WARNING The Court hearing this matter directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1) , (2) , (2.1) , (2.2) , (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 ; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18 .

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 .

Court File and Parties

COURT FILE NO.: CR-2022-122 DATE: 2024/05/07

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – E.C. Accused/Applicant

Counsel: Elaine Evans, for the Crown Ian Paul, for the Accused/Applicant

HEARD: April 30, 2024 Holowka J.

Reasons for Decision

Application re Third Party Suspect

Overview

1The applicant, E.C., is charged in a four-count Indictment with sexual assault and sexual interference in relation to S.S. between the start of April 2010 and the end of February 2011. The allegations against the applicant are scheduled for a judge and jury trial on May 13, 2024.

2The complainant, S.S., is indigenous and a member of the northern community of Salluit, Quebec. Before moving to her permanent home at the age of five years old, she lived in many foster homes and moved many times. The dates in the Indictment are meant to cover the period of the alleged sexual offences when S.S. resided with K.F. in South Stormont Township. K.F. and E.C. had acted as foster parents to the complainant, S.S., but had separated at the time of the alleged offences. E.C. and K.F. lived in separate residences at the time of the alleged offences.

3The applicant brings an application to allow him to cross-examine prospective witnesses and call evidence concerning a third party suspect. The asserted third party suspect is the new partner of the applicant’s former spouse, L.D.

Evidentiary Material Filed

4The evidence in support of the application consists of the applicant's affidavit. The applicant also relies on some of the material the Crown supplied in the volume entitled “Appendices-Third Party Suspect Application.”

5The applicant’s affidavit includes the following exhibits:

a. A copy of the Crown prosecution summary;

b. A copy of the police summary of S.S.’s statement to the police;

c. A summary prepared by the applicant’s counsel of S.S.’s statement to the police;

d. A copy of the statement of K.F., the applicant’s former spouse, to the police; and

e. Copies of the statement summaries of the children of the applicant and K.F: C.C., J.C., and T.C.

6The applicant filed a supplementary affidavit for T.C. on the eve of the application hearing.

7The Crown’s Volume, “Appendices-Third Party Suspect Application” contains the following material:

a. Child protection documents regarding S.S. from 2021;

b. Child protection documents outlining the residential placements of S.S. (2009-2011);

c. Police witness statement of M.R. (S.S.’s foster mother since February 2011);

d. Police witness statement of S.S.;

e. Police occurrence report;

f. Email from York Centre (Parental Exchange Centre) dated April 1, 2022; and

g. Redacted Psychological Assessment Report re S.S. prepared by Dr. Beltempo

Overview of the Evidence

The Evidence of S.S.

8The allegations are that the applicant sexually assaulted S.S. on numerous occasions between April 2010 and February 2011 when she resided with her foster mother, K.F., and her three children. The children were from the relationship of K.F. and the applicant. S.S. was six to seven years old. Amongst the numerous occasions that S.S. stated sexual touching occurred, she recounted three distinct episodes to the police. She cannot fully remember other incidents. She told police that incidents occurred at K.F.'s and the applicant's homes. Her last contact with the applicant was when she was about seven years of age.

9S.S. told police that during the first incident, she was watching television with the applicant’s three children on her bed when the applicant came in to say to them it was time to get ready for bed. The applicant remained with S.S. and sexually assaulted her, touching her midsection, legs and genital area. She blacked out what happened next and woke up the next day wearing new clothes. She thought this incident occurred during the summer but could not remember. She recalled that it happened at the applicant’s residence.

10The second incident is also alleged to have happened at the applicant’s residence. S.S. told police she was at the residence with C.C., the applicant’s son. S.S. and C.C. went in the swimming pool. When they emerged from the pool, the applicant was angry because he did not want them to go into the pool. The applicant told C.C. to go inside to get changed. Once inside and alone with S.S., the applicant is alleged to have sexually touched her on her legs, stomach and genital area.

11The third incident described by S.S. occurred at a fall barbeque where she and the other children played in the mud while it rained. After the children were called inside to get changed, the applicant, when alone with S.S., helped her change out of her clothes. He proceeded to touch S.S. sexually, which ended with sexual intercourse. Following this, the applicant dressed S.S. and returned to the guests at the barbeque. S.S. stated that she thought that this incident occurred at K.F.’s residence.

12S.S. told police that at the time of the incidents, she lived with K.F. and her three children. She explained that K.F. and the applicant were divorced, so half of the time, the children were with K.F.; half of the time, they were with the applicant. She also stated that the three children went to the applicant’s house when K.F. needed to go away for work.

