OSHAWA COURT FILE NO.: CR-20-15476 DATE: 20220510 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – M.C. Defendant/Applicant

Counsel: Meghan Tait, for the Crown/Respondent David Robinson, for the Defendant/Applicant

HEARD: March 28-29, 2022

RESTRICTION ON PUBLICATION Pursuant to s. 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcast or transmitted in any manner. This judgment complies with this restriction so that it can be published.

REASONS FOR DECISION

DE SA J.:

Overview

[1] The Applicant stands charged with one count of sexual assault in relation to the complainant H.M. The Applicant further stands charged with one count of forcible confinement in relation to the complainant H.M. Both of these charges arise from an incident that is alleged to have occurred on the night of August 27, 2020 while in Niagara Falls.

[2] The Applicant seeks to introduce at the trial evidence of other alleged sexual activity in relation to the complainant. The Applicant takes the position that the evidence is relevant to the issues at trial, and meets the requirements set out in ss. 276(2) and 276(3) of the Criminal Code.

[3] I commenced a Stage 1 hearing on the written materials. After argument by the defence and Crown, I found much of the questions which the Applicant sought to ask irrelevant to the issues raised at trial, and accordingly, those portions of the application were dismissed.

[4] However, I found that certain aspects of the evidence were “capable of being admissible” having regard to the requirements set out in s. 276(2) and (3). Those issues were referred to a Stage 2 hearing where the accused/Applicant was cross-examined on his affidavit.

[5] All parties made argument regarding the admissibility of the evidence and I reserved my decision.

[6] My decision and the reasons for my decision are outlined below.

Summary of Facts

H.M.’s Account

[7] On September 29, 2020, H.M. attended Durham Regional Police Services 17 Division to report a sexual assault that happened on August 27, 2020 in Niagara Falls.

[8] Ms. H.M. explained that on or around July 25, 2020 she met the Applicant, M.C., on Bumble (a location based social media app for contact between interested users). Mr. M.C. lived in Toronto, while Ms. H.M. lived in Oshawa. A conversation started and the two began to connect.

[9] As of August 7, 2020, the two were considered to be dating. They continued to talk and organized a trip to Niagara Falls for a weekend at the end of August. The two checked into a hotel in Niagara Falls on August 26th and stayed three nights, leaving August 29th.

[10] Ms. H.M. advised that on Thursday August 27th her and Mr. M.C. consumed marijuana edibles. They did not sit well with Ms. H.M. and caused her to become sick and have a serious “body high”, which prevented her from being able to move or function.

[11] Mr. M.C. engaged in sexual intercourse with Ms. H.M. while she was in this state. She attempted to push him off but was unable to because she felt extremely weak and Mr. M.C. was much larger than her. She became upset and fearful but couldn’t do anything. She is unsure if he wore a condom or ejaculated inside of her. She told him to put a condom on.

[12] At one point, she was flipped onto her stomach and Mr. M.C. took his belt and tied her hands behind her back. He continued to penetrate her vaginally with his penis. She described this as unwanted sex, and she was having difficulty breathing as her face was pressed into the pillows. She was eventually flipped back over and the belt was taken off. She advised that she was hysterical and crying at that time. Mr. M.C. continued to penetrate her and finished shortly thereafter.

[13] She remained with Mr. M.C. in Niagara Falls but was relatively silent. On Saturday they returned home, and she stopped communicating with him. On Thursday, September 3rd she asked him to leave her alone (in person), as she did not want any more communication with him. She told him that if he left her alone, she would not report him to police.

[14] On September 30, 2020, she noticed that he appeared to be following her throughout Oshawa. She became fearful and decided to report the above incident to police.

M.C.’s Account

[15] Mr. M.C.’s account of the events of August 27, 2020 is quite different. According to Mr. M.C., he and Ms. H.M. had been discussing the evening of August 27, 2020 for some time.

