Court File and Parties

Court File No.: CR-23-1372 Date: 2024-06-21 Ontario Superior Court of Justice

Between: His Majesty The King And: I.B.

Counsel: S. Baker, for the Crown M. Haraschuk, for I.B.

Heard: May 27, 2024

Ruling on Crown Application to Introduce Evidence of Other Sexual Activity and Disreputable Conduct

S.K. Stothart J.

[1] The accused, I.B., is charged with three counts of sexual assault and one count of choking in relation to the complainant S.F. He has elected to be tried by a judge sitting with a jury.

[2] The Crown has brought an application seeking to introduce evidence of other sexual activity between the complainant and the accused and to introduce evidence of other discreditable conduct on the part of the accused.

Background

[3] The complainant and the accused began dating when the complainant was 15 and the accused was 18 years old. The two dated for approximately two and a half years, ending their relationship in 2018.

[4] In January 2022, the complainant reported to the police that she had been sexually assaulted by the accused during the course of their relationship. A summary of the allegations, as they relate to each count in the indictment, is as follows:

a. Count 1 – it is alleged that during the course of the relationship the accused would engage in sexual activity without the complainant’s consent, while she was sleeping; b. Count 2 – it is alleged that the accused sexually touched the complainant without her consent in order to facilitate a sexual encounter with a dog; c. Count 3 – it is alleged that while the accused and the complainant were walking outside the Massey Fair, the accused grabbed the complainant by the neck and choked her, while placing his fingers forcefully inside her vagina, cutting her; and d. Count 4 – it is alleged that following consensual sexual intercourse in Sault Ste. Marie, the accused continued to insert a pink dildo into the complainant’s body and continued to have anal intercourse with her after she had withdrawn her consent.

[5] In her statements and her preliminary hearing testimony, the complainant describes the parties’ relationship as one involving manipulation and control. This manifested itself as follows:

a. The accused would pressure the complainant into engaging in sexual activity that she was not comfortable with, including what she refers to as “porno” type sex; b. The accused would often provide the complainant with alcohol to encourage her to continue with sexual activity that she was not comfortable with; c. The accused would encourage the complainant to wear revealing clothing; d. The accused would use his mental health to manipulate the complainant into agreeing to sexual activity or to provide nude photos; and e. The accused would purchase sex toys, specifically dildos, that did not conform with the complainant’s wishes.

[6] The Crown submits that this evidence should be admitted at trial because it provides an understanding of the nature of the relationship between the accused and the complainant. The evidence demonstrates a relationship where the accused would manipulate and control the complainant whenever she expressed a reluctance to engage in sexual activity.

[7] The Crown submits that the proposed evidence consists of evidence of “grooming” and demonstrates that the accused did not respect the complainant’s communicated feelings surrounding consent during the relationship. The Crown submits that this evidence is relevant to the issue of consent.

[8] The Crown has provided a list of questions it seeks to ask the complainant. This list has been entered as Exhibit 5 to this application. I have grouped the proposed questions into the following categories:

A. Other sexual activity

[9] The Crown wishes to ask the complainant the following questions that relate to prior sexual activity within the context of the parties’ relationship:

a. How old were you when you got together? b. Was this your first intimate relationship? c. How would you describe your relationship with the accused? d. Is there anything about the accused sexuality that you found unusual? e. How did this make you feel? f. Did the accused pressure you during your relationship to engage in sexual activity that you were not comfortable with? g. How did he pressure you? h. Did you use sex toys during your relationship? i. Did you agree to this? j. Who purchased the sex toys? k. What did you agree to? l. What was purchased? m. Were you over the age of 16 when the first sex toy was purchased? n. Were you old enough to enter a store with the accused? o. What size was the pink dildo supposed to be?

B. Prior discreditable conduct

[10] The Crown wishes to ask the complainant the following questions about the parties’ relationship:

Use of alcohol during the relationship

a. How frequently would you use alcohol during your relationship? b. Who purchased the alcohol? c. Would you frequently drink alcohol when engaged in sexual activity with the accused? d. Did he supply you with alcohol? e. Why do you think he would do that?

The accused’s use of his mental illness to manipulate the complainant

f. Did the accused suffer from any mental illnesses that you are aware of? g. Had he ever attempted suicide? h. What impact did that have on you? i. How would that make you feel?

