COURT FILE NO.: CR 21-112

DATE: 2026/01/20

BETWEEN:

HIS MAJESTY THE KING

– and –

B.J.

Defendant

S. Dickson, for the Crown

G. Clark, for the Defendant

D. Baker, for the Complainant

HEARD: September 5, 2023, and September 23, 2025

By court order made under subsection 486.4(1) of the Criminal Code, no information that could identify the person described in this judgment as the complainant may be published, broadcast, or transmitted in any manner. These reasons have been anonymized to permit their publication.

Ellies J.

1The defendant is charged with seven sexual offences relating to his daughter (“the complainant”). The allegations span a period from 1991, when the complainant was a small child, until 2015, when she was a young adult.

2The defendant applies under s. 276(2) of the Criminal Code, R.S.C. 1985, c. C-46 (“the Code”), for leave to introduce evidence relating to an allegation that the complainant was sexually assaulted by another individual when she was between the ages of 9 and 12 years old.

3This is the second application under s. 276(2) regarding this evidence. In the first application (“Part 1”), I ruled that the defendant would be allowed to introduce evidence at trial about a conversation the complainant had with her mother in 2008 in which the complainant talked about being abused by a childhood friend (the “first peer abuse statement”): R. v. J. (B.), 2022 ONSC 6438. I held that the fact that the complainant disclosed the peer abuse in response to a question about what the defendant had done to make her afraid of him could be interpreted as being inconsistent with her present allegations and, therefore, had significant probative value that was not substantially outweighed by its prejudicial effect.

4In this application (“Part 2”), the defendant seeks to introduce evidence about a conversation the complainant had with a roommate in 2015 (the “second peer abuse statement”) in which the complainant again mentioned the peer abuse in the context of a conversation about being angry at her father, the defendant.

5The defendant argues that the second peer abuse statement is relevant for a number of reasons, including the fact that the complainant did not tell her roommate that her father had abused her, which the defendant contends is another previous inconsistent statement about the allegations that are the subject of the present charges.

6These reasons explain why I am allowing evidence about the second peer abuse statement to be introduced solely for the purpose of demonstrating animus on the part of the complainant prior to her making a complaint to the police about the allegations underlying the present charges.

BACKGROUND

Procedural History

7The defence did not become aware of the second peer abuse statement until 2023, after I released my decision in Part 1. An issue arose as to whether my ruling in Part 1 covered the second peer abuse statement. I determined that it did not and that, therefore, another application was necessary. The Crown conceded that the matter should proceed to a “Stage 2” hearing under s. 278.94, which was held on September 5, 2023.

8I reserved my decision following the hearing. However, on October 31, 2023, the charges against the defendant were stayed for delay by another judge following a successful application by the defendant under s. 11(b) of the Charter. As a result, I decided not to render a decision on the application. However, an appeal of the stay by the Crown was successful and the matter was remitted by the Court of Appeal to this court for trial: R. v. J., 2025 ONCA 103. The trial is scheduled to begin on February 9, 2026, before a court composed of a judge and jury.

9After the matter was remitted to this court, counsel requested an opportunity to make further submissions in light of jurisprudence that had arisen after the application was first heard in September 2023. Accordingly, a further hearing under s. 278.94 was held on September 23, 2025.

The Second Peer Abuse Statement

10In 2015, the complainant was living in a house with M.C., a former classmate of hers. According to the affidavit of M.C., she and the complainant were good friends at the time. They had several “deep conversations” while M.C. lived in the house from March to September of that year.

11According to M.C., the complainant disclosed to her that she had been forced to perform oral sex on a member of her church when she was 10 to 12 years old (the “peer abuse”). Although the record is not very clear on the subject, as I understand it, the defendant had some role as a church leader, if not as the church leader. The complainant told M.C. that the perpetrator of the abuse was the son of friends of the defendant and were members of the church. M.C. understood from the conversation that the perpetrator was slightly older than the complainant.

12According to M.C., she was never able to get the complainant to answer directly whether she had told the defendant about the peer abuse. Nonetheless, the complainant insisted that she was angry with the defendant because he had allowed the perpetrator and his family to continue attending church.

13In addition to the peer abuse statement, M.C. deposes that the complainant made other statements in the period from March to September 2015 in which she expressed anger and resentment towards both of her parents for failing to prioritize her needs over those of others.

LEGAL PRINCIPLES

14 Section 276 of the Code governs the admission of evidence of sexual activity on the part of the complainant other than the activity that is the subject of the charge(s) against an accused. Since the early 1980s, the law has recognized the irrelevancy of much of this evidence and the significant potential it has to invade the privacy rights of the complainant and prejudice the administration of justice. In 1992, Parliament enacted s. 276 to protect complainants and the administration of justice from this harm, while at the same time protecting the fair trial rights of the accused: R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, at paras. 1 and 3.