[16] They had been dating since July 2020. On August 12, 2020, they began discussing a trip to Niagara Falls. While the conversation started more generally, they discussed engaging in bondage-style sex while in Niagara Falls. In the context of that discussion, they talked about a safe word “pink” that they would use if either of them felt unsafe.

[17] On August 25, 2020, the day prior to leaving for Niagara Falls, Ms. H.M. sent Mr. M.C. a SnapChat message of a TikTok video showing how to tie someone up with a tie behind their back. She texted Mr. M.C. and told him that she wanted him to watch the video alone. According to Mr. M.C., he understood the message/video to relate to their planned evening in Niagara Falls. Essentially, he believed that Ms. H.M. was showing him what to do.

[18] On August 26, 2020, on the way to Niagara Falls, they discussed the sex they were going to have including the bondage. Mr. M.C. mentioned that he forgot a tie at home, but he had a belt that he could use instead. According to Mr. M.C., she agreed.

[19] They arrived at Niagara Falls and enjoyed their time together on the 26th, and in the morning of August 27th. On the evening of August 27, 2020, after a swim, they watched Titanic. They started consuming edibles that Mr. M.C. purchased earlier that day. She mentioned that they could watch the movie until they were ready to start with sex.

[20] They paused the movie and started kissing at around 10:40 p.m. He helped her remove her lingerie. He asked her if she was ready to have sex, and she said she was. According to Mr. M.C., they started having sex and he asked Ms. H.M. if she wanted to change positions into a doggie-style position. She said “Yes”. She put herself in the position, and they continued to have sex.

[21] He got his belt from his pants and asked if it was okay to wrap her arms with his belt and she said “yes”. She climbed back on the bed in a doggie-style position, with her shoulders down, looking at him over her shoulder and putting her hands behind her back.

[22] He wrapped her arms with the belt and asked her if she was uncomfortable. She said “no”. He asked if she was ok to continue having sex with her hands tied behind her back, and she said “yes”. According to Mr. M.C., she was giggling and smiling at the time.

[23] At some point, she looked a little uncomfortable. He stopped and unwrapped her arms. He asked if she was ok. She said she was ok now. At no time had she said the word “pink”.

[24] She asked if he had finished, and he said he had not. She asked if he wanted to continue having sex. He replied “Only if you want to”. She said “ok”.

[25] She laid down on her back again, but by that time, Mr. M.C. had lost his erection. They both got dressed again and watched Titanic until falling asleep.

[26] On August 28, 2020, things seemed normal. They went to the Ferris wheel (the Big Wheel) and kissed several times. When they got back to the room, she said she was not in the mood to do anything that night, so they did not.

[27] He drove her home the next morning.

Evidence of Complainant’s Statement

[28] A portion of the complainant’s statement to police was filed as evidence on the hearing. A portion of that statement is reproduced below.

GUMINNY: Um, and then you had mentioned on the way up, on Wednesday, you guys were talking about, um, potentially trying something different… H.M.: Mm-hmm. GUMINNY: Was – what was that conversation like? H.M.: That was like any – I would say like any kind of couple has that kind of conversation… GUMINNY: Yeah. H.M.: …like what things are you into, which things you’re not – you don’t like. GUMINNY: Yeah. H.M.: That type of thing. GUMINNY: Okay. H.M.: That’s all it was. GUMINNY: Okay. H.M.: And we were showing like we could potentially be interested in doing. GUMINNY: Yeah. H.M.: But nothing concrete. GUMINNY: Okay. H.M.: Like they were just ideas. And then I guess he – I don’t know – he must have thought like… GUMINNY: Yeah. H.M.: …for some reason it was a great idea to do that. GUMINNY: Okay. Um, from my understanding – please correct me if I’m wrong – um, was there a safe word? H.M.: We had one, but I couldn’t say it. GUMINNY: Okay. And what… H.M.: But the – I’m pretty sure the word was pink.

