Court File and Parties

Court File No.: CR-22-5488 Date: 2025-09-18 Ontario Superior Court of Justice

Between: His Majesty the King – and – Rafael Iraheta, Defendant

Counsel:

• Iain Skelton, George Spartinos and Reem Said, for the Crown
• Ben Strickland, for the Defendant
• Franklin Lyons, Counsel for the Complainants

Heard: January 10, 2025, March 20, 2025, and July 10, 2025

Hearing Conducted In Camera Pursuant to s. 278.93(3) of the Criminal Code

Ruling on s. 276 and s. 278.92 Application

CARROCCIA J.:

Introduction

1The applicant, Rafael Iraheta is charged with two counts of sexual assault contrary to s. 271 of the Criminal Code and two counts of sexual interference of a person under the age of 16 years contrary to s. 151 of the Code. The charges relate to complainants A.L and H.B who are sisters. During the periods of time when the offences allegedly occurred, A.L. would have been between 8 and 11 years of age, and H.B. would have been 14 years of age.

2The applicant has brought two applications, one pursuant to s. 276 to admit evidence related to the prior sexual activity of A.L., and one pursuant to s. 278.92 to admit into evidence records in the possession of the accused relating to the complainant H.B.

3At the time that Stage One of each of the applications was heard, I indicated that I was satisfied that each of the applications met the requirements of Stage One, and I would provide reasons for the decision following submissions on Stage Two. These are my reasons in relation to both applications at both stages.

4I will deal with each application in turn.

The s. 278.92 Application

Stage One

5Before a Hearing of the issue can be conducted under s. 278.94 of the Code, the applicant must comply with the provisions of s. 278.93. This is usually referred to as Stage One of the Hearing. At this stage, the defence must satisfy the requirements of s. 278.93. In this case, the Crown acknowledges that he has done so in that:

i. the application has been made in writing setting out detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial; and

ii. a copy of the application was provided to the Crown and the clerk of the court at least seven days prior to the hearing;

6On this application, the defence is seeking to adduce at trial 1) text messages exchanged between the applicant and the complainant, H.B. 2) text messages that were exchanged between H.B. and a friend of hers that were disclosed to the defence, and 3) the handwritten notes of H.B. that she relied upon when she gave a statement to the police on June 21, 2024.

7At Stage One, the issues to be determined are whether or not the proposed evidence constitutes a "record" within the definition of s. 278.1 and whether that evidence is capable of being admissible, see R v. J.J. 2022 SCC 28 [2022] 2 S.C.R. 3 at para. 29. If the evidence does not constitute a "record", then the application will terminate. If the evidence is a "record" but is not capable of being admissible under s. 278.92(2)(b) of the Code, then the application will be dismissed.

8In the circumstances of this case, although the applicant identified the notes made by the complainant that she used when she provided a statement to the police as a "record", and it formed part of this application, he did so out of an abundance of caution so that the issue could be addressed in advance of the trial.

9The Crown agrees that those notes are not a "record" within the meaning of s. 278.1 of the Code or within the non-enumerated category of records which contain information of an intimate or highly personal nature. The complainant relied on the notes that she prepared, and read from them when she gave her statement to the police. These notes were disclosed to the defence. The Crown concedes that they are not private records caught by the provisions of the Criminal Code, but rather a written record of her recollection of the events and accordingly, the application will terminate as it applies to the hand-written notes.

10In relation to the text messages, the Crown conceded that if they constitute records, then the application should proceed to Stage Two to determine whether the records can be adduced at trial because they are capable of being admitted at trial. The defence takes the position that they do not constitute records within the definition of s. 278.1 of the Code or the non-enumerated category of records.

Are the text messages "records?"

11There are two sets of text messages at issue in this application. First, the text message sent by the complainant to the applicant which the defence identifies as the "blackmail" message and second, the exchange of text messages between the complainant H.B. and her friend M.P.

12In J.J. the Court said at para. 42, that non-enumerated records will only be captured by s. 278.1 if the record contains information of an intimate or highly personal nature that is integral to the complainant's overall physical, psychological or emotional well-being. That information will have implications for the complainant's dignity.

13The defence submits that the complainant does not have a privacy interest in the text message sent to the applicant because it contains an attempt to blackmail the applicant and the complainant cannot therefore have a reasonable expectation of privacy in that type of communication.

14The other text messages relate to information provided to third parties, namely the mother of M.P. and the Children's Aid Society and as a result, the defence suggests there is no privacy interest attached to those messages.

