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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 11, 2020

COURT FILE NO.: Ottawa 19-DV4754

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

G. E.

Before: Justice P. K. Doody

Heard: August 7 and 11, 2020

Decision on defence application under s. 278.94 and Crown application to admit evidence of other sexual activity

Released: August 11, 2020

Counsel

Robert Thomson — counsel for the Crown

Dominic Lamb and Jonathan Nadler — counsel for the defendant

Eric Granger — counsel for the complainant

Decision

DOODY J.:

Introduction

[1] The defendant is charged with one count of sexual assault on February 4, 2018. The allegation is that while he and the complainant were engaged in consensual sexual intercourse, the complainant told him to stop. She has provided a statement in which she said that after she told him to stop, he continued to penetrate her for a brief period of time. The defendant acknowledges that the complainant told him to stop. He testified that when she did so, he stopped.

[2] The issue before me on the trial will be whether the Crown has proven beyond a reasonable doubt that the defendant continued to engage in sexual activity with the complainant after she told him to stop.

[3] The issue before me on these applications is whether evidence of other sexual activity of the complainant and records in which she has a reasonable expectation of privacy may be adduced in evidence.

Procedural Background

[4] The defendant has brought a number of pre-trial motions. I have dealt with most of them over the past five weeks. On August 4, 2020, I granted an application under s. 278.93 and ordered that a hearing be held to determine the admissibility of documents and evidence under s. 278.92 and/or s. 276. Crown counsel also brought an application to admit evidence of other sexual activity of the complainant. The defence application and the Crown application were heard together.

[5] In my decision of August 4 on the s. 278.93 application, I noted that certain documents—portions of a typewritten statement and a KGB statement provided to the police by the complainant—upon which the defendant relied for his application were evidence of other sexual activity of the complainant, were not in evidence, and were not the subject of an application to be admitted by either the Crown or the defendant. When this hearing commenced on August 7, defence counsel sought to amend his notice of application to include these things. The Crown and the complainant, through her counsel, consented to that procedure. I allowed it. The defendant then filed a "Defendant Supplementary Submission – s. 276 Application".

[6] The defendant has now filed the following documents which, together, comprise the application required under s. 278.93(2) which must be "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":

(a) Notice of Application filed June 30, 2020;

(b) "Addendum to Applicant's Notice of Sections 278.92/276 Applications: Whether the Snapchat messages described in paragraph 3(a) of Doody J's Trial Management Order No. 1 are capable of being admissible under subsection 276(2), if they are of "other sexual activity", pursuant to s. 278.93" filed July 10, 2020;

(c) "Addendum to Applicant's Notice of Sections 278.92/276 Applications – whether any of the documents or evidence in issue are capable of being admissible as set out in s. 278.93(4) and a hearing should be held under s. 278.94" filed July 29, 2020;

(d) "Addendum to Applicant's Notice of Sections 278.92/276 Applications – Whether any of the documents or evidence in issue is admissible under s. 276(2) or s. 278.92" filed August 5, 2020; and

(e) "Defendant Supplementary Submission – s. 276 Application" filed August 7, 2020.

[7] The Crown and the complainant consented to proceeding on August 7 immediately after the Supplementary Submission was filed that day. I ordered that the s. 278.94 hearing proceed, despite the short notice, so that the trial would not be delayed. It was scheduled to commence August 11, 2020 and proceed for 3 days. While the defendant was cross-examined on August 7 and defence submissions were heard that day, we did not have time to hear submissions from the Crown and the complainant. The hearing continued on August 11, the first day set for trial.

[8] This case illustrates the procedural complexity involved in trials of sexual offences after the amendments to the Criminal Code which came into effect in December 2018. This would not be a complex case but for the complexity imposed by the procedural requirements of the Code and some uncertainties created thereby. I am advised that the Crown will call one witness, the complainant. I have now released 7 written decisions before the trial evidence commenced. All were the result of written hearings except these s. 278.94 and Barton applications. The hearings and decisions were in writing because most of the issues had to be determined sequentially, courtroom time was not available, and it was thought to have been more efficient. The decisions were:

(a) Trial Management Order No. 1 released July 8, 2020 setting out the schedule for determining the pre-trial issues;

(b) decision that the complainant did not have standing on application to determine whether documents are "records" under s. 278.1 and s. 278.92(1) released July 13, 2020;

(c) decision on process for determining whether documents are "records" under s. 278.1 and s. 278.92 released July 20, 2020;

(d) decision that the complainant has the right to cross-examine the defendant on his affidavit during second stage s. 278.94 hearing released July 20, 2020;

(e) decision that some portions of certain documents are "records" under s. 278.91 and s. 278.92 and required leave under s. 278.92 to be adduced in evidence by the defence released July 27, 2020;

(f) decision that the applications under s. 278.93 to adduce the evidence now in issue should proceed to this s. 278.94 hearing, released August 4, 2020; and

(g) this decision on the s. 278.94 defence application and the Crown application to introduce evidence of other sexual activity.

