COURT FILE NO.: CR-22-0100-0000 DATE: 2024 05 23

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – BRIAN NAPPER

COUNSEL: A. Khoorshed, for the Crown S. Proudlove, for the Accused

HEARD: March 11 and March 28, 2024

Ruling on the Crown’s Application to Admit Recording of Telephone Conversation

CHOZIK J.

Introduction:

[1] The Crown seeks a ruling in respect of the admissibility at trial of a recording of a telephone conversation between the accused, Brian Napper (“Napper”), and the complainant, M.R. The recorded conversation contains statements that are properly viewed as other discreditable conduct of the accused and other sexual activity of the complainant.

[2] On March 11, 2024, I advised the parties that the Crown will be permitted to adduce the recorded telephone conversation at the trial. I advised the parties that written Reasons for the decision would follow. These are those Reasons.

Background:

[3] It is not disputed that Napper and M.R. were intimate partners for approximately a year. Napper is now indicted on nine counts, seven of which are in respect of M.R. Those seven counts include allegations that he threatened her (count 1), assaulted her (count 6), assaulted her with a weapon including a cell phone (count 3), a cell phone charger (count 5) and a knife (count 7), sexually assaulted her (count 4) and pointed a firearm at her (count 8) contrary to ss. 264.1(1) (b), 266, 267 (a), 271, and 87 of the Criminal Code, R.S.C., 1985, c. C-46.

[4] He is also charged with breaching a probation order by failing to keep the peace and be of good behaviour (count 2) and operating a conveyance while prohibited (count 9) contrary to ss. 733.1(1), and 320.18.

[5] In respect of counts 3, 4 and 5 it is alleged that in the fall of 2021 Napper threw a cell phone at M.R. striking her in the face. She needed stitches as a result. It is alleged that in February 2022, he hit her with a cell phone charger, or its cable on her back or side. It is also alleged that on November 8, 2021, he sexually assaulted her by putting his penis near her face while she was sleeping and that she then performed fellatio on him. He recorded this with his cell phone allegedly without her knowledge or consent. It is alleged that M.R. lacked capacity to consent and did not, in fact, consent to this sexual activity.

[6] The recorded telephone conversation between Napper and M.R. took place on January 3, 2022 after Napper was charged with some of these offences. The call is 15 minutes, 52 seconds long. The Crown seeks to adduce only the first 5 minutes of the call. It is not disputed that the rest of the conversation is not relevant to the issues to be tried.

[7] It is not disputed on this application that Napper called M.R. and recorded the conversation without her knowledge or consent. Later, when arrested, he told the police that there was a recorded telephone conversation on his phone with M.R. that would exonerate him. The phone at that time was in M.R.’s possession. Police obtained it and located the recording. The recording was provided to the defence as part of disclosure. A transcript of the recording was prepared and is adduced on this application.

[8] The recorded conversation does not exonerate Napper. To the contrary, it contains evidence of Napper’s discreditable conduct other than what is charged in the indictment. It amounts to evidence of bad character. The defence opposes its admission on the basis that it is highly prejudicial. It also contains evidence of M.R.’s other sexual activity with Napper which is subject to the prohibitions against twin myth reasoning pursuant to section 276 of the Criminal Code.

[9] In this telephone conversation, Napper admits that he gave M.R. stitches on one occasion and that he assaulted her on her side or back on another occasions. He admits that he is “an angry person”. He admits that he sprained his hand on M.R.’s hip, and acknowledges that she had bruises one time as a result of his actions. He makes a statement that reveals that he has been to jail before.

[10] He also tries to persuade M.R. that there is nothing wrong with waking her up by sexually touching her or with videorecording their sexual activity. He says that videorecording their sexual activity was common for them, as was waking each other by sexual touching, or performing sexual acts on each other. They discuss briefly other occasions when this happened. During the call, Napper maintains that their sexual activity at issue was consensual. M.R. maintains that she did not consent because she was asleep or unconscious.

[11] Napper recorded this telephone conversation surreptitiously, without M.R.’s knowledge. It is also alleged that he recorded the alleged sexual assault without M.R.’s knowledge or consent. Whether the surreptitious recording of sexual activity vitiates consent is the subject of another application in this case. On that application, Napper takes the position that the video shows that M.R. was clearly aware that the sexual activity was being recorded.