15The Crown suggests that the court must engage in a contextual analysis to determine whether the text messages are records. In this case, the Crown takes the position that the text messages between H.B. and M.P. do constitute records, but the text message between the Applicant and H.B. is not necessarily a record because it does not attract a reasonable expectation of privacy.

16In order to make this determination, the court must look at the context and content of the text messages in issue. The text messages between H.B. and M.P. appear to have been exchanged before the complainant spoke to the police. They relate to the steps M.P. took to notify her mother about the disclosure made by H.B. regarding these very charges. Thereafter, M.P.'s mother repeated that information to the Children's Aid Society. H.B. and M.P. also discuss the potential consequences of this disclosure including the consequences to H.B.'s mother, and to the accused.

17These messages contain information of an intimate nature that is integral to the complainant's overall psychological and emotional well-being. She expresses concern that her mother will turn to alcohol if she finds out about the allegation and expresses fear of a Children's Aid Society investigation. In my view, the complainant has a privacy interest in those messages which impacts her personal dignity. In its totality I find that these text messages do constitute non-enumerated records which impact the complainant's psychological or emotional well-being.

18The Court in J.J. at para. 55 includes in its definition of non-enumerated records those records with contents relating to sexual abuse or involvement with the child welfare system. In my view, the messages exchanged between H.B. and M.P. includes those very characteristics. The messages relate to allegations of sexual abuse and the potential involvement of child welfare authorities in an investigation of those allegations.

19I now turn to the other text message at issue in this application. The text message between H.B. and the applicant is a single message sent by the complainant where she "reminds" the accused that he "raped her" and tells him to give her $200.

20Although there is a request for money the message contains other statements that could impact the complainant's psychological or emotional well-being and in which the complainant retains a reasonable expectation of privacy.

21As I indicated when counsel made submissions on the applications, I find that the text messages are records within the definition outlined by the Supreme Court in R. v. J.J. for the reasons set out above.

22Since the Crown concedes that if the court finds that the text messages constitute records, they are capable of being admissible within the meaning of s. 278.93(4), then this part of the Application will move on to Stage Two for a Hearing in accordance with s. 278.94 of the Code.

Stage Two

23As she is entitled to do by virtue of s. 278.94(2) of the Code the complainant was given notice and an opportunity to retain counsel to assist her, and make submissions on her behalf, in relation to this application.

24When this matter was next before the court, Mr. Lyons appeared as counsel for H.B. He advised the court that he conceded, on behalf of the complainant, that the messages that the applicant seeks to adduce at trial are relevant to an issue at trial, and they have significant probative value that is not substantially outweighed by the danger of prejudice to the administration of justice, pursuant to s. 278.92(2) of the Code.

25The Crown agrees with this position.

26I have considered the factors set out in s. 278.92(3) of the Code, as well as the position of the complainant and the position of the Crown and agree that the interests of justice including the accused's right to make full answer and defence, favours admission of the evidence at trial.

27The nature of the text messages in issue will not likely cause prejudice to the complainant's personal dignity and right of privacy. Additionally, it will not discourage others from reporting offences of sexual assault and there is a reasonable prospect that the evidence will assist the trier of fact in arriving at a just determination in the case.

28Accordingly, the applicant will be permitted to adduce at trial the text messages sent by the complainant H.B. to him and the text messages exchanged between H.B and her friend M.P.

The Amended s. 276 Application

Stage One

29The applicant is also seeking to admit evidence relating to the prior sexual history of the complainant, A.L., namely evidence that she repeatedly viewed pornography and she attempted to watch intimate activity between the applicant and her mother. This activity is said to have occurred prior to the allegations arising.

30This application is unusual since the complainant, A.L. was a young child when it is alleged that she engaged in this conduct.

31The applicant provided an affidavit in support of the application which did not support that he had direct knowledge of the facts stated in the affidavit. In that affidavit the applicant attests to the fact that he recalls the mother of the complainant gifting her a tablet computer for Christmas. He does not recall when that was, but believes that the complainant was 6 or 7 years old at the time. The applicant attests that the mother of the complainant checked the tablet history at some point and "discovered that A.L. had been watching pornography on the tablet". Further, the applicant attests that there were "multiple occasions" during his relationship with the mother of the complainant when he caught A.L. "spying on us while we were being intimate".

