Court File and Parties

COURT FILE NO.: CCR20-01525-AP DATE: 20240723

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Abigail Morris Appellant – and – HIS MAJESTY THE KING Respondent

Counsel: Mark Ertel, for the Appellant William Webber and Fara Rupert, for the Respondent

HEARD: February 12, 2024, with additional written submissions on July 12 and 19, 2024

Restriction on Publication

Subject to any further order by a court of competent jurisdiction, an order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to section 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.

Reasons for Decision Summary Conviction Appeal

Rees J.

I. Overview

[1] The appellant, Abigail Morris, was convicted of sexual interference and sexual assault following a two-day trial. The conviction for sexual assault was stayed under the Kienapple principle.

[2] Before trial, the trial judge granted the Crown’s dual-purpose Seaboyer and discreditable conduct application to admit prior sexual communications between the appellant and the complainant, A.B. Although the electronic communications were not recovered by police, the Crown elicited evidence about the general contents of the communications through A.B.’s testimony at trial.

[3] The appellant engaged in vaginal intercourse with A.B. twice. During the period charged, Ms. Morris was between 22 and 23, and A.B. was 15. Because A.B. was under the age of 16, the Criminal Code, R.S.C. 1985, c. C-46, s. 150.1(1) barred the appellant from relying on A.B.’s consent as a defence. There was no issue at trial that the appellant was aware of A.B.’s age – it was admitted in an agreed statement of facts. The only issue at trial was whether the Crown had proved the actus reus of the offences. Specifically, the issue was whether the Crown had established that the appellant had engaged in vaginal intercourse voluntarily. There was no evidence, and no defence advanced at trial, that the complainant had sexually assaulted the appellant.

[4] The appellant raises four arguments on appeal. First, the appellant argues that to establish voluntariness, the Crown must prove beyond a reasonable doubt that the accused subjectively consented to the sexual activity charged. Second, the appellant argues that the trial judge erred by allowing the Crown’s Seaboyer application. Third, the appellant argues that the trial judge erred by relying on myths and stereotypes to determine that the appellant had acted voluntarily. Finally, the appellant argues that the trial judge erred by using the context evidence of the prior sexual communications to infer that the appellant acted voluntarily.

[5] Consent matters. It is “the foundational principle upon which Canada’s sexual assault laws are based”: R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 1. Consent is crucial to our autonomy and sexual integrity. But equating proof that an accused’s acts were voluntary with proof of an accused’s subjective consent is a fundamental legal error. The appellant’s premise must therefore be rejected.

[6] In the result, I dismiss the appeal. The trial judge did not err in allowing the Crown’s Seaboyer application, nor did the trial judge rely on myths and stereotypes to determine that the appellant had acted voluntarily. Finally, the trial judge did not err by using evidence of the prior sexual communications to infer that the appellant acted voluntarily.

II. Facts

[7] A.B. and the appellant’s sister participated in their school’s musical theatre. Some weeks later, Ms. Morris added A.B. on Snapchat, and they began communicating this way. The Snapchat messages were not recovered by police because A.B. had removed Ms. Morris as a contact from Snapchat. This made the messages exchanged between them inaccessible.

[8] A.B. testified to the contents of the messages at trial. Although A.B. could not recall the exact contents of the initial communications between them, he recalled that the appellant said she recognized him from the musical, which her sister had also participated in. The appellant and A.B. also began following each other on Instagram. A.B. would “like” the appellant’s photographs as she shared them.

[9] A.B. and the appellant started communicating more often over Snapchat. A.B. estimated they exchanged several hundred messages. They communicated daily.

[10] Although A.B. testified that he could not recall what they discussed in their messages, he recalled that most of the messages were sexual. He recalled sending the appellant photographs of himself shirtless 20 to 30 times. He and the appellant also exchanged nude photographs on Snapchat.

[11] The appellant twice told A.B. she could not have sex with him because he was 15. Ultimately, they agreed to get together in person to have sex. They discussed condom use given the age gap between them. They both agreed not to tell anyone about the sex. These discussions happened over Snapchat.

[12] Further to their plan, the appellant and A.B. met up. A.B. told his mother that he was going to a friend’s house. The appellant had arranged to pick up A.B. and she drove him to her mother’s house. Once there, the appellant took him to her bedroom. They watched a movie and had sexual intercourse while the movie was playing.

[13] A.B.’s evidence about the sexual activity was brief. A.B. could not recall any discussion between himself and the appellant just before the sexual activity. A.B. described that he and the appellant made out a lot, he wore a condom, the two of them had vaginal intercourse, and the sex finished.

[14] After having sex, they watched the rest of the movie and the appellant drove A.B. home.

[15] Later in the same month, the appellant and A.B. got together again. The appellant picked up A.B. and took him to her father’s home, since her father was out of town. Again, A.B.’s evidence on the sexual activity was limited. He testified that they stayed in the living room, watched a movie, then started making out and then had vaginal intercourse. A.B. stayed the night. The appellant drove A.B. home the next morning.

[16] There was no evidence at trial to suggest that the appellant acted involuntarily during her sexual activity with the complainant. When challenged on cross-examination, A.B. stated that the appellant willingly participated in the sexual activity. A.B. stated that he did not push himself onto the appellant. A.B. agreed with the defence suggestion that he believed that the appellant consented to the sexual activity because they had messaged each other about having sex on Snapchat, and that they agreed ahead of time that she would consent and that A.B. would consent to sex. A.B. agreed that this agreement was made before they engaged in sexual activity on the two occasions. A.B. also testified that he believed that they were going to have sexual intercourse based on their exchange of sexual photos.

[17] The Crown also called Ms. Emily Crozier, the appellant’s friend, who testified that the appellant had visited her after having spent the night with A.B. at his house. Ms. Morris told Ms. Crozier that she had been with A.B., that she had “taken his virginity” and it was bad because he was only 15.