Analysis

Evidence Sought to be Tendered

[29] In this case, the Applicant seeks to introduce at trial evidence of other alleged sexual activity in relation to the complainant. The Applicant has listed 21 questions he seeks to put to the complainant under cross-examination in the Application materials as an indication of the information/evidence the Applicant seeks to elicit at trial. The questions are listed below:

1. Whether on August 9th, 2020, the Applicant performed oral consensual sex on her?
2. Whether on August 9th, 2020, the complainant and the Applicant went for a drive and had consensual sex in his car and that the complainant provided the condom?
3. Whether on August the 10th, 2020, the complainant and the Applicant had a discussion about going to Niagara Falls for a weekend because they could not have sex at either of their homes and the car was not comfortable?
4. Whether on August 12th, 2020, the complainant brought up the topic of sex while being bound with handcuffs. Whether the complainant further discussed having sex while being bound with a tie?
5. Whether on August 12th 2020, the complainant and the Applicant discussed a “safe word” and whether the word “pink” was selected because both parties did not like this colour?
6. Whether on August 19th, 2020, the complainant had consensual sex with the Applicant in his car and that she provided the condom?
7. Whether on August 25th, 2020, the complainant sent a message to the Applicant to view a TikTok video on how to bind someone with a tie behind their back?
8. Whether on August 26th, 2020, on the way to Niagara Falls they discussed having sex with the complainant being bound with a tie while having sex. Whether the Applicant indicated that he had forgotten his tie at home and the complainant agreed to be bound with a belt while having sex?
9. Whether on August 26th, 2020, after arrival in Niagara Falls the complainant had consensual sex with the Applicant?
10. Whether on August 27th, 2020, the complainant had consensual sex with the Applicant in the morning after returning to their room after breakfast?
11. Whether while having consensual sex with the Applicant in the morning of August 27th, 2020, the complainant was in the doggie-style position and commented to the Applicant, “This is how I like it. This is the proper way to do it”?
12. Whether on August 27th, 2020, in the evening about 10:40 p.m., the complainant and the Applicant were facing each other and had consensual sex?
13. Whether on August 27th, 2020, after having consensual sex with the Applicant while facing each other, the Applicant asked the complainant if she wanted to change positions into doggie-style? Whether she agreed and changed positions with her chest facing the bed and her butt in the air?
14. Whether on August 27th 2020, the Applicant asked the complainant if she wished to continue having sex and she replied, “Yes”, and accordingly they continued to have consensual sex?
15. Whether on August 27th, 2020, the Applicant next asked the complainant if she was agreeable to having sex with her arms bound behind her with the belt and she replied, “Yes”?
16. Whether on August 27th, 2020, the Applicant took his belt and bound the complainant's arms behind her? Whether the Applicant asked her if she was okay and she replied, “Yes”? Whether the Applicant also then asked the complainant if the binding was too tight or uncomfortable and complainant replied, “No”?
17. Whether on August 27th, 2020, the Applicant asked the complainant whether it was okay to continue having sex while she was bound by a belt with her arms behind her and that she replied, “Yes”?
18. Whether on August 27th, 2020, the complainant and the Applicant had consensual sex with her arms bound behind her?
19. Whether on August 27th, 2020, after having consensual sex as aforementioned that the Applicant unwrapped her arms from the belt and asked her if she was okay and she replied, “Yes”?
20. Whether on August 27th, 2020, the complainant and the Applicant started having consensual sex facing each other but there was no penetration as the Applicant lost his erection?
21. Whether on August 27th, 2020, if after having consensual sex with her arms bound behind her, the complainant asked the Applicant if he wanted to continue having sex and he replied, “Only if you want to”?

Legal Framework

[30] Section 276(1) of the Criminal Code prohibits the use of evidence of other sexual activity when it is used to support one of the twin myths. Evidence that the complainant has engaged in any sexual activity other than the sexual activity that is the subject matter of the charge(s) before the court, whether with the accused or any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant:

1. is more likely to have consented to the sexual activity that forms the subject matter of the charge; or
2. is less worthy of belief.

