Court File and Appearances

Court File No.: 23-11400806-A
Date: 2025/07/08
Ontario Superior Court of Justice

Between:
His Majesty the King – and – J.N., Accused

Appearances:

• Valérie Bourbonnière, for the Crown
• Justis Danto-Clancy, for the Accused
• Karin Stein, for the Complainant G.P.

Heard: June 30, 2025

Reasons for Sentence

Ruling on Crown-Led Sexual History Evidence

Anne London-Weinstein

Background

[1] The accused is charged with the sexual assault of his daughter G.P. and a number of related offences, including indecent act, incest, sexual interference, and invitation to sexual touching. These offences are alleged to have occurred between January 2005 and December 2009 in Ottawa.

[2] The Crown is seeking to lead the complainant’s viva voce evidence that she was on an online chat site talking to men and one of them exposed himself to her. The Crown seeks to lead this evidence as being relevant to the accused’s mens rea and also to explain the genesis of the alleged abuse.

[3] The complainant was in grade 7 or 8 and between 12 to 14 years of age when she was on an online chat site, being groomed by men. On this chat site, she would share her bra size.

[4] One night, when she was engaged in a video chat with a man, the man exposed his genitals to her. The accused is alleged to have seen what was on the complainant’s computer screen and yelled at her.

[5] The accused then told the complainant to come upstairs with him and brought her to the upstairs bathroom. He told her if she wanted to see a penis, he would show her a penis. The complainant indicated she did not want to see the accused’s penis. The accused is alleged to have repeated that he was going to show the complainant his penis and told her to close the door. She cried.

[6] The accused is then alleged to have said to the complainant that she had to look at his penis. She heard his pants hit the floor and eventually she turned around and looked at his penis. He pulled up his pants and told her to go to bed. She cried herself to sleep. This is allegedly the first instance of abuse which occurred.

[7] The abuse progressed over time to penile penetration, with the accused alleged to have reached an orgasm while his penis was inside the complainant’s vagina.

Legal Analysis

[8] The Supreme Court of Canada recently clarified that the two-stage procedure set out in ss. 278.93 and 278.94 of the Criminal Code, RSC 1985, c C-46 provides the same functional framework that should govern the common law process for determining the admissibility of Crown-led sexual history evidence: see R. v. Kinamore, 2025 SCC 19.

[9] Kinamore was decided recently and the written materials filed in this matter did not reference the case, but it was discussed in the hearing conducted by the court.

[10] In Kinamore, the Court explained that the Crown must prepare a written application that sets out the detailed particulars of the evidence that it seeks to lead and the relevance of that evidence to an issue at trial, providing fair notice to the accused and the court: at paras. 45-46. The Crown in this case has complied with these requirements.

[11] Due to the time constraints involved in the pre-trial motions of this trial, the Crown’s application proceeded as a blended Stage 1 and Stage 2 hearing. The evidence was found to be capable of being admissible in the Stage 1 hearing.

[12] In the Stage 2 hearing, the court is required to assess whether the Crown has established on a balance of probabilities, that the evidence is relevant to an issue at trial and that its probative value is not outweighed by its prejudicial effect. The court is required to consider the non-exhaustive list of factors set out in s. 276(3) of the Criminal Code: Kinamore, at paras. 52-53. While the complainant does not have automatic standing to make submissions at a Stage 2 hearing, in this case, I permitted the complainant’s counsel to participate with respect to submissions relating to the degree of detail which the Crown should be permitted elicit in leading this evidence.

[13] The complainant’s position related to the degree of detail which should be led regarding this evidence aligned with the Crown’s position. The defence took the position that this evidence was not prior sexual conduct but was part and parcel of the allegations before the court. With respect, I do not agree with this position. I find that the activity in question is part of the complainant’s sexual history separate and apart from the allegations before the court and can, as the court noted in Kinamore, evoke distinct myths and stereotypes that the rules seek to eliminate: at para. 1.

Statutory Framework

[14] Section 276(1) of the Criminal Code stipulates that for certain enumerated offences, evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible 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.