[12] The defence had an opportunity to bring a ss. 276/278 application in respect of the recorded telephone conversation. Dates for the hearing of the defence application were scheduled multiple times. Ultimately, the defence chose not to pursue the application. Rather, the defence opposes the admission of the recorded telephone conversation because it is so prejudicial to the accused.

[13] The Crown makes this application to adduce the recorded conversation pursuant to R. v. Seaboyer, [1991] 2 S.C.R. 577. The Crown did not bring an application to adduce this conversation as evidence of Napper’s other discreditable conduct (also referred to as similar fact evidence).

The Recorded Conversation:

[14] The relevant portion of the recorded telephone conversation is as follows:

M.R.: Pretty over it. I’ve learned some lessons here is everything happens for a reason. B.N.: So –okay. Let me get… M.R.: And sometimes that… B.N.: …this straight…. M.R.: …reasons is you’re stupid and you make poor decisions but… B.N.: Okay. But let—let’s… M.R.: …everything happens… B.N.: …just get to this thing. So, back to, like, these videos that you’re saying that …. M.R.: Maybe you are…. B.N.: You said you’re go-, if I come there, you’re gonna show me the videos that have you so upset. M.R.: I’ll show you one. B.N. Okay. And you’re saying that I’m having sex with you while you’re unconscious in this video or is it , uh, the pattern, this conspiracy pattern – or not – I don’t wanna say… M.R.: If …. B.N.: … the word “conspiracy” but you said that there’s a pattern and that I’m just… M.R.: There’s been patterns… B.N.: …weird in bed. M.R.: …and every time I’ve brought it up to you… B.N.: What patterns? This is the first… M.R.: …[indiscernible]… B.N: …time I’m hearing about the patterns. You’ve never… M.R.: …[indiscernible]…. B.N.: …brought it up to me. You’ve never brought this up to me. M.R.: There’s been a lot of shit. There’s been enough shit. B.N.: Like what? Please explain. All you’re… M.R.: [Indiscernible] …. B.N.: …saying is, “enough shit.” Elaborate. What stuff, M[…]? Please. M.R. [Indiscernible] saw those. B.N.: Pardon? M.R.: The [indiscernible]…. B.N.: ‘Kay. We have sex video on our phone. We have consensual sex. We’re in a relationship. We videotape it. M.R.: That was not a consensual sex…. B.N.: Okay. Show me this video. M[…], like, if you wake me up by sucking my cock and, you know, you happen to have a camera while, to get my facial expression, then it is what it is. Like, if I wake you up by sucking your pussy, if I wake you up by sticking my …. M.R.: [Indiscernible]. B.N.: If I wake you up by sticking my dick in your fa-, like, we’re in a relationship, like, we ha- …. M.R.: The, the, the point is… B.N.: No, the point is this, M[…] …. M.R.: … you did enough weird shit … B..N: Like, what’s weird though? You …. M.R.: … [indiscernible] …. B.N.: This is the first thing. Tell me what weird is. Tell me, uh, out of everything I said, what’s so weird about that because you don’t wake me up … M.R: [Indiscernible] weird. B.N. … sucking my dick? M.R.: I tried to. You freaked out. B.N.: I didn’t freak out but – no, I didn’t… M.R.: You [indiscernible] rolling over. B.N.: … say you’re raping me though, M[…]. Did I sa-… M.R.: You scream at me for rolling over in the bed, you throw things at me, think I’m a house invader… B.N.: Okay. What? Does that make – okay. M.R.: … when you thought … B.N.: Okay. Well, how does that make me having sex with you that’s unconscious and you have it on video? M.R.: No, I’m just saying there’s …. B.N.: Don’t don’t –let’s go back to the issue… M.R.: I don’t feel … B.N.: …at hand. M.R.: …safe around you B.N.: You don’t feel safe around me. Does that make me a rapist? Okay. Leave. If I’m verbally abusive, if you think…. M.R.: I never called you a rapist. I … B.N.: you said I had sex with you… M.R.: … told you …. B.N.: … while you were unconscious. You said that to George (ph), you said … M.R.: I said … B.N.: … that to a few people… M.R.: …there was no … B.N: … and there’s a video. M.R.: … way that that’s consensual. B.N.: What is not consensual? Like I’d like to see… M.R.: Because … B.N.: …this video. M.R.: …consent has a requirement [indiscernible] … B.N: Okay . M[…] …. M.R.: … allows me to make that decision. B.N.: M[…], M[…], if