Statutory Context

Evidence is Inadmissible to Support One of the Twin Myths

[9] Evidence that the complainant has engaged in sexual activity is 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))

Evidence of Other Sexual Activity of the Complainant is Inadmissible Without Leave

(i) By the Defence

[10] Evidence that the complainant has engaged in sexual activity other than the sexual activity that forms the subject matter of the charge is inadmissible by the defence 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) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. (s. 276(2))

[11] "Sexual activity" is defined to include "any communication made for a sexual purpose or whose content is of a sexual nature". (s. 276(4))

[12] The words "specific instances of sexual activity", required by s. 276(2)(c), must be read in light of the scheme and broader purposes of s. 276. The defendant must point to identifiable activity, but the degree of specificity in a particular case will depend on the nature of the evidence, how the defendant intends to use it, and its potential to prejudice the proper administration of justice. (R. v. Goldfinch, 2019 SCC 38 at para. 53, per Karakatsanis J., for the majority)

[13] The requirement that the evidence be "relevant to an issue at trial" means that the defendant must demonstrate that the evidence goes to a legitimate aspect of his defence and is integral to his ability to make full answer and defence. This requires that he be able to identify specific facts or issues relating to his defence that can be properly understood and resolved by the trier of fact only if reference is made to the sexual activity in question. (Goldfinch, para. 83, per Moldaver J., concurring)

[14] In articulating these specific facts or issues, simply citing the need to provide greater "context" will not suffice. Nor will generic references to narrative or bare invocations of credibility be enough. (Goldfinch, paras. 56 and 65, per Karakatsanis J. and para. 124, per Moldaver J.)

[15] The requirement that the evidence be "integral" to the accused's ability to make full answer and defence means that even if the evidence can be linked to specific facts or issues relating to the accused's defence, admission is not guaranteed. In cases where the evidence bears only marginally upon specific facts or issues relating to the defendant's defence, the trial judge may use his or her discretion to exclude the evidence on the basis that countervailing considerations, such as the need to protect the privacy and dignity rights of the complainant, outweigh the tenuous connection the evidence has to the defendant's ability to make full answer and defence. (Goldfinch, para. 124, per Moldaver J. concurring)

[16] The requirement that the evidence have specific probative value means that it 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. Evidence which meets this standard and is not being used to support one of the "twin myths" still cannot be heard if it is "substantially outweighed" by the danger of prejudice to 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. (R. v. L.S., 2017 ONCA 685 at para. 89; R. v. Darrach, 2000 SCC 46 at paras. 39-41; Goldfinch, per Moldaver J. at para. 128)

[17] In determining whether evidence of other sexual activity is admissible, I am 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 right of the accused to make full answer and defence, the need to remove discriminatory beliefs or biases from the fact-finding process, the potential prejudice to the complainant's personal dignity and right of privacy, and the right of every individual to the full protection and benefit of the law. (s. 276(3))

(ii) By the Crown

[18] Sub-section 276(2), (3) and (4), by their own terms, applies only to evidence adduced by the defendant. The Crown is bound by the common law rules of evidence of other sexual activity, which were explained in R. v. Seaboyer, [1991] 2 S.C.R. 577. (R. v. Barton, 2019 SCC 33 at para. 80) Those principles are much the same as those set out in s. 276. McLachlin J., for the majority of the Court, wrote at pages 635 and 636 of Seaboyer:

101 I would summarize the applicable principles as follows:

1. On a trial for a sexual offence, evidence that the complainant has engaged in consensual sexual conduct on other occasions (including past sexual conduct with the accused) is not admissible solely to support the inference that the complainant is by reason of such conduct:

(a) more likely to have consented to the sexual conduct at issue in the trial;

(b) less worthy of belief as a witness.

2. Evidence of consensual sexual conduct on the part of the complainant may be admissible for purposes other than an inference relating to the consent or credibility of the complainant where it possesses probative value on an issue in the trial and where that probative value is not substantially outweighed by the danger of unfair prejudice flowing from the evidence.

By way of illustration only, and not by way of limitation, the following are examples of admissible evidence:

(A) Evidence of specific instances of sexual conduct tending to prove that a person other than the accused caused the physical consequences of the rape alleged by the prosecution;

(B) Evidence of sexual conduct tending to prove bias or motive to fabricate on the part of the complainant;

(C) Evidence of prior sexual conduct, known to the accused at the time of the act charged, tending to prove that the accused believed that the complainant was consenting to the act charged (without laying down absolute rules, normally one would expect some proximity in time between the conduct that is alleged to have given rise to an honest belief and the conduct charged);

(D) Evidence of prior sexual conduct which meets the requirements for the reception of similar act evidence, bearing in mind that such evidence cannot be used illegitimately merely to show that the complainant consented or is an unreliable witness;

(E) Evidence tending to rebut proof introduced by the prosecution regarding the complainant's sexual conduct.

3. Before evidence of consensual sexual conduct on the part of a victim is received, it must be established on a voir dire (which may be held in camera) by affidavit or the testimony of the accused or third parties, that the proposed use of the evidence of other sexual conduct is legitimate.

4. Where evidence that the complainant has engaged in sexual conduct on other occasions is admitted on a jury trial, the judge should warn the jury against inferring from the evidence of the conduct itself, either that the complainant might have consented to the act alleged, or that the complainant is less worthy of credit.

Private Records Relating to the Complainant are Inadmissible by Defence Without Leave

[19] The Criminal Code prohibits the admission into evidence by the defence, 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 I determine 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, I must consider a number of specified factors. Those factors are almost 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)

[20] 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".

