegations of "sexual abuse". In this written statement, [the complainant] did not mention the alleged incident.

Investigative Action of Cst. Ste. Marie dated March 14, 2019, Tab B

36. [The complainant] further told Cst. Sharmarke on this date that at one point the Applicant continued to engage in sexual intercourse after she complained about it being painful and asking him to stop.

Investigative Action of Ali Sharmarke dated January 11, 2019, Tab C

37. In a sworn statement provided to police on January 20, 2019, [the complainant] alleged that the parties were in their bedroom at their home and agreed to have sexual intercourse. The intercourse involved him penetrating her from behind. At some point during the intercourse the complainant verbally informed the Applicant to stop.

38. [The complainant] claimed that the Applicant said something to the effect of 'I'm almost there or just a minute' and the complainant then pushed herself up, stood up and left the bedroom. She noted that she didn't know if it was intentional, but she felt like she took back her consent, and he thrust "a couple" more times.

Transcript of [complainant] interview dated January 20, 2019, pages 49-51, Tab D

39. She went to their daughter's bedroom and contacted her friend, [name withheld], over the mobile application "Snapchat" to tell her happened. [ sic ]

Transcript of [complainant] interview dated January 20, 2019, pages 49-53, Tab D

40. It was unclear in [the complainant's] sworn statement when this incident would have happened.

41. On January 29, 2019 [the complainant's friend] provided a sworn statement to Detective Cross about her knowledge of the incident and the relationship between [the complainant] and the Applicant. When asked about her understanding of what happened that night or morning, [the complainant's friend] stated that [the complainant] had messaged her about it over Snapchat the next morning.

42. [The complainant's friend] then showed Detective Cross the Snapchat messages and they read them together. She then emailed those messages to Detective Cross and they were eventually disclosed to defence. In that conversation, [the complainant] stated:

Okay so [the defendant] has always had a higher sex drive than me like always… I stayed over last night and we slept together before going to bed. Then this morning from 4am to 9am he pressured me to do it again. So much so that he joked he'd need to get a prostitute… I finally just caved cause I was sick of hearing him ask me. Like it was at least 100 times. And let it happen for like a minute before I was like no this isn't happening.

Snapchat Messages dated February 4, 2018, Tab E

43. As part of the police's investigation, [the complainant] also provided text messages between her and the Applicant beginning on February 4, 2018 at 9:20 a.m. This conversation seemingly would have taken place directly after the alleged incident.

44. These messages were also disclosed to the defence. At page 2 of this conversation, she writes:

I feel uneasy about this morning like I need our home to be my safe place where I don't feel pressure or added stress like. I know you just love me and want to show me in a sexual way but I really need you to think of my heart and what I've been through and maybe not push so hard. We had sex last night and it was amazing. And I just didn't want to this morning. And not because anything was wrong or I didn't think it would be good I just didn't want to and that has to be okay with you. I understand saying no might make you feel upset and I've been trying to make it more of a priority lately because I know you need it but my answer isn't always going to be yes and I need salesman [defendant's name] to quiet his voice and I need amazing husband [defendant's name] to just be compassionate with me and understand it's not you.

Text Messages between [complainant] and [defendant] dated February 4, 2018, Tab F

[34] At paragraphs 48-49 and 55-56, defence counsel made submissions as to the relevance of the Snapchat messages to an issue at trial. He wrote:

48. In accordance with s. 278.92(2), the Snapchat messages are not in relation to other sexual activity and are not statute-barred by s. 276.

49. The Applicant further submits that their probative value outweighs any danger of prejudice to the proper administration of justice for the following reasons:

(a) The record relates to the incident that is the subject matter of the offence;

(b) The record was made directly following the activity that forms the subject of the charge against the Applicant;

(c) The record relates to the credibility and the reliability of the complainant;

(d) The record relates to the absence of a complaint at the time of the alleged incident;

(e) The case-specific evidence relied upon to establish likely relevance is as follows:

(i) The record is a conversation that discusses the incident and does not disclose a sexual assault;

(ii) That the 911 call on January 11, 2019 does not disclose a sexual assault;

(iii) That the 13 page prepared and typewritten statement provided to the police on January 11, 2019 does not disclose a sexual assault, rather it is drafted in terms of the family law concept of "sexual abuse", and alludes to pressure to agree to sex, as opposed to non-consensual sexual intercourse;

(iv) That the KGB statement provided on January 20, 2019 provides questionable evidence of whether a sexual assault took place;

(v) That the KGB statement is unclear on dates and times when the alleged incident took place;

(vi) That there is clear evidence in this case of an ongoing family law dispute in January of 2019, in which the complainant seeks sole custody of their child.