you ever told me to stop, like, you’ve never – I, I stop, like, I’m telling… M.R.: I wasn’t awake to tell you to stop. B.N.: … you stop during sex. I’m not saying it’s …. M.R.: I wasn’t awake to tell you. B.N.: What? What’d you say? M.R.: I said I wasn’t awake. B.N.: Okay. But when – okay, you weren’t awake and we’ve woken each other up doing sexual activities before and you, we’ve never said , ‘Stop’ like, you’ve sucked my dick, you’ve jerked me off. We wake each other up, like, I don’t know what, like – we’ve had a lot of, like – I’m looking through an Android phone and I’m trying to think of the video that’s upsetting you and I don’t see it anywhere. Like, I jerk off to our videos and you know that, like, you know what I mean? Like, come on, M[…], like, I’m not this dude. I’m a lo-, I’m an angry person and I do …. M.R.: You are an angry person. B.N.: But I’m not no fuck. I would never do that, M[…], and when you said …. M.R.: I know, I’ve got stiches for it and you know it. B.N.: What? M.R.: I’ve had to get stiches for how angry you’ve been. B.N.: Okay. Anyways, I’m not, I’m not – we’re not talking about that. We’re talking about a video that… M.R.: I know, you wanna… B.N.: …you said you ha-- …. M.R.: … build your case against me. B.N.: I’m not building a case. If you wanna come and bring charges that I did some stitches or something… M.R.: I’m not bringing charges. B.N.: … to you—but if you want to, I’ll … M.R.: I’m not bringing charges. B.N: …plead guilty. I told you I’ll turn myself in. Didn’t I say that to you? M.R.: I know you wanted to turn yourself in and [indiscernible] …. B.N.: Didn’t I say that we should go – I need help? Didn’t I feel bad? M.R.: I know …. B.N. Did I genuinely feel fuckin’ bad? Did I? M.R: That time, yes. B.N.: “That time”? M.R.: [Indiscernible]. B.N.: There was only one time… M.R.: [Indiscernible]. B.N.: … I gave you stitches; okay? M.R.: the only one time you gave me stiches was a lot worse – you know what? The stiches weren’t even the worst injury, like, I [indiscernible]…. B.N.: But did I feel bad though? Did I feel bad though? Did I feel bad? M.R.: No, you didn’t. B.N.: I didn’t feel bad about the stiches? M.R.: You came in and you said, “I don’t wanna be around you ‘cause I feel bad ‘cause you can’t move.” B.N.: No, I said, “we got to – maybe we should call the police. I don’t know what’s wrong with me. I, you know …” we seen a shrink… M.R.: You said that … B.N.: …shortly after that. M.R.: …with the stiches. The stitches were the only … B.N.: That’s what I’m talking about, the stiches. M.R.: …time you ever… B.N.: I’m not talking about anything else. M.R.: Okay. I’m talking about the other things you did. B.N.: What other things? Go on. M.R.: I don’t know, when you sprained your hand on my hip… B.N.: Sp-, I spr-…. M.R.: …like, two weeks ago. B.N.: Yeah, I sprained my hand on your hip. You’re right. Okay. M.R.: Okay. B.N.: I sprained my ha-…. M.R.: When you got me in the side, like… B.N.: Okay. And, and the back. M.R.:…around the same time period. B.N.: All right. That’s the, that’s the same one you’re talking about but - - okay. M.R.: Those are different days. Those are two different times. B.N.: Okay. Whatever. And I, and, like I said… M.R.: [Indiscernible] both hands [Indiscernible]… B.N.: …if you wanna, if you, if you wanna… M.R.: I, I have two different sets of …. B.N.: …if you wanna, if you wanna make that public…. M.R.: The bruises are… B.N.: Shh. Shh. Shh. M.R.: …still there. B.N.: Shut up. Shut up. If - - okay. Shut up. If you wanna… M.R.: The bruises are still on my [Indiscernible]. B.N.: …Make that public - - shut up. M.R.: Shh. B.N.: If you wanna make that public, then make it public and I’ll go to court and I’ll say sorry to a judge and I’ll plea-, I’ll take responsibility for my actions. M.R.: Then you’ll go to jail. B.N.: Of course. It wouldn’t be the first time and I would deserve every day the judge give me, like, I’m - - yeah, I would go to jail. M.R.: You do. You do. You… B.N.: I…. M.R.: …honestly do. B.N.: Okay. Then so, if you… M.R.: [Indiscernible]… B.N.: …wanna make… M.R.: …wanna do that to you. B.N.: I don’t know that. You’re accusing me of fuckin’ having sex with you while you’re unconscious, M[…] M.R.: Yeah, and… B.N.: I don’t know where your head it (sic) sometimes M[…].

