WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) 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 victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
DATE: 2024 09 02 Newmarket, Ontario
BETWEEN:
HIS MAJESTY THE KING
— AND —
M.A.
Before: Justice R.M. Robinson
Heard on: 24 June 2024 and 26 August 2024
Reasons for Judgment released on: 2 September 2024
Counsel: Arthi Kunasingam, counsel for the Crown Alexander Karapancev, counsel for M.A. Gabrielle McLaughlin, counsel for M.M.
ROBINSON J.:
A/ INTRODUCTION
[1] M.A. is charged with one count of sexual assault against M.M., that is alleged to have been committed on 13 December 2022.
[2] The defence applies to have certain evidence admitted at M.A.’s trial. I provided my ruling on Stage One on 15 July 2024. On 26 August 2024, I heard submissions on Stage Two from the defence, the Crown and counsel for M.M. These are my reasons on Stage Two.
B/ LEGISLATION AND LEGAL PRINCIPLES
Other Sexual Activity
[3] S.276(1) of the Criminal Code creates a prohibition against introducing any evidence of a complainant’s other sexual activity to support one of the “twin myths”, namely: (1) because of the other sexual activity, the complainant was more likely to have consented to this sexual activity; or (2) because of the other sexual activity, the complainant is less worthy of belief.
[4] S.276(2) of the Criminal Code only permits the defence to introduce evidence of other sexual activity if the judge determines that the evidence:
(a) Is not being adduced for a twin-myth purpose;
(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.
[5] In coming to this determination, s.276(3) requires the judge to consider:
(a) The interests of justice, including the right of the accused to make full answer and defence;
(b) Society’s interest in encouraging the reporting of sexual assaults;
(c) If there is a reasonable prospect that the evidence will assist in coming to a just determination of the case;
(d) The need to remove any discriminatory belief or bias from the fact-finding process;
(e) The risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility by the trier of fact;
(f) The potential prejudice to the complainant’s personal dignity and right to privacy;
(g) The right of the complainant and every individual to personal security and to the full protection and benefit of the law; and
(h) Any other factor the judge considers relevant.
Records in the Possession of the Accused
[6] S.278.92(2) of the Criminal Code creates a record-screening regime that prohibits an accused from adducing records relating to a complainant that are in his possession, unless a judge determines that the records:
(a) If containing evidence of other sexual activity, meets the conditions set out in ss.276(2) and (3). [^1]
(b) Contain evidence that is relevant to an issue at trial; and
(c) Have significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
[7] In coming to this determination, s.278.92(3) of the Criminal Code requires the judge to consider:
(a) The interests of justice, including the right of the accused to make full answer and defence;
(b) Society’s interest in encouraging the reporting of sexual assaults;
(c) Society’s interests in encouraging the obtaining of treatment by sexual assault complainants;
(d) If there is a reasonable prospect that the evidence will assist in coming to a just determination of the case;
(e) The need to remove any discriminatory belief or bias from the fact-finding process;
(f) The risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility by the trier of fact;
(g) The potential prejudice to the complainant’s personal dignity and right to privacy;
(h) The right of the complainant and every individual to personal security and to the full protection and benefit of the law; and
(i) Any other factor the judge considers relevant.
[8] In the present case, I determined that items #4, 5, 6, 7, 8 and 9 were “records” under s.278.1 of the Criminal Code but did not contain evidence of other sexual activity. Their admissibility is, therefore, governed by s.278.92(1) of the Criminal Code.
[9] I determined that the video clip in item #16 contained evidence of other sexual activity and, therefore, its admissibility is governed by s.276(2) of the Criminal Code.
C/ ANALYSIS
[10] The precise allegations of M.M. are as follows:
- On 13 December 2022, M.M. and M.A. were parked in his motor vehicle in a plaza in Markham.
- They kissed consensually.
- She advised him that she was on her period.
- He put her on his lap, reached into her pants, removed her tampon, and threw it out the window.
- She advised him that she did not want to engage in sexual activity.
- At some point, she took off articles of her clothing.
- He took off his pants and exposed his penis.
- He placed her hand on his penis.
- He pushed her head down onto his penis for oral sex.
- She told him that she did not want to, but complied.
- He finished by masturbating himself and ejaculating.
- He then dropped her off at home.
ITEM #1
[11] The defence seeks to adduce evidence of sexual activity that occurred between M.A. and M.M. on 15 December 2022, two days after the alleged sexual assault.
