COURT FILE NO.: CR 19-50000410
DATE: 20221209
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
LUCAS MANTTARI
B. Donohue and E. Evans, for the Crown
A. Bigioni and T. Pasca, for Mr. Manttari
HEARD: December 1, 2, 2022
REASONS FOR JUDGMENT ON APPLICATION UNDER S. 276(2) OF THE CRIMINAL CODE TO ADDUCE EVIDENCE OF PRIOR SEXUAL HISTORY
R. MAXWELL J.
[1] The applicant, Lucas Manttari, brings an application seeking an order permitting him to adduce text messages he and the complainant exchanged in the days leading up to and following an alleged sexual assault. Some of the text messages contain content that is innocuous and not sexual in nature. Some text messages are, however, explicitly sexual in nature.
Background Facts
[2] Mr. Manttari is charged with one count of sexual assault arising from an incident which occurred on February 9-10, 2018.
[3] On or about February 5, 2018, the applicant met the complainant through a dating application. After initially connecting through the application, they began communicating over text message outside of the application. Over the course of the next few days, they made plans to meet in person for the first time.
[4] On February 9, 2018, the applicant picked up the complainant in his car and the two drove to a movie theatre. They watched a movie and then went for dinner.
[5] After dinner, the applicant and the complainant drove to a parking lot. According to the complainant, she told the applicant, after the dinner, that she wanted to go home. However, the applicant began “guilting” her into engaging in sexual activity with him.
[6] The complainant stated that once they parked in the parking lot, they began kissing in the front seat of the car. They then got into the back seat of the car. The complainant manually masturbated the applicant. He then began masturbating himself and ejaculated on her.
[7] The applicant then performed oral sex on the complainant while digitally penetrating her vagina. According to the complainant, after a period of time, she told the applicant that it was hurting her and to stop, but the applicant kept going until the complainant had an orgasm.
[8] After a brief pause in the sexual activity, the applicant put on a condom and had vaginal intercourse with the complainant. The complainant stated that she repeatedly told the applicant to stop and that he was hurting her before he finally stopped.
[9] The complainant then dressed and told the applicant she wanted to go home. The applicant was unable so start his car because the battery had died. The complainant phoned a taxi for each of them, and they left the parking lot.
[10] The applicant and the complainant continued to exchange text messages over the next three days following the incident.
[11] On February 12, 2018, the applicant sent the complainant text messages concerning the complainant’s experiences with borderline personality disorder, a diagnosis she had shared with applicant previously. The text messages upset and offended the complainant.
[12] On February 12, 2018, the complainant met with her social worker and disclosed that she had been sexually assaulted by the applicant. She then contacted the police and made a videotaped statement the following day, February 13, 2018.
Anticipated Positions At Trial
[13] It is anticipated that the Crown will take the position that the sexual activities between the applicant and the complainant began consensually. The only issue at trial will be whether the complainant ever indicated, through words or actions, that she was withdrawing her consent to sexual activity.
[14] The credibility of the complainant will be the central issue at trial. It is anticipated that the applicant will argue that the sexual encounter between himself and the complainant was consensual, that the complainant never, through words or actions, withdrew her consent, and that the complainant has fabricated allegations of sexual assault as a way of striking back at the applicant after he hurt her feelings for making insensitive comments about her mental health.
Text Messages In Question on the Application
[15] The applicant and the complainant communicated via text message on the days leading up to the alleged assault, on the day of the alleged assault (February 9, 2018), and after the alleged assault.
[16] The complainant provided all of the text messages to the police in the spring/summer of 2018. The text messages were then disclosed to the defence as part of the Crown’s disclosure.
[17] All of the text messages (sexual and non-sexual) exchanged between the applicant and the complainant are contained in Exhibit B of the Application Record. The text messages are page numbered in red font. I will refer to this page numbering system in these reasons.
[18] A number of the text message exchanges between the applicant and the complainant are innocuous and discuss day-to-day matters such as errands, hobbies, work, grocery shopping and other topics.
[19] On behalf of the Crown, Ms. Donohue takes the position that the complainant has a reasonable expectation of privacy in all of the text messages and that the messages would be subject to the screening regime under s. 278.93 of the Criminal Code. However, she concedes that these messages meet the threshold for admissibility.
[20] The applicant categorized the non-sexual text messages (all contained within Exhibit B) as follows:
February 5, 2018 (pgs. 2-6);
February 6, 2018 (pgs. 21-23);
February 7, 2018 (pgs. 26-31);
February 8, 2018 (pgs. 32, 59);
February 9, 2018 (pgs. 60-69);
February 10, 2018 (pgs. 70-76);
February 11, 2018 (pgs. 77-95);
February 12, 2018 (pgs. 96-104).
[21] The applicant separated out, as separate exhibits, the sexualized text messages by date. The Crown accepts the applicant’s categorization of the sexualized text messages, as follows:
Exhibit C of the Application Record – all of the sexualized text messages from February 6, 2018 (pgs. 7-20);
Exhibit D of the Application Record – all of the sexualized text messages from February 7, 2018 (pgs. 24-25);
Exhibit E of the Application Record – all of the sexualized text messages from February 8, 2018 (pgs. 33-58).
Position of the Parties on the Application
[22] On behalf of the applicant, Mr. Bigioni submits that all of the sexualized text messages are admissible at trial.
[23] He submits that there are two[^1] routes for the admissibility of the sexualized text messages preceding the alleged assault. His primary argument is that all of the text messages with sexual content form part of the series of events which constitute the transaction in which the alleged offence is said to have taken place. In other words, the text messages form part of the subject matter of the charge: R. v. XC., 2020 ONSC 410; R. v. Fryday, 2021 ONSC 3201.
[24] In the alternative, he submits that the sexualized messages meet the test for admissibility under s. 276 and s. 278.93 of the Code.
Analysis
(a) Do the Sexualized Text Messages Form Part of the Subject Matter of the Charge?
[25] Section 276 does not apply to sexual activity of a complainant that “forms the subject-matter of the charge” and is restricted to “other sexual activity”: s. 276(2) of the Code; R. v. T.M., 2012 ONCA 511, 289 C.C.C. (3d) 115, [2012] O.J. No. 3418, at para. 34.