[31] The protection afforded by s. 276(1) is an unqualified exclusion of sexual activity evidence tendered to incite the trier of fact into these prohibited types of reasoning. “In order to respect the presumption of innocence, evidence may be adduced for other relevant purposes but must satisfy rigorous criteria to ensure it does not undermine the integrity of the trial or the complainant’s dignity and privacy.” The rigorous criteria are set out in s. 276(2) and (3) of the Criminal Code: R. v. R.V., 2019 SCC 41, at para. 2.

[32] Section 276(2) creates a bar to the admissibility of sexual activity that is not the subject matter of the charge(s) unless and until the statutory pre-conditions for admissibility are met. Section 276(2) requires that the proposed evidence:

(a) is not being adduced for the purpose of supporting the twin myths; (b) is relevant to an issue at trial; (c) is of a specific instance or 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.”

[33] In determining whether evidence is admissible under subsection (2), the judge is required under s. 276(3) to take into account:

(a) the interests of justice, including the right of the accused to make a full answer and defence; (b) society’s interest in encouraging the reporting of sexual assault offences; (c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case; (d) the need to remove from the fact-finding process any discriminatory belief or bias; (e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury; (f) the potential prejudice to the complainant’s personal dignity and right of privacy; (g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and (h) any other factor that the judge, provincial court judge or justice considers relevant.

[34] Where this specific, relevant and non-myth-based evidence of other sexual activity has significant probative value that is not substantially outweighed by its prejudicial effect it may be admitted. In other words, s. 276(2) “rejects all evidence of sexual activity unless the evidence satisfies each of the requirements of the exclusionary exception”: Criminal Code, s. 276(2)(d): R. v. M.T., 2012 ONCA 511, at paras. 42-43: R. v. Seaboyer, [1991] S.C.J. No. 62 (S.C.C.), at para. 99.

[35] The balancing of prejudice and significant probative value in the context of s. 276(2) reinforces that the admission of such evidence is exceptional. As the Ontario Court of Appeal stated in M.T. at para. 43:

(…) the balance is calibrated differently than we see in the general exclusionary discretion or the more circumscribed discretion to exclude otherwise admissible defence evidence. The addition of the terms “significant”, as descriptive of the probative value, and “substantially”, as the extent to which significant probative value must predominate over “prejudice to the proper administration of justice”, appears to require a more nuanced or qualitative assessment of the competing interests. These interests are incommensurables. Probative value has to do with the capacity of the evidence to establish the fact of which it is offered in proof. Prejudicial effect relates to trial fairness.

[36] The overarching goal of s. 276 is to ensure trial fairness by rooting out reasoning based on myths, stereotypes and prejudices about sexual activity and sexual assault. The Supreme Court has recognized that “testifying in a sexual assault case can be traumatizing and harmful to complainants,” [1] and has stated that the legitimate purposes of the s. 276 regime are three-fold. These purposes are:

a. To protect the integrity of the trial by excluding misleading evidence; b. To protect the rights of the accused to adduce relevant evidence that meets certain criteria, and so to make full answer and defence; and c. To encourage the reporting of sexual offences by protecting the security and privacy of complainants. [2]

Stage 1 Review

[37] In combination, ss. 278.93(2) and 278.93(4) require that an application to adduce other sexual conduct of the complainant must:

1. Be in writing;
2. Set out detailed particulars of the evidence sought to be adduced;
3. Set out the relevance of that evidence to an issue at trial;
4. Satisfy the judge that the evidence is capable of being admissible; and
5. Be provided to the prosecutor and the clerk at least 7 days before the hearing.

[38] In this case, the application has been made in writing, largely sets out the detailed particulars of the evidence that is sought to be adduced and has been provided to the prosecutor and clerk at least 7 days before the hearing.

[39] The main issue at Stage 1 in this case pertains to the question of relevance and whether that evidence is “capable of being admissible.”