[12] When M.M. provided a statement to the police on 11 March 2023, she advised that she met up with M.A. on 15 December 2022, but that they did not engage in any sexual activity.
[13] The police spoke to M.A. who gave a different account of what happened on 15 December 2022. When his account was put to M.M. by the police, she then advised that they did in fact engage in sexual activity on 15 December 2022.
[14] The defence submits that the relevance and probative value of the proposed evidence lies in the inconsistency between both of M.M.’s statements. The Crown does not disagree.
[15] Counsel for M.M. opposes admission of the evidence. She submits that the true purpose for which the defence seeks to adduce the evidence is in service of the twin myths: because M.M. consented on 15 December 2022 (after the offence), (1) she is more likely to have consented on 13 December 2022 (the date of the offence); and (2) is less worthy of belief.
[16] While I agree that the danger of twin-myth reasoning is present, in my view that danger is overcome by its relevance to an issue at trial, namely credibility, and its significant probative value that is not substantially outweighed by prejudice.
[17] In R. v. Darrach, 2000 SCC 46, at para 35, Gonthier J speaking for the Court explained that:
The phrase “by reason of the sexual nature of the activity” in s.276 is a clarification by Parliament that it is inferences from the sexual nature of the activity, as opposed to inferences from other potentially relevant features of the activity, that are prohibited. If evidence of sexual activity is proffered for its non-sexual features, such as to show a pattern of conduct or a prior inconsistent statement, it may be permitted.
[18] The relevance and the probative value of the evidence lies not in the sexual nature of the activity on 15 December 2022, but rather in the inconsistent statements that M.M. allegedly provided to the police.
[19] The alleged inconsistency has the potential of impacting my assessment of M.M.’s credibility. In this regard, it bears on M.A.’s right to make full answer and defence. There is a reasonable prospect that the alleged inconsistency will assist me in coming to a just determination of the case.
[20] The potential adverse impact on M.M.’s personal dignity and right to privacy, and on the notional complainant’s willingness to come forward, should such evidence be permitted, is minimal given the boundaries I am prepared to put in place.
[21] Any concern that the legitimate probative value of the evidence will be overtaken by impermissible twin-myth reasoning is attenuated by the fact that this is a judge-alone trial.
[22] I emphasize that it is not the sexual nature of what happened on 15 December 2022 that is relevant, but rather M.M.’s apparent willingness to mislead the police about what happened on 15 December 2022 (and, by extension, in general).
[23] Accordingly, M.A. will be permitted to adduce evidence that (1) when they met on 15 December 2022, they engaged in sexual activity, without getting into the details of such activity; (2) in her police statement on 11 March 2023, M.M., denied that they engaged in the sexual activity on 15 December 2022; and (3) when confronted with M.A.’s version of events on 15 December 2022, M.M. agreed that it did happen and that she purposely chose not to tell the police about it.
ITEM #2
[24] The defence proposes to adduce evidence of FaceTime conversations between M.A. and M.M. on 11 or 12 December 2022. In the defence supplementary affidavit (at para 13), M.A. alleges that:
(i) M.M. advised M.A. “that she wanted to engage in sexual activity with him and … she wanted to call him “daddy” as they engaged in this activity”.
(ii) She advised him “that she liked to get choked”.
(iii) She told him that “she wanted to make sexual videos with him as she wanted to make an “OnlyFans” account when she turned 18”.
(iv) She told him that “she wanted it “hard””.
(v) She told him that “she wanted to go down on him”.
(vi) She told him that “she wanted him to go down on her”.
(vii) She told him that “she has had a lot of bad sex previously and [he] told her that she doesn’t have to worry about this with him”.
(viii) She told him that “she gives the best “head””.
(ix) He told her that “he wanted to have sex and oral sex”; and
(x) They both “talked about having sex in [his] car”.
[25] In M.M.’s police statement on 11 March 2023, she stated that, prior to meeting up with M.A., she advised him that she does not engage in sexual activities with someone until she gets to know them.
[26] The defence submits that the proposed evidence is relevant to M.M.’s credibility as it contradicts what she said in her police statement. On this basis, the Crown conceded that M.A. had met his onus at Stage One.
[27] At Stage Two, both the Crown and counsel for the complainant opposed admission of the evidence on the basis that there is no inconsistency and, if there is, it is of minimally probative value that is far outweighed by prejudice.