Issues on This Application

[21] The questions before me are

(a) whether the evidence in issue sought to be adduced by the defendant—whether of records in which the complainant has a reasonable expectation of privacy or of other sexual activity of the complainant—is 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)); and

(b) whether the evidence in issue sought to be adduced by the Crown meets the standard outlined in Seaboyer.

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

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

(b) text messages between the complainant and the defendant 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 between the defendant and the complainant 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 filed June 30, 2020 and the Defence Supplemental Submission – s. 276 Application filed August 7, 2020. This evidence includes evidence in the complainant's written statement and KGB statement to the police.

[23] In my view, all of the evidence in issue can be separated into two sections – the evidence of the sexual activity which is the basis of the charge, and the evidence of other sexual activity.

[24] The evidence in issue of the sexual activity which is the basis of the charge sought to be introduced by the defendant is

(a) the text messages between the defendant and complainant of February 4, 2018 (pages 190 to 191 of the Evidence Brief filed by the defendant) and

(b) the Snapchat messages between the complainant and her friend of February 4, 2018 which discuss that sexual activity (pages 154 to 158 of the Evidence Brief filed by the defendant).

[25] The evidence of other sexual activity in issue sought to be introduced by the defendant is

(a) the rest of the Snapchat messages between the complainant and her friend dated February 5 and 8, 2018 (pages 159 to 161 of the Evidence Brief);

(b) the text messages between the defendant and the complainant of other sexual activity (pages 192 to 214 of the Evidence Brief); and

(c) the other sexual activity evidence, as outlined in the Notice of Application of June 30 and the Defendant's Supplementary Submission of August 7, which consists of statements made by the complainant to police in which the defendant describes as expressing her "reluctance or unwillingness to engage in sexual activity with the Applicant from the time of her pregnancy through till the end of their relationship".

[26] Defence counsel submitted that the Snapchat messages at page 159 to 161 are not evidence of other sexual activity. Crown counsel took the opposite position, and submitted that the Snapchat message at page 158 contains evidence of other sexual activity of the complainant. I will deal with these issues when dealing with the admissibility of the Snapchat messages.

Factual Basis for the Applications

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

[28] 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. 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.

[29] 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.

[30] The defendant was cross-examined on his affidavit. He testified that he and the complainant were having consensual sex when she told him to stop. He testified that he then immediately stopped having intercourse with the complainant. Later, he testified that when she said that she could not go any more, they mutually stopped.

[31] The defendant also testified that he was not relying on any previous sexual activity with the complainant to give him the impression that she wanted to keep going after she told him to stop.

Issue on the Trial – Whether the Defendant Stopped When the Complainant Asked Him to

[32] Crown counsel advised me that his position was that this was a consensual sexual encounter in which consent was withdrawn.

[33] Prior to the defendant's cross-examination, Crown counsel wrote in his written submissions that I would need to determine four factual questions:

(a) Whether the complainant and the accused had sexual intercourse that morning;

(b) Whether the complainant (subjectively in her mind) revoked her consent during that sexual intercourse;

(c) Whether the defendant intentionally continued the sexual activity after the complainant revoked her consent; and

(d) Whether the defendant had an honest but mistaken belief in communicated consent for the portion of sexual activity that occurred after the complainant had revoked her consent.

[34] This position changed. During oral submissions after the defendant's testimony, Crown counsel said that, as a result of the defendant's evidence, he would not be asking me to determine whether the complainant subjectively revoked her consent before she communicated her change of mind to the defendant. He told me that, in his submission, the only issue for me to determine was whether the defendant did stop when the complainant told him to do so. He told me that if I concluded that he did stop then, or if I was left with a reasonable doubt about whether he had stopped then, I must acquit.

[35] The defendant submitted in the "Defendant's Supplementary Submission" filed August 7, 2020 (before the defendant's cross-examination) that if I find that the complainant did withdraw her consent, a live issue arises in relation to reasonable mistaken belief in communicated consent. In oral submissions on this application, defence counsel could not explain how, on the basis of the evidence now before me, there could be an issue of whether the defence of honest but mistaken belief in communicated consent could arise.

[36] I conclude that, on the evidence I now have, the only issue on the trial will be that posed by the Crown—whether the Crown has proven beyond a reasonable doubt that he stopped when the complainant told him that she wanted to stop. There is no air of reality to a defence of honest but mistaken belief in communicated consent.

Analysis of Evidence of Sexual Activity Which is the Basis of the Charge Which is Sought to be Introduced by the Defendant

[37] All of this evidence consists of records relating to the complainant in which she has a reasonable expectation of privacy and therefore subject to the requirement that leave be obtained under s. 278.92 before it can be adduced by the defendant.

