ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– v. –
MUSAB WASIF
Applicant
) Julie O’Connor, for the Crown
Respondent )
Carson Hurley, counsel for the Respondent
Cornelia Mazgarean, counsel for the Complainant
HEARD: October 31, 2025
PUBLICATION BAN
By court order made under s. 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcast or transmitted in any manner. This judgment complies with this restriction so that it can be published.
MID-TRIAL RULING ON S. 276 APPLICATION
THE HONOURABLE JUSTICE SUNIL S. MATHAI
Overview
1Musab Wasif is charged with assault causing bodily harm, sexual assault, sexual interference (2 counts), invitation to sexual touching, assault with a weapon, assault (2 counts) and uttering threats. The charges arise from incidents that occurred on June 17, 2021, and July 13, 2021, when the complainant was 14 years old.
2During the complainant’s cross-examination, Mr. Wasif brought a s. 276 application under the Criminal Code, R.S.C., 1985, c. C-46, requesting leave to cross-examine the complainant in relation to sexual activity other than the sexual activity that forms the subject-matter of the charges.
3I outlined the background facts related to this proceeding in my previous ruling on several pre-trial applications (see R. v. Wasif, 2025 ONSC 3434). I will not repeat those background facts. Instead, I will summarize the background facts and evidence relevant to this application.
Complainant’s Statement to the Police
4The complainant provided two statements to the police. In her first statement, she told the police that a stranger had sexually assaulted her. After the police searched the contents of the complainant’s phone, they discovered that the complainant had been exchanging messages with a person alleged to be Mr. Wasif. As a result, the police interviewed the complainant on a second occasion.
5In the second interview, D.C. Dalziel asked the complainant for the assailant’s phone number. At first, the complainant believed that she had deleted his contact information. However, the complainant then searched her phone and identified a phone number for the assailant that was saved in her phone as “Master.”
6Later that evening, the complainant’s father called D.C. Dalziel and put the call on speakerphone. The complainant told D.C. Dalziel that she realized that the number she provided earlier was not the assailant’s number. In fact, it was the number for her friend. The complainant advised D.C. Dalziel that she had previously changed her friend’s contact name to “Master” on a dare and had forgotten to change it back. The complainant went on to explain that she did not have the assailant’s phone number because she deleted his contact information on the day that D.C. Dalziel took her phone.
Complainant’s Evidence at trial
7The complainant’s two statements to the police were admitted into evidence pursuant to my pre-trial application ruling. In her examination-in-chief, the complainant testified to the following:
(a) as a result of the July 13, 2021 sexual assault, she sustained injuries, which were photographed by hospital staff. These photographs were admitted as an exhibit;
(b) as a result of the July 13, 2021 sexual assault, she suffered injuries to her vagina and buttocks that were not photographed but were sketched by hospital staff;
(c) the injuries she suffered lasted about two weeks; and
(d) “Master” was an ex-boyfriend.
8In cross-examination, the complainant indicated that she had been in contact with the person identified as “Master” for 2–3 years, but there were no text messages with him on her phone. She also testified that she continued to have contact with that person after she provided her statement to the police. The complainant confirmed that the contact identified as “Master” pre- existed her contact with the person alleged to be Mr. Wasif.
9The complainant was also cross-examined on several Snapchat messages she exchanged with the person alleged to be Mr. Wasif. During this portion of the cross-examination, the complainant agreed with Mr. Hurley’s suggestion that she was seeking a dominant/submissive relationship when she first contacted the person alleged to be Mr. Wasif. The complainant also agreed that a dominant/submissive relationship is not necessarily a sexual relationship.
10Finally, Mr. Hurley asked the complainant whether she engaged in a master/slave relationship with “Master.” I did not allow the question to be answered in the absence of a s. 276 application.