[28] Although other grounds for admission were not argued at Stage Two, I have considered the evidence not only in terms of possible inconsistency, but also in terms of actual consent and M.M.’s credibility, in light of R. v. Reimer, 2024 ONCA 519, which was released on 26 August 2024.
[29] In my view, items #2(ii) [^2], (vii) [^3] and (viii) [^4] are inadmissible, as they do not contain evidence of specific instances of sexual activity. They are not relevant to any identifiable issue at trial and, therefore, lack significant probative value. The evidence engages prohibited twin-myth reasoning and presents a substantial risk of potential prejudice to Ms. Martin’s personal dignity and to the proper administration of justice at large.
[30] I do not see any basis for prohibiting M.A. from adducing item #2(ix). [^5]
Alleged Inconsistency
[31] Based on the record before me, I am not satisfied that there is, in fact, an inconsistency between Ms. Martin’s police statement and the conversations that allegedly occurred over FaceTime on 11 or 12 December 2022.
[32] The evidence before me establishes that M.M. advised the police that she told M.A. that she does not engage in sexual activity with someone until she gets to know them.
[33] A plain interpretation of the words M.A. attributed to M.M. during the FaceTime conversations on 11 or 12 December 2022, is that she was expressing a desire at some unspecified point in the future. That point in the future could very well be when she has already got to know M.A. to her satisfaction. M.A.’s materials do not allege that M.M. expressed a concrete intention to engage in the activities set out in items #2(i) [^6], (iii) [^7], (iv) [^8], (v) [^9], (vi) [^10], and (x) [^11] when they met up on 13 December 2022.
[34] Item #2(iii) supports this conclusion that M.M. was expressing a desire at some point in the future, as she allegedly put it in terms of when she turned 18. At the time of the alleged conversations, M.M. was 17.
[35] Given the tenuous argument that an inconsistency exists, I am not satisfied that the alleged conversations are relevant to the issue of M.M.’s credibility. It follows that I am not satisfied that the alleged conversations have significant probative value on this basis.
[36] On the stated basis of exposing an inconsistency that I am not satisfied exists, allowing M.A. to cross-examine M.M. on what appears to be merely an expression of her sexual fantasies would be an affront to her personal dignity and her right to privacy. It would not foster society’s interest in encouraging the reporting of sexual assaults.
[37] Prohibiting M.A. from adducing this evidence, on this basis, would not impact his right to full answer and defence. Moreover, there is not a reasonable prospect that the evidence will assist me in assessing M.M.’s credibility or in coming to a just determination of the case.
Actual Consent: [R. v. Reimer, 2024 ONCA 519](/on/onca/2024/519)
[38] The allegation of sexual assault before me is essentially an allegation that M.A. forced M.M. to perform oral sex on him over her protests. M.A. denies that the activity was non-consensual.
[39] Considering M.M.’s particular allegations and M.A.’s defence, a number of the topics that the two allegedly discussed over FaceTime on 11 or 12 December 2022 have obvious relevance on the issue of consent. Items #2(i) [^12], (v) [^13] and (x) [^14] all have potential relevance to whether M.M. consented to giving M.A. oral sex on 13 December 2022:
Given their timing, context, and content, [the conversations] were statements made… by the parties about what they intended to do during their pending meeting. Even though individuals can say things that they do not really mean or change their minds, it is an incontrovertible proposition of logic and human experience that a statement of present intention to do an act at a future time increases the likelihood that the speaker will engage in that act on that future occasion. [^15]
[40] The fact that I may end up disbelieving M.A.’s evidence that these conversations even occurred “does not change the relevance of his testimony about the complainant’s alleged comment[s]… Credibility, weight and relevance are distinct concepts.” [^16]
[41] The items I have identified above do not offend the prohibition against advanced consent. The defence does not submit that the admissibility of the items depends upon the theory that M.M.’s prior expression of consent was the consent she provided on 13 December 2022. “They depend, instead, on the theory that her earlier statements of intention to consent are relevant to the question of whether she did, in fact, consent during their meeting…” [^17]
[42] The twin myths are not engaged with respect to items #2(i), (v) and (x) because the defence is not relying on the sexual nature of those communications. The defence is not inviting me to infer that, because of the sexual nature of the prior conversation, Ms. Martin was more likely to have consented on 13 December 2022. As explained by Paciocco J.A. in Reimer:
The relevance of the sexualized texts I have described does not derive from the sexual nature of the complainant’s activity of sexting. It derives instead from the fact that those texts communicated the complainant’s intentions about what she would do and agree to at the upcoming meeting. The inference that follows – that she may have acted consistently with her stated intention – does not depend upon judgments about her sexual character, disposition or propensity, or assumptions that she is more likely to consent to sex with Mr. Reimer because in the past she agreed to sext with him. Relevance does not derive from the sexual nature of the activity of sexting. It derives from her stated intentions relating to the specific occasion in question. [^18]
[43] I am satisfied that items #2(i), (v) and (x) are not being adduced for twin-myth purposes, are relevant to an issue at trial (namely consent and credibility), are of specific instances of sexual activity, and have significant probative value.