32The Crown elected not to cross-examine the applicant on his affidavit. The court however raised an issue as to whether the affidavit relies on the firsthand knowledge of the applicant or hearsay, which would impact the admissibility of the evidence.

33As the Court said in R. v. Darrach 2000 SCC 46, [2000] 2 S.C.R. 443 at para. 46:

It is a basic rule of evidence that the party seeking to introduce evidence must be prepared to satisfy the court that it is relevant and admissible ….Prior sexual activity is, like hearsay, character evidence and similar fact evidence, restricted in its admissibility. If the defence seeks to adduce such evidence, it must establish that it supports at least some relevant inference. Parliament has specified criteria for admissibility in s. 276(2) to guide the discretion of trial judges in this area.[emphasis added]

34Pursuant to s. 278.93(b) of the Code, the accused is required to set out detailed particulars of the evidence he seeks to adduce at trial. As a result, the matter was adjourned to permit the defence to file additional evidence in support of the application. The other issue raised at this preliminary stage involves whether the activity described constitutes "other sexual activity" of the complainant.

35In R. v. Sanclemente 2021 ONCA 906 at para. 53, speaking for the Court, Watt J. said:

Second, the language "the complainant has engaged in sexual activity", which appears in both ss. 276(1) and (2), designates the nature of the evidence which may be exceptionally admitted. But, as s. 276(2)(c) clarifies, it must be evidence "of specific instances of sexual activity". Neither the term "specific instances" nor the term "sexual activity" are defined in or for the purposes of s. 276. However, when read purposively and contextually "specific instances" refers to discrete acts of sexual activity not general reputation. The degree of specificity required depends upon a variety of factors. The circumstances of the case. The nature of the activity. And the use proposed for the evidence: R.V. , at paras. 48-49; Goldfinch , at para. 53 . The section enjoins broad exploratory questioning: R.V. , at para. 47 .

36At para. 47 of R. v. R.V. 2019 SCC 4, [2019] 3 S.C.R. 237, the Court said:

Broad exploratory questioning is never permitted under s. 276. Open-ended cross-examination concerning a complainant's sexual history clearly raises the spectre of the impermissible uses of evidence that the provision was intended to eliminate. Section 276(2)(a) requires the accused to identify "specific instances of sexual activity" to avoid unnecessary incursions into the sexual life of the complainant.

37The matter was adjourned, and the applicant provided a new, more detailed affidavit on this issue. The Crown did cross-examine him on his second affidavit.

38The applicant attests that when the mother of the complainant A.L. purchased the tablet for her, he was not living in the home. He would visit and spend time in the home and moved in sometime later. He was told by the mother of the complainant that she had observed some suspicious activity on the browser history of the tablet. The complainant was 6 or 7 years old at that time. According to the applicant, A.L. had exclusive use of the tablet, although he agreed that he did not know who had access to it when he was not there.

39He testified that at the time, although the complainant would have likely been attending school in grade 1, she also attended daycare after school.

40He testified that when the tablet was shown to him by the complainant's mother, they looked at the browser history together and saw what was described as a "picture" of the start of a video. I interpreted this to be what is known as a "thumbnail". Although he did not watch any of the videos, the applicant testified that it was apparent by the nature of what was depicted on the "picture" and the website address which contained the letters "XXX" (although he could not identify any specific websites), that these were pornographic videos that had been accessed on the tablet, presumably by the complainant. He indicated that what he did observe appeared to be a man and a woman engaged in sexual intercourse.

41To be clear, the applicant did not watch any of the videos on the tablet. The applicant testified that the complainant's mother put a password on the tablet, but the complainant later figured it out and was able to use the tablet.

42Further, the applicant testified that he caught A.L., on at least three or four occasions trying to watch him and her mother being intimate through a crack in the bedroom door. At the time they were engaged in intercourse.

Preliminary Issues

43There were two preliminary issues raised in relation to this application. They are:

i. whether this activity constitutes "sexual activity" within the meaning of s. 276 of the Code; and

ii. whether this application relates to specific instances of sexual activity.

44Section 276(1) provides:

276 (1) In proceedings in respect of an offence under section 151, 152, 153, 153.1 or 155, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, 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.

45Furthermore, s. 276(4) provides that:

(4) For the purpose of this section, sexual activity includes any communication made for a sexual purpose or whose content is of a sexual nature.