[26] Mr. Bigioni argues that the sexualized text messages on February 6th, 7th, and 8th form part of the “sexual activity that forms the subject matter of the charge” within the meaning of s. 276(2) of the Code and are therefore exempt from the screening regime.
[27] He submits that the sexualized messages on February 6th and 8th were serious discussions of the future sexual encounter which was to take place following the movie and dinner date on February 9th. He argues that the complainant and the applicant were communicating specific information about their bodies and sexual preferences in anticipation of the sexual encounter.
[28] He argues that the text message exchange was not a generalized discussion that happened to be in the future tense, amounting to nothing more than “sexting”. Rather, the specific information exchanged about sexual preferences conformed, in many respects, to the sexual encounter that actually occurred.
[29] In particular, the complainant told the police that the applicant performed oral sex on her, which including him digitally penetrating her with his fingers. The actions resulted in the complainant having an orgasm and ejaculating. Mr. Bigioni submits that these events mirror what was discussed in the text messages on February 6th. He submits that the applicant told the complainant what he would do and the complainant told the applicant what would occur if he performed those sex acts.
[30] Similarly, in the text messages exchanged on February 8th, the day before the alleged sexual assault, both the applicant and the complainant expressed excitement for their date the next day. In the February 8th text messages, the complainant told the applicant that they would not be able to go back to her place and the applicant suggested they could spend time together in his car. The complainant indicated that the car “would work”. The applicant inquired about bringing condoms and a towel, to which the complainant responded, “Lol, probably” and made an additional comment that “Between the two of us, we’ll probably make a mess.” There was discussion of the applicant holding off on ejaculating until their date. The complainant expressed excitement about the applicant performing oral sex on her and the applicant having sexual intercourse with her. There was also an exchange about “prizes” which related to sexual activity.
[31] Mr. Bigioni relies primarily on the decision in XC, in which Dawe J. discussed when communications which precede an alleged assault will meet the threshold of forming part of the sexual activity that forms the subject matter of the charge.
[32] Dawe J. accepted that, although consent is determined with reference to the complainant’s state of mind at the time of the sexual act in question, sexual communications about future sexual activity that are very closely connected to the alleged non-consensual physical act can sometimes “properly be characterized as forming part of the ‘sexual activity that forms the subject-matter of the charge’”.
[33] He suggested, at para. 42, that the analysis of “closely connected” be guided by an analysis of whether the discussion about future sexual activity occurs closely proximate in time to the physical sexual activity in issue. He further recognized, at para. 42, that deciding whether a particular communication about future sexual activity is sufficiently closely tied to a specific future act of physical sexual activity will be highly fact-specific and case-dependent.
[34] Mr. Bigioni also relies on the case of Fryday, in which Chown J. concluded that a sexualized text message exchange which occurred between the accused and the complainant in the hour before the alleged sexual assault formed part of the subject-matter of the charge, a single incident of sexual assault. At para. 27, the court reached its conclusion on the basis that the communications were proximate in time to the sexual contact in issue and, due to a concern that the accused’s story would have an “unnatural beginning” and a “distorted picture” of events that might unfairly impact on the accused, the text messages should form part of the subject matter of the charge.
[35] Mr. Bigioni noted additional cases which have considered the issue.
[36] In R. v. Niemiec, [2022] O.J. No. 4416, Code J. determined the admissibility of text messages exchanged between the accused and the complainant in which the parties negotiated the terms of an agreement to have “sex for money” under ss. 276 and 278.92 of the Code. However, he stated in obiter, at para. 18, that text messages which predated the alleged offence by months, “could well be treated as part of ‘the sexual activity that forms the subject matter of the charge’ because [the messages] did eventually lead to the agreed meeting”.
[37] In R. v. H.S.S., 2020 BCPC 196, the court concluded that text messages which showed a mutually agreed upon plan between the accused and the complainant to meet in a bathroom for the purpose of engaging in sexual activity formed part of the subject matter of the offence.
[38] In R. v. Cole, 2020 ONSC 6239, the court concluded that a single incident of an alleged sexual assault cannot be approached “clinically” to separate the sexual assault from the events which immediately preceded the alleged assault, including in that case, the fact that the complainant showed the accused a “raunchy” video of herself dancing in underwear.
[39] Ms. Donohue disputes that the sexual text messages leading up to the incident in this case are admissible on the basis that they form part of the subject matter of the charge.
[40] I would begin by observing that, while the cases raised by the defence show examples of courts concluding that sexual activity preceding the events which form the actus reus of the offence form part of the subject-matter of the charge, there have also been numerous cases in which prior sexual activity, whether in the form of communications or actions, between the accused and the complainant occurring at a time proximate to the alleged offence have been subjected to the s. 276 screening regime: see R. v. MacMillan, 2019 ONSC 6018; R. v. Paulette, 2020 NWTTC 13; R. v. GTP, 2020 BCSC 1191; R. v. Sandhu, 2022 ABKB 614, 2022 ABQB 614; R. v. Comin, 2022 BCSC 530.
[41] What emerges from the caselaw interpreting s. 276(2) of the Code and whether it applies to proximate sexual activity is that there is no bright line rule that can be applied. It is not the case that all sexual activity involving the complainant which is not itself alleged to constitute an offence should automatically fall within s. 276 of the Code, no matter how connected it might be to the alleged offence. Neither is it the case that s. 276 of the Code contemplate a broad exemption for sexual activity near in time and place to the alleged offence.
[42] On the issue of determining the proper scope of the phrase “sexual activity that forms the subject-matter of the charge” in s. 276(2), I find the decision of the Alberta Court of Appeal in R. v. McKnight 2022 ABCA 251 to be very instructive.
[43] The court held, at para. 252, that in using the phrase “sexual activity that forms the subject matter of the charge” in s. 276(2) of the Code, Parliament intended a concept of “sexual activity” that is more precise than simply all factual events pertinent to the interactions between the complainant and the accused on the occasion in question.
[44] The court went on to say, at para. 254, that to fall within the scope of “sexual activity that forms the subject matter of the charge”, for purposes of the defences of consent and honest mistake belief in communicated consent, at the very least, the “sexual activity” must be part of the specific factual events of which the offence is a component.