The accused’s attempts to control what the complainant wore

j. What influence did the accused have, if any, on your appearance? k. Did you shop for clothes with the accused?

The Law

Fundamental principles

[11] To be receivable in a criminal trial, evidence must be relevant, material and admissible. Evidence is relevant if it tends to prove what it is offered to prove. Evidence is material if what it is offered and tends to prove is something with which the law is concerned. Evidence is admissible if its reception does not offend any exclusionary rule of evidence and its probative value exceeds its prejudicial effect: R. v. Calnen, 2019 SCC 6 at paras. 107-19; R. v. J.H., 2020 ONCA 165 at para. 52; R. v. Z.W.C., 2021 ONCA 116 at para.93.

[12] A fair trial requires that no party be allowed to distort the process by producing irrelevant or prejudicial evidence: R. v. Goldfinch, 2019 SCC 38 at para. 30.

Other Sexual Activity

[13] In R. v. Seaboyer, the Supreme Court of Canada held that for evidence of the complainant’s other sexual activity to be admissible, at the behest of the Crown, 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” which are (a) by reason of the other sexual activity the complainant is less worthy of belief, and (b) that the complainant is likely to have consented to the sexual activity in question: R. v. Seaboyer, [1991] 2 S.C.R. 577 at para. 106; R. v. Goldfinch, at paras. 44-46.

Discreditable Conduct

[14] Evidence of uncharged discreditable conduct is generally, but not always, inadmissible. This general prohibition arises because of the potential moral and reasoning prejudice that comes with this type of evidence: R. v. Handy, 2002 SCC 56 at para. 55; R v. J.H. at para. 53; R v. Z.W.C. at para. 96.

[15] Moral prejudice encompasses the danger of general propensity reasoning which includes reasoning that the accused is the kind of person who would commit the particular offence or that the accused should be punished because he/she is bad person: R v. Z.W.C. at para. 98.

[16] Reasoning prejudice involves the danger that the jury may become confused, unduly distracted, and/or inflamed. It also considers whether the evidence would consume an undue amount of time and effort in the trial process, and/or the risk that the evidence could be given more weight than is logically justified in the circumstances. It also considers the extent to which the accused can respond to the extrinsic evidence: R. v. Z.W.C. at paras 102-103.

[17] To overcome the presumption of 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 how exactly the evidence will be relevant to a material fact or issue in the case. In assessing the probative value of the evidence, a trial judge must consider (a) the strength of the evidence that the extrinsic acts in question occurred; (b) the connection between the accused and the similar acts, and the extent to which the proposed evidence supports the inferences the Crown seeks to make; and (c) the materiality of the evidence, which is the extent to which the matters in evidence tend to prove a live issue in the proceedings: R. v. Handy at para. 55; R. v. Z.W.C., at paras. 98-99; R. v. T.C., 2019 ONCA 808 at para. 48.

[18] In assessing the prejudicial effect of the evidence, a trial judge may consider a variety of factors including: (a) how discreditable the conduct is - the more inflammatory and egregious the conduct, the greater the likelihood of moral prejudice; (b) the extent to which the evidence may support an inference of guilt based solely on bad character; (c) the extent to which the evidence may confuse the jury; and (d) the ability of the accused to respond to the evidence. After considering the prejudicial effect of the evidence, a trial judge is required to then balance the prejudicial effect of the evidence against its probative value: R. v. Z.W.C., at paras. 104-105.

[19] Defence counsel should be prepared to identify, to the extent possible, the issues that will actually be in play at the trial. This may serve to eliminate the need to adduce the evidence or limit the evidence required at trial: R. v. Z.W.C., at para. 100.

[20] A judge in a criminal 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: R. v. Handy, at para. 104,105; R. v. Z.W.C. at para. 93; R. v. R.V., 2019 SCC 41 at para. 71.

[21] Once admitted, the evidence must be used only for the stated purposes. The Crown must stay within the specific parameters throughout the trial. The trial judge is required to instruct the jury on the permitted and prohibited uses of the specific evidence. It is therefore important that the evidence and the inferences to be drawn from it be precisely identified in advance: R. v. Z.W.C., at para. 109.