46The applicant takes the position that this evidence is not evidence of "sexual activity" within the definition of s. 276 of the Code. In the alternative, if the court finds that it is, the applicant submits that the evidence he seeks to adduce through cross-examination is relevant to an issue at trial, namely how a young child would be able to provide graphic descriptions of sexual activity. He argues that it is necessary to be able to make full answer and defence, to adduce evidence that if believed by the trier of fact, would explain that a child exposed to sexual activity either through viewing pornography or seeing adults engaging in sexual activity would be able to describe acts that ordinarily would not likely be known by a child of that age.

47If the evidence is not evidence of "sexual activity" it is not captured by s. 276. The Crown argued that the evidence in question is evidence of "sexual activity" and clearly falls within s. 276 of the Code. Therefore, the defence bears the onus of establishing its admissibility.

48The applicant relies on the decision in R. v. S.A. 2015 ONSC 6942, a decision of Del Frate J. In that case, the applicant sought to cross-examine the complainant regarding her viewing of pornography. The issue was the same as in this case: does accessing pornography constitute "sexual activity"?

49In that case, the court determined that the term "sexual activity" together with the qualifying words "whether with the accused or with any other person" necessarily requires the involvement of another participant. Accordingly, s. 276 was not engaged. However, the presiding judge determined that any cross-examination on this issue required "some sanitation" of the websites referred to for the jury, because of the nature of the titles. He would also instruct the jury on twin myth reasoning.

50When he made his ruling, Justice Del Frate did not have the benefit of the decisions of the Supreme Court in R. v. Barton 2019 SCC 33 , 2019 SCC 71 [2019] 2 S.C.R. 579 or R. v. Goldfinch 2019 SCC 38 [2019] 3 S.C.R. 3. In Goldfinch at para. 39 the Court states that the purpose of s. 276 of the Code is to protect the integrity of the trial process in cases involving sexual offences:

Section 276 protects the integrity of the trial process by striking a balance between the dignity and privacy of complainants and the right of accused persons to make full answer and defence. This appeal asks us to examine that balance as it concerns evidence of a relationship from which sexual activity can reasonably be inferred.

51The Crown referred the court to the decision of Roger J. in R. v. R.I. 2021 ONSC 3236. That case considered the decision in S.A. In R.I., the accused brought an application similar to the one in this case, that is, he sought to cross-examine the young complainant in relation to her prior viewing of pornography.

52Justice Roger followed the reasoning of Boswell J. in R. v. D.M. 2019 ONSC 3895 who found that the decision of Justice Del Frate was plainly wrong. He agreed that the language of s. 276 was not meant to be restrictive. He found that the language of that section included activity such as private viewing of pornography because questions about that type of activity impacts upon the dignity and privacy of sexual assault complainants.

53While this court is not bound by the ruling of a judge of concurrent jurisdiction, I am persuaded by the reasoning in R.I. and D.M. I agree that evidence of the complainant's viewing of pornography requires that an application be brought, and that the requirements of s. 276(2) be complied with for the evidence to be admissible at trial. It is clearly evidence that may impact the complainant's personal dignity and privacy.

54Recently, the Supreme Court in R. v. Kinamore 2025 SCC 19 expanded the scope of evidence that should be subject to screening pursuant to s. 276 to include "sexual inactivity" evidence. The Court said at para. 66:

To the extent that the plain meaning of other parts of s. 276 suggests that sexual inactivity evidence is excluded from the screening regime, it is important to remember that the text of the provision does not end the interpretive inquiry. As with any exercise of statutory interpretation, the "plain meaning alone is not determinative and a statutory interpretation analysis is incomplete without considering the context, purpose and relevant legal norms" ( R. v. Alex , 2017 SCC 37 , [2017] 1 S.C.R. 967, at para. 31 ). This Court has previously resisted an overly rigid reading of the text of s. 276, noting that it must be read in light of the scheme and broader purposes of the regime ( Goldfinch , at para. 53 ). When the purposes of s. 276 are examined, it becomes clear that a complainant's entire sexual history, including evidence of their sexual inactivity, is captured.

55As it relates to the evidence that the complainant allegedly tried to observe the applicant and her mother engaged in sexual activity, I am of the view that the same reasoning should apply. This activity would be akin to evidence that the complainant watched pornography. In accordance with the principles set out above, evidence that potentially engages the dignity and privacy of sexual assault complainants and that is clearly evidence of a "sexual nature" is captured by s. 276.

56The second preliminary issue raised is whether the evidence on this application constitutes evidence of "specific instances" of sexual activity which is a requirement to admissibility pursuant to s. 276(2)(c) of the Criminal Code.

