CITATION: R. v. Caporis, 2025 ONSC 2186

COURT FILE NO.: CR-23-095 (Kingston)

DATE: 20250409

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

ALEX CAPORIS

Defendant

Kia Andersen, for the Crown

Jordan Gold, for the Defendant

Jenny McKnight, for the Complainant, E.G.

HEARD: 13 March 2025, at Kingston

reasons for DECISION

(RULING ON PRE-TRIAL APPLICATIONS)

THE PUBLICATION, BROADCAST OR TRANSMISSION OF ANY INFORMATION THAT COULD IDENTIFY THE COMPLAINANTS OR A WITNESS IN THIS PROCEEDING IS RESTRICTED PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE OF CANADA.

MEW J.:

1Alex Caporis is charged with one count of sexual assault on the complainant, E.G. His trial is scheduled to commence on 9 June 2025. Two applications have been made for evidentiary rulings. One by the Crown, the other by the defendant.

2The defendant makes an application pursuant to s. 276 of the Criminal Code for a determination on the admissibility of certain evidence concerning sexual activity, other than the sexual activity that forms the subject matter of the charge, of the complainant.

3The Crown seeks a determination of whether evidence can be adduced at trial about the complainant’s pre-existing attitudes towards sexual activity with the defendant.

4At the commencement of the hearing of these applications, Mr. Caporis made a re-election to have his case heard by a judge of the Superior Court, sitting without a jury.

5The following facts, which I have taken from the written submissions provided by the Crown and the defendant, are largely undisputed.

6Mr. Caporis was the complainant’s landlord. She lived in one unit of the building which Mr. Caporis owned; he lived in another unit. Over the years, they had become friendly. They would dog sit for each other. They had a mutual group of friends.

7On 17 March 2022, Mr. Caporis and the complainant went to a dinner party at the residence of a mutual friend. Mr. Caporis drove himself and E.G. back to the building that they both lived in at around 1:15 a.m. Mr. Caporis asked the complainant if she wanted to have another drink on the porch of their building. She agreed. But first she took her dog for a walk. When she returned, Mr. Caporis had a glass of wine waiting for her.

8The complainant recalls talking with Mr. Caporis for about fifteen minutes after beginning to consume the wine, and then states that her memory stops. Her next memory is waking up on a couch in Mr. Caporis’ unit at approximately 11 a.m. the following day. When she awoke, she says that she was wearing her upper clothing from the previous night (leather jacket, sweater, tank top, bra) but, on her bottom half, she only had her underwear on.

9Mr. Caporis will say that after he and the complainant had drunk wine together on the porch, they went inside together, continued drinking, and eventually had consensual sexual intercourse.

10Once the complainant awoke, only partly clothed, she asked Mr. Caporis what had happened the night before. He will say that he asked her if she really did not remember. When she said that she did not, he told her that they had drank, they had flirted, she had danced and lip-synched to music and expressed her feelings for him, they had kissed, and they eventually had sex.

11At this point, the complainant became distressed. In a statement which she gave to police on 22 November 2022, the complainant said that after Mr. Caporis told her that they had sex the previous night:

I just go into panic mode and I start bawling…I was scream crying because I don’t want to go into detail and both occurrences happened a long time ago but I have had sexual assault issues in the past and so, when I wake up not remembering anything and all my clothes are on but my pants it just, I just went into panic mode…

He was pacing back and forth and said that it happened twice. He said I was really into it. He said that I really liked it and so then I immediately, I’m like there’s no way this happened and I was just, I was bawling and I kept saying I wouldn’t do that and I know, like I have never, I have never been interested in him romantically or sexually. Like that has never even crossed my mind…

12The complainant also says that she recalls Mr. Caporis saying, while he paced back and forth, “well, I feel kind of bad because you were passed out or passing out for most of it”. The defendant categorically denies saying anything to the effect that the complainant was asleep during the sex that he had with her.