[45] The court’s position is supported by the language recently provided by the Supreme Court in R. v. J.J., 2022 SCC 28, concerning the meaning of “subject matter of the charge”. In the context of discussing records of a sexual nature not covered by s. 276, the court in J.J. stated, at paras. 66-67:
It is helpful to clarify why evidence of an explicit sexual nature that relates to the subject matter of the charge may be caught by the record screening regime even if it is not s. 276 evidence. In addition to creating the record screening regime for private records, Bill C-51 also added s. 276(4), which specifies that sexual activity “includes any communication made for a sexual purpose or whose content is of a sexual nature”. This provision applies to sexual activity other than the sexual activity that forms the subject matter of the charge (s. 276(2)). Any communication regarding such sexual activity would fall within s. 276 regime.
Accordingly, the only records of an explicit sexual nature that could be subject to the record screening regime outside of the s. 276 context would be records pertaining to the complainant, in the possession or control of the accused, that related to the sexual activity which forms the subject matter of the charge. For clarity, “subject matter of the charge” refers to the components of the actus reus of the specific charge that the Crown must prove at trial. (emphasis added)
[46] The court in McKnight went on to state, at para. 258, that sexual activity which is “integrally connected” to the alleged offence may amount to evidence which is part of the specific factual events of which the offence is a component. Nothing is presumptively an “integrally connected” component, as the court explained at para. 258:
Sexual activity which is “integrally connected” to the alleged offence may come closer to capturing this idea [of being part of the specific factual events of which the offence is a component], however such activity in no way needs to be synonymous with all a complainant’s sexual activity with an accused occurring on the same night as the alleged offence. Whether such activity is a part of or integrally connected to the specific charge is highly case-dependent, as it is “necessarily a fact-driven exercise”: Comin, at paras. 46-47. For that reason, we see no necessary conflict between the cases which exempt certain “proximate” sexual activity from s. 276 and those which do not.
[47] In this case, the applicant alleges that there is a sufficient temporal and contextual nexus between the messages of February 6th and 8th and the sexual activity in question because the messages establish a plan between the parties to go on a date which would include sexual activity at the end of the date, and that both parties were excited about the date and the anticipated sexual activity.
[48] For reasons that I will elaborate on later in these reasons, I am not persuaded that any plan formed, either regarding going on a date or concerning what sexual activity would take place, and when, over the course of the Feb. 6th text messages.
[49] With that said, even if the February 6th messages did reflect a firm plan to go on a date, and even if the messages established a plan for specific types of sexual activity to take place at the conclusion of the date, I do not find that the discussions are “integrally connected” to the alleged offence such that they form part of the subject-matter of the offence, as defined by the Supreme Court in J.J. and described by the Alberta Court of Appeal in McKnight.
[50] For the same reason, although the February 8th text messages do reflect a firm plan to go on a date the following night, and reflect a discussion and anticipation on the part of both parties to engage in sexual activity, that does not render the February 8th exchanges “part of the subject-matter of the offence”.
[51] Both exchanges are not only separated temporally from the specific factual event which gives rise to the offence, they are also not integrally connected to the alleged offence.
[52] In my view, the consensual aspects of the sexual encounter which became non-consensual when the complainant withdrew her consent properly constitute evidence which forms part of the “the subject-matter of the charge”. Dawe J. came to a similar conclusion in XC, at para. 38. See also R. v. Lennox, 2019 ONSC 3844.
[53] Similarly, depending on how the evidence emerges at the trial, it may be that evidence of discussions of a sexual nature that may have taken place inside the car are properly interpreted as activities which form “the subject matter of the charge”.
[54] However, the wider circumstances surrounding the alleged assault, including the text messages exchanged on the day before the date and on February 6th and 7th do not amount to activity which forms part of the subject matter of the charge.
[55] Allowing the messages to be admitted into evidence without a review for admissibility or prejudice would, as the court stated in McKnight at para. 255, “undermine [the] screening provisions” and “roll back Parliament’s carefully chosen use of the word ‘activity’ to put beyond question that a complainant is not deemed to mean ‘yes’ to anything, even at the time and place.”
[56] For all these reasons, I conclude that all of the sexualized text messages must be subjected to the screening regime set out in ss. 276(2) and 278.94 of the Code.
(b) Are the Sexualized Text Messages Admissible Under Sections 276(2) of the Code?
(i) Applicable Legal Principles
[57] 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 engaged in any sexual activity other than the sexual activity that is the subject matter of the charge 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 is more likely to have consented to the sexual activity that forms the subject matter of the charge, or that the complainant is less worthy of belief: s. 276(1) of the Code.
[58] The protection afforded by s. 276(1) of the Code is an unqualified exclusion of sexual activity evidence tendered to incite the trier of fact to employ prohibited types of reasoning: R. v. Boone, 2016 ONCA 227, at para. 37; R. v. Barton, 2019 SCC 33, at para. 60.
[59] For this reason, the Code sets out strict criteria to ensure that evidence of other sexual activity does not undermine the integrity of the trial or the complainant’s dignity and privacy interests. Where the accused seeks to adduce evidence of a complainant’s sexual activity that is captured by s. 276(2), the applicant must follow the requirements set out in ss. 278.93 and 278.94 of the Code.
[60] At the first stage, set out in s. 278.93 of the Code, the applicant must bring an application setting out the detailed particulars of the evidence they wish to adduce and the relevance of that evidence to an issue at trial. If the court is satisfied that a proper application has been made at least seven days before the trial and that the evidence sought to be adduced is capable of being admissible under s. 276(2) of the Code, then the court may order a second stage hearing.
[61] The parties are in agreement that the proposed evidence satisfies the stage 1 criteria of being capable of being admissible under s. 276(2) of the Code, justifying a hearing into the admissibility of the evidence under s. 278.94 of the Code.
[62] On the stage 2 hearing, the court must determine whether the proposed evidence meets the test for admissibility under s. 276(2). Sections 276(2) to (4) of the Code provide:
(2) In proceedings in respect of an offence referred to in subsection (1), evidence shall not be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94, that the evidence
(a) is not being adduced for the purpose of supporting an inference described in subsection (1);
(b) is relevant to an issue at trial;
(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.
