R v Sandhu, 2021 ABQB 614

Court of Queen’s Bench of Alberta Citation: R v Sandhu, 2021 ABQB 614 Date: 20210804 Docket: 200127124Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Ramjit Sandhu Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the Complainant must not be published, broadcast, or transmitted in any way. Publication Permitted – See the Criminal Code ,

section 278.95(1) (a), (b), and (c). By Court Order, this decision under the Criminal Code ,

section 278.93(4) , may be published. However, a person shall not publish in any document, or broadcast or transmit in any way, any of the following: (

a) the contents of the application made under the Criminal Code ,

section 278.93 ; and (

b) any evidence taken, the information given and the representations made at the application under the Criminal Code ,

section 278.93 . NOTES: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ Reasons for Decision

of the Honourable Madam Justice A. Loparco _______________________________________________________ I. Order Permitting Publication [ 1 ] Pursuant to s 278.93(4) of the Criminal Code , RSC 1985, c C-46 , this decision may be published. In order to protect the Complainant’s privacy, she will only be referred to as the Complainant in this decision. [ 2 ] Pursuant to s 278.95(1)(

a) and (b), a person shall not publish in any document, or broadcast or transmit in any way, any of the following: (

a) the contents of the application made under the Criminal Code , s 278.93; and (

b) any evidence taken, the information given and the representations made at the application under the Criminal Code , s 278.93. [ 3 ] This decision was delivered orally at which time I advised counsel that a written decision would follow. II. Overview [ 4 ] There are three counts on the Indictment against the Accused: sexual assault (s 271); party to sexual assault (s 272(1)(d)); and, kidnapping (s 279(1.1) (b)). In this decision I will refer to the Accused as both the Accused and the Applicant.

The Complainant is a young woman the Accused met for the first time the evening of August 25, 2018, at a bar in Edmonton. [ 5 ] The admissibility of other sexual evidence that does not form the subject-matter of the charge is examined in a two-stage proceeding. The first stage is a preliminary screening of the application under s 278.93(2).

The defence must particularize the evidence it seeks to adduce and explain its relevance to an issue at trial. [ 6 ] The threshold for the analysis is to determine whether the proposed evidence is “capable of being admissible” and if so, then the judge conducts a full hearing under s 278.94 to determine whether the evidence is admissible under s 276(2). [ 7 ] These provisions require the court to act as a gatekeeper through which the proposed evidence is screened to ensure that it is not being admitted for improper purposes. [ 8 ] In R v Kapustinsky , 2020 ABQB 611 [ Kapustinsky ], Devlin J set out the two key questions the Court must ask at the first stage, at para 23: (

i) is the proposed evidence sufficiently well-defined and circumscribed to serve a proper purpose; and (ii) can the accused articulate the mechanism of relevance to which those specific facts relate. [ 9 ] If the hearing proceeds to stage two, then “[a] detailed examination of the relevance mechanism, and the overall balancing of interests the probative and prejudicial value of the evidence, are reserved for the full hearing”: Kapustinsky at para 23 . III.

The Proceedings [ 10 ] The Accused supported his application with an affidavit dated October 28, 2020, detailing his prior encounters with the Complainant on the night in question (Affidavit). The Crown chose not to cross-examine him at this stage. [ 11 ] The initial materials did not contain a

summary of the allegations the Accused is facing. Materials in support of a s 276 application typically include an affidavit from the accused and a

summary of the allegations, whether in the form of a synopsis, a transcript of a statement, or prior testimony by a complainant. Upon my invitation, counsel agreed to provide a transcript of the Complainant’s statements to police, which was entered as Exhibit 1 on this voir dire by consent. [ 12 ] The Complainant was given notice of this application and was represented by counsel. Written arguments were provided to the Court and oral submissions were made by all three counsel on stage one of the analysis. IV.