[18] The appellant did not testify.

III. Issues

[19] The appeal raises four issues:

1. To prove voluntariness, does the Crown have to establish that the accused subjectively consented to the sexual touching?
2. Did the trial judge err in admitting the complainant’s evidence about prior sexual communications between the complainant and the appellant?
3. Did the trial judge err by relying on myths and stereotypes to determine that the appellant had acted voluntarily?
4. Did the trial judge err by using the context evidence of the prior sexual communications to infer that the appellant acted voluntarily?

[20] I will consider each issue in turn.

IV. Analysis

Standard of review

[21] The Supreme Court of Canada recently confirmed the standard of review of a trial judge’s factual findings, particularly where an appellate court is called on to assess a trial judge’s credibility or reliability assessments: R. v. Kruk, 2024 SCC 7, 433 C.C.C. (3d) 301, at paras. 94-98. The decision is relevant to this appeal because the court in Kruk extensively considered the permissible and impermissible use of common sense in judicial fact-finding, and errors arising from reliance on myths and stereotypes. The court summarized the framework as follows (citations omitted):

• Where an appellant alleges that a trial judge erroneously relied on a “common-sense” assumption in their testimonial assessment, the reviewing court should first consider whether what is being impugned is, in fact, an assumption. Given the nature of how witnesses give evidence and the need to read the trial judge’s reasons as a whole, what might appear to be an assumption on its face may actually be a judge’s particular finding about the witness based on the evidence: at para. 94.
• Once satisfied that the trial judge did, in fact, rely on an assumption that is beyond the bounds of what common sense and the judicial function support, the reviewing court should identify the appropriate standard of review applicable to the impugned portion of the trial judge’s credibility or reliability assessment: at para. 95.
• The standard of review will be correctness if the error alleged is a recognized error of law. Such errors may include reliance on myths and stereotypes about sexual assault complainants, as well as any improper and incorrect assumptions about accused persons that run contrary to fundamental principles such as the right to silence and the presumption of innocence. Testimonial assessments may also be subject to correctness review where the trial judge has made a finding of fact for which there is no evidence: at para. 96.
• Reliance on stereotypes other than myths and stereotypes about sexual assault complainants, but which are similarly rooted in inequality of treatment, may also amount to errors of law: at para. 96.
• Absent an error of law, the standard of review will be palpable and overriding error. The reviewing court must first determine whether the erroneous reliance on the assumption is palpable, in that it is “plainly seen”, “plainly identified”, or “obvious”. Palpable errors in this context will include, for example, where the assumption is obviously untrue on its face, or where it is untrue or inapplicable given the other accepted evidence or findings of fact: at para. 97.
• Once a palpable error has been identified, the reviewing court must also find that the erroneous reliance on the assumption was overriding, in that it is “shown to have affected the result” or “goes to the very core of the outcome of the case”. If it cannot be shown that the error was palpable and overriding, a trial judge’s assessment of credibility or reliability will be entitled to deference and there will be no basis for appellate intervention: at para. 98.

[22] With this guidance in mind, I turn to the law of sexual interference and sexual assault.

The law of sexual interference and sexual assault

Sexual interference

[23] Under s. 151 of the Criminal Code, the Crown must prove each of the following essential elements of the offence of sexual interference beyond a reasonable doubt:

a. that the complainant was under the age of 16 at the time of the touching; b. that the accused intentionally touched the complainant; and c. that the touching was for a sexual purpose.

[24] The actus reus of this offence is a touching of a person under the age of 16. I will return to this requirement below.

[25] Touching is for a sexual purpose “if it is done for one’s sexual gratification or to violate a person’s sexual integrity”: R. v. Morrisey, 2011 ABCA 150, at para. 21. In assessing the accused’s purpose, the trier of fact may consider “whether the sexual context of the touching would be apparent to any reasonable observer”: ibid. Sexual purpose may be proven “either by direct evidence, or it may be inferred from circumstantial evidence or from the nature of the touching itself”: ibid.

[26] Whether touching was for a sexual purpose or took place in sexual circumstances is largely a question of fact to be determined by examining all the circumstances: R. v. Langevin, 2016 ONCA 412, at para. 24. The court also held that “proof of these essential elements may be made by direct evidence, by circumstantial evidence or by both types of evidence in combination”: ibid.

Sexual assault

[27] The actus reus of sexual assault under ss. 271 and 265(1)(a) of the Criminal Code comprises three elements: (1) touching; (2) the sexual nature of the contact; and (3) the absence of consent: R. v. Ewanchuk, [1999] 1 S.C.R. 330, at para. 25; G.F., at para. 25. Touching is proved objectively. “It is sufficient for the Crown to prove that the accused’s actions were voluntary”: Ewanchuk, at para. 25. Voluntariness means that “the conduct in question must be willed”: R. v. Daviault, [1994] 3 S.C.R. 63, at p. 74.

[28] The sexual nature of the contact is also determined objectively. The Crown need not prove that the accused had any mens rea with respect to the sexual nature of his behaviour: Ewanchuk, at para. 25. In making this determination, the Supreme Court of Canada explained in R. v. Chase, [1987] 2 S.C.R. 293, at p. 302:

The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct … will be relevant. [The accused’s] intent or purpose … to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual. If the motive of the accused is sexual gratification, to the extent that this may appear from the evidence, it may be a factor in determining whether the conduct is sexual. [Citations omitted.]

[29] The absence of consent is determined subjectively, by reference to the complainant’s internal state of mind toward the touching at the time it occurred: Ewanchuk, at para. 26; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 89.

[30] The mens rea of sexual assault has two elements: (1) intention to touch; and (2) knowledge of, or wilful blindness or recklessness as to, a lack of consent by the person touched: Ewanchuk, at para. 42; Barton, at para. 87. Sexual assault is a crime of general intent. The Crown need only prove that the accused intended to touch the complainant to satisfy the basic mens rea requirement of intention to touch: Ewanchuk, at para. 41.