[Complainant's] 13-Page Typed Statement, page 5, Tab G

55. This Snapchat conversation is evidence that is necessary for the Applicant to defend himself against the suggestion that he engaged in non-consensual sex with [the complainant]. It is further necessary when considered in the context of the series of other issues with [the complainant's] evidence.

56. In a case where the credibility of the parties will be key, these messages present an invaluable opportunity to consider contemporaneous messages to assess [the complainant's] criminal complaint one year later.

[35] The parties are in agreement that these messages are "records" within the definition in s. 278.1 and 278.92—that is, they are records relating to the complainant in which she has a reasonable expectation of privacy. They cannot be admitted into evidence by the defendant unless they meet the standard set out in s. 278.92.

[36] As I indicated, Crown counsel has advised the court that it is the Crown's position that certain portions of these messages come within the definition of "other sexual activity" in s. 276, and therefore must meet the test set out in s. 276(2) as well as the test in s. 278.92 in order to be admitted into evidence. Those portions are:

(a) Tab E, p. 154 of the Defence Evidence Brief, where the complainant wrote: "… I stayed over last night and we slept together before going to bed."; and

(b) Tab E, p. 159 of the Defence Evidence Brief, where the complainant wrote: "… And sex is not in the equation until I feel ready again which we agreed would be at the very least 4 months And if the next 4 months he can't control himself again in any capacity he knows we are one hundred percent ending things without a discussion and I'll just walk away from him."

[37] Defence counsel submitted in his "Addendum to Applicant's Notice of Sections 278.92/276 Applications" filed July 10, 2020 that if the portion at p. 154 was "other sexual activity" within the meaning of s. 276, the defendant did not intend to rely on that portion and was content to have it redacted.

[38] The defendant also submitted in that document that the portion of the record at p. 159 was not evidence of other sexual activity because "it is simply a statement of intention to abstain from other sexual activity, that is later contradicted by her messages to the Applicant [the defendant] from March 16 to August 1, 2018 (Tab H, sub-Tabs 5-13) [of the Evidence Brief]".

[39] In my view, a document may be both

(a) a record related to the complainant in which she has a reasonable expectation of privacy, and therefore inadmissible unless it meets the test set out in s. 278.92 after following the procedure in s. 278.93 and 278.94; and

(b) evidence of other sexual activity and therefore inadmissible unless it meets the test set out in s. 276(2) after following the procedure in s. 278.93 and 278.94.

[40] If the document meets both definitions, it must meet both tests. The tests are almost exactly the same.

[41] Furthermore, a document about the sexual activity which is the basis of the charge could be a "record" relating to the complainant in which she has a reasonable expectation of privacy. While such a document would not be covered by s. 276, it would be covered by s. 278.92 and would have to meet the test in that section to be admissible.

[42] Section 276 reads:

Evidence of complainant's sexual activity

276 (1) In proceedings in respect of an offence under section 151, 152, 153, 153.1 or 155, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant

(a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or

(b) is less worthy of belief.

Conditions for admissibility

(2) In proceedings in respect of an offence referred to in subsection (1), evidence shall not be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94, that the evidence

(a) is not being adduced for the purpose of supporting an inference described in subsection (1);

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

(c) is of specific instances of sexual activity; and

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

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.

Interpretation

(4) For the purpose of this section, sexual activity includes any communication made for a sexual purpose or whose content is of a sexual nature.

[43] Section 278.92 reads:

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 any of the following offences or in any proceedings in respect of two or more offences at least one of which is any of the following offences:

(a) an offence under section 151, 152, 153, 153.1, 155, 160, 170, 171, 172, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3; or

(b) any offence under this Act, as it read from time to time before the day on which this paragraph comes into force, if the conduct alleged would be an offence referred to in paragraph (a) if it occurred on or after that day.

