CITATION: R. v. Esfandiary-Noury, 2026 ONSC 2814

COURT FILE NO.: CR-24-10000080-00AP

DATE: 20260527

ONTARIO

SUPERIOR COURT OF JUSTICE

(SUMMARY CONVICTION APPEAL)

BETWEEN:

HIS MAJESTY THE KING

Respondent

– and –

KAMYAR ESFANDIARY-NOURY

Appellant

Tania Monteiro, for the Respondent

Megan Savard, for the Appellant

HEARD: April 2, 2026

PINTO J.

REASONS FOR DECISION (SUMMARY CONVICTION APPEAL)

1The appellant, Kamyar Esfandiary-Noury, appeals from his conviction for sexual assault in the Ontario Court of Justice on June 17, 2024. The trial judge, Mulligan J., found that the appellant sexually assaulted the complainant, an acquaintance, when he kissed her without her consent while the two were alone in the appellant’s backyard on July 11, 2020.

2The appellant argues that the trial judge erred by:

(a) admitting the complainant’s prior consistent statements without a hearing or ruling on use;

(b) subjecting “sexual conversation” evidence to a s. 276 hearing when it was actually the “subject matter of the charge”; and

3The Crown disagrees and asserts that the trial judge made no legal errors either in the pre-trial s. 276 application or at trial.

4For the reasons that follow, I find that the trial judge erred by dismissing the s. 276 application at stage 1 and failing to advance it to an admissibility hearing at stage 2. I also find that the trial judge erred by maintaining her s. 276 ruling in the face of shifting evidence at trial, and failing to conduct a new s. 276 application at trial, when it became apparent that the appellant wanted to provide evidence of his belief in communicated consent.

5I do not find that the trial judge erred in proceeding with the defence application under s. 276. Nor do I find that she erred in her handling of the complainant’s out of court statements.

6The appeal is allowed and the matter is directed to a new trial by a different judge.

Background

7The appellant was charged with a single count of sexual assault contrary to s. 271 of the Criminal Code, R.S.C., 1985, c. C-46. The complainant and appellant were the only witnesses at trial.

8The complainant and appellant met for the first time in late 2019 at a cocktail bar while they were with other friends. This was about seven months prior to the June 11, 2020 evening on which the incidents alleged to constitute sexual assault happened.

9Sometime after their initial meeting, and during a loosening of social restrictions that were in place during the COVID-19 pandemic, the complainant sent a friendly text message to the appellant. The appellant then invited the complainant over to his place. The complainant initially believed that a mutual friend would also be joining the get-together. However, about 45 minutes after the complainant arrived at the appellant’s house, she received a message that the mutual friend would not be joining them.

10The complainant and appellant spent from around 9:30 p.m. to 12:15 a.m. in the appellant’s backyard eating, drinking wine, chatting, and catching up. The trial judge found that the topic of conversation was quite often sexual in nature, and neither was reticent to discuss the topic. They socialized outside, across from each other at a large patio table filled with candles, appetizers, and wine. Despite observing certain COVID precautions, each admitted to a hug and a kiss, or possible kiss upon greeting and saying goodbye at the end of the night.

11At trial, the Crown led evidence of three incidents of non-consensual sexual activity. With respect to the first incident, the “lap incident”, the trial judge could not wholly reject the appellant’s version of events and was left in reasonable doubt of his guilt. Similarly, with respect to the third incident, the “bottom touching incident”, the trial judge had reliability concerns about the complainant’s evidence and was unsure of whether the appellant engaged in the impugned activity.

12The trial judge convicted the appellant of sexual assault with respect to the second incident, “the kiss incident.” The trial judge found that, after the “lap incident”, the complainant set boundaries by telling the appellant that he should stay on his side of the backyard table and that they were friends. The appellant went inside to get more food, and when the appellant returned to the table outside, the complainant reminded the appellant again to stay on his side. The trial judge found that the appellant did not heed this instruction and put his hands on the complainant’s shoulders. He then kneeled or bent down in front of her, placed his hands on the sides of her face and pulled her face toward his to kiss her. The complainant did not recall their lips touching. Further activity occurred that the trial judge found to not be assaultive.