Common element: touching

[31] Common to both the offences of sexual interference under s. 151 of the Criminal Code and sexual assault under ss. 271 and 265(1)(a) is the element of the actus reus of touching. Although s. 265(1)(a) speaks of applying “force”, “as a legal term of art, the element of force has been interpreted to include any form of touching”: R. v. R.V., 2021 SCC 10, [2021] 1 S.C.R. 131, at para. 52. The Court of Appeal for Ontario has held that “force includes any touching”, so that the “application of force” requirement is satisfied “if the [accused] intentionally touched the complainant”: R. v. S.L., 2013 ONCA 176, 300 C.C.C. (3d) 100, at para. 43, leave to appeal refused, [2013] S.C.C.A. No. 218.

[32] The Crown must prove that the accused touched the complainant voluntarily.

Issue 1: To prove voluntariness, does the Crown have to establish that the accused subjectively consented to the sexual touching?

[33] The appellant’s arguments at trial and on appeal rest on the premise that voluntariness and consent are equivalent. The appellant argues that the Crown must establish that the accused subjectively consented to the sexual touching to establish that her engaging in the sexual touching was voluntary.

[34] The appellant’s equating of voluntariness with subjective consent is a fundamental legal error, and therefore it must be rejected.

[35] Given the centrality of this flawed premise to the appeal, I begin by contrasting the concepts of voluntariness and consent. I then consider what the Crown must, in law, prove to establish voluntariness.

Voluntariness

[36] Voluntariness is a necessary element to establish criminal liability: R. v. Swaby (2001), 54 O.R. (3d) 577 (C.A.), at para. 18. This is so even if the provision creating the offence does not expressly require it: Swaby, at para. 18; Don Stuart, Canadian Criminal Law: A Treatise, 7th ed. (Toronto: Carswell, 2014), at p. 109. For there to be an actus reus, the act must be the voluntary act of the accused: R. v. Théroux, [1993] 2 S.C.R. 5, at p. 17, per McLachlin J.

[37] Scholars agree: Kent Roach, Criminal Law, 8th ed. (Toronto: Irwin Law, 2022), at pp. 115-18; Stuart, Canadian Criminal Law, at pp. 109-17; Morris Manning, Q.C. and Peter Sankoff, Manning, Mewett & Sankoff – Criminal Law, 5th Edition (Markham: LexisNexis Canada, 2015), at para. 3.10; Glanville Williams, Textbook of Criminal Law, 2nd ed. (London: Stevens & Sons, 1983), at pp. 146-54; and Andrew Ashworth, Principles of Criminal Law, 4th ed. (Oxford: Oxford University Press, 2003), at pp. 99-100.

[38] This means that not all the mental elements of an offence are contained in the mens rea. “The actus reus has its own mental element; the act must be the voluntary act of the accused for the actus reus to exist”: Théroux, at p. 17, per McLachlin J. (as she then was).

[39] The requirement of voluntariness is underpinned by the “critical importance of autonomy in the attribution of criminal liability”: R. v. Ruzic, 2001 SCC 24, [2001] 1 S.C.R. 687, at para. 45, per LeBel J. It is a basic concern of the criminal law that “criminal responsibility be ascribed only to acts that resulted from the choice of a conscious mind and an autonomous will”: Ruzic, at para. 34. As Healy J.A. explains, “[f]or an act to be attributed to the responsibility of a person in the criminal law it must be voluntary. … A voluntary act is the expression of a conscious choice and conscious control by the person who commits it. To this extent the actus reus of an offence includes a mental element”: Primeau v. R., 2017 QCCA 1394, 356 C.C.C. (3d) 329, at para. 25 (considering accident a defence).

[40] The Supreme Court has repeatedly recognized that punishing people whose actions are physically involuntary is unjust: Ruzic, at para. 46 (discussing physical versus moral involuntariness in the context of the defence of duress). For instance, in Rabey v. R., [1980] 2 S.C.R. 513, at p. 522, Dickson J. wrote that “it is [a] basic principle that absence of volition in respect of the act involved is always a defence to a crime. A defence that the act is involuntary entitles the accused to a complete and unqualified acquittal.” Rabey is a pre- Canadian Charter of Rights and Freedoms case which considered the defence of non-insane automatism. Although Dickson J. wrote in dissent in Rabey, this statement of principle was adopted by the court in R. v. Parks, [1992] 2 S.C.R. 871.

[41] The Supreme Court has recognized the constitutional status of voluntariness, holding that it would infringe s. 7 of the Charter to convict an accused who was not acting voluntarily, because an element of the actus reus would be absent from the offence: Daviault, at pp. 102-3; R. v. Stone, [1999] 2 S.C.R. 290; and R. v. Brown, 2022 SCC 18, 412 C.C.C. (3d) 427, at para. 96.

[42] Thus, voluntariness is a mental element, distinct from mens rea. It requires that the act be a product of the accused’s will. The act must be within their control. As the Supreme Court has explained, “there can be no actus reus unless it is the result of a willing mind at liberty to make a definite choice or decision, or in other words, there must be a willpower to do an act whether the accused knew or not that it was prohibited by law”: The Queen v. King, [1962] S.C.R. 746, at p. 749. In Ruzic, at para. 47, the Supreme Court elaborated that voluntary conduct was “behaviour that is the product of a free will and controlled body, unhindered by external constraints”.

[43] But voluntariness must be distinguished from the subjective consent of the accused to the sexual touching. The two concepts are distinct. The appellant has incorrectly equated the two.

Consent

[44] In the context of sexual assault, consent is considered when establishing that the complainant did not consent to the touching. As discussed, the absence of the complainant’s consent is determined “by reference to the complainant's subjective internal state of mind towards the touching, at the time it occurred”: Ewanchuk, at para. 26; Barton, at para. 89.