[22] Prior discreditable conduct is sometimes admitted in the context of cases involving allegations of intimate partner violence. Evidence relating to the relationship of the parties may assist in explaining otherwise unusual aspects of the complainant’s behaviour, including a fear of reporting or a fear to flee the danger. Further, evidence of prior aggressive conduct, including assaultive behaviour attributable to the accused, may assist in identifying an animus of the accused towards the complainant and hence the state of mind of the accused at the time of the alleged offence(s). It can also provide evidence of circumstances capable of incidentally confirming the credibility of the alleged victim: R. v. S.B., [1996] O.J. No. 1187 (Ont.Ct.Gen.Div.) at paras. 45-46.

[23] As stated by Justice Hill in R. v. S.B. “To deny the trier of fact of the prior history of the parties runs the risk of presenting an entirely sterile and antiseptic record devoid of the realities of the individual parties”: R. v. S.B., at para. 32.

[24] While prior discreditable conduct has been routinely and properly admitted in cases of intimate partner violence, there is no categorical exception in such cases to the presumption of inadmissibility of such evidence. Each case must be assessed within its own context and the court must carefully balance the probative value and the prejudicial effect of the evidence as it relates to the issues that arise in each particular case: R. v. Z.W.C., at para. 114.

Analysis

[25] A consideration of relevancy, materiality, and admissibility is necessarily contextual. It is important to assess these factors in light of the legal issues that are anticipated to arise at trial.

[26] As noted by the Ontario Court of Appeal in R. v. Z.W.C., at para. 100, defence counsel are expected to identify, to the extent possible, the issues that will actually be in play at the trial. This may serve to eliminate the need to adduce the evidence or limit the evidence required at trial.

[27] In this case, defence counsel advised in submissions that the issues at trial will be (a) whether the alleged activity occurred; and (b) if the activity did occur, whether consent was communicated by the complainant. Defence counsel advised in submissions that consent is a live issue with respect to count 2 and count 6 of the indictment. There is no indication at this time that the defence will raise honest but mistaken belief in consent.

[28] The defence has not brought an application pursuant to s.276 of the Criminal Code and has advised that it does not intend to adduce evidence (through cross-examination or otherwise) related to other sexual activity between the parties other than the specific instances alleged in the indictment.

[29] It is against this backdrop that I assess the probative and prejudicial impact of the proposed evidence. As the trial proceeds, if there is a material change in circumstances, I may be required to revisit this decision: R. v. T.W.W., 2024 SCC 19 at para. 51.

[30] Based on the submissions of counsel, the key issues at trial appear to be: (a) whether the specific events set out in the indictment occurred; (b) whether the complainant consented to the specific events; and (c) whether the complainant communicated her consent to the accused. It is without dispute that the credibility and reliability of the complainant’s evidence will be extremely important at trial. If the accused testifies, the credibility and reliability of his evidence will also be extremely important.

[31] It is also important to keep in mind that an accused can no longer argue that consent was implied by a relationship. Contemporaneous, affirmatively communicated consent must be given for each and every sexual act. Nothing less than positive affirmation is required: R. v. Goldfinch, at para. 44-45; R. v. Ewanchuk [1999] 1 S.C.R. 300; R. v. J.A., 2011 SCC 28; R. v. Hutchinson; 2014 SCC 19; R. v. Barton, 2019 SCC 33 at paras. 90-94.

[32] It is against this backdrop, that I must assess the relevance and materiality of the proposed evidence and then go on to balance its probative value and prejudicial effect.

General questions

[33] The general questions proposed by the Crown with respect to how the parties met, when they began their romantic relationship and how old they were during their relationship are clearly relevant, material and admissible. These questions do not purport to elicit evidence that is otherwise inadmissible. This evidence provides the general history of the parties’ relationship and provides relevant context to the allegations. As such, these questions shall be permitted.

[34] It may be that the Crown and defence can put this evidence before the jury by way of an agreed statement of fact.

Other sexual activity involving the complainant and the accused

Was this the complainant’s first intimate relationship?

[35] The Crown wishes to ask the complainant whether this was her first intimate relationship. It is anticipated that the complainant will testify that it was.

[36] I fail to see how this is relevant to the issues in this trial. Whether the relationship was the complainant’s first intimate relationship is not relevant to whether the events occurred, whether complainant consented to the alleged sexual activity, or to the reliability or credibility of her evidence. Sexual assault can occur in any type of relationship. Whether it be a first relationship or last.

[37] I will not permit this question.

Did the accused engage in “unusual” sexual activity?