(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account
(a) the interests of justice, including the right of the accused to make a full answer and defence;
(b) society’s interest in encouraging the reporting of sexual assault offences;
(c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;
(d) the need to remove from the fact-finding process any discriminatory belief or bias;
(e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;
(f) the potential prejudice to the complainant’s personal dignity and right of privacy;
(g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and
(h) any other factor that the judge, provincial court judge or justice considers relevant.
(4) For the purpose of this section, “sexual activity” includes any communication made for a sexual purpose or whose content is of a sexual nature.
(ii) Positions of the Parties
[63] Mr. Bigioni submits that the text message exchanges on February 6th, 7th, and 8th constitute specific instances of sexual activity, are relevant to issues to be determined at trial, and are not being tendered to support an inference on any myth-based reasoning or stereotypes. Finally, he submits that the messages have significant probative value which substantially outweighs the prejudicial effect of the text messages.
[64] He submits that the text messages are relevant to several issues to be determined at trial. First, he submits that the text messages are relevant to assessing the state of mind of the complainant and assessing the credibility of her evidence that she either did not consent to the sexual acts which took place, or that she withdrew her consent during the sexual acts. He argues that the text messages reveal a clear plan between the parties to engage in sexual intercourse after the date, with specifics as to what sex acts would take place. He submits that the evidence that sexual acts were discussed and anticipated to happen, and that those exact acts, in fact, took place, is logically relevant to assessing whether or not the complainant should be believed when she testifies that she never consented, or alternatively, that she withdrew her consent during the acts.
[65] He draws a distinction between the use that he seeks to make of the text messages and recognized stereotypes and myths that have been recognized in the Code and in common law. Specifically, he argues that his proposed use of the text messages to challenge the complainant’s credibility on the issue of consent and establish her state of mind does not engage either of the original twin myths, that is, the complainant, because of her prior sexual history, is more likely to have consented and maintain her consent, or that she is less worthy of belief when she says that she did not consent or that she withdrew her consent.
[66] Referring to the specific language in s. 276(1) of the Code, he submits that he is not seeking to use the text messages to demonstrate that the complainant, “by reason of the sexual nature” of her communications with the applicant, is less worthy of belief or is more likely to have consented. He argues that the “sexual nature” of the communications is irrelevant to the logical inference he will invite the jury to make, that is, when a person makes a plan with another, and endorses the plan enthusiastically leading up to the event, that the person is unlikely or less likely to have changed their mind.
[67] Second, he submits that the text messages are relevant to challenge the credibility of the complainant on inconsistencies in her evidence, based on evidence she provided at the preliminary hearing in this matter. He submits that the proposed use of the text messages is not a general attack on the complainant’s credibility, but rather a specific one related to a number of areas in which the complainant’s evidence at the preliminary hearing is inconsistent with what she said in text messages to the applicant.
[68] Finally, he submits that the sexualized text messages are also relevant to the applicant’s state of mind and behaviour in sexual situations with the complainant, in that the text messages demonstrate that, in talking about sexually explicit topics with the complainant over texts, the applicant checked with the complainant to confirm that she was agreeable with engaging in the discussions. He submits that this evidence is relevant to challenging the complainant’s anticipated evidence that she expressly told the applicant to stop and that he was hurting her, but the applicant refused to stop.
[69] He submits that against the probative value of the text messages, the prejudicial effect is not significant. He acknowledges the highly sensitive nature of the material, in that it reflects the complainant’s sexual preferences in explicit detail. However, he submits that the admission of the evidence is not based on any discriminatory belief or bias. He further argues that any danger to the proper administration of justice can be mitigated by judicial input on the permissible inferences counsel may ask the jury to draw as well as specific instructions to the jury regarding what use may be made of the evidence. He observes as well that the complainant voluntarily turned the messages over to the police and that the accused will also suffer embarrassment from the messages.
[70] Ms. Donohue submits that the sexualized text messages from February 7th and 8th meet the threshold for admissibility under s. 276(2), with the exception of the exchange on February 8th located at pg. 58. She further submits that the sexualized text messages from February 6th also meet the threshold for admissibility with the exception of the messages located at pgs. 13-20.
[71] She submits that the probative value of the text messages contained at pgs. 13-20 and 58 is tenuous and the prejudicial effect is profound.
[72] The balance of the sexualized text messages, she argues, can be used for only a limited purpose. Specifically, she accepts that the text messages are admissible to challenge the credibility of the complainant on inconsistencies between her evidence at the preliminary hearing and comments she made in the text messages.
[73] She disputes the applicant’s position that the messages are also relevant to challenging the credibility of the complainant on the issue of consent. She further submits that evidence about the applicant’s state of mind is irrelevant to the main issue at trial, and in any event, is available in the admissible text messages exchanged on February 8th.
[74] Ms. Bryan, on behalf of the complainant, agrees with the Crown’s position that the sexualized text messages are admissible, excluding pgs. 13-20, but only for the limited purpose of cross-examining on inconsistencies in the complainant’s evidence from the preliminary hearing.
[75] In addition, she requests that text messages from February 6th located at pg. 12 be vetted to remove reference to the complainant saying, in response to the applicant sending her a recording on Snapchat, “I can’t get over how hot that was.”
(iii) Relevance to Issues At Trial
a. The Complainant’s State of Mind re: Consent
[76] Mr. Bigioni submits that the text messages of February 6th and 8th demonstrate the complainant’s state of mind leading up to the sexual activity and, in particular, show that she was enthusiastic about the anticipated sexual activity with the applicant and specifically discussed the sexual acts that the parties ultimately engaged in on February 9th.
[77] He submits that the applicant and the complainant were clearly making plans for sexual activity that would take place following the date. He argues that the jury should have the benefit of evidence that the applicant and the complainant formed a plan to have sex, which included discussion of particular sex acts, which would take place following their date.
[78] He argues that this context is relevant to understanding the complainant’s state of mind and in assessing the credibility of her evidence that she did not want to have sex with the applicant at all, that she expressly said “stop” and “that hurts” to indicate her withdrawal of consent to the sexual activities, and that she started crying in the car.