Anticipated Evidence [ 13 ] The anticipated evidence is that the Accused danced in the bar with the Complainant prior to the incident that is the basis of the charges and that the Complainant pulled him towards her and started kissing him (Affidavit at paras 4-5). [ 14 ] The Applicant, who does not speak English, deposes that he could tell that the Complainant was interested in him. The Applicant further deposes that the Complainant then used words and gestures to indicate that she wanted his telephone number, which he gave to her in English while she typed it into her phone (Affidavit at para 6).

At the end of the night, he states that she then kissed him again outside the bathrooms in the bar (Affidavit at para 7).

[ 15 ] Finally, he deposes that the Complainant advised the Applicant’s friend that she wanted the Accused and his friends to give them a ride from the bar, which he interpreted as her desire to continue their connection (Affidavit at paras 8-9).

Once in the vehicle, the Applicant deposes that the Complainant initiated kissing and touching his body, pulling him on top of her while she removed her own pants (Affidavit at para 12). [ 16 ] In an August statement to police, the Complainant noted the following about interactions at the bar: Complainant: and some guy came up to me and was like why aren’t you dancing, why aren’t you dancing? I was like I’m waiting for my friend, I’m waiting for my friend. He kissed me and that, we kinda made out for a bit. I don’t know if you need to know that but. Question: Yeah, no that’s good.

Uh you’re putting me in the area, so I’m in the bar right now. Complainant: And then once we started R came back and she knew the guy from the last time she was in Edmonton ‘cause she like made out with him then and had his Snap Question: Oh okay Complainant: and she like kinda dragged me away. She was like no, he’s ugly, he’s ugly and dragged me away. I was like okay bye. ... Question: Okay and did you recognize these guys from earlier in the night?

Did you have any contact with them Complainant: I think they were dancing with, like the one that was in front of me when we got swarmed, I’m pretty sure he was dancing with me before 2, I forgot to mention but he kept like kissing me like the two guys kept Question: Yeah Complainant: kissing me Question: Yeah Complainant: and like he was like suctioning my lips, like completely suctioning it and I was like over, I was like back like this suctioning my lips Question: Yeah Complainant: and then I’d get up and I was like okay and then the last kiss that he did, my friends were gone.

That’s why I was like oh shit where did they go? [ 17 ] In a December statement to police, the Complainant noted the following: Complainant: I know we went back to the dance floor, but then we were there for like a song. And then, we, I went to go sit at a table with one of my friends. And the one that was pouting, she went somewhere. We had, I had no idea where she went, but she went somewhere and I was like okay well she’ll be back, and she was later. There was one guy that came up to like me, started kissing me. And I was like, I was drunk, I went along with it for bit.

But then my friend came back, I was like ‘kay gotta go, and I just kind of left. ... ... Complainant: ... That didn’t stop them. And then our um arms ended up separating ‘cause they were like pushing us. There was three guys around me and they were just dancing. I was like whatever, like we’re dancing. One of them kissed me and I was like okay, like I kissed him for bit and then I stopped and I was just trying to dance and try to see where my friends were. And I couldn’t find my friends, like I had no idea where they were and then the music stopped. It was time to leave...

a) The reason for the request to admit evidence [ 18 ] The Applicant states that because of his inability to speak English, he had to interpret the Complainant’s non-verbal cues that started on the dancefloor and continued through the night in order to ascertain her consent for the sexual intercourse. [ 19 ] The Applicant states that two prior acts of kissing initiated by the Complainant (“other sexual activity”) constitute non-verbal communication that indicated to the Applicant that the Complainant was interested in him in a romantic and/or physical way.

Without this, he states, the jury will be left with the impression that the Complainant was indifferent towards him.

He therefore asks that evidence of these acts be admitted under s 276(2) so that the jury can understand the Complainant’s state of mind and disposition toward him. [ 20 ] The Applicant further argues that, unless the trier of fact knows about the Complainant’s earlier advances in the evening that communicated her interest in him, evidence that he had an honest belief in consent would be implausible. [ 21 ] Counsel for the Applicant contends that the evidence is not proffered to support either of the twin myths.