[45] There are two aspects to the concept of consent. The first is subjective consent, which relates to the factual findings about whether the complainant subjectively and voluntarily agreed to the sexual activity, and the second requires that subjective consent also be effective as a matter of law. The Criminal Code sets out a series of factors that will vitiate subjective consent: ss. 265(3) and 273.1(2). These factors recognize that even if a complainant has permitted the sexual activity, there are circumstances in which subjective consent will be deemed of no force or effect: G.F., at paras. 31-36.

[46] The complainant either subjectively consented or not; there cannot be implied consent to sexual touching: Ewanchuk, at para. 31. “Today, not only does no mean no, but only yes means yes. Nothing less than positive affirmation is required”: R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at para. 44. The complainant must affirmatively communicate consent – contemporaneously – for each and every sexual act: ibid.

The appellant’s argument rests on a false premise

[47] The defence’s main argument at trial was that the Crown had not established that Ms. Morris had committed the actus reus of the offences. The defence argued that the Crown had failed to prove that the appellant had engaged in vaginal intercourse voluntarily. The defence argued that to establish that Ms. Morris acted voluntarily, it was necessary for the Crown to establish that she consented to the sexual activity with A.B.

[48] The law of sexual interference and sexual assault does not require the Crown to prove that the accused subjectively consented to the touching by reference to the accused’s internal state of mind. The appellant’s argument conflates voluntariness and consent.

[49] In equating the two concepts, the appellant relies on s. 273.1(1) of the Criminal Code: “[C]onsent means … the voluntary agreement of the complainant to engage in the sexual activity in question.” But Parliament’s use of “voluntary” in the context of s. 273.1(1) was not intended to import a requirement that the Crown prove that the accused subjectively consented to the touching. The language of s. 273.1(1) is expressly focused on the complainant, not the accused. It is the complainant’s consent that must be voluntary, in the sense of “freely given”: Ewanchuk, at para. 36. [1]

[50] The appellant’s argument must be rejected. First, it conflicts with settled law. Second, it would impose a false symmetry between complainants and accused persons. Third, it ignores the substantive difference between whether the accused’s actions were voluntary and whether the complainant subjectively consented to the touching. It is a category error to conflate these two concepts. Fourth, it would lead to undesirable consequences in the prosecution of sexual interference and sexual assault offences by imposing an unnecessary burden on the Crown to prove that the accused subjectively consented to the touching. Finally, any concerns about instances where the accused’s defence is that they were sexually assaulted by the complainant during the act charged can be accommodated satisfactorily through the accused’s existing legal protections. See generally Kruk.

[51] In sum, there is no principled reason to adopt the appellant’s argument.

Proof of voluntariness

[52] I now turn to what the Crown must prove to establish voluntariness in the context of sexual interference and sexual assault.

[53] Normally, it is sufficient for the Crown to establish that an accused touched the complainant to satisfy the voluntariness element. Although the Crown always bears the onus of proving each element of an offence, including voluntariness, in practice voluntariness can generally be presumed: Stone, at para. 171, per Bastarache J. for the majority. As Binnie J. put it, “[w]e infer from common experience that the acts of an apparently conscious person are usually voluntary”: Stone, at para. 37 (dissenting on other grounds). In most cases, there is no issue that the accused willed the touching of the complainant.

[54] Voluntariness, as part of the actus reus, is determined objectively: Ewanchuk, at para. 25. It does not require the Crown to establish the accused’s subjective internal state of mind.

[55] In most cases, the voluntariness of the accused’s act can readily be established by evidence of the accused initiating the touching or, through words or conduct, inviting the touching. But the Crown need not prove that the accused actively touched the complainant; it is also sufficient that the accused passively accepted the touch of the child or young person.

[56] In R. v. L.O., 2013 SKQB 267, 425 Sask. R. 200, at para. 82, the court held that “[t]ouching includes both active and passive contact meaning the accused does not have to be the active toucher. Section 151 has been interpreted to include situations where the child initiates the touching.”

[57] Similarly, in R. v. Sears, 58 C.C.C. (3d) 62 (Man. C.A.), the Manitoba Court of Appeal held that the accused need not be the primary actor or instigator of the sexual contact; it is sufficient that the accused be a passive participant. The court held as follows at p. 64:

In reading this section as a whole, it is clear that an accused who intends sexual interaction of any kind with a child and with that intent makes contact with the body of a child “touches” the child and is guilty of an offence. The section addresses not the instigator of the sexual conduct but rather the adult who for his or her own sexual purposes makes contact, whether as a primary actor or not, with the body of a child.

On the facts of this case, I cannot agree that the accused did not “touch” the complainant. To reach such a conclusion would result in the absurdity of s. 151 being inapplicable to any accused who in seeking sexual gratification allows a child to make physical contact with him or her. Such a narrow grammatical interpretation of s. 151 was not intended. The circumstances of the offence are complete in accordance with the section when the accused for his or her own sexual purposes comes into contact or touches any part of the body of a complainant who is under the age of 14.

[58] Likewise, I would reject an interpretation of the actus reus in s. 151 that did not encompass the accused passively accepting a young person’s touch. Parliament intended s. 151 to protect young persons because “adult/youth sexual relationships are inherently exploitative”: R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021, at para. 26. By contrast, reading the offence as excluding passive acceptance by an accused would be unduly narrow and leave young persons open to exploitation by adult accused.

[59] But there may be cases where the defence is that the accused may not have been acting voluntarily. For example, in Daviault, the Supreme Court recognized an accused could be sufficiently intoxicated to lack the basic mental element of voluntariness required by the actus reus. It held that an accused in “an extreme state of intoxication akin to automatism” is deprived of the ability to perform a voluntary willed act: at p. 102. The majority of the court imposed a burden on the accused to prove on a balance of probabilities that he or she was in an extreme state of intoxication akin to automatism. While imposing a burden of proof on the accused infringed s. 11(d) of the Charter, it was saved by s. 1. See also Brown.