13Further on in her statement, the complainant said:

So, then he continues to think for me what he feels like an eternity and then he said, starts telling me that he made the whole thing up and I said, Alex if you, I was like I opened up about my past traumas. I was like and in those I ended up having to do PTSD treatments and my memories were in there of what happened. Mind you I was sober at the time of the one so, but I told him if this happened there is a very good chance my memories are going to come back because that’s happened to me before and so I said, if this didn’t happen you’ve made up all this stuff. I was like you’re really going to have to convince me that you made this up but I just wanted to believe that he didn’t, this didn’t happen.

14Then, further on the complainant said:

I’ll be honest, it came this like almost a month later, it could easily be a false memory or something I am concocting in my head, but as soon as that happened I just had this like vision or flashback, whatever it is, to me being in his bed on the left side, his dog was up here and I was, when the memory starts, my eyes were closed and I tried opening them and it was really hard and like I just felt there was coming in through the window, like there was something bright or there was something bright in the room, like it was really hard for me to open it and he’s on top of me and he’s asking either are you awake or are you asleep. I don’t remember which one it is. It’s like vivid, and like I don’t respond, I just move my head to the side and close my eyes and that’s the end of it. So, I know that this could be a false memory but I did bring this up when I was on the front porch.

Section 276 Application

15Section 276(1) of the Criminal Code renders inadmissible evidence that a complainant has engaged in sexual activity, whether with the accused or with any other person, to support an inference that, by reason of the sexual nature of that activity, the complainant: (a) is more likely to have consented to the sexual activity that forms the subject matter of the charge; or (b) is less worthy of belief.

16When tendered for any other purpose, evidence that the complainant has engaged in sexual activity other than that which forms the subject matter of the charge shall not be admitted unless the evidence is relevant to an issue at trial; is of specific instances of sexual activity; and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice: s. 276(2) of the Criminal Code.

17The factors to be considered in making this determination are set out in s. 276(3), which provides that in determining whether such evidence is admissible, the judge shall take into account:

(a) the interests of justice, including the right of the accused to make a full answer and defence;

(b) society’s interest in encouraging the reporting of sexual assault offences;

(c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;

(d) the need to remove from the fact-finding process any discriminatory belief or bias;

(e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;

(f) the potential prejudice to the complainant’s personal dignity and right of privacy;

(g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and

(h) any other factor that the judge…considers relevant.

18The defendant advances three principal reasons why limited evidence of the complainant’s past sexual assaults should be admitted.

19First, at several points in her statement to the police, the complainant referred to ways in which the trauma from her past sexual assaults played into the narrative of the present complaint. To quote the defendant’s factum:

This trauma gives important context to the Complainant’s reaction and her state of mind after learning that she had sex but having no memory of it. Because the trauma of past sexual assault is evidenced by the sexual activity, the Applicant must bring this s. 276(a) Application for it to be mentioned at trial.

20The second reason is that the complainant alleges that the defendant made a statement against interest, namely when he is alleged to have said something to the effect that the complainant was asleep during the sex.

21The defendant argues that the reliability of the complainant’s evidence that he had said something to her to the effect that she was asleep during the sex will be important:

…[W]hile bawling, ‘scream-crying’ and in panic over fear that maybe she was [sexually] assaulted (induced by the trauma of past sexual assault), the Complainant claims she heard the Applicant admit that in fact he did sexually assault her.

22The third reason advanced by the defendant is that the “panic mode” brought about by the complainant’s past experience meant that she did not allow for the possibility that she may have consented to sex with the defendant while not remembering having done so. Anticipating the application by the Crown to adduce evidence that the complainant would not have consented, the defendant argues that if the Crown is permitted to adduce evidence about the complainant’s feelings about sexual activity with the defendant, then the evidence of her trauma induced panic takes on increased probative value:

The Complainant’s panic and presumption of non-consent were related (at least in part) to her sexual assault-related trauma. Her belief that she must not have consented are [sic] not the result (solely) from the factual matrix about the nature of her relationship with the Applicant, her state of sobriety, or his after-the-face [sic] utterances.