13In a key set of passages, the trial judge found:

[17] The defendant agreed that he and the complainant continued to chat and generally socialize after the lap incident. He did not agree that their conversation seemed to have changed in any way and asserted that much of it, both before and after the lap incident, was sexual in nature. He described it as “flirtatious”. There was no evidence that any kind of relationship between them, sexual, romantic, friendship or otherwise, was discussed. There was no evidence that either spoke of, or discussed, any consensual physical contact, of any nature, between them. His evidence was simply that sex and sexual positions and activities with others was discussed in general.

[18] The evidence of their conversations, as described by both parties, demonstrates that sex was definitely a topic of discussion that evening. Sex with each other was not. As such, the fact and topic of their discussions have little to no bearing on any issue before me from a legal point of view. Given that evidence, I certainly can’t and don’t draw any inferences with respect to communicated consent on behalf of the complainant or a mistaken belief in consent on behalf of the defendant. Nothing at all arises simply from the fact that these types of conversations took place.

14It is clear that the trial judge found that since only sex in general, and not sex with each other, was discussed prior to the kiss, the appellant could not advance a defence of mistaken but honest belief in communicated consent. Accordingly, a conviction arising from the non-consensual kiss followed.

15In my view, the problem with the trial judge’s decision began with her improper decision to dismiss the appellant’s s. 276 application following stage 1, and her not advancing it to an admissibility hearing at stage 2. As I will explain, this decision detrimentally impacted on how the trial judge and parties treated evidence at trial that could have provided an avenue of defence for the appellant.

The s. 276 Application

16Prior to trial, the applicant brought a s. 276 application supported by an affidavit that appended a transcript of the complainant’s police statement, and a two-page document containing after-the-fact text messages between the complainant and himself that purportedly referenced their sexualized conversations.

17The appellant’s s. 276 application sought “an order permitting him to elicit evidence, by cross-examination of the Crown witnesses and otherwise of some of the complainant’s other sexual activity with him, other than the sexual activity that formed the subject matter of the charges.” The evidence sought to be introduced consisted of conversations of a sexual nature that immediately preceded and followed the alleged offence. The s. 276 application specifically argued that one of the grounds of the application was that the sought after evidence was “relevant in assessing the complainant’s conduct, her overall credibility, and the applicant’s real or mistaken belief in the complainant’s consent.”

18The s. 276 application asserted that the complainant made the following comments in her police statement:

“We were having – like, what I thought was fun friend conversation where we were discussing anything and everything.”
“Some of it was sexual, but it was clearly not him and I sexual.”

19The s. 276 application indicated that the applicant, now appellant, believed that the complainant “created a false context where the parties [were] not engaged in conversations of a sexual nature involving the two of them together.” The application also claimed that the complainant’s own after-the-fact text messages contradicted the complainant’s narrative in her police statement.

20In his affidavit in support of his s. 276 application, the appellant stated, inter alia, that:

(a) During the evening the complainant and him engaged in conversations of a sexual nature.

(b) These conversations included sexual topics between the complainant and him.

(c) The text messages on the complainant’s cell phone contradicted her statements to police that the conversations that night were not about the two of them sexually.

(d) These conversations / topics included:

(i) The size of his penis;

(ii) Spitting in one other’s mouths;

(iii) Receiving oral sex from him;

(iv) Different sex positions depending on how well he was endowed; and

(v) Showing each other private and intimate photos.

21At the hearing of the s. 276 application, defence counsel submitted that the accused intended to dispute the complainant’s statement that the sexual conversations between them were only of a generic nature and not with respect to each other. At one point, in defence counsel’s submissions on the application, he submitted:

So what’s being said throughout the night, that affects whether my client had an honest but mistaken belief and consent, whether the complainant was consenting, whether she should be believed or whether this should affect her credibility or not. But these questions are essential to the defence. I would say that these are some of the most important questions I would want to ask the complainant. And without that, I don’t see the possibility of my client having a fair trial.

22The Crown’s response was that the accused eliciting evidence that the complainant had “him and I” sexual conversations on the night in question was insufficient to ground the application since this type of evidence engaged in prohibited “twin-myth” reasoning.