Legal Principles:

[15] It is not disputed that the recorded conversation contains evidence that is presumptively inadmissible because it is evidence of M.R.’s sexual activity other than the activity covered by the indictment. While it is also not disputed that it contains evidence of Napper’s other discreditable conduct, the Crown takes the position that there is no need for it to bring an application regarding the other discreditable conduct in this case because it is a “domestic violence matter” and establishes animus and narrative of the relationship.

[16] I will discuss the legal principles governing the admissibility of evidence of other sexual activity, and of prior discreditable conduct, in turn.

[17] Pursuant to Seaboyer, for evidence of the complainant’s other sexual activity to be admissible, the Crown must show that its probative value outweighs its prejudicial effect. To be probative, the evidence must be relevant and capable of supporting inferences other than the prohibited ‘twin myths’. Those twin myths are that, by reason of the other sexual activity, the complainant is less worthy of belief or more likely to have consented to the sexual activity in question: R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at paras. 44-46.

[18] Turning to prior discreditable conduct, evidence that tends to show that the accused is the sort of person who would likely have committed the offence is presumptively inadmissible: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 55; R. v. S.B., [1996] O.J. No. 1187, at para. 24. To overcome the presumed inadmissibility, the Crown must establish that the probative value of the evidence outweighs its prejudicial effect. To establish the probative value of the evidence, the Crown must identify with some precision exactly how the evidence will be relevant to a material fact or issue in the case: Handy, at para. 55; R. v. T.C., 2019 ONCA 898, 383 C.C.C. (3d) 341, at para. 48.

[19] As per Handy, there are three main reasons for the general rule against bad character evidence: a fear that triers of fact will attach excessive weight to evidence of bad character even though it often has limited probative value; the potential for distraction and the undue consumption of court time; and, a wish to ensure that the police have an incentive to investigate specific crimes without too easily targeting prior offenders.

[20] The presumptive inadmissibility of such evidence is regardless of the nature of the charges. While evidence showing a pattern of conduct towards a particular victim is especially likely to be admitted, R. v. S.C., 2018 ONCA 454, 361 C.C.C. (3d) 419, there is no automatic admission of such evidence in domestic violence cases. There is no category or exception for such cases. Bad character evidence requires scrutiny of this court regardless of the context in which it arises: S.B., at para. 26.

[21] A judge in a criminal jury trial is the ‘gatekeeper’ of the evidence. It is the judge’s obligation to ensure only relevant, material and admissible evidence is put before the jury: Handy, at paras. 104, 105; R. v. Z.W.C., 2021 ONCA 116, 155 O.R. (3d) 129, at para. 93. The judicial gatekeeping function is no less critical in cases involving allegations of intimate partner violence.

[22] The Crown takes the position that there is no need for it to bring an application regarding other discreditable conduct in this case because it is a “domestic violence matter”. The Crown states in its factum that “as this violence occurs within a domestic context, […] it is admissible without a ruling to establish narrative of the relationship and the animus between the parties” [emphasis added]. This is, in my view, an incorrect statement of the law.

[23] The Crown argued, relying on the decisions in S.B.; R. v. D.S.F. (1999), 43 O.R. (3d) 609 (C.A.); and R. v. Z.W.C., 2021 ONCA 116, 155 O.R. (3d) 129, that in the context of a domestic violence trial, other bad acts of the accused may be admissible to provide narrative, demonstrate animus and rebut recent fabrication. I accept this general proposition.

[24] In S.B., Hill J. observed that violence within a relationship often involves complex dynamics and subtleties of the personalities of the people in that relationship. Denying the triers of fact complete information regarding the prior history of the people involved runs the risk of presenting a sterile and antiseptic record devoid of the realities of the individual circumstances of the relationship: at paras. 30, 31. Evidence of the accused’s other discreditable conduct may establish a pattern of dominance, control, possessiveness, or fear. It may explain the complainant’s actions: at paras. 35, 44. It may also explain the accused’s state of mind or animus towards the complainant: at para. 45.