23Finally, the complainant’s prediction, as told by her to the defendant, that she was going to recover memories of the sexual act at some time in the future was attributed by her to the fact that she had recovered previously absent memories following her prior sexual assault. In due course, a month after the night in question, the defendant argues that the complainant’s prediction “came to fruition” with her asserting recovery of the memory of being in bed with the defendant where, she says, he was on top of her and asking if she was awake or asleep.

24The starting point for any analysis of a request to adduce evidence of other sexual activity is that the admission of such evidence is exceptional. In R. v. M.T., 2012 ONCA 511, at para. 43, the Court of Appeal stated:

…[T]he balance is calibrated differently than we see in the general exclusionary discretion or the more circumscribed discretion to exclude otherwise admissible defence evidence. The addition of the terms “significant”, as descriptive of the probative value, and “substantially”, as the extent to which significant probative value must predominate over “prejudice to the proper administration of justice”, appears to require a more nuanced or qualitative assessment of the competing interests. These interests are incommensurables. Probative value has to do with the capacity of the evidence to establish the fact of which it is offered in proof. Prejudicial effect relates to trial fairness.

25The Crown argues that seeking to explore the effect of the complainant’s past sexual trauma to suggest that it is relevant because she may have erroneously jumped to the conclusion that it happened again engages the second prong of the “twin myth” reasoning, viz., that the complainant is less worthy of belief because of her past sexual history.

26The Crown suggests that to the extent that the complainant experienced a return of memories after a traumatic experience in the past, such evidence should be admissible as narrative, but without reference to the sexual nature of that trauma.

27Counsel for the complainant argues that her reaction to:

(a) waking up with clothing on the lower half of her body removed;

(b) having no memory of any sexual activity;

(c) being told that she had had sex with Mr. Caporis;

(d) truly believing that she would not have had sex with him; and

(e) truly believing that Mr. Caporis said she was asleep during the sex,

is a reaction that requires “no explanation in a public courtroom”. There is no proper or improper reaction to such a constellation of factors. Evidence of a previous traumatic experience would therefore be both prejudicial to the complainant and of no probative value

28While I would not agree that this application is barred because it is based on “twin myth” considerations, I do not accept the argument that evidence of the complainant’s past sexual trauma has significant probative value, such that it needs to be adduced in order to provide context for the manner of her reaction when she was told by the defendant that he had had sex with her the previous night. Nor is such context necessary to evaluate the reliability of the complainant’s evidence that the defendant said something to the effect that she was asleep during sex.

29The complainant’s prior traumatic experience does, however, take on greater relevance in relation to her prediction that she may have memories later, which is what subsequently occurred on a previous occasion. The Crown concedes this point, but with the qualification that it is not necessary to the narrative that the type or nature of her past trauma be articulated. The Crown’s factum continues, in that regard:

The applicant does not seek to adduce any details of the complainant’s past sexual trauma, so it is difficult to see the relevance in adducing the fact that her past trauma was of a sexual nature.

30I agree with that position. As a result, my view is that evidence of the complainant’s past trauma may be adduced, but not the type or nature of that past trauma.

31I would also not permit evidence of the complainant’s past sexual trauma to be adduced in relation to the memory that she subsequently says she recovered. Even if I thought that such evidence had significant probative value (which I doubt), in my view, the risk of potential prejudice to the complainant’s personal dignity and right of privacy would outweigh the defendant’s right to make full answer in defence.

32Accordingly, with the exception of the relief conceded to by the Crown, namely, that the defendant should be allowed to adduce evidence that the complainant has experienced recovered memories in the past, but that this should be done without enquiries as to the nature of the past trauma she experienced, the application should be dismissed.

The Crown Application for Admissibility of the Complainant’s Feelings about Sexual Activity with the Accused

33In both her police statement and in her initial response to the defendant on the morning of 18 March 2022 when she first learned of the sex, the complainant stated that she knew that she did not consent to having sex with the defendant, in part because she had no romantic or sexual interest in him.

