Court File and Parties
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: R. v. L.P.
BEFORE: Justice S. Nakatsuru
COUNSEL: Natalya Odorico, Counsel, for the Crown Andrew Bigioni, Counsel, for the Defendant Wayne Cunningham, Counsel, for M.W.
HEARD: March 9-24, 2026
ENDORSEMENT
Publication ban pursuant to s. 278.95(1)(a) and s. 278.95(1)(b) of the Criminal Code. There is no publication ban on this decision as per s. 278.95(d).
1The Applicant, L.P., is charged with five counts of sexual assault and one count of the unlawful confinement of M.W. He brought two applications regarding the use of certain text messages in his possession. Although L.P. brought these as pretrial applications, given the circumstances including recent disclosure of an additional text of the complainant, at the request of L.P., the applications were considered and heard mid-trial during the jury trial. To ensure the jury would not be unduly inconvenienced, bottom-line rulings were made. These are my expanded reasons.
2There are two series of texts in issue:
(i). The Applicant is in possession of two text messages M.W. sent to him on September 18, 2023. These text messages say"Mmm rn I'm thinking about how hard you were yesterday and how big your dick is" and "And the way you were moaning in my mouth while we were making out yesterday (emoji with hearts in eyes)”
(ii). The Applicant is in possession of some text messages suggesting the two planned on meeting at M.W.’s grandparents on September 22, 2023. On September 22, 2023, M.W. tells L.P. that she is going to the gym after grocery shopping. L.P. asks if he should go to her grandparents’ and M.W. says yes. The texts that are the subject of this application were sent on September 23, 2023, where sexual activity is referred to including the following text where Ms. Wonder states:
“Also all night you were all over me hugging and kissing me and then the second I explained why we're not having sex you got so cold and closed off. All that affection stopped, you didn't even hug me after. And I thought okay maybe you're sleeping but before we went on a break you were sleeping next to me and every time I moved you were hugging me, it makes it seem like it wasn't genuine”….
THE LEGISLATIVE REGIME
The Legal Framework under s. 278.92
3Section 278.92 of the Criminal Code prohibits the defence from cross-examining complainants of sexual violence on “records” relating to the complainant that are in the possession or control of the defence. The defence must bring an application under s. 278.93 and s. 278.94 to use these materials.
4The admissibility regime set out in s. 278.92 only applies to materials which meet the definition of “records” as defined by s. 287.1 as elaborated on by the Supreme Court in R. v. J.J., 2022 SCC 28.
5A “record” contains “personal information relating to the complainant for which the complainant has a reasonable expectation of privacy”. Put differently, a record contains information “of an intimate or highly personal nature that is integral to the complainant’s overall physical, psychological or emotional well-being”. Materials containing mundane information such as general emotional states, everyday occurrences, or general biographical information will typically not meet the definition of a “record”, even if their introduction in court would cause the complainant personal inconvenience, embarrassment or discomfort.
6If the materials sought to be relied on by defence meet the definition of “records”, the defence must satisfy the application judge that the evidence is:
(i) admissible under s. 276 (if the record involves sexual activity or sexual communications that do not form the subject matter of the charge) and
(ii) relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
7When assessing the second criterion, the application judge must evaluate the factors enumerated in s. 278.92(3):
(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) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences;
(d) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;
(e) the need to remove from the fact-finding process any discriminatory belief or bias;
(f) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;
(g) the potential prejudice to the complainant’s personal dignity and right of privacy;
(h) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and
(i) any other factor that the judge, provincial court judge or justice considers relevant.
The Legal Framework under Section 276
8The text messages raise the application of s. 276.
9To admit evidence of sexual activity that does not form the subject matter of the charge (“other sexual activity”), the defence must demonstrate that the proposed evidence meets the statutory pre-conditions for admissibility on a balance of probabilities. Section 276(2) requires the applicant to establish that the proposed evidence:
(i) is not being adduced for the purpose of supporting the twin myths
(ii) is relevant to an issue at trial
(iii) is of a specific instance or instances of sexual activity and
(iv) “has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice”.
10The overarching objective of section 276 of the Criminal Code is to ensure trial fairness by confronting and eliminating myths, stereotypes, and prejudices about sexuality and sexual assault from tainting the trial process. The provision achieves this objective by prohibiting “all discriminatory generalizations about a complainant's credibility and disposition to consent”: R. v. Darrach, 2000 SCC 46, at paras. 19, 34; R. v. D.K., 2020 ONCA 79, at para. 52; R. v. Barton, 2019 SCC 33, at para. 60.