[44] Admission of the above items would serve M.A.’s right to make full answer and defence and presents a reasonable prospect of assisting me in coming to a just determination of the case.
[45] I am concerned about the potential prejudice to M.M.’s personal dignity and right to privacy. However, the reality is that she will likely either agree or disagree the individual items were discussed prior to 13 December 2022. In that sense, and within the appropriate boundaries I intend on imposing, cross-examination on this topic will not be unduly onerous.
[46] In the final analysis, I am not satisfied that the potential prejudice substantially outweighs the significant probative value of the evidence.
[47] M.A. is permitted to adduce items #2(i), (v) and (x).
[48] The remainder of the items, #2(ii), (iii), (iv), (vi), (vii) and (viii) are not relevant to whether M.M. consented to providing M.A. with oral sex on 13 December 2022.
[49] Permitting M.A. to cross-examine M.M. on all aspects of the FaceTime conversations they allegedly had on 11 and 12 December 2022 would be an affront to her personal dignity and right to privacy. On the one hand the prejudice to M.M. and to the administration of justice would be substantial. On the other hand, there is no probative value to the evidence, and certainly no significant probative value, as required by s.276(2)(d) of the Criminal Code.
[50] M.A. is not permitted to adduce items #2(ii), (iii), (iv), (vi), (vii) and (viii).
[51] As stated above, I do not see any basis to prohibit item #2(ix), namely evidence that M.A. told M.M. that he wanted to have sex and oral sex.
ITEM #3
[52] The defence proposes to adduce evidence of telephone conversations between M.A. and M.M. on 13 or 14 December 2022, that M.A. says took place after the alleged sexual assault on 13 December 2022. In the defence supplementary affidavit (at paras 16 and 17), M.A. alleges that, during those conversations:
(i) They discussed how they had a great time and enjoyed the sexual activity they engaged in; and
(ii) They discussed wanting to see each other again and engage in sexual activity again.
[53] The defence proffers the evidence on the basis that it is relevant to the issue of consent and M.M.’s credibility.
[54] For substantially the same reasons I provided above, I find that item #3(i), if believed, has relevance to an issue at trial, namely consent and credibility. How M.M. characterized the events in question hours after they occurred is logically relevant to her state of mind at the time of the events in question, given the timing, context and content of that conversation.
[55] The fact that I may choose to disbelieve M.A.’s claim that this conversation even occurred does not change the relevance of his testimony about M.M.’s alleged comment. The fact that M.M. may explain that she made the comments but did not mean them also does not change the relevance of the comments. “Credibility, weight and relevance are distinct concepts.” [^19]
[56] I am satisfied that item #3(i) is relevant to issues at trial (consent and credibility) and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
[57] I cannot reach the same conclusion with respect to item #3(ii). Whether, and for whatever reason that, M.M.’s may have expressed a desire to engage in sexual activity with M.A. again has no bearing on whether she consented to oral sex on 13 December 2022.
[58] Courts have consistently and emphatically rejected the notion that victims of abuse are expected to react in a particular way. For example, in R. v. A.D.G., 2015 ABCA 149, at para 33:
No inference should be drawn regarding a complainant’s credibility that is based on assumptions about how a victim of sexual assault is supposed to react to the assault. The Supreme Court of Canada has made clear that sexual assault cases should be decided “without resort to folk tales about how abuse victims are expected by people who have never suffered abuse to react to the trauma”: R. v. Shearing, 2002 SCC 58 at para 122. There is no inviolable rule on how victims of sexual assault will behave: R. v. D.(D.), 2000 SCC 43 at para 65. It cannot be assumed that sexual assault victims will react to abuse in any objectively identifiable way. Findings of credibility should not be affected by the timing of disclosure alone – that is, affected by a comparison between a complainant’s disclosure and the disclosure of a hypothetical ‘objectively reasonable’ victim.