34There is authority for statements by a complainant that she would never engage in the sexual act being admissible. In R. v. Kontzamanis, 2011 BCCA 184, the complainant had no memory of the sexual activity, but testified that she would not have consented because the appellant repulsed her, they had no previous relationship, and she was not interested in a sexual relationship with anyone. The court agreed that such evidence was sufficient to ground a finding of fact that the complainant did not subjectively consent to the sexual activity in question, stating, at para. 31:

In my opinion, although the complainant had no memory of the sexual assault, it was open to the jury to make the crucial credibility finding that the complainant subjectively did not consent, based on her unequivocal evidence that, under no circumstances, would she have consented to sex with the appellant at any time.

35To the extent that they have been disclosed at this stage, the circumstances in this case are markedly different. The defendant and the complainant were friends. They had been acquainted with each other for approximately eight years. They dog sat for each other. They had a mutual group of friends. They socialised together. On the evening in question they had been to a dinner party at a mutual friend’s house. Alcohol had been consumed. After they got back to their residence, they had another glass of wine on the porch.

36The fact that, when sober and reflective, the complainant disavowed ever having been romantically or sexually interested in the defendant is of limited assistance in understanding what happened on the night in question. As Nordheimer J. observed in R. v. Sikorski, 2013 ONSC 5755 (indexed at 2013 CanLII 57632 ON SC), at para. 74, the reality is that persons often do things when they are intoxicated that they would not do if sober. In that case, in the context of a complainant’s assertion that she would not have consented to anal intercourse, Nordheimer J. continued:

Indeed, there are precious few people who can honestly say that they have never regretted something that they did while under the influence of drink. While H. may not have had any particular interest in anal intercourse, that does not preclude the possibility that, while she was intoxicated, she engaged in an act that she otherwise would not have engaged in.

37I wish to emphasise that in making reference to that authority, I am not suggesting that the evidence will show that the complainant was intoxicated. It remains to be seen what the evidence will be in that regard. But, ultimately, the Crown wishes to adduce this evidence for propensity reasons, namely, that because of the complainant’s professed lack of romantic or sexual interest in the defendant, she was less likely to have consented to having sex with him on the occasion in question, even if she had been influenced by alcohol.

38Counsel for the defendant also suggested that the converse of the argument made by the Crown for admissibility would be to seek to introduce evidence that the complainant had in the past been romantically or sexually interested in the defendant which, as a consequence, would make it more likely that she had consented on the night in question. That sort of evidence would obviously be inadmissible on “twin myth” grounds. In R. v. G.L., 2021 ONSC 271, Bondy J. declined to admit evidence of the complainant’s homosexuality as circumstantial evidence that she was less likely to consent to sex with a male accused. The court held that the prohibition against relying on sexual history as evidence of propensity applied regardless of whether it was tendered to prove that a complainant was “more likely to have consented” or “less likely to have consented”.

39While, as the defence concedes, s. 276(1) does not expressly prohibit the evidence that the Crown seeks to adduce in this case, courts should nevertheless exercise caution when considering whether to admit evidence about a complainant’s prior attitudes to sexual engagement.

40On behalf of the complainant, Ms. McKnight, while not a participant in the argument concerning the Crown’s application, made the observation, in relation to the defendant’s application, that if the Crown is saying that there is circumstantial evidence that the complainant would not have consented to sexual intercourse with the defendant, it would heighten the potential admissibility of evidence concerning the complainant’s prior sexual trauma.

41I have concluded that evidence of the complainant’s feelings about sexual activity with the accused should not be admitted at trial. In coming to this determination, I have also considered that, were I to admit this evidence, it would be necessary for me to reevaluate my decision that it would not be appropriate to adduce evidence of the complainant’s prior sexual trauma in the defendant’s s. 276/278.94 application.

Mew J.