Requirements for admissibility

(2) The evidence is inadmissible unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94,

(a) if the admissibility of the evidence is subject to section 276, that the evidence meets the conditions set out in subsection 276(2) while taking into account the factors set out in subsection (3); or

(b) in any other case, 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.

Factors that judge shall 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) 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, provincial court judge or justice considers relevant.

[44] The only differences between the two standards are that

(a) in order to admit evidence of other sexual activity it must be of "specific instances of sexual activity", and

(b) the list of factors that the judge must consider in determining admissibility of records relating to the complainant in which she has a reasonable expectation of privacy includes the factor set out in s. 278.92(3)(c)—"society's interest in encouraging the treatment by complainants of sexual offences".

[45] Crown counsel submitted in its response filed July 30, 2020 that "the Crown will not contest the Court exercising its discretion to move forward to a hearing under s. 278.94" with respect to the Snapchat messages. Defence counsel advised me that he would not be providing a reply to that submission.

[46] I have concluded that, in the absence of a response from the Crown, it would be inappropriate to determine this issue at this stage. I will be able to exercise my gatekeeper function adequately at the second stage s. 278.94 hearing. I therefore order that the issue of the admissibility of these messages be determined at a s. 278.94 hearing. That will include admissibility under s. 278.92; whether the portions set out above are of "other sexual activity" and must also meet the test in s. 276(2) to be admitted into evidence; and whether if so, that test is met as well as the test in s. 278.92 for those messages.

(b) Text Messages Dated February 3 to 4, 2018 That Are of a Sexual Nature

[47] These are messages between the defendant and the complainant between 12:41 p.m. on February 3 and 9:20 a.m. on February 4, 2018. The parties have agreed that they are "records" relating to the complainant in which she has a reasonable expectation of privacy.

[48] In his Notice of Application dated June 30, 2020 the defendant wrote:

99. [The complainant] provided to police her text messages between her and the Applicant [the defendant] from February 4, 2018 to corroborate her version of events from that evening/morning. The version of messages she provides begins at 9:20 a.m. with the first message being from where she writes: "Made i", "it".

100. However, the text message exchange between the two of them that morning begins at 6:17 a.m. where she writes to him, "come if you're coming" with several emoticons that follow. For greater context, the Applicant has provided text exchanges between the two of them beginning at 8:25 a.m. on February 3, 2018 through till [the complainant's] message at 9:20 a.m. on February 4, 2018.

101. The Applicant [the defendant] is seeking to adduce these messages to provide a fuller picture of the messages from February 4, 2018 and the messages from the day prior, as well to explore with the complainant why these messages were omitted in the first place. Such evidence would be relevant to assessing her credibility and reliability.

[49] In his "Addendum to Notice of Sections 278.92/276 Applications" filed July 29, 2020, the defendant added to the last paragraph I have quoted above:

10. There is a discussion here that is taking place regarding sexual activity that morning. Such evidence would be relevant to assessing her credibility and reliability.

11. Documents (b) from February 4, 2018 are probative in that they are contemporaneous messages that the complainant has omitted in her disclosure to the police, and touch on a discussion about sexual activity from the morning in question.

[50] In his written submissions filed July 30, 2020, Crown counsel wrote that he would not contest the Court exercising its discretion to move forward to a hearing under s. 278.94.

[51] I have concluded that, in the absence of a response from the Crown, it would be inappropriate to determine this issue at this stage. I will be able to exercise my gatekeeper function adequately at the second stage s. 278.94 hearing. I therefore order that the issue of the admissibility of these messages be determined at a s. 278.94 hearing.

[52] I must indicate, however, that I have concerns about this application. Among other things, I am concerned about whether the defendant has complied with s. 278.93(2), which requires him to provide a written notice with "detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial".

