His Majesty the King v. Bogdan Pogrebennyk, 2026 ONSC 1143

ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 24-11401347A
DATE: 20260224

BETWEEN:

HIS MAJESTY THE KING – and – BOGDAN POGREBENNYK

Annabel Verrill, for the Respondent
Kathleen Kealey, for the Applicant

HEARD: February 19, 2026

PUBLICATION RESTRICTION NOTICE Pursuant to subsection 486.4 of the Criminal Code , there is a ban on disclosing the name of any person involved in the proceedings as a victim or a witness or any information likely to identify any such person. This ruling complies with this restriction so that it can be published.

RULING ON APPLICATION PURSUANT TO SS. 276 and 278.92-278.94

OF THE CRIMINAL CODE

A. KAUFMAN J.

1The applicant brings an application under ss. 276 and 278.92–278.94 of the Criminal Code seeking rulings on the admissibility of certain evidence in advance of trial. He seeks permission to adduce evidence of the complainant’s prior conduct, including videos, emails, photographs, and related materials, and requests a determination as to whether these items constitute “records” within the meaning of s. 278.1.

2The applicant is charged with several Criminal Code offences, including sexual assault, assault with a weapon, assault, mischief to property, theft, and driving while prohibited.

3The alleged sexual assault occurred between December 1 and December 31, 2022. The applicant and the complainant’s accounts differ entirely. The complainant alleges the accused forced her to perform oral sex. The applicant asserts that the complainant initiated oral sex on him without his consent.

The s.276 application

4Section 276(1) of the Criminal Code prohibits admitting evidence that a complainant engaged in prior sexual activity to support an inference that, because of that activity, the complainant (a) is more likely to have consented to the sexual activity at issue, or (b) is less worthy of belief .

5Under s. 276(4), “sexual activity” includes any communication made for a sexual purpose or with sexual content.

6Sections 276(2) and (3) further provide that evidence of the complainant’s other sexual activity—whether with the accused or another person—is inadmissible unless the court determines that the evidence:

a) is not tendered to support prohibited inferences under s. 276(1); b) is relevant to an issue at trial; c) consists of specific instances of sexual activity; and d) has significant probative value that is not substantially outweighed by prejudice to the administration of justice.

7The defence seeks to question the complainant about her police statement that the parties were no longer sharing a bedroom after moving to Paden Road. The defence also seeks to introduce two videos, said to be from March 2021, depicting the complainant behaving in what the applicant characterizes as a sexualized manner toward him.

8The applicant submits that the complainant placed the absence of sexual activity in issue through her police statement, and that he should be permitted to rebut that evidence. He relies on R. v. A.S. , 2024 ONSC 3662 , and R. v. Harris (1997), 1997 6317 (ON CA) , suggesting that other sexual activity evidence may be relevant to credibility when the complainant’s statements about the existence of a sexual relationship are inconsistent or when such evidence affects the coherence of the defence narrative.

9I am not persuaded that the proposed evidence is capable of admission under s. 276(2).

10The complainant’s statement that she and the accused did not share a bedroom at Paden Road is, at its core, evidence that she was not engaging in sexual activity with him. Such evidence is presumptively inadmissible. It risks inviting inverse twin-myth reasoning—namely, that because the complainant did not engage in, or was not interested in, sexual activity with the accused, she is less likely to have consented or is more credible. ( R. v. Kinamore , 2025 SCC 19 ). The Crown does not intend to elicit this evidence at trial. There is therefore no basis for rebuttal evidence.

11I have reviewed the videos. I conclude that they do not contradict the complainant’s statement about not sharing a bedroom. In one video, the complainant touches the accused’s face in a what can be described as a playful and affectionate manner. In the other, she sits beside him on a couch and at one point places her hand between his legs before he moves her hand away. The parties converse in Ukrainian, but no certified translation was provided.

12It is entirely possible for the complainant not to share a bedroom with the accused—or not to desire a sexual relationship—and still act in a physically affectionate manner. To the extent the videos depict physical affection, their admission would engage impermissible twin-myth reasoning.

13For these reasons, the s. 276 application is dismissed.

Application under s. 278.92 – 278.94

14Sections 278.92 to 278.94 seek to balance the accused’s fair trial rights, the complainant’s dignity, equality, and privacy, and the public interest in the truth‑seeking function of the criminal trial. Private records relating to the complainant but held by the defence, in cases involving (or connected to) a sexual offence, are now subject to an admissibility regime closely aligned with that governing sexual‑history evidence.

15Subsection 278.92(1) provides that, except in accordance with the section, no record relating to a complainant in the possession or control of the accused may be admitted in proceedings involving any of the listed sexual offences or a proceeding involving multiple offences where at least one is listed.

16The term “record” in s. 278.92 adopts the definition in s. 278.1. A record includes any form of record that contains personal information in which there is a reasonable expectation of privacy. Enumerated examples include medical, therapeutic, counselling, education, employment, child welfare, adoption, and social‑services records, as well as personal journals or diaries. The definition is broad and non‑exhaustive ( R. v. Quesnelle , 2014 SCC 46 at para. 22 ). It excludes records created by those responsible for investigating or prosecuting the offence.