11Mr. Wasif commenced this mid-trial application seeking to cross-examine the complainant on the nature of her relationship with “Master” and whether she engaged in any sexual activity with “Master” during the first two weeks of July 2021. Mr. Wasif seeks to cross-examine the complainant in these areas to challenge the Crown’s reliance on the complainant’s documented injuries. In light of the s. 276 application, the trial was adjourned to March 5, 2026.
12The complainant was not asked when she last saw “Master”.
Live Issues at Trial
13At this early stage, there are two central issues: (1) the identity of the person alleged to have assaulted the complainant on June 17 and July 13; and (2) the credibility and reliability of the complainant’s evidence regarding the two incidents.
Statutory Regime re: Complainant’s Sexual History
14Before evidence of a complainant’s sexual history may be introduced under s. 276(2), the court must scrutinize the potential evidence. The accused must set out in writing the “detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial” (see s. 278.93(2)).
15Where a judge is satisfied that the procedural requirements set out in s. 278.93 have been met, the judge will hold a hearing to determine whether the evidence sought to be adduced is capable of being admitted under s. 276(2) with consideration given to the factors set out in s.
276(3). This process is often described as “Stage 1” of a s. 276 application.
16Pursuant to s. 276(2), to be deemed admissible, the proposed evidence must:
(a) not be adduced for the purpose of supporting the twin myths;
(b) be relevant to an issue at trial;
(c) be of specific instances of sexual activity; and
(d) have significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
17In determining whether the proposed evidence is admissible under s. 276(2), the application judge must also consider the following (see s. 276(3)):
(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.
18Where the evidence is capable of being adduced under s. 276(2), the application judge shall hold a hearing under s. 278.94 to determine whether the evidence is admissible under s. 276(2) (see s. 278.93(4)). The s. 278.94 hearing is often described as a “Stage 2” hearing. The complainant has a statutory right to participate at Stage 2 (see s. 278.94(3)).
19At the conclusion of the Stage 2 hearing, the application judge shall determine whether the evidence sought to be admitted, or any part of the evidence, is admissible pursuant to s. 276(2) with regard to the factors set forth in s. 276(3).
Procedure for a Mid-Trial Application
20To have the trial resume as quickly as possible, I ordered both Stage 1 and Stage 2 to be heard on October 31, 2025. With the consent of the parties, I granted the complainant standing at Stage 1 and heard oral arguments on both stages at the same time.
Purported Relevance of the Evidence
21In oral submissions, Mr. Hurley advised that if the application was granted, he intends to cross-examine the complainant on the following areas: (1) whether the complainant had a dominant/submissive relationship with “Master”; and (2) whether the complainant engaged in any sexual activity with “Master” during the two weeks leading up to the July 13, 2021 sexual assault. Mr. Hurley asserts that this is the period in which the injuries could still have been observable when the complainant’s injuries were documented at the hospital.
22At this stage, there is no medical evidence that any injuries that could have been suffered during the first two weeks of July would be observable on July 13. As noted above, the complainant testified that the injuries she suffered on July 13 were visible for two weeks.
23Mr. Hurley argues that the proposed cross-examination is not being sought to engage in any impermissible propensity reasoning (i.e., the twin myths). Rather, the proposed line of inquiry is intended to challenge whether the documented injuries were caused by the July 13 assailant or were caused by the person identified as “Master”. Mr. Wasif is not alleging that “Master” is the person who exchanged Snapchat messages with the complainant and met with her on June 17 and July 13.
24The documented injuries are important evidence that the Crown relies upon to corroborate the complainant’s testimony about the July 13 incident. For example, the documented injuries strongly corroborate the complainant’s evidence that during the July 13 incident, she was hit with a belt on her buttocks, that she was slapped in the face, that her vagina was hit, and that she was vaginally penetrated by the assailant’s penis. Mr. Hurley’s proposed cross-examination seeks to undermine the strength of the corroborative nature of the documented injuries.
The Primary Dispute on the Application
25The parties agree that the evidence sought to be elicited during cross-examination relates to “other sexual activity” and that the s. 276 regime applies. The parties also agree that the
application was made in writing and a copy of the application was served on the Crown and filed with the court in advance of the Stage 1 hearing.
