Citation: R. v. A.B., 2026 ONSC 1899
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING Respondent
– and –
A.B. Applicant
– and –
S.S. Co-Accused
Louise MacNaughton, for the Crown
Uma Kancharla, for the Applicant S.S., Self-Represented Dixon Emanuel, amicus curiae
HEARD: March 25, 2026
PINTO J.
Defence Application to Exclude Evidence
Overview
1The two accused, A.B. and S.S., are jointly charged with sexually assaulting the complainant. The trial is proceeding before me with a jury. One of the accused, A.B., brings an application to exclude references in the evidence at trial to a third individual, N.A., who was allegedly present at the material time. On March 25, 2026, I dismissed the application with written reasons to follow. These are my reasons.
Background
2On the evening of August 26, 2022, the complainant connected with a man through an online dating site and arranged to meet him at a nightclub in downtown Toronto. The complainant consumed a number of alcoholic beverages prior to attending the nightclub. By the early morning hours of August 27, 2022, the complainant had met their1 date and his friend at the nightclub and consumed more alcoholic beverages in the venue.
3Surveillance footage inside the nightclub will show the complainant with their date. However, the complainant and their date became separated. The surveillance footage will also show three individuals, who were strangers to the complainant, with or around them. The complainant appears to be intoxicated. The complainant alleges that they blacked out on the dance floor of the nightclub. Their next memory was of waking up in a vehicle with a man having sex with them while two other men observed. They allege that the first man got off them and a second man had sex with them. They passed out again and their next memory was of waking up in their bed at home. They had vaginal and body pain and some bruising. They went to a hospital and completed a Sexual Assault Evidence Kit (“SAEK”). Police publicized surveillance footage of three suspects seen near the complainant. The three suspects surrendered to police and voluntarily provided DNA samples. The DNA of the two accused could not be excluded from DNA that was found in the vaginal area of the complainant.
4The applicant seeks an order excluding references to a third man, N.A., who was allegedly at the nightclub and near the vehicle when the complainant was sexually assaulted.
5The applicant submits that the prejudicial effect of the jury hearing and seeing evidence of a third individual associated with the sexual assault of the complainant will be greater than its probative value. The applicant claims that, until the start of trial, it was unclear that the Crown was going to be relying on evidence relating to N.A. since the charges against N.A. were withdrawn following a preliminary hearing in January 2024. The Crown does not plan to call N.A. as a witness at trial. The applicant submits that moral and reasoning prejudice will arise from the evidence associated with N.A. that could lead the jury to convict the applicant and/or S.S. The jury could also become confused about the presence of three versus two men and place inadmissible weight on the evidence related to N.A.
6The applicant relies on the Court of Appeal’s decision in R. v. J.W., 2022 ONCA 306, 161 O.R. (3d) 609, leave to appeal refused, [2022] S.C.C.A. No. 220, where the court allowed an appeal on grounds that the trial judge had inappropriately permitted the Crown to introduce discreditable conduct evidence of the accused in relation to sexual activity that had occurred three years after the events in connection with which he was charged. The Court of Appeal allowed the appeal on the basis that the trial judge had improperly analyzed the moral and reasoning prejudice associated with the discreditable conduct evidence.
7S.S. adopts and supports the arguments brought by A.B. on this application.
8The Crown opposes the application and submits that the probative value of including the “third man” evidence significantly outweighs any prejudicial effect. The Crown submits that the jury is inevitably going to hear evidence of the involvement of a third man and it would be difficult to excise references to N.A. Moreover, the prejudice, if any, can be ameliorated via the jury being instructed to not draw inappropriate inferences from the presence and/or the participation of a third individual at or around the time the complainant was allegedly sexually assaulted by one or both accused.
Discussion
9To the extent that the applicant seeks to have the evidence of N.A. excised on the basis of it being “discreditable evidence” in respect of the applicant or S.S., I disagree that the law concerning the presumptive inadmissibility of discreditable conduct applies to this application.
10In J.W., at para. 15, discreditable conduct evidence was defined as evidence that:
(a) tends to show that the accused has committed an offence that is not the subject matter of the charge or charges before the court; or
(b) tends to show behaviour on the part of the accused, either through prior or subsequent acts, records, statements or possessions,
(c) and which, in the opinion of the court, would be viewed with disapproval by a reasonable person.
11Here, neither the first or second aspect of the definition apply. The Court of Appeal allowed the appeal in J.W. because the trial judge erred in focusing almost entirely on similarities between the purported discreditable evidence and the evidence of the charged offences, without sufficient attention to the dissimilarities therein. J.W. did not involve the inclusion of evidence concerning another individual in the factual matrix of that case.
12I also disagree with the applicant that references to a “third man” will somehow amount to exposing the jury to evidence that the applicant and S.S. had a propensity to engage in sexually assaultive behaviour. Still, I agree with the applicant that a trial judge has a responsibly to disallow evidence whose prejudicial value outweighs its probative effect: R. v. Cyr, 2012 ONCA 919, 294 C.C.C. (3d) 421, at para. 117, citing R. v. Collins (2001), 160 C.C.C. (3d) 85 (Ont. C.A.), at para. 19, and R. v. Mohan, [1994] 2 S.C.R. 21, at p. 21.
13Here, the probative value of the evidence of N.A. is that it could explain:
(a) The actions of one or both accused at the nightclub and thereafter since the accused attended the nightclub with N.A. and left with him.
(b) Why the complainant would be seen with, or near, an individual who was not their date, or the accused at the nightclub, and thereafter.
(c) Why the complainant would allege that they recalled being sexually assaulted by a man in a car while two other men outside a car observed.
(d) The police conduct in searching for and publicizing information about three suspects, not two.
(e) Why three suspects came forward and identified themselves to police.
(f) The DNA evidence and results at trial.
(g) What happened at the preliminary inquiry, following which the charges against N.A. were dismissed.
14The prejudicial effect of the “third man” evidence is that:
(a) The jury could believe that the greater the number of men, the greater the likelihood of their behaving inappropriately and criminally together, particularly after attending a nightclub and drinking together.
(b) The jury could conclude that it would be more likely that three men rather than just two were able to overpower the complainant at the nightclub and take them outside to a vehicle to be sexually assaulted. One or more of the three men could have acted as a lookout for the others.
(c) The presence of a third man with, or near, the complainant could incrementally suggest that the two accused were “hunting in a pack” to find victims that they could overpower and sexually assault.
15I find that, while there is some prejudicial effect to the evidence of N.A., there is significantly more probative value arising from its inclusion. Moreover, on a practical level, it would be all but impossible for the Crown to separate out any references in the evidence to N.A. It is anticipated that the video surveillance from the nightclub will show some combination of N.A. with one or the other of the co-accused and the complainant. As well, it is anticipated that the complainant will testify to having fragmented memories of up to three men sexually assaulting them. In my view, it would be improper and impractical to insist that the complainant excise references to N.A. in their narrative. Counterintuitively, it may also be unfair to the two accused to excise references to N.A. if his presence could contribute to the reasonable doubt that the jury may have about which individual(s) sexually assaulted the complainant. Finally, any undue prejudice against the applicant created by the inclusion of evidence related to N.A. can be addressed via instructions to the jury.
Conclusion
16The application to exclude references to N.A. is dismissed.
Pinto J.
Released: April 24, 2026
CITATION: R. v. A.B., 2026 ONSC 1899
COURT FILE NO.: CR-24-10000258-0000
DATE: 20260424
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING Respondent
– and –
A.B. Applicant
DEFENCE APPLICATION TO EXCLUDE EVIDENCE
Pinto J.