[60] No such defence was raised here.

Issue 2: Did the trial judge err in admitting the complainant’s evidence about prior sexual communications between the complainant and the appellant?

The Crown’s Seaboyer application

[61] On the Crown’s application, the anticipated evidence was that the parties exchanged messages over Snapchat. It was expected that A.B. would testify that he told Ms. Morris via message how old he was. It was also expected that A.B. would testify that their exchange of messages included the exchange of nude photos and that Ms. Morris extended an offer to A.B. to meet and engage in sexual intercourse.

[62] As discussed, the Snapchat messages were not recovered by police because A.B. had removed Ms. Morris as a contact from Snapchat. This made the messages exchanged between them inaccessible.

[63] The Crown brought a dual-purpose pretrial application seeking to admit evidence of prior sexual communications between Ms. Morris and A.B. The proposed evidence would be led through A.B. The Crown proposed that A.B. would testify about the contents of the messages and photos.

[64] First, the Crown sought to adduce this evidence as other sexual activity under R. v. Seaboyer; R. v. Gayme, [1991] 2 S.C.R. 577. Ultimately, the Crown sought to introduce the evidence of prior sexual communications for the following purposes:

a. narrative; b. evidence that the parties were developing a relationship that was more than just a friendship or platonic; c. evidence of the accused’s sexual interest in the complainant; d. evidence of the accused’s grooming behaviour towards the complainant; e. (c) and (d) are evidence making it more likely the sexual activity occurred; and f. (c) and (d) are relevant to establishing the sexual purpose of any touching (in respect of the sexual interference charge).

[65] Second, the Crown also sought its admission under R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, because the evidence was presumptively inadmissible as other discreditable conduct. This aspect of the Crown’s application was not in issue on appeal, so I need not consider it here.

[66] On its Seaboyer application, the Crown did not file an affidavit from A.B. Rather, it filed a transcript of A.B.’s sworn interview by police.

[67] The defence resisted the Seaboyer application. The defence argued that the application should be denied because the Crown had failed to produce the messages themselves and to identify them with sufficient specificity through A.B. The defence also argued that it had been denied an opportunity to challenge the Crown’s evidence on the Seaboyer application, because the Crown simply filed a transcript of the complainant’s sworn police interview, rather than an affidavit, which denied the defence the ability to cross-examine the complainant.

[68] The defence argued that the Crown failed to establish the relevance of the evidence to an issue at trial. The prior sexual communications should not be adduced as evidence of context. The defence argued that evidence of prior sexual communications could not be used to establish that the accused consented to the alleged acts beyond a reasonable doubt. The defence contended that this evidence would constitute twin myth reasoning – that sexually active women are more likely to consent to intercourse or are less worthy of belief. The defence contended that the evidence the Crown sought to lead was inadmissible as stereotypical reasoning, specifically, that the proposed evidence was inadmissible because it relies on the stereotypical inference that a person who indicates at an earlier time that they are interested in sexual intercourse is more likely to have consented on the later date. The defence argued that the evidence is also inadmissible because advanced consent and implied consent are not recognized in law.

[69] The trial judge disagreed and granted the Crown’s Seaboyer application.

The trial judge did not err in granting the Crown’s Seaboyer application

[70] I disagree with the appellant’s submissions. The trial judge did not err in granting the Crown’s pretrial application to admit the evidence of the prior sexual communications between the accused and the complainant.

[71] First, the Crown need not file an affidavit from the complainant on a Seaboyer application. The appellant relies on Seaboyer, at p. 636, which held that “[b]efore evidence of consensual sexual conduct on the part of a victim is received, it must be established on a voir dire … by affidavit or the testimony of the accused or third parties, that the proposed use of the evidence of other sexual conduct is legitimate.” The appellant also relies on R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, which held that the requirement that the accused file an affidavit with detailed particulars of the evidence that the accused seeks to adduce did not infringe the accused’s right to silence.

[72] I have only found one authority directly applicable to the Crown bringing a Seaboyer application. In R. v. A.K., 2022 ABKB 651, the Alberta Court of King’s Bench considered whether the Crown had provided an evidentiary basis for its Seaboyer application when it simply attached the text messages to its written submissions but did not arrange for anyone to review them and swear an affidavit attesting to their origin. After reviewing the relevant authorities, the court held that the text messages were inadmissible because there was no evidence properly before the court on the Seaboyer application. Although the court had submissions from Crown counsel, there was no affidavit, viva voce evidence, or preliminary inquiry transcript that the court could rely on to assess the relevance and probative value versus prejudicial effect of what the Crown sought to adduce.

[73] I agree with the reasoning in A.K. The applicable principles can be briefly stated. The Seaboyer principles apply to the Crown as much as the accused: Barton, at para. 80. The Crown has the burden of providing a sufficient evidentiary basis on which the court may assess relevance or the significance of the proposed evidence. Providing a sufficient evidentiary basis may be done through affidavit, viva voce testimony, or it may be done by way of other evidence properly before the court. The court has the discretion to decide what evidence to accept. For instance, in the context of s. 276 applications by the accused, courts have accepted transcripts from a preliminary inquiry: R. v. T.A.H., 2019 BCSC 1614, 58 C.R. (7th) 148, at paras. 36-37. Whether it be the accused or the Crown, the party who seeks to admit the evidence of prior sexual activity fails to file an affidavit at their peril: T.A.H., at para. 37.

[74] Here, the Crown filed the complainant’s sworn statement to the police.

[75] Although the reason for filing a transcript of the complainant’s sworn statement to the police rather than an affidavit from him was not explained by the Crown, and the trial judge did not articulate his reasons for admitting the transcript, it was open to the trial judge to admit the evidence on the Crown’s dual-purpose application.