26The primary dispute on this application is whether Mr. Wasif has provided sufficient details of the “specific instances of sexual activity” necessary to grant the application at either Stage 1 or Stage 2 (see s. 276(2)(c)). In its factum, the Crown describes its opposition to the application as follows:
There is no evidentiary basis upon which to permit the applicant to ask the complainant questions about the nature of her relationship with the person whose contact name was listed as “Master” in her phone or to ask about any other individuals with whom she may have had a sexual relationship.
There is no evidentiary basis upon which to permit the applicant to question the complainant about other sexual activity that she may have engaged in outside of the sexual interactions on June 17, 2021 and July 13, 2021 that form the basis of the charges before the court.
27Mr. Wasif relies on the following evidence to establish the “detailed particulars” of the “specific instances of sexual activity”: (a) the ex-boyfriend’s contact information was saved in the complainant’s phone as “Master”; (b) the identifier of “Master” connotes a dominant/submissive relationship that may involve sexual activity; and (c) that the complainant has known “Master” for 2–3 years and continued to speak to “Master” after she was interviewed by the police.
Has Mr. Wasif satisfied the “specific instances of sexual activity” requirement?
28The leading case on the requirement to provide “detailed particulars” of “specific instances of sexual activity” is the Supreme Court of Canada’s decision in R. v. R.V., 2019 SCC 41, [2019] 3 S.C.R. 237.
29In R.V., the Crown alleged that the complainant, who was alleged to be a virgin during the relevant period of time, was sexually assaulted by the accused. The Crown further alleged that the sexual assault led to the complainant’s pregnancy. The accused denied having sex with the complainant. The accused brought a s. 276 application to cross-examine the complainant on whether she had sexual activity that could cause her to become pregnant with any other person during the period of time when conception was possible. The accused did not have an evidentiary foundation to assert that the complainant had engaged in sexual activity with any other person that could have caused the complainant’s pregnancy (R.V., at para. 29; R. v. R.V., 2018 ONCA 547, 141 O.R. (3d) 696 (“R.V. ONCA”), at paras. 28–29).
30The Crown opposed the application, in part, on the basis that the “specific instances” requirement could not be met in the absence of an evidentiary foundation. The Crown argued that, in the absence of an evidentiary foundation, the accused’s proposed line of cross-examination amounted to a “fishing expedition.” The application judge agreed and found, amongst other things, that the “specific instances” requirement could not be satisfied in the absence of an evidentiary foundation.
31Both the Court of Appeal for Ontario and the Supreme Court disagreed.
32In finding that the application judge erred, Karakatsanis J. provided the following guidance with respect to the “specific instances of sexual activity” requirement (at paras. 47–55)1:
47Broad exploratory questioning is never permitted under s. 276. Open-ended cross-examination concerning a complainant’s sexual history clearly raises the spectre of the impermissible uses of evidence that the provision was intended to eliminate. Section 276(2)(a) requires the accused to identify “specific instances of sexual activity” to avoid unnecessary incursions into the sexual life of the complainant.
48That said, the words “specific instances of sexual activity” must be read purposively and contextually. They limit admissible evidence to discrete sexual acts, and protect against the misuse of general reputation evidence to discredit the complainant and distort the trial process: see R. v. L.S., 2017 ONCA 685, 40 C.R. (7th) 351, at paras. 79-80. The “specific instances” requirement is buttressed by the procedural aspects of a s. 276 application, which require the accused to set out “detailed particulars” of the evidence to be adduced: s. 276.1(2). By requiring “detailed particulars”, the Criminal Code ensures that judges are equipped to meaningfully engage with the s. 276 analysis and that defence evidence does not take the Crown or complainant by surprise: Darrach, at para. 55; Goldfinch, at para. 51; see also L.S., at paras. 82-85.