[40] The test contemplated at Stage 1 is a preliminary assessment on the basis of the written materials filed. If a review of the written materials makes clear that the proposed evidence (the evidence of other sexual activity) is inadmissible given the criteria outlined in s. 276(2), there is no reason to embark on an evidentiary hearing: R. v. Kutynec. However, if the evidence is potentially relevant and admissible having regard to the requirements set out in s. 276(2) and (3), the Court should proceed to Stage 2 of the hearing.

[41] After hearing argument, I was satisfied that at least certain aspects of the application disclosed areas of evidence that were relevant and capable of potentially being admitted pursuant to the criteria set out in s. 276(2) and (3).

[42] Accordingly, I permitted the Applicant to proceed to Stage 2 of the hearing.

[43] I have outlined my analysis in relation to each of the questions/areas below.

Stage 2 Review/Analysis

[44] The 21 questions as framed, can be broken down into four categories. I have analyzed each category below together with my decision on admissibility.

A) Questions directly relating to the incident that is the subject matter of the charge (#12-21)

[45] All parties agree that questions 12-21 are not caught by s. 276 and therefore are permissible, subject to the discretion of the trial judge in the usual course. I see no basis for preventing the defence from asking any of the questions from l2 to 21.

B) Questions relating to other sexual activity between the accused and complainant in the course of their relationship (#1, 2, 3, 6, 9, 10, 11) – Excluded at Stage 1

[46] The Applicant submits that these questions provide “relationship context”. According to the Applicant, absent these general questions related to his previous sexual activities with the complainant, a jurist will not understand that they were in a “sexual relationship”.

[47] The Applicant argues that the absence of evidence of the prior “sexual” relationship will automatically paint the Applicant as a sexual predator.

[48] According to the Applicant, the fact that they were engaged in a “normal” sexual relationship will also demonstrate that the Applicant was not the one who had the idea to engage in bondage sex. According to the Applicant, it was the complainant that started these discussions about bondage sex.

[49] The Applicant wants to be able to tell his story, and he argues this “narrative” is essential to his explanation of the events.

[50] In my view, the evidence sought to be tendered and engaged in questions 1, 2, 3, 6, 9, 10 and 11 is clearly inadmissible.

[51] The Applicant is essentially seeking to introduce the evidence for the purpose of showing that the complainant had consented to sexual activity in the past, and had discussions about bondage in the past, and accordingly was more likely to have agreed to have sex on the day in question. This is precisely the basis upon which prior sexual activity is not permitted to be tendered.

[52] The Supreme Court has repeatedly warned against permitting these types of questions under the guise of general “context” evidence. Indeed, the evidence is very similar to the type of evidence the Supreme Court specifically found to be inadmissible in R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3.

[53] In Goldfinch, the appellant sought to introduce evidence that he and the complainant were in a “sexual relationship.” Similarly, the appellant in Goldfinch argued that the evidence was necessary to provide context to the events underlying the allegations. Absent the evidence, the appellant argued that the jury would be left with the artificial impression that he and the complainant were in a platonic relationship.

[54] In rejecting the appellant’s argument, the Court explained at paras. 58 and 72:

At the voir dire, Goldfinch described relevance in general terms: the evidence was necessary for “context” or to prevent “faulty impressions”. He was not merely concerned with dispelling the notion that he and the complainant were strangers: he specifically sought to introduce the sexual nature of the relationship.

In the case at bar, the “context” laid out before the jury was clearly infected with twin-myth reasoning. The jury should not have been privy to particulars regarding the frequency of the sexual contact or Goldfinch’s testimony characterizing the evening as “typical” or “routine”. That evidence clearly engages twin-myth reasoning by suggesting that because the complainant had “typically” consented to sex with Goldfinch in the past, she was more likely to have done so on this “routine” occasion. Admitting that evidence was a reversible error of law which might reasonably be thought to have had a material bearing on the acquittal (Graveline, at para. 14). [Emphasis added.]

[55] As the Supreme Court made clear in Goldfinch, these ‘narrative’ or ‘relationship context’ questions are irrelevant, have no probative value to any issue in the trial, and lead directly to prohibited twin myth reasoning: that by reason of her prior sexual activity with the accused, the complainant is more likely to have consented to the sexual incident at issue.