13S.S. described the applicant as follows:

a. His name is E.C., but she also referred to the applicant by other variations of his name and as K.F.’s ex-husband.

b. His age is in his late 30s or early 40s.

c. His date of birth is in May. She thought it was May 1 or May 2.

d. His hair was brown and longer.

e. He had green eyes and was on the heavier side.

f. He was five foot seven inches tall.

g. He used to wear hats.

h. He was divorced from K.F.

i. He was frequently impaired by alcohol.

j. She thought he had a tattoo on his arm but could not remember.

14Regarding living arrangements during the relevant timeframe, S.S. recalled living with K.F., her new boyfriend, and the three children. Sometimes, she stayed with the applicant.

Other Evidence

15The applicant’s affidavit provides the following evidence in support of his application:

a. The applicant and K.F. separated in early 2010, before or near the beginning of the period described in the indictment;

b. K.F. moved into a new residence with the three children and S.S. She resided with a new partner, L.D., in 2010;

c. The applicant is six feet tall and does not have and has never had a tattoo.

d. After the separation, S.S. was not living with him and he would not have taken the complainant for access visits; and

e. After the separation, he would not have attended K.F.’s residence for social visits while S.S. lived there.

16The affidavit of T.C., the daughter of the applicant and K.F., states that the applicant was not living with K.F. and the children following the separation. She states that she lived with her mother, siblings, and S.S. on Airport Road in Summerstown, Ontario. L.D. also resided there when he was not working in northern Canada. She deposes that she never saw her father attend the Summerstown residence for a social visit or a barbeque while S.S. lived there.

17T.C.’s affidavit describes L.D. as follows:

a. He had a tattoo on his arm. It looked like a cartoon character with a gun and a bird on the end of the gun.

b. She recalls him being five foot eight or nine.

c. He had a heavy build.

d. She recalls him as having medium-length brown hair with grey parts.

18K.F.’s statement summary reveals she left the applicant in April 2009. She told police that the applicant had an alcohol problem, so the children did not visit the applicant following the separation for a year. She states that after having gone to court, exchanges for visits were through the York Centre. K.F. told police that S.S. had visited the applicant at that time, which would have been in 2010.

19The York Centre records reflect that the applicant and K.F. used their services between March and May 2014 and reveal the names of the three children, but there is no reference to S.S. in the records.

20Quebec child protection records reflect the following foster placements for S.S.:

a. 2009-07-28 to 2009-09-10 – K.F.

From July 2009 to September 2009, S.S. was fostered by K.F. in Cornwall (Summerstown), then moved back to Salluit for school and began to live with the M.R. family.

b. 2009-09-11 to 2010-04-10 - M.R.

S.S. lived with the M.R. foster family and moved with them to Vancouver in November 2009. A decision by the Quebec child protection authorities resulted in S.S. being returned to Ontario.

c. 2010-04-21 to 2011-02-10 – K.F.

S.S. was returned to Ontario, where she lived with K.F. again.

d. 2011-02-11 to 2011-04-11 – M.R.

S.S. returned to live with the M.R. foster family in Vancouver.

Position of the Parties

21The parties have little disagreement regarding the law and principles governing the present application. Instead, the parties disagree on the application of the law and guiding principles and what the proper outcome of the application should be.

The Applicant’s Position

22The applicant seeks leave to cross-examine the prosecution witness and call evidence in relation to a third party suspect, L.D. The applicant does not specify what questions he proposes to ask witnesses in cross-examination, nor, more importantly, what evidence he proposes to call concerning the third party suspect.

23The applicant submits that the third party evidence is relevant and material and may be capable of raising a reasonable doubt about the assailant's identity. The applicant asserts that, in this case, the complainant may have mistakenly identified the assailant or, subsequently recounting the events years later, misremembered the assailant's identity by naming the applicant instead of L.D.

24The applicant bases his argument on four factual pillars: poor memory, opportunity, the description of height, and the presence of a tattoo.

25First, the applicant points to the manner of S.S.’s initial disclosure and her incomplete memory of some of the incidents as underpinning his application. The applicant submits that her frail memory and the passage of time may have resulted in her being confused about the identity of the assailant.

26Second, he submits that the evidence contained in the applicant's affidavit, and that of T.C., is that the Applicant was not at the home of K.F. in Summerstown during the timeframe in the indictment. Similarly, the evidence proffered indicates that S.S. did not attend at his residence. As such, he did not have access to S.S. Concomitantly, the applicant argues that L.D. did have access to S.S. He argues that this lack of opportunity on his part to commit the offence and L.D.’s apparent access and opportunity satisfies the sufficient connection test.