[79] I do not accept the applicant’s position that the text messages are admissible for this purpose.
[80] First, I do not accept that the parties arrived at a specific plan for sexual activity in the texts of February 6th, or that the sexually explicit content of the February 6th messages outlined what sexual activities would take place, or when.
[81] In looking at the messages from February 6th, there is no question that the messages make reference to a possible date between the parties and contain overt references to the complainant’s sexual preferences. I do not, however, agree that the February 6th messages reflect a mutually agreed upon “plan” between the parties, either to go on a date, or that they would have sex as part of a date in the future.
[82] I come to this conclusion for several reasons.
[83] First, the overall tenor of the conversation is very preliminary and reflects that the applicant and complainant exploring areas of potential interest through questions. The conversation begins with the applicant and complainant sharing information about daily routines (like going to the gym), studies, and meal plans. The topic of sex comes up somewhat out of the blue. After learning what the complainant made herself for lunch, the applicant stated:
Applicant: Woow (sic), sounds really tasty and fun.
Also, you dtf sometime?
[84] The applicant’s reference to “dtf sometime” was an inquiry into whether the complainant would be interested in having sex with him at some point. The complainant response by stating:
Complainant: I’m not really into just hooking up […]
Like lol take me on date or something first
[85] Thereafter, the applicant canvassed with the complainant what type of activities she would enjoy for a date. When the complainant suggested that she liked movies, the two had a discussion about movie genre preferences.
[86] The applicant then pivoted the conversation, asking the complainant, “Do you like actually like me? Slight interest””, to which the complainant responded that she had not really gotten to know the applicant but from what she knew, she did like him and wanted to get to know more about him.
[87] After a brief pause in the conversation because of the complainant had to leave for a meeting, the text message exchange continued. The applicant sent the complainant a recording of him performing a song and the complainant responded that the video was “hot” and that she was “turned on right now”. From there, the applicant sent the complainant a photo of his penis. The applicant then provided his “stats”, referring to the dimensions of his penis, to which the complainant responded positively, through words and emojis.
[88] Thereafter, the rest of the exchange between the applicant and the complainant on February 6th is overtly sexual, with reference to particular sexual acts that the applicant would perform on the complainant. However, the discuss is entirely hypothetical. No romantic date was fixed in the exchange and none of the discussion of sexual acts and preferences relate to any specific, anticipated meeting. It is evident in the applicant’s comments that he is speaking generally about how he performs sexual intercourse and how he performs oral sex. Similarly, the complainant provides comments about how she will physically react to the sex acts, as described by the applicant, and asks questions or makes comments to prompt the applicant to elaborate.
[89] By the end of the text message exchange on February 6th, there is neither a firm plan to meet, nor is there any suggestion that the overt sexual acts they are discussing will take place on a specified date.
[90] The parties are engaging in “sexting”, not having a serious discussion to plan a future sexual encounter.
[91] Even if there was a plan set out in the February 6th messages, the use the applicant proposes falls squarely within the myth that, because the complainant spoke enthusiastically about having sex with the applicant at a time proximate to the event, and perhaps contemplated having sex with him on the night of the date, she is more likely to have given and maintained her consent throughout the sexual encounter, or that she is less worthy of belief when she says that she did not consent or withdrew her consent.
[92] As the Supreme Court stated in R. v. Darrach, 2000 SCC 46, 148 C.C.C. (3d) 97, at para. 58, evidence of prior sexual activity will “rarely be relevant … to establish consent” to sexual relations on the occasion in question.
[93] Since Goldfinch, there is recognition that stereotypical assumptions that consent can be implied in certain circumstances or in certain types of relationships, that complainants who behave in a certain way are more likely to consent or are less worthy of belief, and assumption about “typical” or “unusual” activity within a given relationship, are myths which have no place in assessing the credibility of complainants: see Goldfinch, at paras. 43-47.
[94] I do not accept the distinction Mr. Bigioni attempts to draw between the proposed use of the evidence and myth-based reasoning. He submits that using the evidence to show the complainant’s state of mind is relevant not to suggest that, because of the sexual nature of the messages, she is more likely to have consented or less worthy of belief, but to invite a logical inference that if she was excited about the date and sex in the time leading up to the sexual encounter, she is more likely to have continued to be excited and enthusiastic about sexual activity with the applicant on the date in question.
[95] With respect, this is a distinction without a difference.
[96] The mischief of myth-based reasoning is not limited to the blunt suggestion that because a complainant is “unchaste”, she is more likely to have consented or is less worthy of belief: Goldfinch, at paras. 44-46. The law also rejects more subtle articulations of the same myth. It is a myth to suggest that someone who is explicit and enthusiastic about engaging in sexual acts with a particular person is more likely to consent to sexual acts at the relevant time, or is less likely to withdraw their consent while the sexual acts are taking place. The law also does not recognize implied consent or advanced consent to sexual activity.
[97] The similarities between the sexual acts discussed in the text messages and the sexual acts that occurred does not cleanse the reasoning of its mythology. The inference the applicant invites is that because, prior to the sexual encounter, the complainant positively endorsed the idea of the applicant performing certain sexual acts on her, and the applicant performed those specific sexual acts on the complainant, that the complainant did not changed her mind about engaging in the sexual acts at the relevant time.
[98] The same is true about using the text messages of February 8th for this purpose. In the messages of February 8th, the parties formed a concrete plan to meet the following day for a movie. Later in the day, the conversation moved to overt sexual discussions in which they discussed using the applicant’s car to engage in sexual activity, and details related to possible sexual activity, including whether the applicant should bring condoms, that he would hold off on masturbating and ejaculating until the date, and some discussion of sex acts he would perform on the complainant.
[99] Accepting for the moment that some type of plan for sex after the date was formed in the February 8th text message exchanges, it remains irrelevant that the complainant wanted sex or spoke enthusiastically about the prospect of having sex with the applicant the day before the incident. It does not assist on the question of whether her evidence that she withdrew her consent at the relevant time is credible.
[100] Using the text messages which preceded the event to invite a negative inference about the credibility of the complainant’s evidence that she did not consent runs the serious risk of the jury reasoning that the complainant must have consented because she indicated a consenting state of mind on an earlier occasion.