In particular, he believes that the kissing is so innocuous that no reasonable person would believe that it could detract from the Complainant’s credibility, and so different in nature from sexual intercourse such that no reasonable person would conclude that the Complainant’s consent to

kissing would lead to the conclusion that she was more likely to consent to sex. [ 22 ] More specifically, the Applicant states that the sole purpose is to show the Complainant’s attitude and disposition toward him on this occasion only. [ 23 ] The Applicant argues that it is the Complainant’s behaviour that is relevant to the Applicant’s formation of his honest belief that she was consenting to sex in the vehicle.

In particular, he does not suggest that it is dispositive of consent for the latter sexual activity, just that it is relevant to his subjective belief that she consented. [ 24 ] The Crown and counsel for the Complainant maintain that the Applicant’s situation should fail for reasons indistinguishable from those in R v Goldfinch , 2019 SCC 38 [ Goldfinch ], where the Supreme Court stated at para 51: Bare assertions that such evidence will be relevant to context, narrative or credibility cannot satisfy s 276(2).

A s 276 application must provide “detailed particulars” which will allow a judge to meaningfully engage with the tests set out at s 276(2) and (3). The accused must propose a use of the evidence that does not invoke twin-myth reasoning. These requirements are key to preserving the integrity of the trial by ensuring twin-myth reasoning masquerading as “context” or “narrative” does not ambush the proceedings. V. Admissibility Procedure

a) The purpose and principles of section 276(2) [ 25 ]

Section 276 is designed to respect both the accused’s right to full answer and defence and the complainant’s right to a respectful judicial process free of any sexist myths: Goldfinch at para 2 ; R v Barton , 2019 SCC 33 at para 57-58 [ Barton ]; R v RV , 2019 SCC 41 at para 2 [ RV ]. The s 276 regime, along with its history and purpose, is discussed in Barton at paras 59-65 and Goldfinch at paras 28-38 . [ 26 ] In particular, s 276(1) makes any evidence of prior sexual activity by the complainant with the accused or anyone else, inadmissible to support an inference that 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. Evidence directly or indirectly designed to have this effect is not relevant and not permitted. [ 27 ] Moreover, under s 276(2), no evidence of a complainant’s other sexual activity is admissible unless the Court determines that the proposed 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; (

c) is of specific instances of sexual activity; and, (

d) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. [ 28 ] Although the focus of this stage of the analysis is to ensure factors (a)-(

c) above are met, I will nevertheless briefly touch on my preliminary views on (d) - whether the probative value is substantially outweighed by the prejudicial effect - for the purpose of ensuring that an obvious factor that might be critical to the Applicant’s case is not overlooked at stage one. [ 29 ] Finally, in determining whether evidence is admissible under s 276(2), the court shall take into account the factors under s 276(3), namely: (

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. [ 30 ] The threshold for the accused to overcome at the first stage is low. The Court conducts only a facial consideration of the matter, with any doubts that exist as to the admissibility of the evidence best left to the second stage in the voir dire : R v SL , 2018 ABQB 889 at para 9 ; R v AM , 2020 ONSC 4541 at para 32 . This first stage takes place in camera : s 278.93(3). [ 31 ] I have concluded that the application materials meet the procedural requirements for holding of a first stage hearing under s 278.93.

The requirement that the proposed evidence constitute “specific instances of sexual activity” is met. The evidence of the two instances of kissing are specific and clear.

b) Establishing relevance [32] Establishing the relevance of the proposed evidence is the crux of any s 276 application. To establish relevance, the accusedmust demonstrate “a connection between the complainant's sexual history and the accused's defence”: R v Darrach, 2000 SCC 46 at para56; Goldfinch at para 113 (per Moldaver J concurring).

Explicit identification of the link between the evidence of other sexual activityand the accused's defence is essential to avoid “twin-myth reasoning slipping into the courtroom in the guise of context": Goldfinch atpara 119. [33] In this case, the Applicant’s materials, as supplemented by defence counsel’s oral submissions, demonstrate that he will assertthat the Complainant consented, or that he honestly believed that she did.