[76] Second, in circumstances where, as here, the messages are no longer recoverable, it is open to the Crown to adduce evidence from the complainant about them. It is the contents of the communications between the accused and the complainant that matter, not their format. In this, it would be no different if the complainant were giving evidence about oral communications or sexual activity between him and the accused.

[77] Third, the evidence on the Seaboyer application was sufficiently specific. Where an accused applies under s. 276(2), the Supreme Court of Canada held that the evidence must be “sufficiently specific to support a fully informed analysis, allowing the judge to circumscribe what evidence may be adduced and how it may be used”: Goldfinch, at para. 53. The Crown met that standard here. The transcript of the complainant’s sworn police interview provided details about the prior sexual communications between the accused and complainant (including the fact they exchanged nude photos, their agreement to keep their sexual activity a secret, the accused’s sexual interest in the complainant, and their agreement to meet for sex). It also provided sufficient evidence of the timeframe of these communications. The appellant’s reliance on R. v. Bethune, 2022 NSSC 246, is misplaced – there was no uncertainty about what the proposed evidence would consist of here. The uses to which the Crown wished to put the evidence went beyond “bare assertions” that it would be relevant to context or narrative, which concerned the court in Goldfinch. The trial judge had “detailed particulars” that allowed the court to “meaningfully engage” with the admissibility criteria under Seaboyer: Goldfinch, at para. 51.

[78] Finally, the Crown’s Seaboyer application did not rest on myths and stereotypes.

[79] Again, this aspect of the appellant’s argument rests on the flawed premise that establishing voluntariness required the Crown to establish that Ms. Morris subjectively consented to the sexual activity charged. As I have already explained, the argument is misguided. The Crown did not seek to adduce the evidence of the prior sexual communications between the accused and the complainant to establish the complainant’s consent. As such, they do not run afoul of the prohibited inference that by reason of the sexual nature of the other sexual activity a complainant is more likely to have consented to the sexual activity that forms the subject matter of the charge (which is one of the twin myths).

[80] The appellant also argues that the Court of Appeal for Ontario in R. v. T.K.N., 2023 ONCA 488, 168 O.R. (3d) 58, prohibited admitting other sexual activity evidence as proof of the accused’s sexual interest in the complainant. This is not what T.K.N. says, however. Rather, at para. 4, the Court of Appeal held that “in general, questioning an accused person about whether they consider a complainant ‘attractive’, or whether they were ‘attracted to’ the complainant at the time of the events, is impermissible”. One of the reasons this is impermissible is that “because the questions are often rooted in stereotypical assumptions, they often seek answers that are irrelevant, or which may be rooted in impermissible propensity reasoning”: at para. 5. This can include the stereotypical assumption that “only ‘attractive’ females are sexually assaulted, or finding another person sexually attractive makes sexual assault more likely”: ibid.

[81] Yet in T.K.N. the court was satisfied on the facts that the questions were neither irrelevant nor based in stereotype. The Court of Appeal held, at para. 8:

Read in the context of the underlying allegation that the appellant engaged in an inappropriate, but not “physically forced”, relationship with an underage young teenager, the impugned questions are neither irrelevant nor based on stereotypical assumptions. Rather, they are squarely rooted in the complainant’s narrative of the events and relevant to her assertions that she and the appellant developed feelings for one another, and that he instigated and then continued their sexual relationship. This was not a case of stranger sexual assault nor a case involving adults capable of giving their consent. [Footnote omitted.]

[82] Thus, the admissibility of evidence of the accused’s sexual interest in the complainant will turn on a close examination of the specific context and facts of a case.

[83] The conclusion reached on the facts of T.K.N. is apposite to this appeal. Like in T.K.N., the underlying allegation is that the appellant engaged in an inappropriate, but not “physically forced”, relationship with an underage young teenager. Like in T.K.N., the evidence of prior sexual communications was directly relevant to the complainant’s narrative of events and the complainant’s assertion that they developed a sexual interest in one another.

[84] Both the Saskatchewan Court of Appeal and the Alberta Court of Appeal have also concluded that the accused’s sexual interest can be relevant in the context of charges of sexual assault or sexual interference.

[85] The Saskatchewan Court of Appeal held in R. v. Dirksen, 2021 SKCA 6, 398 C.C.C. (3d) 411, at paras. 70-71, that evidence of an accused’s conduct towards a complainant in the period surrounding a sexual assault can be relevant to issues such as motive and the nature of the relationship between the two on charges of sexual assault and sexual interference. “This type of evidence helps the trier of fact understand the circumstances of the offence and assess whether the Crown has proven each element of the offence”: ibid.

[86] In Dirksen, the evidence of the accused asking a complainant to send him naked photographs was held to be admissible for the purposes of setting out the events leading up to the offences, particularly the change in the nature of the relationship being sought by Mr. Dirksen, his escalating conduct that was akin to grooming behaviour, and his level of control over the complainants: at para. 71.

[87] Similarly, a majority of the Alberta Court of Appeal in R. v. Bourgeois, 2017 ABCA 32, 345 C.C.C. (3d) 439, at para. 42, aff’d 2017 SCC 49, [2017] 2 S.C.R. 287 (“Bourgeois (SCC)”), held that text messages from the accused expressing a sexual interest in the complainant were admissible as “statements supporting a finding that on this particular occasion the appellant had an abiding desire to have a sexual relationship with the complainant and that he was aggressive in pursuit of that intention.” This did not represent prohibited propensity reasoning or disreputable conduct evidence used to support a verdict based on prejudice rather than proof. On dismissing a further appeal by Bourgeois, the Supreme Court of Canada was not persuaded that the trial judge reached his decision by an “illogical or irrational reasoning process”: Bourgeois (SCC), at para. 1.