[38] The complainant and the defendant had the following text message exchange between 6:17:08 a.m. and 6:20:01 a.m., before the sexual activity which is the basis of the charge:

Complainant at 6:17:08 a.m.: Come if you're coming [followed by emoticons of a soldier in a bearskin hat, two drums, a trumpet, bowling balls, and a man juggling]

Defendant at 6:18:43 a.m.: The only person cumming in the next few minutes is you [followed by emoticons of an eggplant and a peach]

Complainant at 6:19:28 a.m.: Baby is sleeping

Complainant at 6:19:35 a.m.: If you wake her I'll skin you

Defendant at 6:19:54 a.m.: Ok you start with my [followed by an emoticon of an eggplant]

Complainant at 6:20:01 a.m.: No

[39] The defendant testified that the complainant had spent the night before these text messages at his house with their infant. She co-slept with the infant in a separate bedroom. At some point within 20 to 30 minutes before the 6:17 text, he spoke to the complainant, probably when they were between his bedroom and the bathroom which adjoined the room in which the complainant and the infant had been co-sleeping. He testified that he asked her if she wanted to have sex. He said he did so in an "endearing" way, and asked her multiple times. He could not remember the exact words he used, but he did know that it was in a "loving way". He testified that she told him she was not in the mood at that moment. He said that he was "pretty sure she said you know she needed to just make sure the baby was sleeping and we did not wake her up".

[40] He testified that he then went downstairs. He then received the text at 6:17:08 a.m. "come if you're coming" followed by the emoticons. He explained that the emoticons were all sexual messages. The soldier represented an erect penis; the drums banging represented "banging", or sexual intercourse; the trumpet represented "blowing"; the bowling balls and pins represented a penis and balls "down my alley"; and the juggler represented playing with testicles. The eggplant and peach following his response less than two minutes later "the only person cumming in the next few minutes is you" represented a penis and a woman's "bum" or "bottom".

[41] He testified that it is possible that this was the first indication from the complainant that she had changed her mind about having sex with the defendant. He went upstairs. The complainant was in his bedroom. They had a conversation in which she told him "it has to be quick". They then proceeded to engage in sexual intercourse.

[42] He testified that they engaged in sexual intercourse, with him penetrating her, for between 5 and 10 minutes.

[43] He testified that they mutually stopped as soon as she said that she wanted to stop.

[44] Later that day, the complainant texted her friend, writing:

Okay so [defendant's name] 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 through 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 a minute before I was like no this isn't happening. He knows he was wrong. When I left this morning he was like now I feel bad like you had pitty sex with me and I was like it's fine just so I could leave in peace. How the heck do I address it now? I feel so sick to my stomach. [Italics added] [p. 154 Evidence Brief]

[45] In the sworn KGB statement she gave to the police, the complainant said:

Q: Okay. Okay. Um, were there instances when you guys were having sex or you … or where you had sex that you told him you didn't want to, and it happened anyways?

A: There's only … like for me … like from my memory there's only one scenario that really stands out.

Q: Okay.

A: Um, we were having sex in our bedroom when we lived together …

Q: Okay.

A: … um, and I don't remember. Like I feel like there was pressure to have sex or maybe like a threat to have sex before …

Q: Okay.

A: … and I did even though like I didn't feel like I wanted to.

Q: Okay.

A: But I did.

Q: Okay.

A: And like consented to the beginning part of that.

[46] The complainant gave the police text messages between her and the defendant from February 4, but she did not give them the text messages between 6:17 and 6:20.

[47] In order to be admitted if adduced by the defence, the evidence in issue must meet the test in s. 278.92(2)(b)—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".

[48] The defendant submits that this evidence is relevant on a number of bases:

(a) The text messages and the statements she made to her friend by Facebook message later that day in which she told her that he asked her "at least 100 times" are contradictory—the former suggesting that the complainant was enthusiastic and the latter that she only reluctantly consented to have sex with him—raising doubts about her credibility and reliability;

(b) The text messages similarly contradict the KGB statement she gave to the police in which she said she felt "like there was pressure to have sex or maybe like a threat to have sex", again raising doubts about her credibility and reliability; and

(c) the fact that they were not included in the string of text messages which the complainant did provide to the police supports an inference that she was less than forthcoming, which is relevant to her credibility.

[49] The defendant also submits that the text messages are relevant and admissible because they speak to the very sexual act in issue on this criminal trial.

[50] Crown counsel submitted that the text messages between the defendant and the complainant at pages 190 and 190 of the Evidence Brief (the messages between 6:17:08 and 6:20:01 a.m.) were relevant and would not cause substantial prejudice to the complainant. He submitted that the relevance requirement under s. 278.92 was met for the text messages because they were about the sexual activity which is the basis of the charge.

[51] Crown counsel took the position that the Snapchat message from the complainant to her friend was not relevant. He submitted that that message did not contradict the defendant's evidence at this hearing, particularly the statement that "this am he pressured me to do it again", pointing to the defendant's evidence that the complainant was initially opposed to having sex and that he had asked her more than once to do so. He submitted that this could very easily be seen by the complainant as pressure, and that there was no contradiction.

[52] He submitted that none of the evidence could be seen as being indicative of enthusiasm, and that the issue of whether the complainant was enthusiastic to engage in sexual intercourse that morning was not relevant to the issue I must decide.

[53] When asked to explain why his position differed between the text messages between the defendant and the complainant and the Snapchat message from the complainant to the complainant's friend, Crown counsel submitted that while both messages may be relevant to the defence case, the countervailing factor of prejudice to the complainant's personal dignity and privacy rights was higher with the Snapchat messages to her friend than the texts to the defendant. The Snapchat messages were to a friend on a private platform and they were about her sex life and her romantic life in general. To support that submission, he pointed to a statement from the complainant's friend, filed by the defendant, in which she said that the reason she communicated with the complainant over Snapchat was because those messages would be deleted and the defendant would not see them.