[15] Section 276(2) provides that evidence of the complainant’s prior sexual activity “adduced by or on behalf of the accused” is presumptively inadmissible. For this evidence to be admitted, s. 276(2) reads:

In proceedings in respect of an offence referred to in subsection (1), evidence shall not be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94, that the evidence:

(a) is not being adduced for the purpose of supporting an inference described in subsection (1);

(b) is relevant to an issue at trial; and

(c) is of specific instances of sexual activity; and

(d) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

[16] The evidence is not being adduced for the purpose of supporting a prohibited inference, it is relevant to an issue at trial as it explains the genesis of the alleged sexual abuse. The evidence relates to a specific instance of sexual activity. In Kinamore the Court clarified that on a Crown application, the Crown need only establish that the evidence has probative value that is not outweighed by the danger of prejudice of admitting the evidence: at para. 38.

Application of Section 276(3) Factors

[17] In considering whether the evidence is properly admissible or not under s. 276(2), the court must consider the several factors as set out in s. 276(3):

In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account

(a) the interests of justice, including the right of the accused to make 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, provincial court judge or justice considers relevant.

[18] In this instance, given that this is a Crown application, the first factor listed under s. 276(3) must be slightly modified to reflect the fact that this is a Crown application. The interests of justice (s. 276(3)(a)), when considered in the context of a Crown application, should encompass the ability of the Crown to lay out the evidence of the case in a manner that provides a logical and cohesive framework to explain key issues in the case. In this case, it is the Crown’s theory that the accused first sexually abused the complainant after learning that she had been interacting with other males on the internet in a sexual manner. The evidence provides a possible answer as to why and how the alleged abuse began. The Crown has framed this evidence as being relevant to the issue of establishing mens rea. The court finds that the proposed evidence furthers the interests of justice by contributing to the truth-seeking function of the trial.

[19] With regard to society’s interest in encouraging the reporting of sexual assault offences (s. 276(3)(b)), the Crown will be limited in terms of how far it can go in eliciting details of what was alleged to be the complainant’s activity on the internet. The Crown will be restricted to the description of the incident as set out in the application record. It is not necessary, nor does it serve any purpose which advances the truth-seeking function of this trial, to go into greater detail. Given the court’s limiting instruction on the use of the evidence and the complainant’s agreement as to the details which can be presented, admission of the evidence does not detract from society’s interest in encouraging the reporting of sexual assault offences.

[20] Regarding the other factors under s. 276(3):

• Whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case (s. 276(3)(c)): The evidence is relevant to explaining the narrative of how the alleged abuse began and therefore, will assist in arriving at a just determination in the case.

• The need to remove from the fact-finding process any discriminatory belief or bias (s. 276(3)(d)): The purported basis for admissibility of the evidence is divorced from any discriminatory belief or bias. It is alleged that the accused acted in the manner he did after learning that the complainant was involved with men on the internet.

• The risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury (s. 276(3)(e)): This is a judge alone trial. The risks of distraction are lessened—not to zero, but are more controlled than they would be in a jury trial. R. v. Roks, 2011 ONCA 526 at para 94.

• The potential prejudice to the complainant’s personal dignity and right of privacy (s. 276(3)(f)): This evidence is potentially embarrassing to the complainant. There is a potential for her dignity to be undermined through the introduction of the evidence. However, the court notes that the complainant felt a degree of comfort in relating the information to the police officer and that she is in agreement with the admissibility of limited details of the evidence being proffered in this trial. The potential for this evidence to undermine the personal dignity and right of privacy of the complainant will be limited by the restrictions I have placed on its use.

• The right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and any other factor that the judge, provincial court judge, or justice considers relevant (ss. 276(3)(g)-(h)): The evidence is relevant to a material issue at trial and will advance the truth-seeking function of the trial. The manner by which the evidence is presented will minimize the potential of the evidence to encroach on the complainant’s right to personal security and dignity while retaining the essential nature of the evidence from which it derives its probative value.

Conclusion

[21] The various factors which the court is required to consider and the limits which have been placed on the degree of detail that can be elicited at trial satisfy me on a balance of probabilities that the evidence is more probative than prejudicial and is properly admissible in this trial. Given that this decision deals with the new implementation of the two-stage procedure regarding Crown-led sexual history evidence, this decision may have some utility to others as a precedent. Any identifying factors relating to the complainant have been removed from the judgment and after considering the privacy rights of the complainant and the interests of justice I am satisfied that this decision may be published as indicated in Kinamore, at para 59.

Anne London-Weinstein

Released: July 8, 2025