[38] The Crown wishes to ask the complainant about whether there was anything about the accused’s sexuality that she found to be unusual, and if so, how this made her feel. It is anticipated that the complainant will testify that the accused liked to engage in “porno” style sexual activity during the relationship and that she did not like this.

[39] I fail to see the relevance of this evidence. If it is relevant, I find that its probative value is outweighed by its prejudicial effect.

[40] The proposed evidence is not relevant to the issue of consent. The complainant has stated that she reluctantly agreed to the “porno” sexual activity because she wanted to be in a relationship with the accused and wanted to please him. Her dislike of this type of sexual activity has no relevance to an issue at trial.

[41] Adducing evidence that the accused liked to engage in “porno” sexual activity, without tying this evidence to a specific issue at trial, engages in general propensity reasoning that carries with it strong moral and reasoning prejudice.

[42] There is a real risk that this type of evidence will be used by the trier of fact to conclude the accused is a “bad person” because he had certain “unusual” sexual preferences. There is also a risk that the jury will become distracted from the allegations themselves. The proposed question opens the door to almost all of the sexual activity within the parties’ relationship, including consensual activity. In my view, this will consume an undue amount of time and will distract the jury from the issues at trial.

[43] I also find that that this evidence may engage one of the prohibited twin myths. Specifically, that because the complainant engaged in other “unusual” sexual activity that she did not like with the accused, she is more likely to have consented to the alleged sexual activity as set out in the indictment.

[44] I find that the prejudicial effect of this evidence outweighs any probative value. As such, the Crown will not be permitted to adduce this evidence.

Did the accused pressure the complainant to engage in sexual activity?

[45] The Crown wishes to ask the complainant “Did the accused pressure you during your relationship to engage in sexual activity that you were not comfortable with? How did he pressure you? It is anticipated that the complainant will testify that throughout the relationship the accused would pressure her to engage in some forms of sexual activity that she did not like, including the “porno” style sexual activity and the use of sex toys. It is anticipated that the complainant will testify that she would capitulate and consent to the sexual activity because the accused would make her feel bad through emotional manipulation such as pouting or making her feel sorry for him.

[46] The evidence has some relevance and has some probative value in that it describes aspects of the parties’ relationship and a general propensity by the accused to persist in the face of an expressed reluctance by the complainant to engage in the sexual activity.

[47] The Crown submits that it wishes to use the evidence to demonstrate that: (a) because the complainant was not comfortable with the other sexual activity that occurred during their relationship, it is more likely that she did not consent to the sexual activity in question; (b) because the accused did not respect the complainant’s reluctance to engage in the other sexual activity he is more likely to have engaged in non-consensual sexual activity with the complainant; and (c) because the accused knew the complainant was reluctant to engage in the other sexual activity, he knew, was willfully blind, or was reckless to the fact that the complainant was not consenting to the specific sexual activity charged in the indictment.

[48] The first inference engages twin myth reasoning. It asks the jury to infer the existence of consent or non-consent based on what occurred on other occasions. On one hand, the jury may conclude that because the complainant “gave in” and “consented” on those occasions, that it is more likely that she “gave in” and consented to the specific sexual activity on the occasions charged. On the other hand, the jury may conclude that because the complainant was reluctant to engage in sexual activity on other occasions, that she is less likely to have consented to the sexual activity on the occasions charged. Both lines of reasoning are flawed.

[49] The second inference engages in propensity reasoning. Because the accused did not listen to the complainant in the past and manipulated her into providing consent, he is more likely to have not listened to her and proceeded without her consent during the incidents charged. I fail to understand this proposed reasoning, that because the accused obtained consent through manipulation on other occasions that he is more likely to have proceeded without consent on these occasions.

[50] It will be important in this trial that the jury remain focused on the legal definition of consent and how it applies to the specific allegations contained in the indictment. In my view introducing extrinsic evidence of other occasions where there was legal consent, but perhaps where the complainant felt manipulated into providing that consent, will blur and confuse these issues.

[51] This evidence also carries with it a real risk of moral reasoning prejudice where the jury may find that because the accused persisted and manipulated consent in the past, he is the type of “bad” person who would commit these offences.

[52] The third line of reasoning, that because the accused knew the complainant was reluctant to engage in some types of sexual activity during the relationship, he would therefore know, be willfully blind or be reckless with respect to consent on the occasions charged is also confusing.