[54] The complainant took the position that neither the text messages between the defendant and the complainant between 6:17:08 and 6:20:01 a.m. nor the Snapchat message to the complainant's friend should be admitted.

[55] She submitted that because the only issue before me on the trial will be whether the defendant stopped when the complainant said she did not want to continue, it is not relevant whether the complainant was enthusiastic about beginning to engage in sexual intercourse. She submitted that if enthusiasm is an area the Crown chooses to explore as part of its case, then the situation may be different. The Crown may choose to lead that evidence. But we are not there yet.

[56] That submission caused me to ask Crown counsel whether he would be leading the text messages in issue. Crown counsel does not need leave under s. 278.92 to lead evidence of the complainant's private records. Crown counsel submitted that he would not lead this evidence if I ruled that the defendant could not do so.

[57] In my view, the evidence is relevant for the reasons submitted by the defendant. The cross-examination of the defendant, and the submissions made on this application, make it clear that the Crown and the defendant take opposing positions about how enthusiastic the complainant was about having sex with the defendant that day. Her statement to the police, including that "I feel like there was pressure to have sex or maybe like a threat to have sex before …and I did even though like I didn't feel like I wanted to" and her Snapchat message to her friend that she finally "just caved" after significant pressure show her to have been very unenthusiastic. Her text messages to the defendant, on his evidence, paint a different picture. This is relevant to her credibility. As is her failure to include the text messages amongst the material she gave to the police.

[58] This relevance is heightened by the fact that this evidence is about the very sexual act in issue, a factor implicitly acknowledged by Crown counsel when he was explaining why the texts were relevant.

[59] That, in my view, is of more than "trifling relevance" and is capable, in the context of all of the evidence, of leaving the fact finder with a reasonable doubt. It goes to a legitimate aspect of his defence and is integral to his ability to make full answer and defence. It has "significant probative value" as that phrase is used in s. 278.92.

[60] I have considered the factors set out in s. 278.92(3). The evidence is important to the right of the defendant to make full answer and defence. There is a reasonable prospect it will assist in arriving at a just determination in the case.

[61] In my view, it does not significantly prejudice the complainant's personal dignity and right of privacy. It speaks to the sexual activity in issue, about which the complainant has spoken to the police and will testify to in court.

[62] I conclude that the evidence in the text messages between the complainant and the defendant between 6:17:08 and 6:20:01 on February 4, 2018, and the Snapchat message I have quoted above are admissible and may be adduced by the defendant, except for the sentences I have italicized at p. 154 "Okay so [defendant's name] has always had a higher sex drive than me like always… I stayed over last night and we slept together before going to bed.".

[63] Those two sentences are to be treated differently. They are of other sexual activity.

[64] Those sentences were identified by the Crown as referring to other sexual activity. Defence counsel submitted in his "Addendum to Applicant's Notice of Sections 278.92/276 Applications" filed July 10, 2020 that if that was so, the defendant did not intend to rely on them and were content to have them redacted. In my view, they clearly come within s. 276. I conclude that they may not be introduced into evidence. If the text message itself is filed in evidence, those sentences must be redacted.

[65] The Snapchat messages between the complainant and her friend at page 158 of the Evidence Brief, which reproduce the text message between the defendant and the complainant which the Crown seeks to introduce, were not the subject of submissions by the defendant. Nor were the Snapchat messages at pages 155 to 157. In the absence of submissions, I cannot find that they are relevant or of significant probative value. Those portions of the Snapchat messages may not be adduced in evidence. I will deal with the Crown application to introduce the text messages separately.

Analysis of Evidence of Other Sexual Activity Sought to be Introduced by the Crown

[66] Crown counsel has applied to adduce a sentence from a message sent by the complainant to the defendant on February 4, 2018 (the day of the offence charged), after the alleged offence. It is found on pages 164 and 165 of the Evidence Brief of the defendant.

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

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.

[68] I have italicized and underlined the sentence Crown counsel seeks to adduce as evidence of other sexual activity.

[69] 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.

[70] This sentence is the only evidence of other sexual activity which the Crown seeks to adduce. The defendant takes no position on this application. He did not seek to adduce this text message into evidence.

[71] The only issue before me on this application is whether the sentence "We had sex last night and it was amazing" can be admitted at the behest of the Crown. The only reason for its admission is to make clear that the complainant was referring to sexual intercourse when she wrote the next sentence "And I just didn't want to this morning".

[72] The defendant testified in cross-examination on this application that he understood, after he read the text message, that the sex that he and the defendant had had that morning was sex that she did not want to have.

[73] I asked Crown counsel whether he would seek to have the sentence in issue admitted if the defendant agreed that when the complainant wrote "And I just didn't want to this morning" she was referring to sexual intercourse. He said if the defendant would agree to that, he would not seek to put the sentence into evidence.

[74] Defence counsel declined to make that agreement.

[75] The complainant submitted that the sentence in issue does not need to be adduced to allow the court to hear evidence that the complainant meant sexual activity when she wrote "And I just didn't want to do it this morning." Her counsel submitted that Crown counsel could simply ask her what she meant.

[76] Crown counsel disagreed, submitting that defence counsel may cross-examine the complainant in an attempt to have her testify that she meant something else.