27Third, the applicant argues that S.S. provided police with a description of E.C.’s height, which is more in keeping with the height of the third party suspect than his own. He submits that the argument regarding a sufficient connection is supported as S.S. describes E.C. as five foot seven inches tall when he states that he is six feet tall. The affidavit of T.C. states that the third party suspect, L.D., is five foot eight or five foot nine inches tall.

28Fourth, the applicant points to S.S.'s police statement, wherein she states that E.C. possibly had a tattoo. He notes that the third party suspect, L.D., has a tattoo on his arm while the applicant does not.

29The applicant submits that the threshold to be met to be permitted to lead evidence of a known third party suspect is not high. Additionally, in meeting this standard, the court should interpret the evidence in the most favourable fashion for the accused and not engage in weighing the evidence.

30The applicant submits that the circumstantial evidence goes beyond mere speculation and is capable of raising a reasonable doubt. As such, the application should be granted.

The Crown’s Position

31The Crown’s position is that the application must fail. She submits that, at best, the grounds have not yet crystallized. The Crown submits that the applicant has not stated what evidence would be used to further the third party suspect issue.

32The Crown points to the significant confusion amongst the adults about the times of significant events given the passage of time. The witnesses disagree regarding the date of the separation and other events. In many ways, they contradict themselves and each other.

33The Crown submits that there is a significant danger that if the application is granted, the jury will be distracted and sidetracked by attempting to sort out peripheral details regarding timelines and residences when there is no air of reality to the third party suspect assertion.

34The Crown points out that S.S., in her statement, is not confused as to the identity of the assailant and clearly distinguishes between the applicant and L.D. in multiple ways.

35The Crown argues that the testimony of S.S. regarding the tattoo or the assailant’s height is of no assistance to the accused. She observes that S.S.'s statement when asked about a tattoo was, “Um, I think he has one on his arm. But, I don’t remember ”. [Emphasis added]

36Concerning height, the Crown submits that the difference between five foot seven (S.S.’s description of the applicant’s height) and six feet (the applicant’s stated height) is without significance given that S.S. was six to seven years old at the time the observation was made and that every adult would appear large to a child of that age. S.S. has not had contact with the applicant since she was seven years old.

37In summary, the Crown argues that the applicant has not established or pointed to evidence of a sufficient connection between the third party and the crime. There is no evidence of motive, propensity, or fear by the complainant in relation to L.D. The inferences sought to be drawn by the applicant are speculative and without proper foundation.

38Finally, the Crown points to the cautionary words from R. v. Barton 2019 SCC 93. She submits that caution must be taken to not—consciously or unconsciously—use language, thought patterns or permit inferences that play into stereotypes that indigenous women and girls are less worthy of belief, less credible and less reliable.

The Applicable Law

39Martin J.A. stated in R. v. McMillan, (1975), 7 O.R. (2d) 750 (C.A.), aff'd , [1977] 2 S.C.R. 824, at pg. 757 that “[I]t [is] self-evident that if A is charged with the murder of X, then A is entitled, by way of defence, to adduce evidence to prove that B, not A, murdered X.”

40He made it clear, however, that the evidence must be relevant and probative. On page 757 of McMillan, he explained that “[e]vidence directed to prove that the crime was committed by a third person, rather than the accused, must, of course, meet the test of relevancy and have sufficient probative value to justify its reception. Consequently, the Courts have shown a disinclination to admit such evidence unless the third party is sufficiently connected by other circumstances with the crime charged to give the proffered evidence some probative value.”

41For the evidence to have any probative value, it must show a sufficient connection between the third party and the crime for which the accused is charged. The evidence may be inferential, but the inferences must be reasonable, based on evidence, and not amount to speculation. The defence must show that there is some basis upon which a reasonable, properly instructed jury could acquit based on the defence. If there is an insufficient connection, the defence of third party involvement will lack the requisite air of reality. See R. v. Grandinetti, 2005 SCC 5 at para. 47 and 48.

42The law relating to third party suspects was recently summarized in R. v. Rudder 2023 ONCA 864. That decision states that the law relating to third party suspects ensures that evidence or arguments are not presented about the possibility that others, and not the accused, perpetrated a charged offence unless there is evidence that raises this possibility as a material issue in the case. It provides a threshold admissibility test by requiring the accused to point to evidence of a “sufficient connection between the third party and the crime.”