17Where the accused seeks to introduce a non‑enumerated record, an application under s. 278.93(1) is required if the record contains personal information in which the complainant has a reasonable expectation of privacy ( R. v. J.J. , 2022 SCC 28 at paras. 40–41 ). This threshold is met only where the record contains information of an intimate or highly personal nature integral to the complainant’s physical, psychological, or emotional well‑being, with corresponding implications for dignity (paras. 42, 54).

18In J.J. , the Court articulated a framework for determining whether a non‑enumerated record falls within the regime. Both content and context must be considered:

• Content: If the content resembles that found in enumerated records, this may indicate heightened privacy interests warranting screening. Such content includes intimate or highly personal information integral to the complainant’s well‑being (para. 55).

• Context: The circumstances of a record’s creation may also establish a reasonable expectation of privacy. This involves a normative, common‑sense approach reflecting societal expectations about freedom from intrusion into personal lives (para. 57).

19At Stage One of a s. 278.93(1) application, three outcomes are possible ( J.J. , at para. 29 ):

a. If the proposed evidence is not a “record,” the application ends.

b. If it is a “record” but incapable of being admissible under s. 278.92(2)(b), the application is dismissed.

c. If it is a “record” capable of admission, the application proceeds to a Stage Two hearing under s. 278.93(4).

20The applicant seeks to introduce the following documents relating to the complainant:

i. Police reports concerning uncharged incidents dated October 31, 2021; September 24, 2022; and August 28, 2023; ii. Emails between the applicant and the complainant dated December 2, 2020, and January 2022, and an unsigned offer of purchase and sale for 3115 Paden Road dated December 2, 2020; iii. An email between Valentina Kunyanetz and the applicant dated September 23, 2021 in which the applicant alleges that the complainant wasted her mother-in-law’s money; iv. Text messages between the applicant and a potential trial witness dated December 10, 2022, in which he makes reference to the complainant; v. Photographs of the residence, taken in January 2022 and appended to emails from January 2022.

21The Crown and the applicant agree that the police reports are “records” under s. 278.1. The Crown also concedes that the remaining materials are not records and need not pass through the screening regime, except for:

i. Videos taken by the applicant of the complainant on March 17, 2021; March 22, 2021; October 21, 2021; and an undated video; ii. Emails exchanged between the applicant and the complainant dated January 26–30, 2022; iii. Photographs attached to those emails.

22None of the documents at issue fall within the enumerated categories in s. 278.1. The question is therefore whether they contain intimate or highly personal information integral to the complainant’s overall physical, psychological, or emotional well‑being so as to engage a reasonable expectation of privacy.

23I conclude that the documents at issue do not meet the definition of “record.”

24The videos depict the applicant and complainant arguing in Ukrainian. In the March 22, 2021 video, the complainant appears upset and strikes the applicant with a keyboard. In the October 21, 2021 video, she is placing items in a closet while arguing; the applicant pushes her out of the bedroom and closes the door. In the undated video, the applicant pushes the complainant off a bed with his foot. She becomes upset, argues, sits again on the bed, and eventually leaves in tears. Although the complainant is visibly emotional in some of these videos, the content does not disclose information of an intimate or highly personal nature integral to her psychological or emotional well‑being within the meaning of J.J.

25The emails consist of:

a. An email from the complainant attaching an agreement of purchase and sale “for review”; b. An exchange about household chores and the applicant’s failure to keep the home tidy. Portions are in Ukrainian, and the Court cannot assess those portions without translation; c. Attached photographs, which are difficult to decipher but are labelled “rodents haven basement,” suggesting they depict a rodent infestation.

26The Crown argues that the videos are records because the complainant appears distressed in her home. Regarding the chore‑related emails, the Crown submits that they reflect the complainant’s stress and were sent with an expectation of privacy. The Crown further argues that the property‑purchase email engages financial information, which attracts a reasonable expectation of privacy.

27In J.J. , the Supreme Court held that an intrusion on informational privacy must transcend mere personal inconvenience to engage the complainant’s dignity; it must involve highly sensitive information capable of revealing matters integral to the complainant’s physical, psychological, or emotional well‑being (para. 45). The Court emphasized that the threshold for establishing a reasonable expectation of privacy under the record‑screening regime is a high one. In my view, while the disputed records may cause the complainant discomfort, they do not reach the level of sensitivity required to engage the regime. They do not resemble any of the enumerated categories in s. 278.1 and do not contain the type of intimate or highly personal information that would strike at the complainant’s dignity. As such, they are not “records” for the purpose of ss. 278.92–278.94.

28In conclusion, only the police reports are “records”.

29The applicant also requests an order that the documents determined not to be “records” and therefore not governed by section 278.93, not be used by the Crown at trial or to prepare the complainant. I agree with Conlan J. that the Crown may not rely on materials that have been determined not to be “records” under ss. 278.92–278.94 where those materials surfaced only because the defence sought directions. To hold otherwise would discourage defence applications for guidance, leading to more mid‑trial disputes, adjournments, delays, and unnecessarily complex proceedings—outcomes contrary to the interests of complainants, accused persons, and the public. It would also erode the longstanding asymmetry of criminal disclosure by depriving the defence of a legitimate tactical advantage without legal basis, effectively expanding defence disclosure obligations in a manner amounting to a seismic procedural change. The defence had no obligation to disclose non‑records. Permitting the Crown to use them would improperly penalize the defence for prudent conduct in bringing an application for directions. (See R. v. B.J. , 2025 ONSC 7148 , paras. 8–10 .)

A. Kaufman J.