23The trial judge essentially adopted the Crown’s perspective. In denying the s. 276 application, the trial judge held that she could find nothing that would allow her to find that the evidence on the application would aid the accused in showing that the complainant’s statements were materially misleading or inconsistent. Secondly, while the evidence sought to be admitted was temporally connected to the alleged offence, the prior conversations did not relate to the actual offence that was alleged to have been committed. Notably, the trial judge referenced the alleged acts in question as “the alleged breast or buttock grab.” At the time of the s. 276 application, there was no reference to non-consensual kissing.

24The trial judge dismissed the application stating that:

I cannot find, therefore, that there is an explicit link between the text messages and the alleged conversations between the defendant and the complainant and the alleged touching that forms the gravamen of the offence that’s before me, alleged. And even if I found as a fact that the conversations took place, I took that for argument’s sake as being a fact, those conversations could not inform or form the basis of the complainant’s consent to the activity, which I point out, as I have before, was not part and parcel of the sexual activity that was allegedly discussed. And since I know that silence, passivity, broad advanced consent, or assumed or implied consent are [not] consent, I cannot find that the evidence sought to be adduced, given this evidentiary record, is capable of being admissible. And so I find that it does not pass stage 1.

Issues on Appeal

25I will deal with the issues on appeal in the following order:

Did the trial judge err by subjecting “sexual conversation” evidence to a s. 276 hearing when it was actually the “subject matter of the charge”?
Did the trial judge wrongfully dismiss the defence’s s. 276 application?
Did the trial judge err by admitting the complainant’s prior consistent statements without a hearing or ruling on use?

Standard of Review

26Absent an error of law or a miscarriage of justice, the test to be applied by a Summary Conviction Appeal Court is whether the findings of the trial judge are unreasonable or cannot be supported by the evidence. A Summary Conviction Appeal Court Judge is not entitled to substitute his or her own view of the evidence for that of the trial judge. A trial judge’s factual findings are entitled to deference, absent palpable and overriding error: R. v. Sheahan, 2017 ONCA 159, 8 M.V.R. (7th) 1, at para. 12.

27The appellant argues that the trial judge committed errors of law in the application of the s. 276 regime and the handling of prior consistent statements. The admissibility of prior sexual activity evidence is highly fact-specific and contextual, but s. 278.97 of the Criminal Code states that an appeal from a trial judge’s determination to admit or refuse evidence of other sexual activity is a question of law. Whether the threshold requirement of relevance is met is a question of law reviewable on a correctness standard. An appellate court must ensure that the trial judge applied the correct legal principles, and no deference is owed in this regard. However, appellate courts should defer to the trial judge’s determination whether the evidence’s prejudicial effect substantially outweighed its probative value: R. v. T.W.W., 2024 SCC 19, at paras. 19-22.

Issue #1: Did the trial judge err by subjecting “sexual conversation” evidence to a s. 276 hearing when it was actually the “subject matter of the charge”?

28The appellant argues that the trial judge erred by ruing, without reasons, that the “sexualized conversation evidence” pertained to extrinsic sexual activity. Instead, the appellant suggests that, on a proper analysis, the conversation was part of the “subject matter of the charge” and therefore presumptively admissible, and not properly the subject of pre-trial screening.

29The Crown objects to this issue being raised for the first time on appeal arguing that it could have easily been advanced by the appellant at trial. The Crown submits that, in any event, the trial judge was correct to vet the “sexual conversation” evidence under s. 276 since it was not sufficiently and integrally connected to the sexual activity that formed the subject matter of the charge.

30The court of appeal in R. v. Reimer, 2024 ONCA 519, 173 O.R. (3d) 412, leave to appeal refused, [2024] S.C.C.A. No. 392, was faced with a similar situation where, for the first time on appeal, the appellant argued that the trial judge incorrectly vetted the sexual communications evidence instead of considering it part of the sexual activity that formed the subject matter of the charge. The Crown in Reimer likewise argued it was too late to raise the issue on appeal since the appellant had not contested the need for a s. 276 application at trial, and had, in fact, initiated the s.276 application.