[53] The mens rea element of sexual assault requires the Crown to prove beyond a reasonable doubt that the accused knew that the complainant did not consent to the sexual activity alleged. This knowledge element may be proven through actual knowledge, recklessness or wilful blindness: R. v. Ewanchuk, [1999] 1 S.C.R. 330 at para. 23.

[54] Recklessness and wilful blindness require the trier of fact to consider what the accused subjectively knew or understood at the time of the sexual activity: R. v. A.B., 2024 ONCA 446 at para. 35.

[55] The law of sexual assault requires contemporaneous, affirmatively communicated consent for each and every sexual act between two individuals. The jury will be instructed to consider the evidence surrounding each and every sexual act alleged in the indictment in determining whether the complainant did not consent, whether the accused knew that she did not consent, whether the accused suspected that he was engaging in sexual activity with the complainant without her consent and deliberately chose not to make inquiries; or whether the accused was aware that he might be engaging in sexual activity without the complainant’s consent, but persisted nevertheless: R. v. A.B. at para. 36.

[56] Knowledge of reluctant consent to other sexual activity during a relationship does not assist in this determination. Indeed, introducing this type of evidence runs the risk of prohibited propensity reasoning that because the complainant reluctantly consented in the past, that it would be reasonable for the accused to think she was reluctantly consenting to the sexual activity alleged in the indictment.

[57] Finally, I find that there is a real risk that this evidence will derail the trial by making it about the parties’ entire sexual relationship as opposed to the specific instances set out in the indictment.

[58] I find that the prejudicial value of this evidence outweighs any probative value and as such the Crown will not be permitted to adduce evidence of other sexual activity during the relationship where the complainant felt pressured to provide her consent.

The purchase and use of sex toys during the relationship

[59] The Crown wishes to ask the complainant about whether sex toys were used during the relationship. It is anticipated that the complainant will testify that the parties used sex toys, specifically dildos, and that the accused would purchase them because she was too young to go into the adult stores where they were sold. It is also anticipated that the complainant will testify that the accused would purchase dildos that the complainant did not approve of, in terms of what they were made of and their size.

[60] The use of a sex toy, specifically a dildo, forms part of that allegations contained in count 4 of the indictment. It is alleged that the accused used a “pink dildo” that was larger than what the complainant was comfortable with and caused her pain and discomfort. It is alleged that the parties engaged in the consensual use of the dildo until the complainant expressed that she did not want to continue because it was hurting her. It is alleged that despite her revocation of consent, the accused continued to use the dildo and then engaged in anal intercourse with the complainant without her consent.

[61] While perhaps marginally relevant, I do not see any probative value to general evidence about whether sex toys and/or dildos were used during the relationship. The evidence of the complainant is that they were used, consensually, during their relationship. Although she expressed that she did not like some of the dildos that were purchased, she ultimately consented to using them during the relationship.

[62] I do not see any relevance to the evidence that the accused purchased the dildos because the complainant was too young to go into an adult store. Even if this were relevant, or probative, the evidence carries with it the danger of moral prejudice to the accused. The jury may infer that the accused is a bad person because he went into the store and purchased items for the underaged complainant.

[63] I also find that the proposed evidence is unnecessary. The complainant will testify as part of her evidence on count 4, that she was uncomfortable using the pink dildo because of its size. This forms part of the allegation itself. The jury will hear evidence that despite the complainant’s dislike of the pink dildo, that the accused encouraged her to allow him to use it and then continued to use it despite her express request that he stop.

[64] Evidence of prior use of dildos, and in particular the pink dildo, engages twin-myth reasoning. There is a danger that the jury may infer that because the complainant consented to the use of dildos in the relationship, and to the specific use of the pink dildo in the past, it is more likely that she consented to its use on the occasion in Sault St. Marie.

[65] I find that the prejudicial impact of this evidence outweighs any probative value. The Crown will not be permitted to adduce this evidence.

The use of alcohol during the relationship

[66] The Crown wishes to ask the complainant about her consumption of alcohol during the relationship. It is anticipated that the complainant will testify that the accused would purchase alcohol and the two would consume it throughout their relationship. This would be at a time when the complainant was under the legal age to purchase or consume alcohol. It is anticipated that the complainant will testify that the accused would use alcohol as a way to overcome her resistance to sexual activity throughout the relationship.