[25] In D.S.F., the court observed that such evidence can be helpful to understand the relationship between the parties and the context in which the alleged abuse occurred.

[26] In Z.W.C., the court held that while evidence of uncharged prior discreditable conduct has been routinely and properly admitted in cases of intimate partner violence, this is not by way of a categorical exception to the presumptive inadmissibility of such evidence: at para. 114.

[27] None of these cases stand for the proposition that bad character evidence is automatically admissible for narrative, animus or to rebut recent fabrication. General disposition is not a proper purpose for admitting evidence of prior discreditable conduct. Evidence which tends to show bad character or a criminal disposition on the part of the accused is admissible if it is relevant to some other issue beyond disposition or character, and the probative value outweighs the prejudicial effect: S.B. at para. 28, citing R. v. B. (F.F.), [1993] 1 S.C.R. 697.

[28] Evidence is relevant “where it has some tendency as a matter of logic and human experience to make the proposition for which it is advance more likely that that proposition would appear to be in the absence of that evidence […]. … Generally, this basic threshold of relevance and materiality can be tested by asking what inference is sought to be made from the proposed evidence and whether it has some tendance to advance the inquiry before the court”: R. v. D.S.F., at p. 7, citing R. v. B.(L.) (1997), 35 O.R. (3d) 35 (C.A.).

[29] All the authorities lead to the conclusion that an application is required for the Crown to adduce evidence of Napper’s other discreditable conduct. None of the cases cited by the Crown support its position that no application or ruling is required and that this evidence is admitted as a matter of course where the offence(s) alleged are in the context of a domestic or intimate relationship. To the contrary, in Z.W.C., at para. 114 the Court of Appeal said:

[114] While evidence of uncharged prior discreditable conduct has been routinely and properly admitted in cases of intimate partner violence, this is not by way of a categorical exception to the presumptive inadmissibility of such evidence: see H. (J.), at para. 55. Its well-known dangers must be kept front and centre in a case-specific analysis, balancing the probative value and the prejudicial effect of the evidence. This analysis requires a close look at the evidence the Crown proposes to admit, the issues to which it will be directed, and the manner in which it will be presented.

I am of the view that the law clearly requires the Crown to establish that such evidence is relevant to a particular issue at trial, and that its probative value outweighs its prejudicial effect even in the context of intimate partner violence before it can be admitted.

[30] For the evidence to be admissible, the Crown must identify precisely what inferences or chains of reasoning it will be arguing relying on this evidence. Identifying those inferences permits the count to conduct the required balancing to determine whether the probative value and strength of the evidence outweighs its potential prejudicial effect for impermissible and incurable usages by the triers of fact: S.B, at para. 50.

[31] Once admitted, the evidence must be used only for the stated purpose – from the start of the trial to the conclusion. The Crown must stay within those parameters in its opening statements, questioning of witnesses and closing arguments. It is therefore important that the inferences to be drawn from such evidence be precisely identified in advance.

Application:

The Probative Value of the Evidence in This Case:

[32] In my view, the Crown has met its burden to establish the admissibility of the evidence contained in the recorded telephone call both as other sexual activity of the complainant and other discreditable conduct of the accused. I am satisfied that the Crown has established that the evidence is relevant and highly probative of more than just the twin myths and prohibited propensity reasoning. The recorded telephone conversation between Napper and M.R. contains admissions by him of some of the acts complained of by M.R. with which he is charged. These admissions are highly probative. The evidence is relevant to whether the alleged acts occurred and to Napper’s state of mind, particularly in respect of the alleged sexual assault.

[33] Napper admits in the recorded telephone call being angry and violent with M.R. He admits that he gave her stitches, which is part of the allegations contained in count 3 of the indictment. He admits that one time he “got her in the side” and “the time on her back”. This is potentially corroborative of the allegation in count 5 of the indictment that he hit M.R. with a cell phone charger cable. Napper’s statements may be used by the jury to confirm or corroborate M.R.’s version of events in respect of these counts.