The elements and attributes of these concepts inform the s 276analysis. [34] The Applicant argues that the evidence is relevant, not to prove consent, but to show the Complainant’s disposition andinterest in the Accused through the kissing earlier in the night and immediately before walking to the car.

He states that this woulddemonstrate the natural progression of her intent to participate in the sexual activity that occurred in the vehicle. [35] It is posited by the Applicant that sexual activity does not occur in a vacuum and that the truth-finding mission requires anunderstanding of the lead up to the sexual event underpinning the charges. [36] A desire to explain the lead up to the activity in question is insufficient. There must be some explanation of how it is related toa defence. [37] I therefore start with a review of the elements of the proposed defences.

i) Consent [38] As summarized by Devlin J in Kapustinsky at para 40, what “consent” means, and how it operates in sexual assault trials, isdefined by the following principles: • Consent is the conscious, voluntary agreement of the complainant to engage in every sexual act in a particular encounter: R v JA,2011 SCC 28 at para 31 (JA); see also s 273.1(1) of the Criminal Code; • It must be freely given: R v Ewanchuk, (SCC), [1999] 1 SCR 330 at para 36; • It must exist at the time the sexual activity in question occurs: JA at para 34, citing Ewanchuk at para 26; • Consent can be revoked at any time: JA at paras 40 and 43; s 273.1(2)(

e) of the Criminal Code; and, • It is not considered in the abstract and must be linked to the “sexual activity in question”, which encompasses “the specificphysical sex act”, “the sexual nature of the activity”, and “the identity of the partner”: R v Hutchinson, 2014 SCC 19 at paras 54 and 57. [39] Further at para 41, Devlin J notes: “Importantly, consent is subjective to the complainant: Ewanchuk at paras 26-30.Therefore, consent cannot be found in external factors such as the relationship between the parties or the complainant’s words or conducton a different occasion: JA at para 47.” ii) Honest but mistaken belief in communicated consent [40] A number of key principles guide the operation of the defence of honest but mistaken belief in communicated consent. [41] First, the accused must demonstrate an air of reality to this defence before it will be considered by the trier of fact: Barton atpara 121.

This requires that the accused take reasonable steps to determine the presence of consent: s 273.2(b). [42] Secondly, the accused’s belief must be about communicated consent.

The analysis asks whether the accused honestlybelieved "the complainant effectively said 'yes' through her words and/or actions": Barton at para 90, citing Ewanchuk at para 47. [43] However, if “there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed bywords or actively expressed by conduct”: s 273.2(c), then the defence is not available. [44] The test for whether an accused took reasonable steps to ascertain consent is an objective/subjective one.

The steps taken bythe accused must be objectively reasonable in light of what he personally knew at the time: Barton at para 104. VI. Analysis of the Proposed Facts in Relation to Relevance andthe Twin Myths [45] At this initial stage, it is sufficient that the Accused’s exculpatory version of events is capable of casting him “in anunfavourable light” that makes his evidence “untenable or utterly improbable” if his words and actions are judged absent the informationsought to be admitted under s 276: Goldfinch at para 68 per Karakatsanis J; see also R v Temertzoglou, [2002] OJ No 4951, (Sup Ct) at para 27.

a) Relevance to consent

[46] The Applicant states that in the lead up to the sex in the vehicle it is important to understand that the Complainant specificallyasked that the Applicant drive her from the bar that evening.

This is not only relevant to understanding why they were in the vehicle, hestates, but lends weight to his credibility with respect to the non-verbal cues, particularly given his limited understanding of English. [47] He argues this evidence is crucial as it would otherwise leave the jury with the jarring impression that the Applicant had sexwith the Complainant in a car with no prior familiarity between them. [48] The Applicant states that if he is prevented from explaining the evolution of the Complainant’s communicated interest in him,his story will appear unnatural and implausible.

Moreover, it would make it impossible for him to gain any credibility in respect of hisbelief that she was consenting without being able to explain why.