11In particular, the statutory provision disallows the use of other sexual activity evidence to support one of two “twin myths” that were historically pervasive in sexual violence trials: namely, that by reason of the sexual nature of that activity the complainant is more likely to have consented to the sexual activity that forms the subject-matter of the charge, or that by reason of the sexual nature of that activity, the complainant is less worthy of belief.
12In determining whether evidence is admissible under subsection s 276(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.
ANALYSIS
13Although the Applicant argues that the texts do not fall under s. 276 as they form the subject-matter of the offence, a s. 276 analysis should be conducted for these records because it remains uncertain whether they do or do not based on the evidence heard at trial and the evidence in the application record. As my reasons will explain, a solid foundation exists that one of the two groups of texts is likely to refer to the fifth incident, the subject-matter of the charge. However, the application record is not conclusive in that regard. Moreover, if one group of texts does refer to the subject-matter of the offence, then the other group of texts does not and is unrelated sexual activity.
14In these circumstances, it is best to analyze the texts under s. 276.
15To start, it is important to set the context. The only path to potential admissibility is the connection between the texts and the fifth incident of sexual assault alleged by M.W., the subject-matter of count 5 sexual assault and count 6 unlawful confinement.
16Rather than isolating each text and trying to assess the factual connection to the fifth incident, I find that the best and fairest approach is to take a wholistic one, looking at the entire context. To conduct an analysis in silos, looking at each group of texts separately, will not advance the objectives of this valuable legislation and could work a miscarriage of justice.
17In practical terms this means looking at what the defence is trying to accomplish with the two series of September texts. This approach is in keeping with what the Supreme Court of Canada said in R. v T.W.W., 2024 SCC 19, at para. 27:
In order to be potentially admissible, the relevance and probative value of the evidence in each case must go beyond a general ability to undermine the complainant's credibility or to add helpful context to the circumstances of the case; it must respond to a specific issue at trial that could not be addressed or resolved in the absence of that evidence.
18Looked at from a bird’s eye perspective, the defence seeks to put the texts to the complainant to demonstrate that the contents of the texts are inconsistent with the sexual assault as described by the complainant. There is sufficient specificity for this evidence to have relevance and probative value beyond broad assertions that it goes to credibility or context: T.W.W., at para. 36.
19To appreciate the probative value, I will outline the allegations M.W. has made about the fifth incident. M.W. testified that on an unknown date in September 2023, L.P. sexually assaulted her at her grandparents’ house. On this occasion when her grandparents left the house, L.P. began to kiss her. M.W. told him “Not right now”, but he persisted. He then led her to the stairs leading to the second floor and forcibly pushed and pulled her up the stairs against her will and in the face of her physical resistance. He picked her up and carried her to a bedroom, laid her on the bed and began kissing and touching her. He stopped when he saw the blank look on her face. M.W. left the bedroom, went downstairs, and sat on the couch. L.P. followed her downstairs and asked if she was okay. M.W. was uncomfortable but began feeling guilty when she perceived L.P. felt bad about his conduct and, because of her guilt, she allowed L.P. to have sex with her upstairs in the bedroom. She described the sex as not lasting very long because it was painful and L.P. was being really aggressive. She described falling forward, pushing back and telling L.P. she was in a lot of pain before going to the bathroom to pee. When she was on the toilet, L.P. came into the bathroom, put his penis in front of her face, and tried to put her mouth onto it by pulling her head towards him against her resistance. When he could not get his penis into her mouth he relented, looked at M.W. with a smirk, scoffed and walked away. M.W. described his reaction as very disturbing. She was so scared and uncomfortable from that reaction that when she got back into the room she said to him, “I never want to have sex like that again”. L.P. said “okay” but never addressed what he did. M.W. believed she and L.P. spent more time together that day but did not recall what they did.
20In her testimony, M.W. testified that while she may have tried to suppress the sexual assault and had problems processing it, it was the most disturbing experience in her life. It was terrifying.
21On this application, L.P. swore an affidavit that the assaultive conduct described by M.W. did not take place and that any sexual activity they had on that occasion was consensual. More significant to the application, he avers that it happened on September 17, 2023. He knows this because it was the only time he spent any time with M.W. at her grandparents’ house that month.