31Notwithstanding that I find that the appellant could have raised the issue of the improper vetting of the sexual communications evidence at trial, as in Reimer, I find that the s. 276 ruling by the trial judge played an important part in the trial. I similarly find that an injustice would occur if the appellant is correct that that the exclusionary rule should not have applied, and he is not permitted to raise the issue on appeal. As Paccioco J.A. stated in Reimer, at para. 43, “compelling interests of justice are also engaged if a trial judge relies on s. 276 to exclude evidence required for full answer and defence where s. 276 does not apply.” I would therefore permit this issue to be raised for the first time on appeal.

32Having considered this ground of appeal, I find no error in the trial judge’s decision to subject the sexual communications evidence to the s. 276 regime.

33Paciocco J.A. explained that there is no “generous gateway” to admitting evidence of sexual activity without the need for a s. 276 inquiry: Reimer, at para. 47. As expressed by the Alberta Court of Appeal in R. v. McKnight, 2022 ABCA 251, 48 Alta. L.R. (7th), leave to appeal refused, [2022] S.C.C.A. No. 341, “[t]o fall within the scope of ‘sexual activity that forms the subject-matter of the charge’”, and thereby fall outside the scope of s. 276 scrutiny, “at the very least, the ‘sexual activity’ must be part of the specific factual events of which the offence is a component”: at para. 254.

34Paciocco J.A., in Reimer, at para. 46, further explained that:

To meet this standard, it is not enough for the uncharged sexual activity to be proximate in time and place to the allegedly criminal act of the accused: McKnight, at para. 255. Nor is it enough that the uncharged sexual conduct is relevant to the charged event. As Coroza J.A. made clear in Choudhary, to bypass screening under s. 276, the uncharged sexual activity must be so “integrally connected, intertwined or directly linked to” that activity – the actus reus of the specific charge – that it is effectively part of the transaction or event that is being prosecuted: at para. 29. Generally, the sexual activity must also be “closely connected by time and circumstance to be considered to be part of the same transaction”: R. v. X.C., 2020 ONSC 410, at para. 39, per Dawe J. (as he then was).

35Here, the appellant was charged with sexual assault involving physical acts of touching that were non-consensual. The evidence sought to be introduced by the appellant consisted of conversations of a sexual nature that immediately preceded and followed the alleged offence. Moreover, the s. 276 application was supported by an affidavit that included a two-page document containing after-the-fact text messages between the complainant and himself that purportedly referenced their sexualized conversations. I do not find that the evidence that the appellant wanted to introduce was integrally connected, intertwined, or directly linked to that activity – the actus reus of the specific charge – so much so that it was effectively part of the transaction or event that was being prosecuted.

36The Court in R. v. Choudhary, 2023 ONCA 467, 167 O.R. (3d) 748, at paras. 32-33, cautioned courts to keep in mind that (a) “one of the underlying purposes of the [screening] regime is to prevent trials from becoming infected with twin-myth and stereotypical reasoning” and to use the principle as underlying guidance when deciding whether screening is necessary, and (b) if a trial court is uncertain, “to proceed with screening the evidence.”

37While the trial judge did not have the benefit of the reasons in Reimer, released a few weeks after her judgement, she was right to screen the evidence of “other sexual activity” via the procedure of a s. 276 application. The trial judge made no error in doing so, and this ground of appeal is dismissed.

Issue #2: Did the trial judge wrongfully dismiss the defence’s s. 276 application?

38With respect to s. 276 evidence, the threshold at stage 1 to move the evidence to an admissibility hearing at stage 2 is low. The “capable of being admissible” standard required at stage 1 is lower than the balance of probabilities standard: R. v. Hoffman, 2024 BCCA 98, at para. 131. It only requires the court to consider “whether the proposed evidence has a reasonable possibility of admissibility”, and it “is not the ‘platform’ to engage in the overall balancing of interests ‘which is the purpose of stage 2’”: R. v. WG, 2025 ABKB 58, at para. 21, citing R. v. Sandhu, 2024 ABCA 47, 75 Alta. L.R. (7th) 96, at para 32, leave to appeal refused, [2024] S.C.C.A. No. 133. Rather, it involves “only a facial consideration … and only a tentative decision” of the evidence: R. v. Peters, 2023 MBCA 96, 432 C.C.C. (3d) 1, at para. 23.