[101] This would be improper, not only because it comes dangerously close to the concept of implied or advanced consent, but also because the only relevant period of time for the complainant’s consent is while the sexual touching is occurring R. v. Ewanchuk, at para. 26. The Supreme Court reiterated this point in R. v. J.A., 2011 SCC 28, at para. 46:
The complainant’s views towards the touching before or after are not directly relevant. An offence has not occurred if the complainant consents at the time but later changes her mind (absent grounds for vitiating consent). Conversely, the actus reus has been committed if the complainant was not consenting in her mind while the touching took place, even if she expressed her consent before or after the fact.
[102] I therefore conclude, based on the record before me and the submissions advanced, that none of the sexualized text messages, but in particular the February 6th and the February 8th text messages, can be used to suggest to the complainant on cross-examination, or to invite the jury to infer, that because the complainant enthusiastically discussed sexual activity with the applicant at a time proximate to the alleged assault, and/or because she planned for sexual activity with the applicant, her evidence that she did not consent or withdrew her consent, should not be believed.
[103] Nor can the applicant suggest that, based on the complainant’s enthusiasm about the prospect of sex with the applicant in the days leading up to the alleged assault, or similarities between the sex acts discussed in the text messages and the sex acts which were actually performed, it is more likely that the complainant consented throughout.
b. Inconsistencies in the Complainant’s Evidence on the Preliminary Hearing
[104] In her testimony at the preliminary hearing on June 20, 2019, the complainant described the sexual encounter in the car with the applicant. Mr. Bigioni submits that her evidence at the preliminary hearing deviated from what is reflected in the text messages on several significant points, including but not limited to:
The complainant testified at the preliminary hearing that there was no plan “set in stone” for what would happen after the movie and dinner, but that she told the applicant she was ready to go home. She further testified that there was no plan to spend time in the applicant’s car after dinner.
The complainant testified that she had made up her mind that she did not want to “hook up” with the applicant on the first date;
The complainant denied looking forward to engaging in sexual activity with the applicant on the night of the alleged sexual assault and that she had never agreed or disagreed to have sex with the applicant that night over the text messages;
The complainant testified that she had not made up her mind, when she was texting with the applicant, whether she wanted to have a physical, romantic relationship with the applicant and that she wanted to get to know the applicant first;
The complainant testified that, while the applicant had been “very sexual” in his text messages, she tried to avoid those types of messages.
[105] Mr. Bigioni submits that the text messages of February 6th and 8th contradict the complainant’s evidence on all of these points. He asserts that the text messages are essential to exploring the inconsistencies between what the complainant said in text messages and what she testified to at the preliminary hearing (and what she may testified to at the trial).
[106] As noted, the Crown agrees that the February 8th messages are admissible for the purpose of exploring inconsistencies between the complainant’s evidence on the preliminary hearing and statements she made in the text messages.
[107] Having reviewed the preliminary hearing transcript, the complainant’s statement to the police, and the text messages of February 6th and 8th, I have some reservations that the proposed areas of inconsistencies identified in the applicant’s factum are true and material inconsistencies in the complainant’s evidence, or that they relate to a material issue at trial.
[108] Moreover, I have concerns about the potential prejudicial effect of cross-examining the complainant about these alleged inconsistencies.
[109] For example, the complainant’s evidence at the preliminary hearing that there was no plan “set in stone” for what would happen after the movie and dinner is not necessarily inconsistent with the text messages of February 8th. The applicant points to the following exchange as evidence of the plan, at pg. 51:
Complainant: We wouldn’t be able to go back to my place it’s a little to (sic) risky. That’s the only thing.
Applicant: How about my whip (car)?
Complainant: That could work
Applicant: It’s a Volkswagon
Complainant: you live with your parents right?
Applicant: But you could turn it into a Shagwagon (laughing emoji). I do live with my parents
Complainant: Lmaooo lots of room in that. The car would work.
Applicant: Damn. So I should bring Maggie’s (condoms) and a towel?
Applicant: Lol probably
[110] However, the complainant does not say anywhere in the text messages that they would have sex that night, using phrases like “we’ll see” at pg. 51 and that the applicant’s car “could work” or “would work”. The text messages of February 8th are also not inconsistent with her evidence on the preliminary hearing that she neither agreed nor disagreed with having sex with the applicant following the date.
[111] Other parts of her evidence at the preliminary hearing which the applicant points to relate to her subjective point of view, such as whether she had made up her mind about wanting a physical relationship with the applicant, or that she made up her mind, going into the date, that she did not want to hook up with the applicant. What she wrote to the applicant in the text messages may or may not have reflected her subjective state of mind about whether she actually wanted to have sexual activity with the applicant after the date.
[112] However, as Mr. Bigioni notes, he has not raised every possible inconsistency arising from the preliminary hearing evidence. We also do not yet have the complainant’s evidence on the trial, which may give rise to inconsistencies which are relevant and material to the issue of consent.
[113] I am also mindful that inconsistencies on material issues can be highly relevant in circumstances where credibility is the central issue at trial: Barton, at para. 65; R. v. Crosby, 1995 CanLII 107 (SCC), [1995] 2 SCR 912, at para. 12; R. v. J.C., 2022 ONSC 4991.
[114] Finally, it is significant that the both the Crown and counsel for the complainant take the position that the sexualized messages are admissible and relevant to exploring material inconsistencies between what the complainant said in the text messages and her evidence at the preliminary hearing or at the trial.
[115] Therefore, I am prepared to admit the February 8th text messages for the purpose of allowing the applicant to explore material inconsistencies between the complainant’s evidence and the text messages, provided that the area of inconsistency is material to an issue at trial. At this point, those issues appear to be whether the complainant subjectively consented and whether she has a motive to fabricate.
[116] As I stated, I consider the risk of prejudice in using these messages to explore inconsistencies to be high. The February 8th messages are very explicit in parts and carry a risk that the jury will improperly assume that, because the complainant was enthusiastic and explicit in her discussions with the applicant before the events giving rise to the charge, it is less believable that she changed her mind and withdrew her consent at the relevant time. The probative value of exploring an area of alleged inconsistency has to be measured against the potential for prejudicial reasoning.