49Section 276(2)(a) does not always require an accused to come before the court armed with names, dates and locations. As counsel for the intervener Criminal Lawyers’ Association of Ontario pointed out, requiring such details may, in some cases, be unduly intrusive, defeating one of the provision’s most important objectives. Rather, as Doherty J.A. observed in L.S. and this Court affirmed in Goldfinch, the degree of specificity required depends on the circumstances of the case, the nature of the sexual activity that the accused seeks to adduce and the use to be made of that evidence: L.S., at para. 83; Goldfinch, at para. 53.
50Here, R.V. proposed to cross-examine the complainant about other sexual activity that could have caused her pregnancy, without knowing what her answers would be. Because his defence was a bare denial, he obviously sought to establish that the pregnancy was the result of some other activity. Is this enough to qualify as “detailed particulars” of “specific instances of sexual activity” in the circumstances of this case? Does it provide sufficient notice to the complainant and Crown and equip the judge to apply s. 276?
51The Crown argues that it does not. In its view, s. 276 requires the accused to identify “concrete particulars” and to provide an evidentiary basis in support of a s. 276 application. The Crown agreed with the application judge that R.V.’s request amounted to nothing more than a “fishing expedition” — precisely the kind of free-ranging cross-examination s. 276 aims to prevent.
52In my view, the application judge erred when she concluded that the accused failed to identify evidence of specific instances of sexual activity. As Paciocco J.A. rightly noted, this requirement must be interpreted purposively and the objectives of the requirement would have been satisfied here.
53R.V. sought to cross-examine the complainant on a specific instance of sexual activity — the activity that caused her pregnancy — evidence of which was introduced by the Crown. The pregnancy itself demonstrated only that sexual activity capable of impregnating the complainant took place around July 1st. The existence of such activity was not speculative. But the fact of pregnancy here did not reveal exactly when or with whom that sexual activity occurred. The proposed cross-examination was directed at challenging the inference that R.V. caused the pregnancy.
54During oral arguments before this Court, Crown counsel submitted that a bare denial cannot satisfy the “specific instances” requirement. However, this submission turns the presumption of innocence on its head. The Crown’s assertion that the pregnancy arose from the sexual activity that formed the subject-matter of the charge cannot prevent the accused from leading evidence to suggest that the pregnancy was caused by someone else or by some other sexual act. The presumption of innocence requires that R.V. be allowed to challenge the Crown’s evidence that he committed a sexual assault. Of course, the trier of fact may ultimately reject the accused’s denial. But, as Paciocco J.A. emphasized, it would be unfair for the Crown to rely on the complainant’s testimony that the accused caused the pregnancy while at the same time preventing the accused from challenging the complainant’s account.
55Moreover, pregnancy is evidence of sexual activity that can be situated within a particular timeframe. R.V.’s s. 276 application set out a specific, albeit broad, timeframe of one month. At trial, the medical evidence established a rough two- week window during which conception would have occurred. In either case, the clearly identified time period, along with the specific nature of the activity — activity capable of causing pregnancy — was sufficiently specific to satisfy s. 276(2)(a).
33Mr. Wasif’s application is similar to the application at issue in R.V.
34Like the accused in R.V., Mr. Wasif has no evidentiary foundation to establish that “other sexual activity” occurred during the relevant period of time. At its highest, the evidence relied upon
by Mr. Wasif merely supports an inference that the complainant may have been involved in a dominant/submissive relationship with “Master” at some point in time which may have involved sexual activity. It does not, however, support an inference that the complainant engaged in sexual activity with “Master” or any other person during the two weeks prior to the July 13 incident.
35Given the absence of evidence that the complainant engaged in any other sexual activity during the relevant period, the central issue on this application can be distilled into the following question: Can Mr. Wasif satisfy the “specific instances of sexual activity” requirement in the absence of a record that establishes that “other sexual activity” may have occurred during the relevant time?