[77] I agree with complainant's counsel. In my view, it has not been established that this evidence is relevant. To use the language of paragraph 101 of Seaboyer, I cannot conclude that what the complainant meant by "it" in the sentence "And I just didn't want to do it this morning" is an "issue in the trial". On the evidence before me on this application, it is not an issue.

[78] To the extent that it does become an issue, the limited probative value of the sentence in issue is substantially outweighed by the danger of unfair prejudice to the complainant's dignity and privacy. If it does become an issue, the Crown may want to re-apply to introduce this evidence. In different circumstances, the probative value may be stronger.

[79] I have not ruled on whether the texts set out at paragraph 68 of these reasons are admissible without the sentence in issue. That will be determined if and when their admission is sought, on the basis of the evidence heard and the issues apparent at that stage of the trial.

Analysis of Evidence of Other Sexual Activity Sought to be Introduced by the Defendant

(a) Text Messages and Complainant's Statements to Police

[80] The defendant seeks to introduce into evidence the following 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

[81] The defendant submits that this evidence is relevant because it contradicts statements made by the complainant to the police about other sexual activity between her and the complainant in which the defendant submits she spoke of her reluctance or unwillingness to engage in sexual activity with the defendant from the time of her pregnancy through the end of their relationship and her "characterization of the nature of their sexual relationship". He also seeks to have those statements to the police admitted into evidence, so that he can contradict it, giving rise to a negative inference about the complainant's credibility.

[82] The portions of those statements to the police which he seeks to have admitted for that purpose are as follows:

A: There's only …like for me … like from my memory there's only one like scenario that really stands out.

Q: Okay.

A: Um, we were having sex in our bedroom when we lived together …

Q: Okay.

A: … um, and I don't remember. Like I feel like there was pressure to have sex or maybe like a threat to have sex before …

Q: Okay.

A: … and I did even though like I didn't feel like I wanted to.

Q: Okay.

A: But I did.

Q: Okay.

A: And like consented to the beginning part of that.

KGB Statement, p. 46, Evidence Brief, p. 80

Q: And I know that's kind of a hard question to answer but it just might help me understand a bit more.

A: Okay. I think I need to like divide it into (unintelligible) for me.

Q: Okay. Sure.

A: So, like when I got pregnant, um, sex became difficult. So, it became like … like I wasn't enjoying it when I was pregnant. It just didn't … it wasn't the same.

Q: Okay.

A: I don't know if it was the same for him. It just … it changed.

Q: Okay.

A: Um, so that was something like, you know, he really wanted to have sex and I really didn't.

Q: Okay.

A: And I was really sick at the beginning, so he really wanted to have sex and I didn't.

Q: Okay.

A: So, at that point I think is where I started to feel pressure during that point.

Q: Okay.

A: Um, and then like when I … when we talk about, you know, him like groping me from behind or, um, like I think you know when I … when I would express like this isn't something that I want.

Q: M'hm.

A: And then he would push that or just … just like disregard that.

KGB Statement, pp. 29-30; Evidence Brief, pp.63-4

Q: Okay. All right. So, then your statement kind of goes into … you've actually titled it "Sexual Abuse", and then again, you've made some kind of note … like quick notes kind of thing. So, the first one on here says, "Demand I have sex with him three to four times per week. It would last up to fifty-five minutes with no foreplay or physical affection," you put "kissing" in brackets, "at which point when he couldn't ejaculate, he would blame me and tell me it was my fault."

A: Yes.

Q: Do you remember writing that?

A: I do.

Q: Okay. Um, and then before I get you to talk about it the next point that you wrote under that is, "When I would express that I was in pain and wanted to stop after thirty to forty minutes, he would demand a few more minutes or tell me I shouldn't be in pain and get angry with me." And the next point, "He told me I needed to look like I was enjoying it even if I wasn't."

A. Yeah.

Q: Remember all that? Okay. Um, all right. Can you just talk to me about that in general?

A: Yeah. Um, so the pressure like I said like started when I was pregnant.

Q: Okay.

A: Um, I didn't want to have sex as much and like he didn't understand that. He would like tell me that, "You know you must be sleeping with someone else or you must be getting it somewhere else." But the reality was it was like I was pregnant; it didn't feel good.

Q: Okay.

A: Um, and that kind of continued all the way through. Um, there was like a lot of instances where, you know, basically he wanted … he wanted to have sex and it was like you know his parents … like we would be at his parents' house and like they're right across the hall and it was like I just … like I just don't … you know, I'm not comfortable.

Q: Okay.

A: Um, and I think while I was pregnant it was more just like I was uncomfortable having sex there and there wasn't … there was pressure, but it wasn't the type of pressure that I experienced living with him.

Q: Okay.

A: Um, there was a conversation where [their daughter's name] was born.

Q: M'hm.

A: Um, I think. I was living at my parents and I was in the basement.

Q: Okay.

A: So, I'm assuming that's the timeframe. So, I felt pressure from him to have sex and I expressed that to him, and I also expressed that I … like I wanted more help with Brynn. Like I wanted help.

Q: Okay.

A: Um, and I wasn't … like I wasn't getting any help at all.

Q: Okay.

A: Um, and to that like … details around when the argument took place, I remember it was in the basement. I remember sitting on my bed. I remember where all the furniture was.