39In his s. 276 application, the appellant deposed that the complainant and him had conversations about the size of his penis, spitting in one other’s mouths, receiving oral sex from him, and different sex positions depending on how well he was endowed. I can perhaps understand the trial judge’s skepticism that such evidence could support a defence of mistaken belief in communicated consent. But, as the appellant notes, to the extent that the appellant’s s. 276 affidavit was ambiguous as to the point of such evidence, this was a reason to hold an admissibility hearing, not to refuse one. The appellant was not cross-examined on his s. 276 affidavit. The trial judge should have permitted greater exploration of this evidence at an admissibility stage 2 hearing, rather than rejecting the application at stage 1.

40As it turned out, following the early dismissal of the s. 276 application at stage 1, the parties and the trial judge struggled during the trial to avoid the details of the sexual conversations that preceded the impugned sexual activity.

Developments at Trial

41As I will demonstrate by citing from certain excerpts from the transcript of the trial proceeding, the trial judge’s s. 276 ruling resulted in both defence and Crown counsel believing that it was inappropriate to probe into whether the complainant and the appellant discussed anything of a sexual nature involving each other. This hamstrung defence counsel from presenting a defence of honest but mistaken belief in communicated consent.

42During defence counsel’s (Mr. Motevalli’s) cross-examination of the complainant at trial, the following interchange occurred:

[Defence counsel, Mr. Motevalli] Q. Did you ask my client any questions about himself or his body?

[Crown counsel] K. HEBERT: Sorry. I just want to make sure we’re not....

THE COURT: No, I think he’s a good.

K. HEBERT: Okay.

H. MOTEVALLI: I think there was one area that we...

THE COURT: Yeah

H. MOTEVALLI: ...discussed.

K. HEBERT: Okay. Apologies.

H. MOTEVALLI: No problem.

H. MOTEVALLI: Q. Where was I? Sorry. Ms. [complainant], do you recall asking my client any questions about his body or his image?

A. Nothing is coming to me right now. Yeah. It would be a guess if I told you what I asked. I - I don’t remember what I asked.

Q. Do you remember asking about him?

A. It’s not uncommon for me to shoot from the hip and ask ridiculous questions or was not uncommon for me.

Q. I’m going to suggest that you asked my client whether or not he was well endowed. Does that sound familiar?

A. That’s an uncomfortable question. I don’t know if I asked it, but I can’t confirm or deny.

43Based on the above excerpt and the preceding testimony, it appears that, although Crown counsel and the Court expressed some concern about defence counsel venturing into the area of sexual conversations between the complainant and the appellant, Defence counsel managed to get at least one question in about whether the complainant recalled asking the appellant about his body or his image, and whether he was well endowed. The complainant’s answer was that she either did not remember or could not confirm or deny it. Given this answer, I have difficulty understanding the trial judge’s definitive conclusion that sex with each other was not discussed.

44Subsequently, during defence counsel’s examination-in-chief of the appellant, the trial judge interrupted the examination and prevented defence counsel from eliciting any evidence about the sexual conversations he purportedly had with the complainant. In Appendix A to this decision, I have reproduced at some length the interchange between both counsel, witness, and trial judge that exemplifies this. The trial judge appeared to believe that any information elicited from such answers would inevitably involve twin-myth-based reasoning since asking a complainant if she talked about sex before an alleged assault would amount to inviting the trial judge to conclude that, by having such a conversation, she was more likely to have consented to the impugned sexual activity.

45While there is certainly a risk that admitting evidence of a prior sexual conversation may result in relying on reasoning that is prohibited by s. 276(1), in the circumstances of this case, that risk was not necessarily and inevitably present in this case. Since the time of filing the s. 276 application, the defence had clearly distinguished between a prior conversation about sex generally and a prior conversation about sex between the complainant and appellant. The appellant’s consistent position had been that the conversation prior to the kiss or attempted kiss had included discussions about sexual activity between the complainant and appellant, what the appellant called “flirtatious behaviour”, and that this was the evidence that he intended to rely on to demonstrate that he genuinely, and possibly mistakenly, believed that she had communicated her consent.