[88] The Alberta Court of Queen’s Bench has also held that evidence of an accused’s sexual interest in the complainant may be relevant on charges of sexual assault and sexual interference: R. v. Santillana, 2022 ABQB 108. The accused’s defence in that case was that the sexual activity did not occur. The text messages included texts where the accused asked the complainant about previous sexual experiences and asked if the complainant would engage in certain sexual activities. Also at issue were texts where the accused described his interest in having sex with the complainant. The court held that the texts showing the accused’s sexual interest in the complainant were probative of the accused’s interest in the complainant and were relevant to the issue of whether he intentionally touched her for a sexual purpose.

[89] Returning to the present appeal, the evidence of the appellant’s sexual interest in A.B. did not stand alone. It was coupled with evidence that Ms. Morris formed a plan to meet with A.B. for the purpose of having sex. The appellant having formed a plan to meet with A.B. to have sex makes it more likely that she did so. Of course, this does not mean that the accused could not have changed her mind to carry through on the plan to have sex with A.B. This evidence only leads to a reasoning error if one assumes that planning to meet for sex means that the accused would necessarily carry through. The trial judge made no such reasoning error or assumption. It is simply a piece of the evidence, among others, that the trial judge could consider.

[90] Finally, the appellant’s argument that the trial judge relied on myths and stereotypes in admitting the prior sexual communication evidence on the Crown’s Seaboyer application is misguided. The argument rests on an unwarranted “impulse towards symmetry and formally identical treatment” between complainants and accused, and it “reflects a misunderstanding of the distinct body of law associated with myths and stereotypes in sexual assault cases, which developed in a particular historical context to protect complainants alone”: Kruk, at para. 30. Similar arguments were rejected by the Supreme Court of Canada in Kruk.

[91] Here, the key factor on the Seaboyer analysis was the inherently exploitative nature of the allegations that the appellant, an adult, sought and had sex with an underage young person. Like in T.K.N., this is not “a case involving adults capable of giving their consent”: at para. 8. As such, the prior sexual communication evidence showing that the adult accused expressed a sexual interest in the underage complainant and showing the accused formed a plan to meet the complainant for sex is relevant to whether the actus reus occurred and to the sexual purpose of the touching. It was also integral to the narrative of events leading to the sexual activity and to put the alleged sexual assault and sexual interference in their proper context.

[92] I pause here to note that in granting the Seaboyer application, the trial judge referred to the evidence being relevant to the trust A.B. placed in Ms. Morris. It was never alleged that Ms. Morris stood in a relationship of trust towards A.B. This aspect of the trial judge’s reasons had no material impact on the outcome, however.

[93] The trial judge also said the evidence would put the allegations in context. The appellant invites me to conclude that the trial judge admitted the evidence as vague context, contrary to Goldfinch. But this is not a fair reading of the trial judge’s reasons. The trial judge was careful to observe that “how well the parties knew each other does not assist the issue of whether the act happened and/or was [there] consent”.

[94] Thus, I do not give effect to this ground of appeal.

Issue 3: Did the trial judge err by relying on myths and stereotypes to determine that the appellant had acted voluntarily?

[95] The appellant contends that the trial judge improperly relied on myths and stereotypes to infer that the appellant engaged in sexual activity with A.B. voluntarily. I disagree.

[96] The appellant’s contention rests on the flawed premise that to prove voluntariness as part of the actus reus of the offences, the Crown must establish that an accused subjectively consented to the sexual touching. I have already explained why this contention must be rejected.

[97] In addition, the appellant’s contention rests on an explicit analogy between the historic treatment of myths and stereotypes undermining the credibility of sexual assault complainants and the principles to be applied when assessing the testimony of accused persons in sexual assault cases, which was recently rejected by the Supreme Court of Canada in Kruk.

[98] The trial judge did not rely on myths and stereotypes in concluding that the appellant acted voluntarily. The record and the trial judge’s reasons must be read functionally and contextually.

[99] The record before the trial judge was that the accused was between 22 and 23, and the complainant a young person, aged 15. The appellant knew the complainant was underage. The accused and complainant discussed having sex through their Snapchat messages. They had planned to get together to have sex. The accused followed through on this plan. Having got together, they made out. The sexual touching progressed to vaginal intercourse. The complainant wore a condom because they had previously agreed he should do so. They had vaginal intercourse twice. The complainant testified on cross-examination that “[s]he – like it was like fully consensual” and he stated that “it’s not like I pushed myself onto her.” And again, “I said whenever we were like together, she – like it was she was willing. Like whenever we were together… she was willing.”

[100] Turning his mind to voluntariness, the trial judge held that “[t]he totality of the complainant’s evidence was that the sexual encounters were consensual, intentional and voluntary.”

[101] The trial judge also placed significant reliance on the appellant’s statement to Ms. Crozier to find that the appellant acted voluntarily. Ms. Crozier testified that the appellant told her that she had been with A.B., that she had “taken his virginity”.

[102] There was an issue at trial about whether the accused visited Ms. Crozier following one of the two occasions A.B. testified to, or whether Ms. Crozier’s evidence related to a visit following another occasion. As a result, the defence argued at trial that Ms. Crozier’s evidence had no connection to either incident and thus could not be corroboration.

[103] The trial judge agreed that it was unclear whether Ms. Crozier understood the accused to be saying that “‘she took the virginity the previous night’, or just that she had taken it sometime before.” The trial judge resolved this by concluding that she may have been confused as to timing and did not find it to be a material inconsistency.

[104] The trial judge returned to Ms. Crozier’s evidence several times over the course of his reasons:

What was important for Ms. Crozier’s evidence is that the accused voluntarily and on her own initiative disclosed to Ms. Crozier that she had taken the virginity of a 15-year-old, and then the accused disclosed the identity of this complainant.