The Applicant contends that the jury will understand that sexualencounters naturally develop and have a storyline that is critical to understanding the outcome. [49] I conclude that the Applicant’s attempt to describe the progression leading up to sex in the vehicle masquerades as context andnarrative and I therefore reject any relevant nexus it may have to the defence of consent. [50] However, the Applicant has proposed a second pathway to relevance - that is, of the Complainant’s disposition towards him,which he states anchored his honest belief in consent.

b) Relevance to a potential defence of honest belief in communicated consent [51] The facts advanced by the Accused on this application seek to establish the basis for a defence of honest belief incommunicated consent. [52] For this analysis, the Accused must provide the Court with a specific set of facts that give this defence an air of reality. In thiscase, the Applicant wishes to cross-examine the Complainant on the kissing to support his honest belief in communicated consent. [53]

Section 273.2(

b) places the onus on a person claiming an honest but mistaken belief in communicated consent to show he orshe took reasonable steps to ascertain that consent existed before commencing sexual activity. What constitutes reasonable steps willvary in proportion to the accused's knowledge of the circumstances: R v Shrivastava, 2018 ABQB 998 at para 70, citing R v RG (1994),38 CR (4th) 123, at para 29 (BCCA). [54] The demands of “reasonable steps” are, however, even more demanding where the parties have no intimate history:Shrivastava at para 72, citing Hill J in R v S(T), [1999] OJ No 268 (Gen Div) at para 160.

That is the situation the Accused finds himselfin here since he just met the Complainant the first time at the bar that evening and they did not speak the same language. [55] It is essential to reiterate the law here. A belief by the Accused that the Complainant might have been receptive to hisadvances for sex because of prior sexual acts that evening, namely kissing, does nothing to establish that consent was actually given forthe sex: JA at paras 47 and 64.

Consent must be found in what specifically passed between the Accused and Complainant on thisoccasion: JA at para 34. [56] While I accept that there were language barriers at play, this does not permit me to lower the threshold for consent. It is tritenow in the law that no means no and nothing less than yes means yes. [57] Any language barriers, in my view, heighten the need for the person seeking consent to find other ways to ascertain it; thepathway to sexual activity cannot be paved by implying consent from a prior act or a friendly disposition.

It is an error of law to rely onanything short of communicated consent for the specific sexual act in question. [58] Based on the anticipated evidence, I therefore find no air of reality to this defence.

c) Twin myth reasoning [59] As stated in RV at para 44: “Section 276(1) sets out an absolute bar against introducing evidence for the purpose of drawingtwin-myth inferences…” [60] While invoking the twin myths is not the express intent of the Defence, it is very difficult to see how the evidence could beadmitted without supporting such prejudicial reasoning.

Even if the Complainant initiated kissing earlier in the evening, which I note isnot admitted in her statements to police, introducing this evidence would imperil the jury’s reasoning process of their interactions leadingup to the event in question. [61] The argument advanced by the Accused is that the kissing is not being proffered to support the myth that the Complainantwas more likely to have consented or that she is less worthy of belief by reason of the prior sexual act, yet he seeks to rely on that veryact to explain her favourable disposition toward having sex with him. [62] After decades of inappropriate reasoning that allowed such dangerous logic to pervade juries, the law is settled that suchinferences cannot anchor an honest belief in consent.

A ruling in the Accused’s favour would roll back progress in this area of the law. [63] Secondly, I disagree that the jury would find kissing so innocuous that no prejudicial sentiments would influence their beliefthat the Complainant consented to sexual intercourse. [64] Juries are randomly selected and composed of multi-cultural, multi-generational, and a cross-section of our pluralisticCanadian society.

It is that diversity that strives to ensure that being judged by a jury of one’s peers will provide a fair and just result. [65] It therefore follows that jurors do not all share the same opinions and beliefs about sexual activity. It simply cannot be

presumed that kissing will be viewed as a minor sexual act for all those who are chosen as the triers of fact.