[117] As such, and because we do not know how the evidence will develop in the trial, I recommend the following procedure if the text messages are to be used to bring out an alleged inconsistency:
In the absence of the jury, the party seeking to use the text messages should articulate, with specificity, what inconsistency or inconsistencies have arisen between the evidence (whether it is from the complainant adopting evidence she gave at the preliminary hearing, or from her testimony at trial) and the text messages;
Set out the significance/relevance of the inconsistency to an issue at trial, recognizing that the significance of an inconsistency will depend on how it connects to an issue to be determined at trial;
Set out how the text messages will be used to minimize the potential prejudicial effect of the messages. To use an example, if the complainant were to testify that she was not excited about going on a date with the applicant, it might be sufficient, to establish this point, to refer to the text message at pg. 46 in which the complainant states “I’m excited for tomorrow” without making reference to more explicit text messages later in the day, such as at pgs. 55-56 where the complainant expresses excitement toward the prospect of the applicant performing oral sex on her.
[118] It will of course, depend on the nature of the evidence and the significance of the inconsistency as to how much or little of the text messages are needed to illustrate a point. The trial judge is in the best position to make that assessment having heard the evidence at trial.
[119] Finally, the suggested procedure can be adapted at the discretion of the trial judge, in particular, to minimize disruptions with the jury.
[120] Therefore, I conclude that the February 8th messages are admissible to explore material inconsistencies in the complainant’s evidence which go to an issue to be determined at trial. I make this ruling with two exceptions.
[121] As noted, Ms. Donohue requests that pg. 58 be excluded, as it does not go to any potential inconsistency in the complainant’s evidence and is potentially highly prejudicial. In submissions, Mr. Bigioni indicated he is prepared to forego using pg. 58.
[122] In addition, I am of the view the applicant has not shown that the messages of February 6th located at pgs. 13-20, are relevant to an issue at trial or raise material inconsistencies. As I have noted, the sexualized text messages of February 6th reflect the complainant and the applicant “sexting”. They are highly explicit exchanges which are highly embarrassing to the complainant and have little relevance to the issues to be determined at trial. The messages also carry a high risk for misuse by the jury, given the highly explicit nature of the messages.
[123] For this reason, I am also of the view that pg. 48, from February 8th, should also be excluded. In my view, pg. 48 does not relate to impeaching the credibility of the complainant on inconsistencies in her evidence. Pg. 48 also includes an implicit reference back to communications between the applicant and the complainant from February 6th which I have found are inadmissible.
[124] It would be open to the applicant to renew his application to have the text message exchanges located at pgs. 13-20, 48, and 58 be admitted, should the evidence at trial raise relevant and material inconsistencies between those text messages and the complainant’s evidence at trial: R. v. Harris, 1997 CanLII 6317 (ON CA), [1997] O.J. No. 3560.
[125] Further, I agree with the Crown’s submission regarding the reference, at pg. 7 of the text messages of February 6th, to an earlier Snapchat conversation, which does not form part of the materials submitted on this application, Should the applicant wish to question the complainant about an earlier conversation on Snapchat, a further application is required.
[126] Finally, I would add that nothing in these reasons should be taken to limit the applicant in raising inconsistencies which are not set out in paragraph 56 of his factum. To the extent that there are relevant and material inconsistencies between the text messages and the complainant’s preliminary hearing evidence or her evidence at trial, the applicant may explore those inconsistencies, subject to the trial judge’s discretion to determine whether they are true inconsistencies and go to a material issue in the trial.
c. The Applicant’s State of Mind and Behaviour in the Context of Sexual Situations with the Complainant
[127] Finally, Mr. Bigioni argues that the sexualized text messages are relevant to show that, in sexual situations with the complainant, the applicant tended to “check in” with the complainant to ascertain if she was agreeable to carrying on with the sexual discussions.
[128] He points to the following excerpts from the text messages which he argues reflect the applicant’s attention to whether the complainant was comfortable with proceeding with the sexualized discussions:
February 6th, Exhibit B, pg. 7 – the applicant asks the complainant, “Also, you dtf (interested in having sex) sometime?”;
February 6th, Exhibit B, pg. 12 – the applicant asks the complainant if he can send her a recording of himself. He receives a response from the complainant, “You can send it now if you want” then sends the recording;
February 6th, Exhibit B, pg. 13 – the applicant asks the complainant if he can “send something on snap [Snapchat] to keep you turned on”, to which the complainant responds, “Yes” with a winking emoji followed by an explicit comment about the applicant’s penis. The applicant then sends the complainant a photo or photos, presumably of his penis;
February 8th, Exhibit B, pg. 47 – after the complainant tells the applicant that she is “excited for tomorrow”, the applicant responds by saying the upcoming date “excites me in many ways” with a winking emoji, followed by the question, “Is that alright?” The complainant asks him to clarify what he means and the applicant states “How the date makes my heart excited to see you but also my Jonny dang excited.” The complainant responds, “Ohh yes of course it’s alright lol”;
February 8th, Exhibit B, pg. 49 – the applicant indicates that more frequent arousal keeps him erect, to which the complainant asked if he needed her to keep making sexual comments, to which the applicant replied, “But if you’re not in the mood it’s totally cool.” The complainant confirmed that she was “in the mood”, to which the applicant responds, “Don’t wanna be like that.”
[129] Mr. Bigioni argues that the state of mind of the applicant in the text messages, specifically, his approach of checking with the complainant before sending material or encouraging sexual discussions, is relevant to the issues to be determined at trial, in two ways.
[130] First, he submits that the evidence is relevant to assessing the credibility of the complainant’s evidence that she repeatedly told the applicant to stop and that he was hurting her, but he proceeded with the sexual activities. He argues that the text messages show the applicant’s concern for the complainant’s consent to sexualized activities (like the sexualized text messages) and stands in stark contrast to her anticipated evidence about the way he conducted himself in the car.
[131] Second, he argues that the evidence will corroborate the applicant’s testimony, should he testify, that he took steps to ascertain her consent on the night in question.
[132] Ms. Donohue argues that the applicant’s state of mind about sexual activity with the complainant is irrelevant to the issue of whether the complainant consented and maintained her consent to sexual activity with the applicant.