[59] Any proposed relevance to the evidence would necessarily rely on discriminatory beliefs or biases, contrary to s.276(3)(d) of the Criminal Code. Subjecting M.M. to cross-examination on why she would voluntarily agree to meet up with her alleged abuser again would not only seriously prejudice her personal dignity and right to privacy, but would not promote society’s interest in encouraging the reporting of sexual assaults.
[60] In the absence of relevance to an issue at trial and significant probative value, the prejudice to the administration of justice, including M.M., is overwhelming.
[61] M.A. is permitted to adduce item #3(i) but is prohibited from adducing item #3(ii).
ITEM #21
[62] The defence proposes to adduce evidence of FaceTime conversations between M.A. and M.M. between 8 and 10 December 2022. In the defence supplementary affidavit (at para 21), M.A. alleges that, during those conversations, they discussed M.A. visiting M.M. at her university on 10 December 2022, staying overnight in her dorm room, and engaging in oral sex and sexual intercourse.
[63] The defence submits that the conversations are relevant to the issue of credibility as they are inconsistent with what M.M. said in her police statement: that she advised M.A. that she does not engage in sexual activities with someone until she gets to know them.
[64] For the reasons expressed above under item #2, I am not satisfied that an inconsistency exists. Whatever probative value may be attached to this evidence for this purpose is significantly outweighed by the prejudice the evidence would occasion.
[65] The more difficult question is whether the evidence is relevant to the issue of consent and M.M.’s credibility in that regard.
[66] Unlike the conversations in item #2, the topics allegedly discussed in item #21 were restricted by time and place to sexual activity on 10 December 2022 in M.M.’s dorm room. M.M.’s alleged expression of consent was specific to a time and place, and not for all future meetings wherever and whenever they may occur.
[67] In Reimer, at para 70, Paciocco J.A. noted that the statement of present intention related to the parties’ “pending meeting”. At para 70, Paciocco J.A. again noted that the statement of present intention related to a time and place (“a short time later at the motel”).
[68] While the conversations in item #21 may be relevant to actual consent in the dorm room on 10 December 2022, if such a meeting occurred, I cannot accept their relevance to a meeting elsewhere on a later date.
[69] I have concluded that item #21 is not relevant to an issue at trial and, therefore, lacks significant probative value. Rather, the evidence can only serve prohibited twin-myth reasoning: because M.M. consented to specific sexual activity on 10 December 2022 in her dorm room, she was more likely to have consented to oral sex in M.A.’s car on 13 December 2022.
[70] M.A. is not permitted to adduce item #21.
ITEMS #4, #5, #6, #7, #8 AND #9
[71] The defence proposes to adduce “selfies” and video clips depicting M.A. and M.M. in his car on 13 December 2022:
- Item #4 - image ending in F988733.png
- Item #5 - image ending in E68655E.png
- Item #6 - image ending in E591AFC.png
- Item #7 - video clip ending in 6831.mov
- Item #8 - video clip ending in 6317.mov
- Item #9 - video clip ending in 6318.mov
[72] At Stage One, I found all of the above media to constitute “records” under s.278.1 of the Criminal Code. I found that none of the media contained evidence of other sexual activity.
[73] According to M.M., the activity in M.A.’s car began with consensual kissing and culminated in forced oral sex. No party disputes that M.A. is entitled to cross-examine M.M. on the progression of the sexual activity in the car during that time frame. Indeed, the right to full answer and defence demands it.
[74] All of the media files that M.A. seeks to introduce capture parts of what transpired between them during that specific time frame. In that regard, the media files constitute an independent record of those moments in time, untainted by frailties of memory or motivation to mislead. Put differently, the images and video clips are the best evidence of those moments in time.
[75] It defies common sense that M.A. is entitled to testify in chief about what is captured on the media, and is entitled to cross-examine M.M. about what is captured on the media, but should not be entitled to introduce the media itself.
[76] The media is relevant to a number of issues at trial, namely narrative of what happened, credibility of M.M. (and M.A.) and consent. I am satisfied that the media has significant probative value.
[77] In weighing the probative value against the danger of prejudice, I make the following findings:
(a) Prohibiting M.A. from adducing the best evidence of what transpired in the car would be a serious abrogation of his right to full answer and defence.