46I also find that the trial judge erred in maintaining her s. 276 ruling in the face of shifting evidence at trial. The trial judge had dismissed the s. 276 application, in part, because “neither the alleged breast or buttock grab [were] referred to” in the application but, at trial, the accused ended up being convicted in respect of “the kiss incident”. The trial judge should have conducted a new s. 276 application at trial when it became apparent that the appellant wanted to provide evidence of his belief in communicated consent, which allegedly led him to believe that the kiss was consensual.

47Ultimately, I cannot say whether the defence’s s. 276 application would have succeeded, but I find that the trial judge erred in dismissing the s. 276 application at the point that she did, and in failing to conduct a new s. 276 application at trial.

48I would allow the appeal on this ground.

Issue #3: Did the trial judge err in admitting the complainant’s prior consistent statements without a hearing or ruling on use?

49The appellant argues that the trial judge erred by admitting and then relying upon evidence from the text messages exchanged between the complainant and appellant that included the complainant’s prior consistent statements. Specifically, the appellant argues that the trial judge erred by (a) failing to conduct an admissibility analysis that identified in advance and explicitly limited the use of the statements, and (b) relying on the messages to support the complainant’s credibility without explaining why.

50It is trite law that prior consistent statements are presumptively inadmissible, subject to certain exceptions, and that they pose an “overwhelming danger” to the search for truth by improperly bolstering credibility: R. v. D.K., 2020 ONCA 79, 384 C.C.C. (3d) 405, at paras. 34-38, leave to appeal refused, [2020] S.C.C.A. No. 87; R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at paras. 5-7.

51The Court of Appeal for Ontario in R. v. R.A., 2024 ONCA 696, 174 O.R. (3d) 196, at para. 35, has directed that, in the context of text messages, it is important to address the basis for admissibility of such statements when they are first introduced:

To begin, I recognize that the admissibility of the text message was a difficult evidentiary issue for the trial judge. It was both hearsay and a prior consistent statement because the complainant testified. … Submissions should have been made when the text message was first introduced …. This court has reminded counsel and trial judges that because hearsay and prior consistent statements are presumptively inadmissible and the exceptions to this evidence are sometimes difficult to apply, it is important to address the basis for admissibility of such statements when they are first introduced: R. v. A.V., 2024 ONCA 339, 437 C.C.C.(3d) 316, at paras. 34-36; R. v. D.K., 2020 ONCA 79, 384 C.C.C. (3d) 405, at para. 45, leave to appeal refused, [2020] S.C.C.A. No. 87.

52The discussion of this ground of appeal centered on the following passage from the trial judge’s reasons, at para. 50, which was the last substantive paragraph in the judgment:

Finally, the fact that the complainant texted the defendant when she arrived home and complained therein of inappropriate behaviour with respect the to “bottom touch” and not the other acts complained of does not weigh negatively on her credibility as argued by the defence. The complainant perceived she’d been assaulted at the door and complained of it when she got home that evening. She was not required to detail her experience in that text or to the defendant at that point. The fact that she expressed displeasure with any part of the evening stands in contrast to the defendant's assertion that the complainant arrived happy and left happy.

53I do not agree with the appellant that so much can be made of this passage, or more broadly, the trial judge’s reliance on the complainant’s text messages that contained prior consistent statements. I say this for several reasons. First, it is not clear to what extent the trial judge’s purported acceptance of prior consistent statements was confined to the “bottom touching” incident. Recall that the appellant was only convicted in respect of the “kiss incident” and not the “lap incident” and “bottom touching” incidents. Second, counsel debated as to whether the trial judge allowed the text messages into evidence upon some alternate principle of admissibility such as res gestae, demeanour value, or narrative purpose, which is not to say that these routes to admissibility were legitimate in this case. Third, counsel further debated whether the text messages were referenced by the trial judge to demonstrate certain credibility problems with the appellant’s evidence.