36In answering this question, I start by evaluating an implicit argument that runs through the Crown’s opposition: that an accused must always have an evidentiary foundation that establishes the possibility that other “sexual activity” occurred. I reject this argument as it is inconsistent with the statutory regime and the relevant jurisprudence.
37Section 278.93(2) requires an accused to bring an application “in writing, setting out detailed particulars of the evidence that the accused seeks to adduce.” On its face, this requirement obliges the accused to identify the evidence that is being sought, not that there is an evidentiary foundation that establishes the possibility that the evidence exists. The same can be said for s. 276(2)(c). This point was made by Paciocco J.A. in R.V. ONCA2:
40In my opinion, the application judge erred in effectively concluding that s. 276(2)(a) always requires particularization of identifiable instances of sexual activity, and in rejecting R.V.’s application because it did not meet that standard. What s. 276(2)(a) requires is adequate identification of the target evidence to enable a proper s. 276 evaluation to be undertaken, and to enable the Crown to safeguard the complainant's legitimate interests. The application judge understood that R.V. was seeking to cross-examine the complainant about the particular occasions in the month of June 2013 when the complainant engaged in sexual activity capable of impregnating her. In my view, that adequately identified the evidence he sought through his proposed cross-examination, to meet s. 276(2)(a)’s requirements.
45Thus, the phrase “specific instances of sexual activity” does not require, as a necessary condition, the particularization of identified instances of sexual activity. It requires instead that the proposed evidence be adequately identified to enable a proper s. 276 evaluation to be undertaken, and for the Crown to safeguard the complainant's legitimate interests.
46Where the defence is seeking to lead affirmative exculpatory evidence, the question is whether that proposed evidence has been adequately identified. Where, as here, the defence seeks to obtain evidence through cross-examination, it is the subject area of the cross-examination that must be adequately identified.
47There are good reasons for interpreting s. 276(2) (a) this way, apart from the fact that this interpretation is supported by the natural language of the provision, while still preserving the clear objective of s. 276(2)(a).
48First, an “adequate identification” interpretation suits the overall legislative scheme in a way that a “particularized identification” requirement would not. This is because s. 276 does not serve only the legitimate personal and public interests in protecting complainants. It is a provision that is relied upon to broker competing interests, including the right of the accused to make full answer and defence and the personal and public interests in arriving at a just determination for accused persons. Interpreting s. 276(2)(a) as requiring an accused person to know the answers to relevant questions that only the complainant is apt to know before those relevant questions can be asked in cross-examination does not balance competing interests. It creates an imbalance that can create not only unfairness, but injustice.
38There are a handful of decisions from this court that have found that the particularization of identified instances of sexual activity is not always required by s. 276(2). In those cases, the applications were granted because the accused provided specific details of the proposed cross- examination and of the evidence that they sought to elicit via the cross-examination. I describe three of those decisions below.
39In R. v. Nkemka, 2013 ONSC 2121, the Crown alleged that the accused sexually assaulted the complainant and that the sexual assault injured the complainant’s vagina. The accused sought to cross-examine the complainant about whether she had sexual activity with other men over a 48- hour period of time. The accused’s evidentiary basis for engaging in this line of inquiry was the fact that three sets of male DNA were found in the leggings worn by the complainant on the night of the alleged sexual assault. There was no evidence that she did, in fact, have sexual activity with any other male within the 48 hours at issue.
40The Crown opposed the application on the basis that the accused had not particularized the other sexual activity. Justice Spies rejected the Crown’s argument, finding that the “specific instances of sexual activity” requirement could not be interpreted as requiring the accused to provide particulars of other sexual activity that he would have no way of knowing about:
6… I came to the preliminary conclusion that the evidence sought to be adduced was capable of being admissible under section 276(2) of the Code. In R. v. Seaboyer, 1991 76 (SCC), [1991] 2 S.C.R. 577, the court held that evidence of specific instances of sexual conduct tending to prove that a person other than the accused caused the physical consequences of a sexual assault alleged by the prosecution are admissible. In my view, in these circumstances the precondition
requiring disclosure by the defence of specific incidents of prior sexual activity cannot be interpreted in a way that requires the Defence to give particulars of something Mr. Nkemka would have no way of knowing; he would have no information about specific incidents or prior sexual activity in this case unless given an opportunity to question the Complainant. Mr. Cunningham had an obligation however to propose ways to limit his questioning to what would be relevant in terms of what he was hoping to prove.