(c) Text Messages of Other Sexual Activity

[53] The defendant seeks to introduce into evidence these text messages, which he describes in his Notice of Application dated June 30, 2020 as follows:

January 15, 2018—[the complainant] tells the Applicant [the defendant] she had sexual dreams about him the night prior

January 16, 2018—[the complainant] tells the Applicant that she'd "ride" him

January 20, 2018—[the complainant] tells the Applicant that tonight was the best night and the best sex ever

March 14, 2018—[the complainant] tells the Applicant that sex tonight was amazing

April 6, 2018—[the complainant] tells the Applicant that she is dead after sex that night and she loved it

April 27, 2018—[the complainant] tells the Applicant she wants to be naked with him

May 8, 2018—[the complainant] describing how much she loved the sex the night prior

June 11, 2018—[the complainant] describing sex the night prior as amazing

June 29, 2018—[the complainant] telling the Applicant what kind of sex she wants

July 15, 2018—[the complainant] telling the Applicant that she can't sleep because of how good the sex was

August 1, 2018—[the complainant] telling the Applicant how she wants sex

[54] In his Notice of Application of June 30, 2020, defence counsel wrote, to explain the relevance of these messages:

102. [The complainant] has stated in her typed statement and in her KGB interview she felt pressured into having sex, specifically during and after her pregnancy, and that sex with the Applicant was long, cold and emotionless.

103. In her typed statement, she writes:

Sexual abuse:

• Demand I have sex with him 3-4 times per week. It would last up to 55 minutes with no foreplay or physical affection (kissing) at which point when he couldn't ejaculate he would blame me and tel me it was my fault.

• When I would express that I was in pain and wanted to stop after 30-40 minutes he would demand a few more minutes or tell me I shouldn't be in pain and get angry with me. […]

104. However, there are several sets of messages before and after the alleged incident on February 4, 2018 where LB expresses a desire to be intimate with the Applicant and a portrayal of their sexual relationship that is opposed to her description to police. [Defence counsel then lists the messages in issue, with the descriptions already set out.]

105. The Applicant further submits that Messages #2-13 are also admissible as they are not being advanced for any twin myth purposes. The Applicant is tendering these messages for the sole purpose of challenging her credibility on her prior statements regarding their sexual relationship in general with evidence of specific instances of sexual activity.

[55] Defence counsel repeats this submission at para. 15 of his Addendum to Applicant's Notice of Sections 278.92/276 Applications filed July 30, 2020, in which he writes: "Documents (c) are relevant to the veracity of her previous statements made to police."

[56] The defendant submits that the evidence from the messages that the defendant enjoyed sex with him on other occasions is relevant to her credibility. He points to other statements she made to the police in which she said that their sexual relationship was not enjoyable.

[57] Crown counsel submits that these messages are not "capable of being admissible under s. 276(2)", and do not meet even the facial analysis required for s. 278.93. He submits that although the defendant submits at para. 107 of his Notice of Application dated June 30, 2020 that the messages are being tendered for the sole purpose of challenging the complainant's credibility on her prior statements regarding their sexual relationships in general with evidence of specific instances of sexual activity, the text messages are not inconsistent with what the complainant told police.

[58] I have carefully considered the submissions of Crown counsel. I have decided, however, that the messages are capable of being admitted into evidence under s. 276(2) or 278.92.

[59] In reaching that conclusion, I am applying the test I set out at para. 16 of these reasons. As I said, courts should be cautious in limiting the defendant's rights to cross-examine and adduce evidence. Unless the evidence clearly appears to be incapable of admissibility the court should proceed to the second stage and hold a hearing under s. 278.94. Any doubts about admissibility under s. 278.93(4) are better left for the evidentiary hearing under s. 278.94.

[60] An important part of my decision to proceed to a second stage hearing under s. 278.94 for these messages was the fact that Crown counsel chose to not contest the exercise of my discretion to proceed to a second stage hearing for the other messages and evidence in issue. In my view, all of these applications are interlinked. Similar issues arise in each. If I were to decide one before the others, I may be prejudging the other issues. That would not be fair to the parties.