[34] It is also open to the jury to conclude that Napper admitted during that recorded conversation that he woke M.R. by sexually touching her. His statements to this effect support M.R.’s anticipated evidence that she was asleep or unconscious when he put his penis near or in her mouth, and that she did not consent to the sexual activity. It also supports the inference that Napper knew M.R. was asleep and lacked the capacity to consent. It is highly probative evidence that may confirm her allegation of sexual assault.

[35] The statements Napper makes during the telephone call about his belief that M.R. consented to sexual activity, while wrong in law, are highly probative of his state of mind. His statements suggest that he thought there was nothing wrong with waking M.R. by sexually touching her. This was, as far as he was concerned, part of their regular sexual practice.

[36] I agree with the Crown’s submission that Napper’s admissions are so intermingled with the other statements during the conversation that it is impossible to admit the admissions yet redact other less probative or more prejudicial portions. Redacting the conversation would leave a script that makes no sense or is fundamentally altered in its meaning.

[37] I am not satisfied that the recorded telephone conversation is admissible as narrative, to show animus or to rebut recent fabrication, as the Crown suggests. It may not be used to suggest or establish that Napper is an angry or violent person generally or that he is the sort of person who is more likely to have committed any of the offences.

[38] Not having brought a proper application for the admission of this evidence as bad character evidence, the Crown has not identified with sufficient precision what the inferences or chain of reasoning is in respect of narrative or animus. There is nothing before me that suggests recent fabrication is alleged. As framed by the Crown, the admission of this evidence as “narrative”, “animus” or to rebut recent fabrication does not permit the necessary balancing of probative value against prejudicial effect. If the Crown wishes to use the evidence to support legitimate inferences related to narrative or animus, then these must be properly articulated or a voir dire held: R. v. R.M., 2022 ONCA 850 at para.11.

The Prejudicial Effect of the Evidence:

[39] There are three forms of prejudice that must be considered: moral prejudice and reasoning prejudice, as well as the risk that the jury will engage in twin myth reasoning. Moral prejudice is the risk of improper reasoning from general bad character as distinct from permissible specific propensity reasoning. The latter is often a fine line. Reasoning prejudice is the risk that the evidence will distract the jury from its task. Assessing reasoning prejudice involves considering the amount of trial time that will be consumed and the extent to which accused can challenge the proposed evidence for its truth if contested.

[40] The moral prejudice in this case arises from the possibility that the evidence will be misused by the jury. The recorded telephone conversation carries this risk in several ways. It shows Napper in a bad light and could lead the jury to improperly rely on propensity reasoning to conclude that he is the sort of person who is more likely to have committed the offences charged. For example, he admits that there were other occasions when he woke M.R. by sexually touching her, which is sexual assault. He admits that he is an angry person who has been violent with her, and that he has acted erratically (by attacking her as if she was an intruder when she tried to wake him).

[41] In my view, the risk of moral prejudice can be addressed by a strong opening, mid-trial, and final instruction to the jury about the permitted use of this evidence, and its prohibited uses. The jury would be explicitly instructed that they cannot use this evidence to infer that Napper is the sort of person who is more likely to have committed these offences.

[42] Some of the reasoning prejudice in this case arises from the risk that Napper’s statements during the conversation could lead the jury to misunderstand and misapply of the law of consent.

[43] During the telephone call, Napper expressed his understanding of the law of consent. He suggested to M.R. that because she had consented to being woken by sexual touching in the past, he could infer her consent on this occasion. He also expressed his belief that since they are an intimate couple, consent could be inferred. His understanding of the law of consent was mistaken. Consent cannot be given in advance of the sexual activity. Consent cannot be inferred based on past consent. Consent cannot be given when a person is sleeping or otherwise unconscious.

[44] Consent is defined in s. 273.1(1) of the Criminal Code as “the voluntary agreement of the complainant to engage in the sexual activity in question at the time the sexual activity occurred.” As McLachlin C.J., writing for the majority, stated at para. 66 of R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, “[t]he definition of consent for sexual assault requires the complainant to provide actual active consent throughout every phase of the sexual activity” and, at para. 53, “[t]he only relevant period for ascertaining whether the complainant consented under the Criminal Code is while the touching is occurring” [italics in original].

[45] In J.A., the Supreme Court of Canada considered whether a person can perform sexual acts on an unconscious person if the person consented to those acts in advance of being rendered unconscious. The majority of the court concluded that the Criminal Code defines consent as requiring a conscious, operating mind throughout the sexual activity. Therefore, a person must be conscious throughout the sexual activity to provide the requisite consent and must be capable of asking their partners to stop at any point: J.A., at paras. 44, 66.