[67] The jury will hear, as part of the allegations, that the complainant and the accused consumed alcohol. It forms part of the evidence related to counts 1 and counts 4. With respect to count 1, it is anticipated that the complainant will testify that she would consume alcohol and sleep deeply only to wake up and discover that the accused was engaging in sexual activity with her without her consent. With respect to count 4, it is anticipated that the complainant will testify that during the incident in Sault Ste. Marie, the parties were consuming alcohol, and the accused would encourage her to drink more when she expressed a reluctance to continue the sexual activity.

[68] This aspect of the evidence of alcohol purchase and consumption is admissible, as it forms part of the allegations themselves. The jury will hear that the complainant was under the legal age of consent during these incidents.

[69] Evidence about the broad use of alcohol throughout the relationship and specifically every time the parties engaged in sexual activity is not relevant, nor is it required as evidence in this trial. It simply opens up the door to evidence about the parties’ sexual relationship as a whole, which I have already found is not relevant to the issues in this trial.

The accused’s mental illness

[70] The Crown wishes to ask the complainant whether she was aware of the accused having a mental illness and whether the accused ever attempted suicide. It is anticipated that the complainant will testify that the accused suffered from mental illness and would tell her that he felt like killing himself. It is anticipated that the complainant will testify that the accused would tell her this to make her feel bad and either engage in sexual activity with him or send him nude pictures in order to make him feel better. This would be further evidence of the accused’s emotional manipulation during the relationship.

[71] It is not anticipated that the complainant will testify that the accused referred to having a mental illness or to wanting to commit suicide during the alleged incidents contained in the indictment. As such, I fail to see the relevance of this proposed evidence, other than to describe general emotional manipulation during the relationship. As I have explained earlier, this trial should not become about the parties’ entire relationship. This will derail the trial by turning it into a trial about the entire relationship. It also runs the risk of diverting the jury’s attention from the issues as they relate to the specific allegations contained in the indictment.

[72] The nature of this proposed evidence is highly intrusive to the accused’s privacy and dignity interests. It is the type of evidence that is routinely excluded as it relates to complainants and witnesses, not only sexual assault trials, but trials in general. There are many myths and stereotypes that exist with respect to mental illness that have no place in the truth-seeking function of a trial. Unless evidence of mental illness relates to a specific issue in a trial, it rarely has any relevance or probative value.

[73] I find that the prejudicial nature of this evidence outweighs any probative value. As such, the Crown will not be permitted to adduce this evidence.

The accused’s influence on the complainant’s appearance

[74] The complainant wishes to ask the complainant whether the accused influenced what she wore. It is anticipated that the evidence will be that the accused would encourage the complainant to wear revealing clothing during the relationship. The Crown wishes to adduce this evidence as it demonstrates the accused’s controlling and manipulative behaviour during the parties’ relationship.

[75] Evidence of controlling behaviour on the part of an accused during an intimate partner relationship may be relevant to issues at trial. This type of evidence must be assessed within the context of the issues in each trial. In assessing this evidence, the court must carefully balance the probative value of the evidence and its prejudicial effect.

[76] I am satisfied that this proposed evidence is relevant to the issues in this trial. Specifically, the jury may not understand why the complainant continued to stay in the relationship despite repeated incidents of sexual assault. The evidence is probative, as it demonstrates that the accused engaged in controlling behaviour with respect to the complainant by telling her what she should wear and that she would comply.

[77] I find that the prejudicial impact of this evidence is low. It is unlike evidence related to the parties’ sexual relationship, which I have found carries with it a high level of prejudice in the context of this trial.

[78] Further, the admission of this evidence ensures that the jury is not left with a “sterile and antiseptic record devoid of the realities of the individual parties”. The anticipated evidence of the complainant is that the accused was controlling in many ways. The admission of this less prejudicial evidence allows the jury to hear some evidence of that controlling nature.

Conclusion

[79] For these reasons, the Crown will be permitted to adduce evidence related to the accused’s controlling nature as it relates to the complainant’s choice of clothing.

[80] The Crown will not be permitted to adduce evidence of other sexual activity between the complainant and the accused.

[81] The Crown will not be permitted to call evidence related to the general purchase and use of alcohol during the relationship, other than that related to the specific allegations. The Crown will not be permitted to call evidence related to the accused’s mental illness or expressed suicidal ideation.

The Honourable Madam Justice S.K. Stothart Released: June 21, 2024