[61] I am concerned, however, about many of the issues in this section of the application. In particular, I am concerned about whether the evidence in question has "significant probative value", recognizing that that phrase has been defined to mean that the evidence must have "more than trifling relevance" and be capable of leaving the fact finder with a reasonable doubt I am also concerned about whether any probative value is "significantly outweighed by the danger of prejudice to the administration of justice", recognizing that that language protects the accused by raising the standard to exclude once the defendant shows that the proposed evidence has significant probative value. (R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443 at paras. 39-41; R. v. L.S., 2017 ONCA 685 at paras. 89-90)

[62] My concern about whether the statements in issue have significant probative value arises because of my doubts about the extent to which, if at all, the evidence in issue contradicts the complainant's statements. I note that Karakatsanis J. held at para. 51 of R. v. Goldfinch, 2019 SCC 38, that care must be taken in dealing with a submission that evidence of other sexual activity is admissible on the basis of the complainant's credibility. She wrote:

Bare assertions that such evidence will be relevant to context, narrative or credibility cannot satisfy s. 276(2).

[63] At para. 63 of that decision, Karakatsanis J. wrote:

Evidence of a sexual relationship may also be relevant when complainants have offered inconsistent statements regarding the very existence of a sexual relationship with the accused (see e.g., R. v. Harris (1997), 118 C.C.C. (3d) 498 (Ont. C.A.); R. v. Ternertzoglou (2002), 11 C.R. (6th) 179 (Ont. S.C.J.)).

That is not this case.

[64] I am also concerned about the fact that the contradictions asserted by the defendant are in statements made by the complainant to the police about other sexual activity in which she and the defendant engaged. In R. v. Kuzmich, 2020 ONCA 359, the defence counsel asked the complainant at the preliminary inquiry whether she had previously had sexual intercourse with the defendant, and she said that she had not. Crown counsel did not object, and no s. 276 application had been brought at the preliminary inquiry to permit evidence of other sexual activity. The Court of Appeal held that the defendant could not introduce evidence that the complainant had had prior sexual intercourse with him many times, or cross-examine her on her contradictory evidence at the preliminary inquiry. Trotter J.A. held that the evidence could not be adduced because it was based on the inadmissible testimony of the complainant at the preliminary inquiry.

[65] In the case before me, it may well be said that the statements of the complainant to the police about her general sexual relationship with the defendant are not in evidence and would be inadmissible. No s. 278.93 or similar application has been brought for their admission by either the defendant or the Crown.

[66] Trotter J.A. also dealt with the issue of relative probative value of the proposed evidence and the effect of its admission, particularly at para. 69 of the decision.

[67] I expect these issues to be dealt with in the s. 278.94 application.

(d) Evidence of Other Sexual Activity, as Outlined in the Notice of Application

[68] The defendant provided this description of the evidence in this category he wishes to adduce and the relevance of that evidence to an issue at trial at paragraphs 26 to 30 and 108 to 114 of his Notice of Application dated June 30, 2020.

26. In [the complainant's] KGB statement, she explained that it was common during the course of sexual intercourse that she would express to the Applicant that she needed to stop soon because she was tired or in pain.

27. In her 13-page typed statement, she further wrote under the heading, "sexual abuse", that she would express that she wanted to stop after 30-40 minutes of sex as she was in pain and he would demand a few more minutes.

28. The Applicant wishes to cross-examine the complainant on her previous statements of other sexual activity to test the allegation that the sexual activity in question was non-consensual.

29. The necessity to adduce [the complainant's] statements of other sexual activity is further required as [the complainant] fails to assert to any degree of certainty in her KGB statement that the Applicant would have known she wanted him to stop at the time she says so on the date in question, and expresses that their previous sexual engagement may have been the source of such a misunderstanding.

30. Furthermore, [the complainant] stated numerous times in her KGB statement, in the Snapchat messages with [her friend], and in her 13-page typed statement to police, that the Applicant was more interested in having sex in the relationship than she was, and that the sexual intercourse often "lasted a long time and cold with no emotions."

31. In [the complainant's] KGB statement, she advises that it was common during sexual activity that she would not want to continue or express that she needed to stop soon:

And like that's what it was about. So, um, I don't know if like you know, I'd expressed in the past like I need to stop soon. Um, like are you close, I would say things like that. […] But in this scenario like I remember being clear that like I didn't want this any … like and we needed … like I said I was done, you know. […] And then I remember like pushing myself up. So … […] … that's the only scenario that like stands out to me as like, you know, I feel like I like took back my consent, it just didn't matter like … […] But he may have been under the impression that like, you know, she's expressed that she is kind of at her end before, but we've kept going, so I don't know.