43The Rudder decision provides further assistance regarding how this inquiry is to be carried out, including how circumstantial evidence is to be considered. At para. 59, Paciocco J.A. states:

“Like other air of reality inquiries, the threshold admissibility determination is to be made by assuming that the evidence most favourable to the accused is true: Grant, at para. 20. To be sure, the evidence must have sufficient probative value to justify its reception: Hudson, at para. 196. However, this probative value assessment is limited so that the trial judge does not perform the function of the trier of fact when assessing admissibility. Therefore, where there is direct evidence supporting a third party suspect’s possible perpetration, that will be enough; the sufficient connection test is met and it will be up to the trier of fact to determine whether that direct evidence raises a reasonable doubt: Murphy, at para. 22. Where the evidence relied upon to show the sufficient connection is circumstantial, the trial judge must inquire whether the inferences being relied upon are reasonable inferences that arise from the evidence, and not simply from speculation or conjecture : R. v. Fenton, 2019 ONCA 492, at para. 18 ; R. c. Sorella, 2022 QCCA 383, at paras. 86-87 , leave to appeal refused, [2022] S.C.C.A. No. 155. If the evidence could support a reasonable inference that someone other than the accused may have committed the crime, the evidence has the probative value required to satisfy the sufficient connection test: Grandinetti, at para. 46, Abella J. quoting from R. v. McMillan, (1975), 7 O.R. (2d) 750 (C.A.) at p. 757, aff’d , [1977] 2 S.C.R. 824. [Emphasis added]”

44Rudder clarifies that trial judges have a limited residual discretion to exclude third party suspect evidence even when the sufficient connection test is met. Given that the constitutional right to make full answer and defence is engaged, this evidence cannot be excluded unless the potential prejudice of the admission of the evidence to the trial process of admitting the evidence substantially outweighs its probative value. In this context, the concern about potential prejudice typically relates to reasoning prejudice, such as “the distraction of the trier of fact from their proper focus on the charge itself aggravated by the consumption of time.” See Rudder at para. 60.

45The “sufficient connection” test is summarized in Rudder at para. 61:

Third party suspect evidence will be admissible where: (1) the accused presents or points to evidence on the record of a connection between a third party and the offence charged, that, if assumed to be true and interpreted in favour of the accused, could raise a reasonable doubt about the guilt of the accused; and (2) the trial judge has not determined that the probative value of that evidence is substantially outweighed by the risk of prejudice it presents. Where this test is met third party suspect evidence must be considered along with all of the other evidence in the case in determining whether the Crown has proved the guilt of the accused beyond a reasonable doubt.

Analysis

46On the record before me, the third party suspect application is dismissed without prejudice to it being resubmitted on an enhanced evidentiary record. I am not persuaded that the applicant has demonstrated a sufficient connection between the alleged third party suspect and the offences in issue.

Identification of the Evidence to be Called

47The applicant does not seek permission to call specified evidence of a known third party suspect. Instead, the applicant seeks broad permission to cross-examine witnesses and call evidence of the third party suspect L.D. This approach increases the potential prejudice that may flow from the third party suspect evidence and makes it impossible to assess the probative value of the evidence. The proffered evidence must be relevant, material and admissible. As noted by the Ontario Court of Appeal in R. v. Tomlinson, [2014] ONCA 864 at para. 72, “[t]he proponent does not get a free ride through the admissibility thicket upon mere announcement of a third party suspect.” As presently framed, the application does not identify what evidence to be called, so the admissibility analysis is hampered.

Sufficient Connection to the Crime

48No direct evidence connects the third party suspect to the offence charged.

49The evidence is circumstantial. Where the evidence relied upon to show the sufficient connection is circumstantial, the trial judge must inquire whether the inferences are reasonable inferences arising from the evidence, not simply from speculation or conjecture. I assume that the applicant will seek to cross-examine witnesses called by the Crown and lead evidence of the appearance of L.D. and his opportunity to commit the offence as opposed to the applicant.

50While there are apparent memory issues concerning the events before the court, S.S. clearly states to the police that E.C. was the assailant. She describes him by name and by variants of his name. She identifies him as the ex-husband of K.F., her foster mother.

51Quebec child protection records suggest that K.F. and L.D. worked in the far north during portions of the timeframe identified in the indictment and that the three children were in the protection of E.C. when she was away. When these trips to the north occurred, and their duration is unclear.

52The applicant and E.C. disagree on the year that they separated.

53The multitude of inconsistencies and contradictions regarding dates between the witnesses and records renders the assessment of opportunity and the extent of this opportunity difficult.