Again, the importance of Ms. Crozier’s evidence was that the accused disclosed she took the virginity of a 15-year-old [A.B.] The accused’s own words indicate a voluntary/willing action of taking a 15-year-old’s virginity. That means sexual intercourse.

[T]he importance of Emily Crozier’s evidence was that the accused was freely describing taking a 15-year-old’s virginity. The description was of a voluntary intentional act.

Accordingly on the complainant’s evidence and the statement by the accused to Emily Crozier I am satisfied beyond a reasonable doubt that the accused had sexual intercourse with the complainant and that she knew he was 15. The accused will be found guilty on both the sexual assault and the sexual interference.

[105] It was open to the trial judge to consider Ms. Crozier’s evidence as evidence that the first time the accused had vaginal intercourse with the complainant, she did so voluntarily. When someone says they have “taken” someone’s virginity, in common parlance, it suggests that the person doing the “taking” was a willing participant, that it was a voluntary act.

[106] Based on this, together with A.B.’s evidence that the appellant willingly participated in the vaginal intercourse, it was open to the trial judge to conclude that the accused engaged in a voluntary act for the purpose of the actus reus of sexual interference and sexual assault.

[107] The appellant invites me to dissect certain words and phrases in the trial judge’s reasons. But the Supreme Court recently cautioned appellate courts against “microscopic … appellate review”. An appellate court’s proper role is not to target a trial judge’s “specific word choices”: Kruk, at para. 87. “An appellate court should examine a trial judge’s reasons as a whole and refrain from parsing their ‘individual linguistic components’”, because such an invasive approach would “undermine the trial judge’s responsibility for weighing all of the evidence”: Kruk, at para. 84. Simply put, I must read the trial judge’s reasons functionally and contextually: Kruk, at para. 88; G.F., at paras. 68-69.

[108] With this in mind, I turn to the passages of the trial judge’s reasons the appellant challenges.

[109] The appellant argues that the trial judge’s observation that “there is no evidence the [appellant] did not consent to this behaviour” involves the prohibited reasoning that the appellant must have “consented” because there was no evidence of her active resistance.

[110] I am not persuaded by this submission. Read in its proper context, the trial judge’s statement is simply a factually correct statement of the evidence. As discussed, all the evidence at trial pointed to the appellant being a willing participant in the sexual activity. The trial judge was making a factually accurate statement, grounded in the record before him, that there was no evidence to suggest otherwise. Nor did the defence suggest that the appellant was an involuntary participant. The appellant’s argument is purely a negative one: the Crown did not prove voluntariness.

[111] I pause here to underline that the defence does not bear a persuasive burden. The persuasive burden remains on the Crown throughout to prove all the elements of the offences beyond a reasonable doubt. My point is simply that this is not a case where the defence argued that the complainant sexually assaulted the accused.

[112] The appellant also argues that the trial judge engaged in prohibited reasoning in stating that “[A.B.] was asked if there was any unwillingness on the part of the accused, and [he] said, ‘no,’ but he also said that that they made out a lot before they had sexual intercourse. He also said they had discussed his wearing a condom.”

[113] Again, read in its proper context, this passage is a summary of the complainant’s evidence. I disagree that the trial judge concluded that Ms. Morris voluntarily engaged in vaginal intercourse based on A.B.’s evidence that they had “made out a lot” before having intercourse and that they had discussed condom use before getting together in person. As discussed, the trial judge’s conclusion that the appellant acted voluntarily was grounded on the totality of the complainant’s evidence about the appellant’s willing participation in the sexual activity and the appellant’s statement to Ms. Crozier.

[114] The final sentence the appellant invited me, in oral submissions, to dissect is the trial judge’s statement that “vaginal intercourse requires the participation by the female.” The passage from the trial judge’s reasons must be put in its full context. The trial judge stated:

[The defence] argued that vaginal intercourse involves the male applying force to the female and not the other way around, and that how would that be sexual assault. With respect, vaginal intercourse requires the participation by the female. There was no suggestion the complainant forced himself on the accused. Defence engaged in cross-examination of the complainant to attempt to imply a lack of consent on the part of the accused. It was clear to me this young man was describing a consensual sexual intercourse between two willing participants. Whether it is through his young age or inexperience, he may not have appreciated the nuances of the defence cross-examination, but I was confident the complainant was describing consensual sexual activity.

[115] While confusingly expressed, I do not read the trial judge as having meant that without the accused’s voluntary participation there could not have been vaginal intercourse. Rather, it rested on a misapprehension that the defence had argued that “vaginal intercourse involves the male applying force to the female and not the other way around”. And in light of that misapprehension, I read the trial judge’s statement as meaning that a female person can actively initiate or engage in the sexual touching of the other person’s penis with her vagina. This is true.

[116] I therefore do not give effect to this ground of appeal.

Issue 4: Did the trial judge err by using the prior sexual communications to infer that the appellant acted voluntarily?

[117] The appellant argues that the trial judge erred by using evidence of the prior sexual communications between the complainant and appellant to infer that the appellant acted voluntarily.

[118] There is considerable overlap between this ground of appeal and the previous two, so I will not repeat my analysis here. I reject this ground of appeal because, as discussed, the trial judge concluded that the appellant acted voluntarily based on A.B.’s evidence that she willingly participated in the sexual activity and the appellant’s statement to Ms. Crozier that she took A.B.’s virginity. The trial judge did not engage in stereotypical reasoning or myth-based assumptions.

V. Disposition

[119] The appeal is dismissed.

Justice Owen Rees

Released: July 23, 2024

[1] Although I refer to both the offences charged in this case, I should not be understood as suggesting that consent is a defence. Section 150.1(1) of the Criminal Code provides that when an accused is charged with sexual interference under s. 151 or sexual assault under s. 271, “in respect of a complainant under the age of 16 years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge.” The exceptions where the complainant and accused are close in age have no application here.