Transcript of [complainant] Interview dated January 20, 2019, page 45, Tab D

109. In her 13-page typed statement, she further wrote under the heading, "sexual abuse", that she would express that she wanted to stop after 30-40 minutes as she was in pain and he would demand a few more minutes.

[Complainant's] 13-page typed statement, page 5, Tab G

110. The Applicant wishes to cross-examine the complainant on these previous statements she made to police of other sexual activity as well as use the text messages outlined in Part III to rebut the allegation that the sexual activity in question was non-consensual.

111. The Applicant wishes to ask her questions to challenge her credibility and reliability:

(a) On what she clearly remembers happening on February 4, 2019; and

(b) On her previous statements that their sex was very long, cold and emotionless.

112. The Applicant wishes to ask questions in relation to [the complainant's] statements of her other sexual activity as [the complainant] fails to assert to any degree of certainty in her KGB statement that the Applicant would have known that she wanted to stop at the time she says so on the date in question, and expresses that their previous sexual engagement may have been the source of such a misunderstanding.

113. The questions that will be posed will focus on "specific instances of sexual activity", and not about sexual history generally. Specifically, the Applicant seeks to ask questions in relation to sexual activity that occurred between September 2017 and September 2018.

114. The Applicant submits that the conditions for admissibility set out in s. 276(2) has been met as:

(a) the evidence is not being adduced to support either of the "twin myths" described in s. 276 of the Code;

(b) the proposed evidence is relevant to:

i. Test the allegation that [the complainant] made it clear to the Applicant that she wanted him to stop having intercourse on February 4, 2018 (both in relation to the issue of consent and mistaken belief in communicated consent); and

ii. Dispel [the complainant's] portrayal of the sexual relationship.

(c) The evidence is of specific instances of sexual activity; and

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

[69] Crown counsel stated in his response of July 30, 2019 to the defendant's application that he would not contest the Court exercising its discretion to move forward to a hearing under s. 278.94.

[70] I have decided that I will order that a s. 278.94 hearing be held for this evidence as well. I will be able to exercise my gatekeeper function adequately at that time. I would benefit from hearing from Crown counsel on the issues raised by this portion of the application, and from defence counsel on the issues raised by the preceding portion which are much the same as those which arise on this portion.

[71] Furthermore, the complainant will be represented by counsel at the s. 278.94 hearing and I will have the benefit of hearing submissions made on her behalf.

Conclusions

[72] I order that a hearing be held under s. 278.94 to determine the admissibility of all of the records and evidence in issue.

[73] As I ordered in my Trial Management Order No. 1 dated July 8, 2020, the s. 278.94 hearing will take place this Friday, August 7, commencing at 9:00 a.m. It will occur simultaneously with the Crown application to admit evidence of other sexual activity of the complainant. The order of presentation will be as follows after cross-examination, if any, of the defendant on his affidavit:

(a) the defendant will make submissions with respect to his s. 278.94 applications; then

(b) the Crown will respond to the s. 278.94 applications and make submissions with respect to its application to admit evidence of other sexual activity of the complainant; then

(c) the complainant will respond to the defence applications and the Crown application; then

(d) the defendant will reply to the Crown's and complainant's response and respond to the Crown's application; then

(e) the Crown will reply to the defendant's response to its application.

[74] A copy of this decision will be provided to complainant's counsel to assist in preparation for the hearing. I am satisfied that doing so does not deprive the defendant of his right to make full answer and defence or his right to a fair trial.

[75] I have considered whether I should order that this decision may be published in accordance with s. 278.95(1)(c) of the Criminal Code. I have decided that it may be published. I have been careful to remove any information which may identify the complainant, so her right of privacy would not be infringed. In my view, it is in the interests of justice that the decision be published in order to develop the law in relation to these provisions of the Criminal Code, some of which are relatively new.

Released: August 4, 2020

Signed: Justice P. K. Doody