[56] For these reasons, I find the evidence inadmissible.

C) Questions relating to prior discussions of bondage (#4, 7, and 8)

[57] The Applicant seeks to tender the discussions that he and the complainant had regarding bondage sex on August 12, 2020, the TikTok video that the complainant sent to him on August 25, 2020 showing how to tie someone up with a tie, and the discussions about bondage sex they had on August 26, 2020 on the car ride up to Niagara Falls.

[58] The Applicant takes the position that these discussions are not caught by s. 276 as they are discussions related to the subject matter of the charge. Even if they are caught by s. 276, the Applicant argues they are relevant and properly admissible to demonstrate the discussions leading up to the sexual activity that occurred in Niagara Falls on the evening of August 27, 2020.

[59] The Crown and the complainant oppose the admission of these discussions.

[60] Section 276(2) precludes the tendering of sexual activity other than the sexual activity that forms the subject matter of the charge unless it meets the criteria in s. 276(2). “Sexual activity” includes any communication that is made for a sexual purpose or whose content is of a sexual nature.

[61] According to the Crown and the complainant, these discussions are clearly caught by s. 276 as they are sexual activity “other than sexual activity that forms the subject matter of the charge”.

[62] The Crown and complainant point out that advance consent is not a defence to sexual assault or to forcible confinement. Consent must be considered at the time of the act in question. As such, the Crown and complainant argue that the relevance and admission of prior discussions about a possible future engagement in bondage sex is based on an error of law (a misunderstanding of consent).

[63] It also could invoke twin myth reasoning, that the complainant is more likely to have consented to being bound with a belt during the incident in question. The Crown and complainant rely on the comments of Justice Moldaver for the majority of the Supreme Court in Barton:

Mr. Barton’s defence rested largely on the notion that the sexual activity he said occurred on the first night led him to believe Ms. Gladue consented on the second night. In particular, he gave evidence that he and Ms. Gladue agreed on the price of $60 for “everything” on the first night, that they agreed on the same price on the second night, and that “she [knew] what she was coming for”. He considered the two nights as forming part of a continuing commercial transaction, with supposedly “similar” sexual activities occurring on both nights. Further, defence counsel stressed that “[s]he’s a prostitute, and she’s consenting to the sex” and that there were “[n]o groans of disagreement, in fact, only groans of agreement” and “there [were] no signs that she was in disagreement. He reasonably believed that she was consenting” (A.R., vol. V, at p. 205).

Respectfully, Mr. Barton’s defence raised the spectre of several mistakes of law. First of all, a belief that the absence of signs of disagreement could be substituted for affirmative communication of consent is a mistake of law. As already explained, “implied consent” does not exist under Canadian sexual assault law. Further, a belief that prior “similar” sexual activities between the accused and the complainant, the complainant’s status as a sex worker, or the accused’s own speculation about what was going through the complainant’s mind could be substituted for communicated consent to the sexual activity in question at the time is a mistake of law. As a matter of law, consent must be specifically renewed — and communicated — for each sexual act. Moreover, a belief that the complainant could give broad advance consent to whatever the accused wanted to do to her is a mistake of law. [3] [Emphasis added]

[64] It is clear that a person cannot give consent in advance. Communicated consent must be given at the time of the sexual activities at issue.

[65] I also agree that to the extent that the bondage discussions are not directly related to the planning of the sexual activity in Niagara Falls, they have no relevance and are inadmissible.

[66] Again, these discussions are private, they are immaterial to the issues to be adjudicated, and such discussions may inadvertently impact the fairness of the trial. To the extent that these discussions do not specifically relate to the planning for Niagara Falls, they are not permitted to be explored.

[67] However, in my view, the discussions that directly deal with the planning of the sexual acts in Niagara Falls are properly admissible. While I agree that they are caught by s. 276 and are presumptively inadmissible, in my view, after applying the s. 276 criteria, the discussions should be admitted.