15In its present form, the section reads as follows:

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.

(2) In proceedings in respect of an offence referred to in subsection (1), evidence shall not be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94, that the evidence

(a) is not being adduced for the purpose of supporting an inference described in subsection (1);

(b) is relevant to an issue at trial; and

(d) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

(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.

(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.

16Section 276 applies to evidence of both consensual and non-consensual sexual activity: Darrach, at para. 33. The section, therefore, captures the evidence of the second peer abuse statement at issue in this application.

POSITIONS OF THE PARTIES

17The defendant submits that the second peer abuse statement should be admitted under s. 276(2) for three purposes:

(a) to demonstrate ongoing animus towards the defendant during the timeframe in which the complainant began alleging abuse by him;

(b) to demonstrate a second instance in which the complainant failed to mention the alleged abuse by the defendant while speaking about other abuse; and

18The Crown and the complainant oppose the defendant's application. Both parties submit that the second peer abuse statement has no probative value as a previous inconsistent statement or as rebuttal evidence. While both parties concede that the statement may have some probative value as evidence of animus, they submit that the probative value is too low to meet the statutory threshold for admission. The Crown points out that there is other evidence of animus that the defendant can rely upon without resorting to the peer abuse evidence. The complainant points out that the second peer abuse statement was made approximately five years before she went to the police to make her complaint about the defendant. She also points out that M.C.’s affidavit was made approximately nine years after the alleged second peer abuse statement.

ISSUES

19As set out above, under s. 276(2), evidence of other sexual activity on the part of the complainant is presumptively inadmissible. To gain admission, the evidence must:

(1) not be adduced to support one of the impermissible inferences (the “twin myths”) set out in s. 276(2);

(2) be relevant to an issue at trial;

(3) relate to specific instances of sexual activity; and

(4) have significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

20Neither the Crown nor the complainant contend that the second peer abuse statement is being introduced for the purpose of supporting one of the twin myths referred to in s. 276(1). Nor does the Crown or the complainant argue that the statement fails to relate to a specific instance of sexual activity or that it could not possibly be relevant to an issue at trial, namely the complainant's credibility, if it was sufficiently probative.

21The issues, therefore, are:

(1) whether the second peer abuse statement has any probative value;

(2) if so, whether the probative value is significant; and

(3) if so, whether the probative value is substantially outweighed by the potential prejudice to the proper administration of justice.

ANALYSIS

Does the second peer abuse statement have any probative value?

22To have probative value, a fact must be relevant to an issue at trial: S.N. Lederman, M.K. Fuerst, H.C. Stewart, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 6th Ed., at ¶ 2.50. There is no doubt that credibility is an issue in this trial, as it is in most sexual assault trials: R. v. Goldfinch, 2019 SCC 10, 2019 SCC10, [2019] 3 S.C.R. 3, at para 56.

23A fact is relevant if, as a matter of logic and human experience, its existence or non-existence makes the existence or non-existence of another fact more probable: R. v. Watson (1996), 30 O.R. (3d) 161 (Ont. C.A.), at para. 33; R. v. Arp, [1998] 3 S.C.R. 339, at para. 38; R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 47. The question here is whether the complainant's second statement about peer abuse can possibly make the allegation that her father abused her less likely to be true.

24As I will explain, I agree with the Crown and the complainant that the second peer abuse statement has no probative value as a previous inconsistent statement about the abuse allegedly perpetrated by the defendant.

25As I pointed out in Part 1, the probative value of a statement depends on the context in which it is made; R. v. J. (B.), at para. 17. The second peer abuse statement was made in a much different context than was the first. The first peer abuse statement was made by the complainant after her mother asked her what her father, the defendant, had done to make her afraid. In that context, the failure of the complainant to mention the abuse by the defendant and, instead, to mention the peer abuse had probative value because the complainant had been asked a direct question. It was not necessary to apply stereotypical thinking about how victims come to disclose sexual abuse in that context: R. v. D.D, 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65.

26The same is not true with respect to the second peer abuse statement. The complainant was not responding to any questions about what her father did to her when she was talking with M.C. Instead, they were discussing “things (they) had both experienced in (their) lives”, according to M.C. There is no reason why the complainant's failure to disclose the sexual abuse by the defendant would amount to an inconsistency unless one applies stereotypical thinking about disclosure by sexual assault victims.

27I also agree with the submission of the complainant that the second peer abuse statement has no probative value as rebuttal evidence in the event that she denies making the first peer abuse statement. The fact that the complainant told M.C. about the peer abuse could not be used to prove that she told her mother about it eight years earlier. Even if it could, its probative value would not be sufficient to survive s. 276(2) scrutiny in light of the fact that the mother could be called to do the same.