54My overall perspective is that the complainant’s prior consistent statements contained in her text messages were not particularly relied upon by the trial judge in her conviction of the appellant with respect to the “kiss incident.” Given that I am uncertain to what extent the trial judge relied on the text messages in relation to the “kiss incident”, I must give the benefit of the doubt to the trial judge’s reasoning and find that this ground of appeal is rejected.

Conclusion

55I find that the trial judge erred in dismissing the s. 276 application at the point that she did, and in failing to conduct a new s. 276 application at trial.

56For these reasons, I would allow the appeal, set aside the conviction, and order a new trial before a different judge.

Pinto J.

Released: May 27, 2026

Appendix "A"

Examination-in-Chief of Mr. Esfandiary-Noury by his counsel

[Defence counsel] Q. Okay. So Ms. [complainant] is back on her side of the table. What are you talking about?

A. We talked about general stuff…. [conversation about yoga omitted for brevity] There was conversation about random stuff travelling and other stuff, and slowly conversations become, became actually sexual.

Q. Can you elaborate?

A. It was - it was at the beginning of the sexual conversation, it was not something that it’s out of the ordinary. It was basically just flirt, flirtatious comments about sex and position of sex and different conversations about sex, which I think is irrelevant to this trial. But there was one thing that stood up in my mind, is that when she - she put her leg on — the chairs have arms. She put her leg up and opened her leg, and one of her foot was on the table. And she said, Kami, do you know how I like oral sex? And I — we were just laughing. We’re just like, no, Julie. Tell me how you like oral sex. So she said....

[Crown Counsel] K. HEBERT: Your Honour, is this not just a roundabout way to get the same evidence in?

THE COURT: Yeah. Okay. So I think we just, can we not, like, so they have a conversation about sex.

H. MOTEVALLI: Okay.

THE COURT: And — okay. We’re, I mean, are you not leading your client into introducing conversations?

A. No.

H. MOTEVALLI: Hold on. Can we excuse the witness?

THE COURT: No, because he’s the accused.

H. MOTEVALLI: Oh.

THE COURT: Okay.

H. MOTEVALLI: Your Honour, he’s going through the conversations that evening between alleged assaults.

THE COURT: Right.

H. MOTEVALLI: It’s – it’s my submission that this goes to what is in my client’s mind at the time. And I, I don’t see this as a — trying to just get away from the 276 application. I just see this as my client’s evidence of what happened right before the alleged offence. And my - my understanding was that the 276 application, there’s obviously, there’s questions that I didn’t even go close to when it came to the complainant. However, my, my client’s just giving his evidence of the discussions and conversations that they were having that night.

THE COURT: So, so is the defence then consent or....

H. MOTEVALLI: That ultimately, the defence will be that some, some things seem to be consensual. Some things are unlikely to have happened.

THE COURT: So, so then your defence is not communicated consent. When you say some things were consensual....

H. MOTEVALLI: Yes.

THE COURT: Okay. So you’re talking about communicated consent....

H. MOTEVALLI: So, so for - for instance, Your Honour, you’ve heard evidence that, the complainant has been pulled onto my client’s lap and that she sat on...

THE COURT: Right.

H. MOTEVALLI: ...my client’s lap.

THE COURT: Okay.

H. MOTEVALLI: It’s for Your Honour to decide...

THE COURT: Right.

H. MOTEVALLI: ...what inference....

THE COURT: So I get that, so he’s testified as to how that happened.

H. MOTEVALLI: Yes. And then we have evidence that the complainant, after she’s been pulled down, conversations were completely PG.

THE COURT: Right.

H. MOTEVALLI: Nothing else. We didn’t go there.

THE COURT: Okay.

H. MOTEVALLI: And that’s between occurrence one, and have occurrence two. And here we have, my client’s evidence, the way what it’s coming out, is that there were very sexual conversations about them in between.

THE COURT: Okay. So, so that’s great. So, so he — that’s fantastic in the sense that he can say, okay, so I — we did have R-rated conversation.

H. MOTEVALLI: Okay.

THE COURT: Okay? But I, I don’t think there’s an allegation, well, I know there’s no allegation from her that it was allegedly forced oral sex. So I’m not sure how a conversation about oral sex can be relevant to something I have to decide, but a conversation that’s about something that wasn’t PG is fine.