22The probative value of the texts is significant. The content of the texts is inconsistent with the description of the sexual assault and unlawful confinement that M.W. alleges she was subjected to. Moreover, they are inconsistent with how M.W. testified that she was feeling about what occurred to her.
23To be more precise, the probative value of these texts comes from:
The texts of September 18, 2023, are inconsistent with a sexual assault as described by the complainant having occurred the night before. M.W. may have an explanation for the text or testify the sexual assault did not occur on this date, but this does not rob these texts of their probative value especially considering the affidavit of L.P. averring it occurred on this date; and
The texts of September 23, 2023, are inconsistent with the description of what she said happened the day of the alleged sexual assault. They are also inconsistent with a finding that the alleged sexual assault occurred on this date. If M.W. suggests that it did, there are statements in the text where she says she had been working when she has testified on the date where she was sexually assaulted, she was not.
24That said, I disagree with the defence submission that the texts of September 23, 2023, also has relevance or are inconsistent with her testimony by showing M.W. can say “No” to sexual activity. To be accurate, M.W.’s testimony about the sexual assault in the fifth incident was not that she was incapable of saying “No.” Rather she just did not expressly say “No” on the occasion for various reasons including the fact she was not processing what was happening to her. Evidence that she said “No” to other sexual activity on other occasions is not tethered to the circumstance of her not verbally expressing her lack of consent on this date. Moreover, there is merit to the Crown position that any relevance under this argument involves myths and stereotypes of how complainants of sexual assault behave.
25The evident conundrum faced with this application is that even accepting L.P.’s sworn evidence that he was only at the grandparents’ home once that month, only one set of texts could possibly refer to the subject matter of the charges. The other would be unrelated sexual activity.
26However, as submitted by the defence, if they are not permitted to question M.W. on both, they could be left with the distinct possibility that the jury may find L.P. and M.W. were at the grandparents on the other occasion, September 22, 2023, and not September 17, 2023. Consequently, any impeachment would falter as cross-examination would leave this door open for the complainant to exit. In other words, M.W. could well testify the text exchange related to September 17, 2023, was about another unrelated time where sexual activity took place.
27It is because of this context, it makes sense to treat the two series of texts together. On the unique facts of this case, the factual record limits the breadth of the defence request. As noted, according to L.P., they were at the grandparents only once that month. According to M.W., it could be only one to three times though she believes it to be two times.
28Hence, there are only a limited small number of dates the subject matter of the offence could have occurred. The analysis of probative value and prejudice is thereby impacted by this small number of dates, as well as the circumstances of it occurring at her grandparents’ home. Said differently, I am not conducting the analysis on a large or amorphous number of days in which a sexual assault could have taken place. I am not conducting the analysis in a case where there are no identifiable constraining facts, which would be the case, for instance, if it was alleged to have occurred in a home shared between the accused and the complainant.
29I must play a significant gatekeeping role. Otherwise, the s. 276 screening could readily be avoided, and harm will befall the trial process. To illustrate, in a hypothetical case where it is alleged that the sexual assault took place in the couple’s home on an unidentified date and a similar series of texts exchanged after the alleged assault is sought to be introduced, there may be no realistic way to distinguish between the numerous times and occasions to which text messages may be said to be relevant because it might relate to the alleged sexual assault or to other unrelated sexual activity. To open the door to other sexual activity in such circumstances on the ground it could potentially be referencing the subject matter of the offence would be perilous. It would be tantamount to throwing the door wide open to evidence of other sexual activity and allowing the defendant to break-in heedlessly without any regard for the s. 276 regime. The very purpose of the legislation could be undermined.
30On the other hand, on the unique facts of this case, if the texts on one of the dates are found to be inadmissible, the accused will not be able to cross-examine the complainant nor testify about the other occasion. L.P. will be denied an opportunity to demonstrate that the sexual assaults did not happen based on the text messages since M.W. could just testify the sexual assault did not happen on the date the text messages refer to but on another occasion. Valuable evidence will not be heard by the jury. This type of scenario opens the door to a potential miscarriage of justice.
31Because of this, I find that the probative value of these texts is significant. They are relevant to the assessment of M.W.’s credibility, not because she may have engaged in unrelated sexual activity with L.P. on another occasion or that she more likely consented, but because the statements relate to her perspective on the sexual activity she alleges to be non-consensual and are factually inconsistent with her testimony. To prevent cross-examination on these would be a failure of L.P.’s right to make full answer and defence; R. v. Crosby, 1995 107 (SCC), 2 S.C.R. 912, at para. 12
32Therefore, they have significant probative value in that way, and I find that the defence is not seeking to introduce this evidence under any twin myth reasoning. They are relevant to credibility of M.W. at trial. They are specific instances of sexual activity as defined in s. 276(4).