Q: Okay.

A: I don't remember the timeline.

KGB Interview, pp.43-45; Evidence Brief, pp. 77-79

A: Like it was just cold and like … like it was just so cold. Like he wouldn't like want to kiss me or like have any like … he just wanted to have sex.

Q: Okay.

A: 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. Like I need to stop soon. Um, like are you close, I would say things like that.

KGB Interview, pp. 48-9; Evidence Brief, pp.82-3

A: Um, I have some that just say, like, you know, there was another … I don't know if there was another time where it happened in the morning where he was like pressuring me. There was a lot of times where he would just pressure, pressure, pressure. Um, but like there's … like I do explain to her like, um, that like I felt pressure.

Q: Okay.

A: So, I don't know if …this wasn't from this night.

Q: Okay.

A: But it was from like another … so this is just like I did talk to her about it.

KGB Interview, p. 56; Evidence Brief, p. 90

A: I was … I was always sore after we had sex.

Q: Okay.

A: Um, so like I was always by the time like it would be over like I was always in pain. So, it was always like a little bit of tear or like it always hurt to go to the bathroom after. So, like it wouldn't've have been any different from the times before.

Q: Okay.

A: Like the …when we would have sex, there was very little foreplay if there was any at all.

Q: Okay.

A: Um, like I said like it was just very cold. Like a lot of the times I was like why aren't you kissing me. Like do I have bad breath. Like what …

Q: Okay.

A: Like I just want to kiss you …

KGB Interview, p. 115; Evidence Brief, p. 149

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 he couldn't ejaculate he would blame me and tell 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 shouldn't be in pain and get angry with me.

• He told me I needed to look like I was enjoying it even if I wasn't.

• He would also refuse to use birth control (condom) or pout if I said no without it.

• When I was firm that I didn't want to he would threaten to go to Pig Al's (a Gatineau strip club), Tanning Salon in Bell's Corners rumoured to provide extras in the back, or just say prostitute.

• He made these threats in the presence of [their daughter's name] numerous times.

• He would tell me I should want sex every day because he knows in his words "you slept around" prior to our relationship.

Typed statement provided to police by complainant, p. 5; Evidence Brief, p. 177

[83] The defendant submits that these messages are relevant for the sole purpose of challenging the complainant's credibility on her prior statements regarding their sexual relationship in general by this evidence of specific instances of sexual activity.

[84] I do not accept that submission.

[85] As Karakatsanis J. held at para. 51 of R. v. Goldfinch, 2019 SCC 38, 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:

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

[86] At para. 63, 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 eg., 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.).

[87] The contradiction asserted by the defence is far from categorical. The messages relied upon by the defence do not suggest that the complainant viewed all sexual activity between them as enjoyable. Nor do her statements to the police assert that all sexual activity between them was unenjoyable.

[88] By way of example, the defendant stated in his Notice of Application that the complainant told the police that she felt pressured into having sex, "specifically during and after her pregnancy". She was pregnant from October 2016 to July 2017. All of the text messages that the defendant seeks to adduce were in 2018.

[89] If the evidence were to be admitted, much time would be taken with competing views of the quality of the sexual relations between the complainant and the defendant over the course of their relationship, and whether the truth about that issue was contrary to what the complainant told the police. This would stray very far from the issue which is whether the defendant continued without consent when, after commencing consensual intercourse, the complainant told him that she was no longer consenting.

[90] In R. v. Kuzmich, 2020 ONCA 359, the defendant was charged with sexual assault. The complainant testified at the preliminary inquiry that she and the defendant had consensual sexual intercourse, but that she experienced pain and asked him to stop. He did so for a few minutes, but then resumed penetration, even though she tried to push him off.

[91] The complainant also testified at the preliminary inquiry that she had not previously had sex with the defendant. The complainant died before trial, and her preliminary inquiry evidence was read in under s. 715. At trial, the defendant applied to adduce evidence of other sexual activity—intercourse and fellatio—between him and the complainant. She had not been asked about fellatio at the preliminary inquiry. The trial judge dismissed the application, holding that the evidence of prior sexual activity between the defendant and the complainant was not of significant probative value and if admitted it would prejudice the proper administration of justice. The Court of Appeal agreed. Trotter J.A. wrote for the court at paras. 17 and 69:

17. I agree with the trial judge that evidence of previous sexual activity between the appellant and E.S. was inadmissible under s. 276 of the Criminal Code. In view of the narrow contentious issue – continued penetration in the face of withdrawn consent – the proposed evidence had, at best, minimal probative value. However, it impacted significantly on E.S.'s equality, privacy and security interests.

18. On the evidence that was before the trial judge at the time of the s. 276 application, the positions of the appellant and E.S. regarding the nature of their relationship did not differ greatly. They were in agreement that they had engaged in consensual sexual intercourse. The nature of their relationship that night was sexual. Whether they had sex on other occasions was not probative on the issue of whether the appellant resumed penetration after he stopped at the appellant's request. It was not so fundamental to E.S.'s credibility that the exclusion of this evidence was, in the words of Harris, "potentially devastating" to the appellant's credibility. Without this foundation, the evidence could only have been used in a manner that was contrary to one of the twin myths prohibited by s. 276(1).

[92] In my view, this case is much the same.