H. MOTEVALLI: Okay.

THE COURT: I don’t....

H. MOTEVALLI: I, I think, I think that gets us as far as we need to...

THE COURT: Okay.

H. MOTEVALLI: ...that the conversations after...

THE COURT: Okay.

H. MOTEVALLI: ...were not PG. And then....

THE COURT: And by PG, I’m - I take that to mean, she — it was defined by [the complainant] as conversations she’d have with her co-workers and about yoga and what did she say? Travel and things like that. So that’s what I, I’m just adopting that definition for, for today’s purposes or this trials purposes. So I think you can ask, you know, you — what if any non PG, as the phrase is being defined by [the complainant], conversations, did you have any, and she said, we had various. But I don’t think you need to get into the...

H. MOTEVALLI: Understood.

THE COURT: ...particulars.

H. MOTEVALLI: Understood.

THE COURT: Okay. And that will go to, I mean, again, just because someone has sexual

conversations doesn’t....

H. MOTEVALLI: It, it does not confirm consent.

THE COURT: But you’re just using....

H. MOTEVALLI: It doesn’t even go towards consent.

THE COURT: Right. So you’re just using it to show that there, there’s credibility issue. He’s saying they did. She’s saying they didn’t.

H. MOTEVALLI: One hundred percent, Your Honour.

THE COURT: Okay. So....

H. MOTEVALLI: And, and the, and the only reason, and this is similar to my application. And it was she said, no him and I sexual, and I was trying to show them the application that if there is conversation that is not, that is him and I sexual, for example, how oral would be performed between the two of them or how big or small my client is. The only inference that can be made from that is one that weighs her credibility. Not that - not to go towards consent.

THE COURT: Okay.

H. MOTEVALLI: And it’s the same thing here that these conversations, the only reason that they’re being brought up is that she says PG conversations were between incident one and two. Nothing, nothing happened that wasn’t PG in between there. But it’s contradicted by my client’s evidence that...

THE COURT: Okay.

H. MOTEVALLI: ...it eventually got more and more R rated or less PG.

THE COURT: Okay.

H. MOTEVALLI: But understood, I think I understand how I should be asking this question, Your Honour.

THE COURT: Sure. Perfect.

H. MOTEVALLI: Okay.

H. MOTEVALLI: Q. So, Mr. Esfandiary, your evidence is that after Ms. [complainant] sat on your lap, you and her had conversations between the two of you that were not PG. Is that correct?

A. We had graphic conversations about oral sex and basically....

THE COURT: That’s fine.

H. MOTEVALLI: Thank you.

H. MOTEVALLI: Q. And did Ms. [complainant] ask you about your anatomy or your body?

A. She kneeled on a chair....

THE COURT: Okay, so....

A. How do I explain?

THE COURT: Okay. Just hold on, one second. Okay. Not — they had non-PG conversations. Fine. How does a particular — how does drilling down into those help me?

H. MOTEVALLI: Drilling down into what, Your Honour?

THE COURT: To, to what the conversations were. So, so your next question did she ask you about your body.

H. MOTEVALLI: Okay.

THE COURT: Okay.

H. MOTEVALLI: I - I see what Your Honour is saying, but there are multiple inferences that can be made when in the situation that they’re in when someone asks such a question. I’m not saying it’s the only inference. I’m not saying how much weight should be put on that inference, but there are potential inferences that can be made from that question.

THE COURT: That is the reasoning I have to stay away from. That just because she may have had non PG, as we’re calling them, conversations.

H. MOTEVALLI: Yes.

THE COURT: I can’t draw any inference from that.

H. MOTEVALLI: However, Your Honour, my submission is that you can because she says that at a certain point, she didn’t. That’s the only reason. It, it’s not the conversation, it’s not the content.

THE COURT: Okay, so I’ve got the evidence now from your client that there was a, there was graphic non-PG conversations.

H. MOTEVALLI: I’m going to continue then without going into that line of questioning.

THE COURT: Okay.

H. MOTEVALLI: Thank you, Your Honour.