54Putting aside these inconsistencies and taking the evidence of the applicant at its highest, the affidavit evidence of E.C. and T.C. at its highest suggests that L.D. may have had the opportunity to sexually assault S.S. while the applicant did not. The evidence indicates that the third party suspect resided in the K.F. residence for a portion of the time during which the offences occurred. It is not established on the evidence before me whether the third party suspect had the actual opportunity to commit the three specified incidents.

55In determining the issue, it is not for me to evaluate the evidence's quality, weight or reliability. I am to determine whether there is evidence upon which a properly instructed jury, acting reasonably, could acquit the accused on the basis of their having a reasonable doubt of his guilt.

56The applicant also submits that the statement by S.S. to the police that the assailant may have had a tattoo is a further piece of evidence that connects the third party suspect to the offence. Respectfully, I disagree. When the police asked the complainant whether the assailant had a tattoo, she replied, “Um, I think he has one on his arm. But, I don’t remember”. While the affidavit of T.C. establishes that the third party suspect, L.D., has a tattoo, the complainant's statement cannot be reasonably or fairly interpreted as a positive assertion that she perceived the assailant as having a tattoo. The complainant’s answer to the police officer's question about a possible tattoo does not provide any assistance in demonstrating a connection between the third party suspect, L.D.

57The applicant points to the complainant’s description of the assailant, particularly his height, as supporting a connection between the third party suspect and the alleged sexual assault. While the description provided by the complainant does not eliminate L.D. as a potential third-party suspect, it does not support it. I do not find that the description advances the inquiry into whether there is a sufficient connection. The description of longer brown hair and being heavier applies to both the applicant and L.D.

58The complainant's description of the assailant’s height is of little assistance. S.S. told police that the assailant was five foot seven inches tall. In her affidavit, T.C. states that she recalls L.D. being five foot eight or five foot nine inches tall. The applicant states that he is six feet tall. Regardless, the height does little to provide a further connection between L.D. and the alleged sexual assaults before the court. The complainant was six or seven years old at the time of the alleged offences. In my view, the ability of a child of that age to distinguish between an adult of five foot seven or six feet tall is exceedingly limited.

59Therefore, the question is whether the evidence that L.D. had some opportunity to commit the offence, in the absence of any other evidence, sufficient to connect the third party suspect to the crime. In my view, it is not.

60There is no evidence of motive, propensity, or fear on the part of the complainant towards the third party suspect. The description provided by the complainant does not eliminate the third party suspect, but her statement regarding the assailant's identity is clear. An assertion that she is confused or mistaken regarding the identity of the assailant based solely on opportunity and a lack of elimination based on physical description is based on speculation and conjecture. The asserted inferences sought to be drawn are not reasonable. There is no air of reality to the defence.

61The present circumstances differ from the case of R. v. Powney 2010 ONSC 7086, where the court allowed evidence of a third party suspect where there was some evidence of a small window of opportunity together with the evidence of a possible motive. In that case, the defence was permitted to adduce evidence in support of its theory that Lynn Jansen is a suspect in her husband’s murder. In the present case, no such motive evidence exists.

Probative Value and Prejudicial Effect

62While I believe the proposed third party suspect application should be denied, I will address the limited residual discretion that remains with the court.

63I believe the evidence, as presently cast, has a meagre probative value. Juxtaposed, the prejudicial effect is significant. I find that the potential third party evidence would distract the jury from their proper focus on the charge aggravated by the consumption of time.

64Aside from the prejudice that may arise from the distraction that his evidence will introduce to the trial, I accept the submission of the Crown regarding the caution articulated by the Supreme Court of Canada in R. v. Barton. As presently cast, the evidence connecting the third party suspect is speculative. The court must not, consciously or unconsciously, use language, thought patterns or permit inferences that play into stereotypes that indigenous women and girls are less worthy of belief, less credible and less reliable.

65When all the evidence is considered, I am satisfied that the prejudicial effect of the third party suspect evidence substantially outweighs the potential probative value. The proposed evidence lacks an air of reality and would be a distraction to the jury if such evidence was introduced in this case.

Disposition

66The application to allow defence counsel to cross-examine prospective witnesses and call evidence concerning a third party suspect, L.D., is dismissed without prejudice to it being renewed.

67Despite this ruling, the opportunity to commit the offence remains a live issue. A lack of access to S.S. by the accused or, in other words, a lack of opportunity to commit the offence charged, may raise a reasonable doubt. Regardless of the third party suspect application ruling, the applicant may cross-examine witnesses and lead evidence regarding a lack of opportunity to commit the offence, if he deems it appropriate and it complies with the rules of evidence.

68Similarly, he may seek to cross-examine the complainant about her answer regarding the tattoo.

The Honourable Justice Brian Holowka