57In R.V. at paras. 48 and 49 the Court said:

…..the words "specific instances of sexual activity" must be read purposively and contextually. They limit admissible evidence to discrete sexual acts, and protect against the misuse of general reputation evidence to discredit the complainant and distort the trial process:…

Section 276(2)(a) does not always require an accused to come before the court armed with names, dates and locations. As counsel for the intervener Criminal Lawyers' Association of Ontario pointed out, requiring such details may, in some cases, be unduly intrusive, defeating one of the provision's most important objectives. Rather, as Doherty J.A. observed in L.S. and this Court affirmed in Goldfinch , the degree of specificity required depends on the circumstances of the case, the nature of the sexual activity that the accused seeks to adduce and the use to be made of that evidence: L.S. , at para. 83 ; Goldfinch , at para. 53 .

58In Goldfinch at para. 53, the Court said that the applicant must "point to identifiable activity, but the degree of specificity required in a particular case will depend on the nature of the evidence, how the accused intends to use it and its potential prejudice to the proper administration of justice."

59The Crown takes the position that the applicant has not provided sufficient specific details of the relevant incidents and therefore, the evidence is not capable of being admissible and the application should be dismissed at Stage One.

60In Goldfinch the evidence at issue related to the relationship between the parties and did not identify specific dates when sexual activity took place. The Court found at para. 54 that the nature of evidence in that case that implied sexual activity, the "friends with benefits" evidence, encompassed specific instances of sexual activity. The court found that requiring further details would unnecessarily invade the complainant's privacy.

61The nature of the evidence at issue here is sufficiently identified to permit the complainant to be aware of the events referred to, if the application is allowed. The time frame is identified although not with precision, but it obviously involves the time period set out in the indictment.

Conclusion on Stage One

62The purpose of the Stage One inquiry is to decide whether an evidentiary hearing should be held. I must decide whether the procedural provisions have been complied with and whether the evidence sought to be adduced is capable of being admissible at trial pursuant to s. 278.93(4) of the Code.

63The applicant submits that the purpose of seeking to adduce this evidence is to offer an alternative explanation as to how a child might be able to describe sexual acts at a young age. He submits that the evidence does not engage twin myth reasoning. The applicant is not suggesting that these activities were engaged in for a sexual purpose, nor does he seek to question the complainant about her own sexual activities.

64The Crown concedes that the test to be applied at Stage One is a low bar, however, they submit that the evidence is not relevant to impeach the credibility of the complainant, and it engages twin myth reasoning.

65I do not agree that the evidence engages twin myth reasoning. The applicant is not suggesting that the complainant is less worthy of belief for allegedly having engaged in these activities and given the age of the complainant at the time of the allegations, consent is not an issue and not legally available as a defence.

66I am satisfied based on the submissions, that the evidence is relevant to an issue at trial beyond mere credibility and is capable of being admissible pursuant to s. 278.93(4). Accordingly, the application will proceed to Stage Two to determine whether the evidence will be admitted at trial.

Stage Two

67At this stage, the applicant must satisfy the criteria set out in s. 276(2) in order for the evidence to be determined admissible. That section requires the applicant to establish on a balance of probabilities that the evidence:

a) is not being adduced for the purpose of supporting twin myth reasoning;

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.

68Section 276(3) sets out the factors that the court must consider in making that determination. It states:

(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 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, provincial court judge or justice considers relevant.

69The applicant submits that he should be permitted to question A.L., (and her mother) in relation to 1) whether she watched pornography on her tablet computer and 2) whether she ever observed or attempted to observe the applicant and her mother engaging in sexual activity. If the complainant denies engaging in these activities, then that would end the inquiry. That said, the applicant could cross-examine the complainant's mother on those matters if she testifies.

70The applicant submits that the questions he proposes to ask would be limited to whether A.L. viewed the pornography, the timeline of when the viewing took place, in relation to the dates that the offences allegedly occurred, and whether the pornography viewed contained depictions of anal sex and/or ejaculation. The questions relating to observations of her mother and the applicant engaging in sexual activity would be similar.

71The relevance of this evidence is that if the complainant admits doing so, then this could offer an explanation as to how a child would be able to describe the sexual activity that forms the substance of the charges that she might not otherwise know about. The evidence is fundamental to the applicant's ability to make full answer and defence.