33Looking then at the factors found in s. 276(3).
34The interests of justice, including the right of the accused to make full answer and defence is a very significant factor. M.W. is the central and only witness for the Crown. Her credibility will be key at this trial. The text messages have a major contradictory effect with respect to what she has testified happened to her during the fifth incident.
35Society’s interest in encouraging the reporting of sexual assault offences will not be undermined by this limited admission of two sets of discrete texts. I come to this conclusion on the basis that the texts will not go in as they are written verbatim. I will later explain what I mean.
36I have no hesitation in concluding there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case. The defence should be entitled to cross-examine M.W. on this evidence as I will outline. While she may have an explanation for the texts, the jury will be assisted in their assessment of her credibility regarding the allegations. In addition, I was advised that L.P. will testify in his own defence. He should be entitled, if he wishes, to refer to this evidence in support of his testimony. All of this will assist the jury in arriving at a just verdict.
37No discriminatory belief or bias will be injected into the trial process by this evidence and it will not unduly arouse sentiments of prejudice, sympathy or hostility in the jury especially in light of proper jury instructions.
38I am most concerned with the potential prejudice to the complainant’s personal dignity and right of privacy given the graphic sexual nature of some of the texts. However, given the solution that the parties have arrived at as to how the core effect and substance of this evidence can be introduced to the jury, this factor is not an obstacle to admission. During this application, the Applicant himself suggested editing or rewording the messages to reduce any risk to the complainant’s dignity.
39The right of the complainant and of every individual to personal security and to the full protection and benefit of the law is not affected.
40Let me now address how this evidence will be presented to the jury. This solution has figured prominently in the balancing of the factors under s. 276(3).
41The parties took initial positions on the admissibility of the text messages but also put forward alternative positions. Through cooperation and discussion, they have come to what is effectively admitted facts between the parties if I was inclined to admit the evidence. Even if it is not strictly speaking an agreed statement of facts, it nonetheless is the appropriate mechanism by way of judicial ruling to strike the correct balance in the case.
42This approach is supported by R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at para. 75 where the Court stated:
…proper management of evidence which falls within the scope of the s. 276 regime requires vigilance from all trial participants, but especially trial judges -- the ultimate evidentiary gatekeepers. Leading evidence through an agreed statement of facts, as the trial judge suggested here, is one way to do so.
43I find that the requirements of s. 276, are satisfied by the Applicant when the following admissions are utilized rather than the text messages themselves:
(i). Sexual activity took place between L.P. and M.W. on the evening of September 17 to the morning of the18, 2023, on those two dates inclusive, and that this sexual activity was consensual.
(ii). Sexual activity took place between L.P. and M.W. on the evening of September 22 to the morning of the 23, 2023, on those two dates inclusive, and that this sexual activity was consensual.
44The Crown, defence counsel, and counsel for the complainant have most professionally and diligently worked on the wording to their satisfaction. These admissions will be put to the jury after the accused has testified.
45In sum, the defence has met its onus of showing the impugned evidence has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
46Moving onto the s. 278.92 assessment, this can be abbreviated given the findings already made.
47The factor concerning society’s interest in encouraging the obtaining of treatment by complainants of sexual offences is not raised by the facts here.
48Looking at all the appropriate factors, I conclude that the evidence in the form of the above admissions is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
49To be clear, the defence may cross-examine M.W. about September 17 and 22, 2023 and suggest if they choose to, that one of these dates is the one M.W. alleges to be the date that the fifth incident took place. The only limitation on cross-examination is that they cannot refer to the contents of the text messages relating to sexual activity that was the subject of these applications. They are free to use other admissible text messages provided they are not subject to the Criminal Code regime.
50The Crown can also use other admissible text messages in their case in a similar fashion.
51Given that these written reasons are being released after the jury has returned its verdict,1 as an addendum, both M.W. and L.P. testified at trial that they did not go into the grandparents’ home on September 22, 2023. The parties agreed that the second admission need not be placed before the jury. Accordingly, it was not.
Justice S. Nakatsuru
Released: April 1, 2026