[46] In a dissenting opinion, Fish J. cautioned that this interpretation of consent would mean that cohabiting partners across Canada, including spouses, commit a sexual assault when either of them, even with the express prior consent, kisses or caresses or otherwise sexually touches the other while the later is asleep: J.A., per Fish J. (dissenting), at para. 74. Despite those concerns, the law in Canada is that a conscious person’s freely and voluntarily given consent in advance to sexual activity that will occur while he or she is asleep or otherwise briefly and consensually rendered unconscious is not valid.

[47] Thus, consent must be linked to the sexual activity in question, which encompasses the specific physical sex act, the sexual nature of the activity, and the identity of the partner: R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 88, citing R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, at paras. 55, 57. Barton, at para. 88, makes clear that it is a mistake of law to suggest that the complainant could give broad advance consent to whatever the accused wanted to do to her. The only relevant period for ascertaining consent is while the touching is occurring.

[48] In this case, Napper’s statements to M.R. reveal that he was mistaken as to the law of consent. The jury would have to be instructed as to the correct law they must apply. I am satisfied that clear instructions would neutralize the risk that the jury would misapply the law of consent.

[49] The recorded telephone conversation also reveals what might be viewed as other sexual assaults committed by Napper on M.R. and vice versa. Since the law in Canada is that touching someone sexually when they are asleep is a crime, regardless of the context, and that no advanced consent can be given as a matter of law, a jury may use Napper’s admission that this was a regular occurrence in his relationship with M.R. to conclude that (a) he is less credible if he denies the offence or (b) more likely to have committed it, or (c) that it is not a crime and they should not apply the law since M.R. may have woken Napper through sexual touching also (she does not deny this in the telephone call).

[50] Again, I am satisfied that adequate midtrial and final instructions to the jury will adequately address these concerns. The jury will have to be instructed as to the permitted and prohibited uses of this evidence.

Permitted Use of the Evidence:

[51] The jury could be instructed that they may find that the statements Napper makes to M.R. during the telephone call support her claims that he assaulted her on the two occasions alleged in counts 3 and 5 of the indictment, and perhaps other occasions depending on the specifics of her testimony. The jury could be told that they can use the evidence to confirm M.R.’s evidence that (a) Napper hit her in the face with the cell phone and caused her to have to get stitches, (b) that he admitted to getting her in the side or back.

[52] The jury could also be instructed that if they find that Napper admitted during the call to waking M.R. by sexual touching as she alleges, they can use that admission to confirm M.R.’s claim that she was sleeping or unconscious when Napper sexually touched her. They may also use that admission to find that he knew she was sleeping, and therefore lacked the capacity to consent to the sexual activity at the time it was happening.

[53] The jury could also be instructed that they may use the statements they find Napper to have made to help them determine his state of mind in respect of the offences he is alleged to have committed.

Prohibited Uses of the Evidence:

[54] The jury would be instructed as to the prohibited uses of the evidence. These prohibited uses include drawing the following inferences:

a. M.R. was, by reason of her sexual activity with Napper on other occasions, more likely to have consented to this sexual activity with him or is less worthy of belief;

b. Napper is the type of person who would be disposed to commit the offences with which he is charged;

c. Napper is likely to have surreptitiously recorded the sexual activity in question because he surreptitiously recorded the telephone call.

[55] The prejudicial effect of this evidence can be addressed by instructing the jury that:

(a) A person cannot consent to sexual activity in advance of that activity;

(b) A person cannot consent to sexual activity while asleep;

(c) Napper’s belief or statements to the contrary are mistaken in law;

(d) Whether M.R. consented to sexual activity in the past is irrelevant on the issue of whether she consented on this occasion;

(e) Whether M.R. also engaged in sexual touching of Napper while he was asleep is irrelevant on the issue of whether she consented on this occasion.

[56] The specific instructions to be given shall be the subject matter of further discussion with the Crown and the defence once the evidence is heard.

Conclusion:

[57] The Crown may adduce as evidence the recording of the first 5 minutes and 52 seconds of the recorded telephone call between Napper and M.R. on January 3, 2022. The transcript of that portion of the call may be adduced as an aid to the jury.

Chozik J. Released: May 23, 2024