72As stated previously, both the Crown and counsel for the complainant oppose the application. The Crown submits that the proposed evidence is being adduced for the purpose of supporting prohibited inferences, is not relevant to an issue at trial, is not evidence of specific instances of sexual activity and its probative value, if it has any, is outweighed by the danger of prejudice to the proper administration of justice.

73Counsel for the complainant is opposed to the application on the basis that there is an insufficient evidentiary basis to make the order. He takes the position that the cross-examination proposed by the applicant engages twin myth reasoning. Furthermore, there is no basis to find that the sexual activity in question, namely viewing pornography and/or attempting to observe sexual activity between the applicant and the mother of the complainant is related to the allegations before the court.

74If the court determines, as I have, that the proposed evidence is sufficiently specific and relevant, cross-examination will only be allowed if the proposed questioning has significant probative value that is not outweighed by the danger of prejudice to the proper administration of justice. The court must balance the factors set out in s. 276(3) to assess the potential impact on the accused, the complainant and the administration of justice.

75In my view, the evidence is relevant to establish or refute the fact that a young child would not likely have any knowledge about intimate sexual acts unless he or she is exposed to them in some way, whether by observing them, or having those acts committed upon them. The concept of "relevance" was defined by Watt J. in R. v. Luciano 2011 ONCA 89 at para. 206:

To be relevant, an item of evidence need not prove conclusively the proposition of fact for which it is offered, or even make that proposition of fact more probable than not. What is essential is that the item of evidence must reasonably show, by the application of everyday experience and common sense that the fact is slightly more probable with the evidence than it would be without it: 1 McCormick on Evidence (6 th ed.), para. 185, at p. 733.

76As set out in R.V. at para. 62, in making a determination at Stage Two, the court should not consider whether the questioning will be successful, but rather whether the answers would be probative; and, whether the answers have the potential to undermine or confirm the Crown's evidence.

77In considering the factors set out in s. 276(3) of the Code, in my view, the evidence has significant probative value that impacts upon the right of the accused to make full answer and defence. Furthermore, there is a reasonable prospect that the evidence will assist in arriving at a just outcome in this case.

78The Crown and counsel for the complainant submit that permitting this line of questioning will have the effect of prejudicing the complainant's personal dignity and right of privacy. That is a factor that the court must consider, but it is one factor to be balanced in making the determination. The impact on the complainant's personal dignity can be minimized by curtailing the extent of the questioning. If the complainant answers affirmatively, for instance, that she did watch pornography, the relevance of that evidence is not why she did so, or how she felt about what she watched. Questions of that nature would not be permitted. The relevance, and the probative value of the evidence would be whether she fabricated the allegations based on what she watched and observed.

79As the Court said in R.V. at para. 64:

Simply put, the more important the evidence is to the defence, the more weight must be given to the rights of the accused. For example, the need to resort to questions about a complainant's sexual history will be significantly reduced if the accused can advance a particular theory without referring to the complainant's sexual history. But in other circumstances — where challenging the Crown's evidence of the complainant's sexual history directly implicates the accused's ability to raise a reasonable doubt — cross-examination becomes fundamental to the accused's ability to make full answer and defence and must be allowed in some form: Mills , at paras. 71 and 94.

80In this case, it would be difficult for the applicant to advance this theory without being permitted to engage in this line of cross-examination. In these circumstances the cross-examination takes on added importance.

81In considering and balancing of the factors set out in s. 276(3), in my view this evidence goes beyond the issue of credibility. This trial is a judge alone trial, so there is no concern that the proposed evidence will unnecessarily arouse feelings of prejudice, sympathy or hostility in the jury. The nature of the evidence will not impact society's interest in encouraging the reporting of sexual assault offences.

Conclusion on Stage Two

82After balancing all the factors set out in s. 276(3) of the Code, I am satisfied that the applicant has met his onus. The application will be granted. The applicant will be permitted to cross-examine the complainant about whether she watched pornography on her tablet computer and if the answer is affirmative, whether she observed incidents of anal sex and/or ejaculation. The applicant will also be permitted to ask whether the complainant "spied on" or attempted to observe her mother engaging in sexual activity with the applicant.

83Since I am not the assigned trial judge, the precise parameters of the cross-examination that will be permitted will be up to her. As always, orders made relating to applications pursuant to s. 276 may need to be revisited during the course of the trial depending upon how the evidence unfolds, and that can be addressed with the trial judge.

Maria V. Carroccia