41A similar result was arrived at in R. v. Aziga, [2008] O.J. No. 4669 (S.C.J.). In that case, the accused was charged with aggravated sexual assault of eleven complainants. The Crown alleged that the accused had unprotected sex with the eleven complainants and had failed to disclose to them that he was HIV positive. Like Nkemka, the accused in Aziga did not have any evidence establishing that the complainant had engaged in other sexual activity with someone who was HIV positive. Nevertheless, Lofchik J. permitted the accused to cross-examine the complainants about other sexual activity that may have led to their infection.
42Finally, in R. v. Ralph, 2014 ONSC 1072, the accused was charged with aggravated assault in relation to four complainants. The Crown alleged that the accused had not advised the complainants that he was HIV positive. The accused sought permission to cross-examine the complainants about whether they had ever engaged in consensual sexual intercourse with anyone they knew or believed to be HIV positive before he was alleged to have infected them. This cross- examination was undertaken to raise a reasonable doubt about the complainants’ anticipated testimony that they would not have consented to sex with the accused if they had known that he was HIV positive. Despite the fact that the accused did not have any particularized information regarding the “other sexual activity”, Spies J. permitted the accused to ask the following question to the complainants: “Before you knew you were HIV positive, had you ever engaged in sexual intercourse; either vaginal or anal or oral sex with someone that you knew or believed to be HIV positive?” (emphasis in original; Ralph, at para. 26).
43R.V. and the cases described above clearly establish that s. 276 does not always require the particularization of identifiable instances of sexual activity. There may be cases where the accused cannot meet his or her burden to identify “specific instances of sexual activity” in the absence of an evidentiary foundation that particularizes those instances. What is required to establish detailed particulars of the discrete sexual acts will vary from case to case. As noted in R.V. and R. v. L.S., 2017 ONCA 685, 40 C.R. (7th) 351, the degree of specificity required depends on a variety of factors, including: (a) the circumstances of the case; (b) the nature of the activity; (c) the proposed use of the evidence; and (d) the potential prejudice to the proper administration of justice (see R.V., at paras. 48–49; R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at para. 53; R. v. Sanclemente,
2021 ONCA 906, 408 C.C.C. (3d) 429, at para. 53; and L.S. at para. 83).
44As this case and R.V. demonstrate, deciphering whether the “specific instances of sexual activity” requirement has been satisfied is not always an easy task. Ultimately, the “North Star” that guides a judge’s determination is the statutory regime and its laudable purposes. Specifically, an application judge must determine whether the accused has sufficiently identified the proposed line of inquiry to ensure that the court can meaningfully engage with ss. 276(2) and (3) and to
ensure that the line of inquiry does not take the Crown or complainant by surprise (R.V., at para. 48).
45In this case, Mr. Wasif has met the requirement. The proposed cross-examination allows me to meaningfully engage with ss. 276(2) and (3). The proposed cross-examination is limited in time and with respect to the types of sexual activity that could have caused the documented injuries and the person with whom the complainant is alleged to have sexually interacted with.
46I arrive at this conclusion even though Mr. Wasif did not swear an affidavit in support of his application. In some cases, a personal affidavit may be required at Stage 2. For example, in R.
v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, Gonthier J. found that a personal affidavit was required at Stage 2, in part, because where an accused’s defence is an honest but mistaken belief in consent, the accused is required to provide some evidence of why he believed that the complainant communicated consent to the sexual activity at issue. As a result, on a 276 application, the accused must provide some evidence of why he believed consent was communicated to establish the relevance of the proposed evidence to the asserted defence (Darrach, at para. 59).