28Finally, I agree with the concession of the Crown and the complainant that the second peer abuse statement has probative value as evidence of animus. However, as I will explain in the next section, I disagree as to just how valuable it is.

Is the probative value of the statement significant?

29Section 276(2) recognizes that, even where a fact is relevant, its probative value can vary. Section 276(2) requires that the probative value of evidence of other sexual activity on the part of a complainant be "significant". That term has been defined in the context of s. 276(2) as meaning evidence of more than "trifling" relevance that is capable of raising a reasonable doubt: Darrach, at para. 41.

30Evidence of animus by a complainant towards an accused before the complaint is made is relevant as evidence of a motive to fabricate the allegation: R. v. Seaboyer, [1991] 2 S.C.R. 577, at para. 57. However, the Crown contends that the evidence of animus towards the defendant relating to the peer abuse in the second peer abuse statement is unclear and mixed with evidence of animus towards both of the complainant's parents. Therefore, the Crown contends, the defendant has failed to satisfy the “heavy burden” imposed upon him to set out “with clarity and precision the use to be made of the other sexual activity evidence sought to be adduced”: R. v. T.W.W., 2024 SCC 19, at para. 36. With respect, I am unable to agree.

31The defendant has particularized both the evidence and the purpose for which he seeks its admission. He submits that the second peer abuse statement provides evidence of animus that might provide a motive to fabricate. I agree that the failure or refusal of the complainant to confirm to M.C. that she had told the defendant about the abuse leaves a piece of the puzzle missing. However, it does not prevent the defendant from trying to obtain it at trial.

32It is true that the complainant did express animus towards both her parents during her discussions with M.C. However, in my view, this serves to increase the value of the peer abuse statement, rather than decrease it. Combined with evidence that the defendant had some ability to control whether the perpetrator and his family could attend the complainant's church, it serves to explain why she might make a false allegation against him, and not against her mother.

33The complainant argues that the evidence of animus loses probative value because of the passage of time between the date that it was made (2015) and the date of the complaint (2020). However, with respect, this argument loses sight of the fact that the second peer abuse statement was made at least seven years, and probably closer to ten years, after the peer abuse occurred. If the complainant could still be angry at the defendant after that long, she could still be angry at him after five years.

34In my view, the value of the second peer abuse statement as evidence of animus has been clearly set out and is more than trifling.

Is the probative value of the statement substantially outweighed by the potential prejudice?

35Section 276(3) requires the court to consider a non-exhaustive list of factors in balancing the probative value of evidence against its potentially prejudicial effect. Those factors include society's interest in encouraging the reporting of sexual assault offences (s. 276(3)(b)), the potential prejudice to the complainant’s personal dignity and right of privacy (s. 276(3)(f)), and the right of the complainant to personal security and the full protection and benefit of the law (s. 276(3)(g)). I agree with the Crown that all of these interests may be impacted by permitting the complainant to be cross-examined about the second peer abuse statement even though I have already ruled that she may be cross-examined about making the first peer abuse statement. However, the impact will be attenuated because the same alleged abuse underlies both statements.

36In my view, balancing the impact on these factors against the other factors set out in s. 276(3) militates in favour of permitting the defendant to introduce evidence of the second peer abuse statement. In particular:

(a) the interests of justice will be better served because it would be unfair to preclude the defendant from introducing evidence that the complainant had a motive to fabricate (s. 276(3)(a));

(b) there is a reasonable prospect that the evidence will assist the jury in arriving at a just determination in the case (s. 276(3)(c));

(c) the evidence does not rely on discriminatory beliefs and biases for its probative value given the specific statement made to M.C. by the complainant that she was angry with the defendant as a result of allowing the perpetrator of the peer abuse to continue to attend church (s. 276(3)(d); and

(d) there is little risk that the evidence will unduly arouse sentiments of prejudice, sympathy, or hostility in the jury, given the non-consensual nature of the peer abuse (s. 276(3)(e)).

CONCLUSION

37For the foregoing reasons, the application is allowed. The defendant will be permitted to cross-examine the complainant about the peer abuse in the context of her comments to M.C. about being angry with the defendant. However, as the Supreme Court made clear in R. v. R.V., 2019 SCC 41, [2019] 3 S.C.R. 237, at para. 67, the court must carefully circumscribe the scope of the proposed cross-examination. We will re-visit this issue at trial, once the complainant has testified in chief: R.V., at paras. 72-75; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 65.

M.G. Ellies J.

Released: January 20, 2026

CITATION: R. v. J. (B.), 2026 ONSC 397