[68] The evidence deals directly with the issue of the Applicant’s understanding of his interactions with the complainant on August 27, 2020. The evidence assists to explain his decision to tie up the complainant, and it is very much intertwined with his account of his mental state at the time of the alleged events.

[69] The Crown and complainant argue that the only possible basis for the admissibility of this evidence is to support a defence of honest but mistaken belief in communicated consent.

[70] The Crown and complainant point out that the Applicant maintains that the complainant expressly consented to the specific acts during the evening of August 27, 2020. In such circumstances, the Crown and complainant argue that the defence of honest but mistaken belief has no air of reality.

[71] In the alternative, the Crown and complainant argue that if this Court finds that there is an air of reality to that defence on the evidence adduced on this application, then this proposed other sexual activity evidence nevertheless lacks significant probative value, and any probative value is substantially outweighed by the danger of prejudice to the proper administration of justice and the impact on the complainant’s privacy, dignity and equality rights. Again, communicated consent at the time of sexual acts is what is relevant.

[72] I agree that the defence of honest mistake may not apply on the Applicant’s account as expressed.

[73] However, the complainant’s account of events could leave open the possibility of mistake on the part of the Applicant.

[74] As W.(D.) makes clear, a trier of fact does not make a decision on a choice between competing narratives. A trier of fact may accept all, some or none of a witness’ evidence. Even if a trier does not accept the evidence of the accused, a trier is still required to review the entire case in deciding whether the Crown has discharged its burden.

[75] The complainant’s account as summarized in portions of her police statement suggests that she and the Applicant never planned to have bondage sex in Niagara Falls. Whether or not this planning occurred could also be material to the credibility of the complainant’s account in my view.

[76] Indeed, as noted below, the Crown and complainant have agreed that the discussions relating to bondage on the ride up to Niagara Falls August 26, 2020 are admissible. I see no difference between those discussions and the planning and discussions on August 12, 2020. Just because those discussions are earlier in time (less proximate) should not make a difference.

[77] On the issue of prejudice, I do not see how the evidence is prejudicial given that these discussions relate to the sexual activities that are the very subject matter of the charge. The privacy in these discussions and impact on the complainant’s personal dignity is accordingly diminished. Moreover, the trial is to proceed by way of judge alone further limiting the risk of prejudice.

[78] In all the circumstances, in my view, the evidence is admissible, and the Applicant will be permitted to tender evidence, and question the complainant regarding these issues.

D) Questions relating to the “safe word” (#5) and discussion of August 26, 2020 (#8)

[79] The Crown and complainant have agreed to the following questions pertaining to the use of the safe word “Pink” and the discussions of August 26, 2020:

Questions to be asked in examination in chief

1. Did you and Mr. M.C. ever agree on a safe word?
2. What was it?
3. What was your understanding as to what was to happen if someone said the safe word?
4. Was the safe word used on the night of August 27, 2020?
5. Can you explain or why or why not?

Questions relating to August 26, 2020 discussion

6. On the way to Niagara Falls did you and Mr. M.C. discuss the topic of bondage during sex?
7. To your recollection can you describe that discussion?

[80] Counsel also agree that the complainant can be further cross-examined on the questions above depending on her answers at trial so long as the cross-examination remains within the confines of this ruling. In relation to #8, it is agreed that the complainant can be asked about the following:

a. Whether on August 26, 2020, on the way to Niagara Falls they discussed having sex with the complainant being bound with a tie while having sex? b. Whether the Applicant indicated that he had forgotten his tie at home and the complainant agreed to be bound with a belt while having sex?

[81] I agree with the proposed areas of questioning and accordingly, these questions will be permitted.

Justice C.F. de Sa

Released: May 10, 2022

[1] R.V., at para. 33. [2] R. v. Darrach, 2000 SCC 46, at para. 19; R.V., at para. 40. [3] Barton, at paras. 117-118.