47In this case, I find that a personal affidavit is not required because:
(a) the application record along with the exhibits at trial permit me to meaningfully engage with ss. 276(2) and (3). These materials allow me to establish a connection between the evidence sought to be adduced and Mr. Wasif’s defence (see Darrach, at para. 57);
(b) Mr. Hurley’s oral submissions provided details on the nature of the proposed line of inquiry;
(c) Mr. Wasif’s position at trial is clear. Mr. Wasif argues that the Crown has not established, beyond a reasonable doubt, that he is the person who exchanged Snapchat messages with the complainant and met with her on June 17 and July 13;
(d) the proposed evidence is relevant even if Mr. Wasif is found to be the person who met with the complainant on June 17 and July 13. The proposed evidence seeks to challenge the documented injuries which are important pieces of evidence in support of all the charges, not just the sexual assault. For example, the documented injuries may support the assault causing bodily harm and assault with a weapon charges.
48In the circumstances of this case, to deny the application on the basis that a personal affidavit was not sworn would be a triumph of form over substance. It would invariably lead to a new application being filed where Mr. Wasif baldly denies that he exchanged Snapchat messages with the complainant and met with her on June 17 and July 13.
49To be clear, this decision should not be read as always dispensing with the need to swear a personal affidavit at Stage 2. In most cases, a personal affidavit will be required at Stage 2 to ensure that an application judge can robustly engage in the analysis required by s. 276 and to ensure that the Crown and the complainant are not ambushed.
Has Mr. Wasif established that the proposed line of inquiry is relevant to an issue at trial?
50There is no real dispute between the parties that the evidence sought to be adduced is relevant to an issue at trial.
51The documented injuries, especially the injuries to the complainant’s buttocks and vagina, demonstrate that sexual activity occurred in or around July 13. In this way, the occurrence of sexual activity in or around July 13 is not speculative. If the Crown can prove that Mr. Wasif is the person that the complainant met with on June 17 and July 13, then it will rely on the documented injuries to establish that Mr. Wasif committed the offences charged. The proposed cross-examination is intended to undermine the Crown’s reliance on the documented injuries as corroborative of the complainant’s evidence of what occurred during the July 13 incident. As such, the proposed line of inquiry is highly relevant to an issue at trial.
52I also find that the proposed line of inquiry has significant probative value. While Mr. Wasif does not know the answers to the questions he seeks to ask, this uncertainty does not mean that there is no probative value to the line of questioning (see R.V., at para. 62). The answers to the proposed line of cross-examination have the potential to undermine or confirm important Crown evidence. Either way, the proposed inquiry is highly probative.
Do the s. 276(3) factors favor permitting the proposed line of inquiry?
53Mr. Wasif’s right to make a full answer and defence favours admission. The Crown relies on the complainant’s injuries to prove the actus reus of the offences. The proposed evidence of other sexual activity enables the defence to argue that the injuries may not have been caused by the July 13 incident. This evidence will assist me, as the trier of fact, in arriving at a just determination. These two factors strongly pull in favour of admitting the proposed evidence (see
ss. 276(3)(a) and (c); R.V., at paras. 62–63).
54I acknowledge that the proposed cross-examination could have significant impacts on the complainant’s privacy, personal dignity, and personal security (see ss. 276(3)(f) and (g)). For example, if she admits to having had “other sexual activity” with “Master” in the first two weeks of July 2021, then the nature of that sexual activity will be explored to determine whether it would have caused the documented injuries. This is undoubtedly a significant intrusion into the complainant’s privacy, personal dignity, and personal security.
55On the other hand, if the complainant testifies that she did not see “Master” during the first two weeks of July 2021, then the impact on the complainant’s privacy, personal dignity, and personal security will be minimal. Similarly, the impact on society’s interest in encouraging the reporting of sexual offences will vary depending on the nature of the evidence obtained under cross-examination. It could be significant, or it could be minimal.