[93] In my view, given the equivocal nature of the inconsistencies between the complainant's statements to the police and the messages the defendant seeks to adduce, the evidence does not have significant probative value. The potential prejudice to the complainant's personal dignity and right of privacy, however, is very high. The proposed evidence would require the complainant to answer questions about the extent to which she enjoyed sexual activity with the defendant on 10 or 11 occasions over a time span of approximately 7 months, and compare that with what she told the police about her sexual activity with the defendant. I conclude that the probative value of the proposed evidence is substantially outweighed by the danger of prejudice to the proper administration of justice.

(b) Snapchat Messages of Feb. 5 and 8, 2018 at Pages 159 to 161 of the Evidence Brief

[94] The complainant sent a Snapchat message to her friend on February 5, 2018 in which she said that since she and the defendant had signed the lease, she made him cry "3 out of 3 Saturdays so I need to stop wishing on this fairy tale that isn't real I think." She sent another message on February 8 in which she wrote:

Our talk went well. We are not getting married or even thinking about it. He's going to get some professional help for the brain injury he never followed up with. I said he needs to do the follow up assessment with a brain scan and start a regular plan whether that be like mood stabilizers or on going psychology. 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 in 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. We decided on joint legal custody with her physical custody being with me and he would have visitation for only a couple hours at time because he understands she couldn't handle more than 3 hours away from me.

[95] The defendant did not deal specifically with these messages in his written materials, other than to submit that it was not evidence of sexual activity, but of an intention to not engage in sexual activity. In my view, it is evidence of other sexual activity of the complainant. It clearly implies an ongoing sexual relationship. It also indicates an intention to stop engaging in sexual activity with the defendant.

[96] In oral submissions, the defendant submitted that the intention to not engage in sexual activities for the next four months was not followed through. In order to prove this, the complainant would have to be asked if that was so. That would necessarily lead to evidence of other sexual activity.

[97] In any event, it does not matter, in my view, whether this evidence is of other sexual activity or not. If it is not, it is clearly a record relating to the complainant in which she has a reasonable expectation of privacy, and can only be admitted into evidence if it has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. As I have said, the test for admission of both types of evidence is almost exactly the same.

[98] The defendant submitted that the failure of the complainant to follow through with her stated intention to refrain from sexual activity with the defendant could undermine her credibility and reliability.

[99] I do not accept that. It is not an uncommon occurrence for persons to fail to follow through with commitments about what they will and will not do in their personal lives. Failure to do so does not mean that they did not fully intend to do so when they made the commitment. Nor does it mean that they are less credible or reliable in evidence they may give. In my view, there is no probative value in this statement, let alone significant probative value.

[100] The danger of prejudice to the proper administration of justice is extremely high if this evidence were to be introduced. It would require the complainant testifying about the details of her decisions to engage in sexual activity with the defendant – what, where, when, and why. She would have to give evidence about all the reasons she made the decision to do so – if, indeed, she did. There is no doubt that it would significantly prejudice the complainant's personal dignity and right of privacy.

[101] The defendant will not be permitted to adduce evidence of the Snapchat messages at pages 159 to 161 of the Evidence Brief.

Conclusion

[102] I summarize my decisions in the following paragraphs.

[103] The evidence of the text messages between the defendant and the complainant between 6:17:08 and 6:20:01 on February 4, 2018 (pages 190 and 191 of the Evidence Brief filed by the defendant) and the portion of the Snapchat message sent by the complainant to her friend on February 4, 2018 (page 154 of the Evidence Brief) which reads:

Then this morning from 4am through 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 a minute before I was like no this isn't happening. He knows he was wrong. When I left this morning he was like now I feel bad like you had pitty sex with me and I was like it's fine just so I could leave in peace. How the heck do I address it now? I feel so sick to my stomach.

may be adduced by the defendant. They are relevant to the defendant's credibility and reliability.

[104] The evidence of the other text messages between the defendant and the complainant on February 3 and 4, 2018 (pages 185 to 191 of the Evidence Brief) may not be adduced in evidence by the defendant.

[105] The sentences in the Snapchat message at p. 154, "Okay so [defendant's name] has always had a higher sex drive than me like always…. I stayed over last night and we slept together before going to bed." may not be adduced in evidence by the defendant.

[106] The Snapchat messages between the complainant and her friend at pages 153 and 155 to 158 of the Evidence Brief may not be adduced in evidence by the defendant.

[107] The Snapchat messages between the complainant and her friend at pages 159 to 161 of the Evidence Brief may not be adduced in evidence by the defendant.

[108] The sentence "We had sex last night and it was amazing." from the text message of February 4, 2018 from the complainant to the defendant found at pages 164 to 165 of the Evidence Brief may not be adduced in evidence by the Crown.

[109] The text messages between the defendant and the complainant found at pages 192 to 214 of the Evidence Brief may not be adduced in evidence by the defendant.

[110] The evidence of other sexual history as set out in the Notice of Application dated June 30, 2020, and the "Defendant Supplementary Submissions – s. 276 Application" filed August 7, 2020 sought to be adduced by the defendant, including the excerpts from the complainant's KGB statement and typed statement provided to the police referred to in the latter document, may not be adduced by him.

[111] 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 removed 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 11, 2020

Signed: Justice P. K. Doody