[133] It is well-established that consent as part of the actus reus of the offence is assessed strictly from the subjective point of view of the complainant. As the Supreme Court noted in Barton, at para. 89,
For the purposes of the actus reus, “consent” means “that the complainant in her mind wanted the sexual touching to take place [citation omitted].” Thus, at this stage, the focus is placed squarely on the complainant’s state of mind, and the accused’s perception of that state of mind is irrelevant.
[134] Similarly, the court in J.A. stated, at para. 37,
[…] the only question for the actus reus is whether the complainant was subjectively consenting in her mind. The complainant is not required to express her lack of consent or her revocation of consent for the actus reus to be established.
[135] I agree with the Crown that, as a general matter, the applicant’s state of mind in sexual situations with the complainant is not relevant to determining the issue of whether the complainant subjectively withdrew her consent to sexual activity.
[136] Evidence that, prior to the alleged offence, the accused took steps during sexual communications with the complainant to ascertain her agreement to continue with the sexual conversation, in my view, has no bearing on whether the complainant, in her own mind, withdrew her consent on the night in question.
[137] Playing through the applicant’s position, he would be suggesting that the complainant should be disbelieved when she states that she withdrew her consent, in part, because the applicant “checked in” with the complainant during sexualized communications that occurred in the past and she agreed to engage in the discussions. The inference that the applicant would then seek to draw is that the applicant would have used the same approach of “checking in” during the in-person sexual activity and therefore, the complainant must have consented to all of the sexual activity, or is less worthy of belief when she says she did not consent or withdrew her consent.
[138] In my view, this type of argument runs the risk of the jury concluding that the complainant consented, or that they have doubt about her non-consent, on the basis of implied consent, or possibly advanced consent. It also engages stereotypes about what kind of people do or do not commit sexual assaults, and assumptions that a person’s behaviour in one situation reflects how that person will act in another situation. Those stereotypes and assumptions do not assist in determining whether the complainant consented, and run a serious risk of leading the jury into impermissible reasoning about what is relevant in assessing the complainant’s credibility.
[139] Turning to whether evidence of the applicant’s state of mind might be relevant to the defence theory that the complainant has a motive to fabricate allegations against the applicant, the text messages which the applicant will rely on to establish a motive to fabricate, at pgs. 95-104, are admitted. The applicant will be able to develop his theory that the complainant has fabricated the allegations with reference to these messages.
[140] I appreciate that the defence may submit that the applicant’s theory is bolstered by the fact that the complainant’s account of how things transpired in the car and how the applicant conducted himself is, to some degree, at odds with his approach in other sexual activity (ie. the sexual conversations over text messages) prior to the incident.
[141] However, the relevance of the applicant’s state of mind in sexual situations with the complainant to the defence is minimal. As the Supreme Court made clear in Goldfinch, general attacks on the complainant’s credibility will not be sufficient to establish a basis for admitting “relationship” evidence. Given the potential prejudice that could arise from the evidence, specifically, impermissible reasoning, I am not satisfied that the probative value of the evidence substantially outweighs the prejudicial effect of the evidence.
[142] If the accused should testify, and should the testimony produce new or stronger grounds about the relevance of the applicant’s state of mind, the applicant can renew his application to use the text messages for this purpose.
[143] However, on the basis that has been articulated before me on this application, the applicant’s state of mind is irrelevant to the issues to be decided at the trial, and the text messages may therefore not be used to demonstrate his good character.
[144] In fairness to the applicant, and given my comments about the low probative value of the evidence, I find that, if the applicant testifies, the Crown should also not be able to use the text messages to suggest that he felt entitled to sexual intercourse with the complainant, or to support its argument that the applicant was so eager and determined to have sexual intercourse with the complainant that he did not stop when she told him to stop.
The Use of the Post-Offence Text Messages
[145] The parties have come to reasonable concessions about the use to be made of text messages exchanged after the incident, located at pgs. 70-104 of Exhibit B.
[146] On behalf of the complainant, Ms. Bryan noted that there are references in the text messages of February 11th (pgs. 89-90) which could constitute post offence sexual activity, in that there is reference to the possibility of “cuddling” and reference, by the complainant, that “we would only be able to cuddle bc I did end up getting my period.” She submits that admission of post-offence sexual activity requires the applicant to bring an application.
[147] I agree that if the applicant wishes to examine the complainant on these parts of the messages, or invite any inferences about the fact that there was discussion of cuddling and the complainant statement that they could only cuddle because she was on her period, a separate application will be required.
[148] It is further agreed that the applicant will not probe into the complainant’s mental health beyond what is stated in the text messages at pgs. 95-104.
Summary of Disposition
[149] With the exception of pgs. 13-20, 48, and 58 of Exhibit B, the text messages are admissible for the purpose of exploring inconsistencies in the complainant’s evidence that are material and which go to a relevant issue at trial, to be determined by the trial judge as and when the inconsistencies arise.
[150] The messages are not admissible to suggest that the complainant, because she made a plan to have sex, or expressed enthusiasm about sex with the applicant, is less likely to have changed her mind, more likely to have maintained her consent, or is less worthy of belief in her evidence that she changed her mind.
[151] The messages are not admissible to demonstrate the applicant “checked in” with the complainant during text messages to confirm her agreement to continue with the sexual discussions, or that he is not the type of person who would continue with sexual activities against the complainant’s wishes.
[152] The Crown may not use the text messages to suggest that the applicant felt entitled to sex with the complainant and therefore, carried on.
[153] It is open to both parties to bring or renew an application concerning the admissibility of any texts not admitted, or the limited use of the text messages permitted by these reasons, should the evidence at trial raise new considerations.
[154] I thank all parties for their comprehensive and helpful submissions.
R. Maxwell J.
Released: December 9, 2022
[^1]: In written submissions, Mr. Bigioni advanced the argument that all of the messages, including the sexualized messages, are admissible because they were all produced to the defence by the Crown through disclosure, rely on Goldstein J.’s decision in R. v. Martiuk, 2022 ONSC 5577. In oral submissions, in light of the Crown’s concession that the non-sexualized messages and a large number of the messages with sexual content are admissible, he did not pursue this argument.