56For the purpose of balancing the relevant factors, I will assume that the evidence adduced through cross-examination will significantly prejudice the complainant’s privacy, personal dignity, and personal security.
57The trial fairness factors of s. 276(3) are mitigated in this case because the trial is proceeding as a judge-alone trial (see ss. 276(3)(d) and (e)). I will ensure that my fact-finding process is free from any discriminatory belief or bias and will not allow any evidence adduced to unduly arouse sentiments of prejudice or hostility towards the complainant.
58In weighing the above, I conclude that the s. 276(3) factors favour permitting Mr. Wasif to engage in the proposed cross-examination. The evidence sought to be adduced is important to the defence. The only way Mr. Wasif can challenge the Crown’s position that the documented injuries were caused by the July 13 incident is to cross-examine the complainant on her potential sexual activity with “Master” during the first two weeks of July 2021. In these circumstances, the complainant’s privacy must yield to cross-examination to give effect to the accused’s right to full answer and defence. As such, I find that the probative value of the proposed cross-examination is not substantially outweighed by the danger of prejudice to the proper administration of justice.
59In coming to this conclusion, I am mindful that inquiries into any complainant’s sexual history are highly intrusive and, in this case, that intrusion is even higher given the complainant’s age. To ensure that the cross-examination does not go further than is necessary to give effect to Mr. Wasif’s right to full answer and defence, the cross-examination will be limited to the following cascading lines of inquiry:
(a) Did the complainant meet with “Master” during the first two weeks of July 2021? This question does not engage s. 276.
If the answer to this question is “no”, then Mr. Hurley may challenge the complainant’s evidence. Again, this line of inquiry would not engage s. 276. Upon finishing this line of inquiry, I will hear submissions on whether the proposed cross-examination should go any further (see Ralph, at para. 26).
(b) If the answer to (a) is “yes”, then Mr. Hurley will be permitted to cross-examine the complainant on whether she engaged in any sexual activity with “Master” during the first two weeks of July 2021.
(c) If the answer to (b) is “no”, then Mr. Hurley will be permitted to challenge the complainant’s denial by cross-examining the complainant on why she saved her ex- boyfriend’s contact information as “Master”; why it was still saved as “Master” at the time of the police statement; and whether the complainant ever had a dominant/submissive relationship with “Master” that included sexual activity.
This line of inquiry will not permit Mr. Hurley to question the complainant on the details of her sexual activity, if any, with “Master” prior to July 2021. The probative value of the specific types of sexual activity that occurred prior to July 2021 is not probative of whether the complainant had sexual activity with “Master” during the relevant time. On the other hand, permitting explorations of this nature would have significant impacts to the complainant’s privacy and personal dignity.
(d) If the answer to (b) is “yes”, then Mr. Hurley will be permitted to cross-examine the complainant on the nature of her sexual activity with “Master” during the first two weeks of July 2021.
60Upon the return of the trial, I will canvass with Mr. Hurley, in the absence of the complainant and complainant’s counsel, the questions he seeks to ask in cross-examination and the order of the questions. During this process, I may require Mr. Hurley to have the wording of his questions approved by the court prior to resuming cross-examination (see R.V., at para. 73; Nkemka, at para. 18).
61As evidence emerges during cross-examination, the Crown and Mr. Wasif may request that this ruling be re-visited if there is any material change in circumstances that impact the assessment of the balance between probative value and prejudice (see R.V., at para. 74). In this regard, I would request that complainant’s counsel make herself available on the return of the trial in case any further issues arise.
62Finally, given the delay caused by Mr. Wasif’s mid-trial application, I will permit the Crown to communicate with the complainant solely for the purpose of providing her with an opportunity to review the transcripts of her police statements, the transcripts of her preliminary hearing evidence, and her trial evidence.
Date: January 28, 2026