(b) While the evidence shows 17-year-old M.M.’s cleavage and sexualized behaviour (such as M.A. putting his thumb in her mouth and putting his hand around her throat), there is no depiction of nudity or explicit sex acts. The content is, therefore, not the sort that would serve to discourage the reporting of sexual assaults.
(c) There is no basis to believe that admitting the evidence would undermine society’s interest in sexual assault complainants seeking treatment.
(d) As the evidence depicts parts of what actually happened in the car, there is a reasonable prospect that it will assist me in arriving at a just determination in the case.
(e) Any risk of discriminatory belief or bias becoming engaged is attenuated by the fact that the trial is before a judge and not a jury.
(f) The risk of the evidence arousing sentiments of prejudice, sympathy or hostility in the jury is inapplicable in a judge-alone trial.
(g) While there is potential prejudice to M.M.’s personal dignity and right of privacy, some such prejudice is unavoidable. As mentioned above, nothing would prevent the defence from cross-examining her on the contents of the media clips. The additional prejudice involved in actually putting the media clips to her is minimal, as no nudity or explicit sexual conduct is captured therein.
(h) Admission of the evidence after a thorough Stage One and Stage Two analysis would not adversely affect M.M.’s personal security and right to the full protection and benefit of the law.
[78] In my view, the significant probative value of items #4, 5, 6, 7, 8 and 9 is not substantially outweighed by the danger of prejudice to the proper administration of justice. The evidence is, therefore, admissible.
ITEM #16
[79] The defence seeks to admit an undated 2 minute and 45 second long video posted on M.M.’s TikTok account [video clip ending in IMG_7181_mov].
[80] In the video, M.M. refers to signing up on websites for older men “seeking arrangements” with “daddies”, going on up to three dates a night, and “collecting the bag, man after man.”
[81] At Stage One, I determined that the above portions were of other sexual activity and were, therefore, governed by the s.276 regime. I also rejected the defence rationale for relevance – that it demonstrates a disingenuous approach in the way she engages with men – and found that it impermissibly relied on the second of the twin myths.
[82] However, during the clip, M.M. also refers to releasing a book about her life and dating experiences. At Stage One, I agreed with the defence submission that this segment could be relevant to a motive to fabricate.
[83] During submissions on Stage Two, all parties agreed that they would be able to come up with an Agreed Statement of Fact that includes M.M.’s reference to writing a book but not her references to dating older men for money. Accordingly, I need not rule on this issue.
Released: 2 September 2024 Signed: Justice R.M. Robinson
Footnotes
[^1]: If the proposed records contain information regarding other sexual activity (and thus falls under ss.276 and 278.1 of the Criminal Code), the judge must assess the evidence as s.276 evidence: R. v. J.J., at para 69. [^2]: Item #2(ii): M.M. allegedly advised that she liked to get choked. [^3]: Item #2(vii): M.M. allegedly advised that she has had a lot of bad sex previously, to which M.A. replied that she doesn’t have to worry about this with him. [^4]: Item #2(viii): M.M. allegedly advised that she gives the best head. [^5]: Item #2(ix): M.A. allegedly told M.M. that he wanted to have sex and oral sex. [^6]: Item #2(i): M.M. allegedly advised that she wanted to engage in sexual activity with him and she wanted to call him “daddy” as they engaged in this activity. [^7]: Item #2(iii): M.M. allegedly advised that she wanted to make sexual videos with him, as she wanted to make an OnlyFans account when she turned 18. [^8]: Item #2(iv): M.M. allegedly advised that she wanted it hard. [^9]: Item #2(v): M.M. allegedly advised that she wanted to go down on him. [^10]: Item #2(vi): M.M. allegedly advised that she wanted him to go down on her. [^11]: Item #2(x): They both allegedly talked about having sex in his car. [^12]: Item #2(i): M.M. allegedly advised that she wanted to engage in sexual activity with him and she wanted to call him “daddy” as they engaged in this activity. [^13]: Item #2(v): M.M. allegedly advised that she wanted to go down on him. [^14]: Item #2(x): They both allegedly talked about having sex in his car. [^15]: R. v. Reimer, 2024 ONCA 519, at para 70. [^16]: Reimer, supra, at para 72. [^17]: Reimer, supra, at para 74. [^18]: Reimer, supra, at para 75. [^19]: Reimer, supra, at para 72.