It is conceivable that some jurors may interpret kissing initiated by the Complainant as a precursor or invitation for more sexual activity, which is exactly what s 276 is intended to guard against. [ 66 ] The Supreme Court in Barton at para 91 re-affirmed the crucial need for communication of consent in order to avoid reliance on any forbidden consent-related mistakes of law, such as implied or assumed consent, broad advance consent, and propensity to consent. [ 67 ] The standard for consent cannot involve any reference to a prior sexual act except in exceptional circumstances, which I do not find exist in this case. [ 68 ] Defence counsel points to the case of R v GTP , 2020 BCSC 1191 ( GTP ) for the proposition that kissing that occurred prior to the sexual act in question may be relevant. [ 69 ] However, in GTP , at para 56 , Verhoeven J cited Goldfinch at para 5 for the direction that the s 276 application requires the accused to “positively identify a use of the proposed evidence that does not invoke twin-myth reasoning” and that “relevance is the key which unlocks the evidentiary bar”.

In that case, and similarly in this case, evidence of prior sexual activity will rarely be relevant to establish consent.

In other words, the context cannot be disguised as a myth. [ 70 ] On the other hand, it may be relevant to a defence of honest but mistaken belief in consent where a complainant has offered inconsistent statements of the very existence of a sexual relationship; but, it is not available to establish context, narrative or credibility: Goldfinch at paras 62, 63, and 65 . [ 71 ] Accordingly, in this case, and referring back to the legal principles, I do not see how any kissing in this case prior to the allegation in question could ground an argument that reasonable steps were taken by the Accused, which is a pre-condition to the defence of honest but mistaken belief in consent for the sexual acts in the vehicle.

The other rare exceptions do not apply here; the Accused had no prior relationship with the Complainant and therefore there is no ability to establish a common understanding between them from kissing. This case is distinguishable from GTP , where the Court allowed the hearing to go to stage two. In this case, there is no similar prior relationship exception that requires an explanation due to inconsistent evidence.

Whether or not the Complainant kissed the Accused in the bar can therefore have no bearing on the assessment of what occurred later and thus serves only to invoke prohibited reasoning. [ 72 ] In considering the first of the twin myths - that the Complainant was more likely to have consented as a result of the prior act - the evidence cannot be admitted. [ 73 ] With respect to the second myth (s 276(1)(b)), I conclude that there is a related risk that the prior sexual activity evidence will support an inference that the Complainant is “less worthy of belief.” [ 74 ] This does not mean that other sexual activity can never be used to challenge a complainant’s credibility.

Even if evidence of other sexual activity potentially elicits one of the twin myths, the evidence may nonetheless be admitted for a separate and legitimate purpose: Goldfinch at para 93 . [ 75 ] However, here, the Accused proposes to lead the evidence of the Complainant’s prior sexual activity specifically for the purpose of demonstrating that she initiated contact and had a friendly, inviting disposition to more sexual activity.

This challenges her believability on the evidence. [ 76 ] As with the first myth, I am unable to find the level of materiality in the evidence proposed that is required to dispel the risks of this myth creeping into the reasoning. [ 77 ] According to s 278.93, a full hearing under s 278.94 only proceeds if the evidence is capable of being admissible, namely, that it sets out the detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial.

As I have found no nexus between the relevance of the proposed evidence and a defence at trial, I decline to grant a full hearing pursuant to 278.94. VII. Final Note Regarding Accused’s Right to Full Answer and Defence [ 78 ] As noted previously, and notwithstanding the aforementioned conclusion, I will preliminarily address the more challenging question of whether the Accused’s credibility, as viewed with and without the prior sexual act evidence, outweighs the risk that this information would feed prohibited inferences about consent.

A more complete analysis of this question would normally be addressed in the second stage analysis. [ 79 ] While I am not embarking in stage two of this analysis, I believe it necessary to respond to the arguments made in the written and oral submissions since the right to make full answer and defence is fundamental. I intend to assess the proposed evidence on its face for the sole purpose of determining whether a critical element of the defence case is being overlooked.

In other words, if the proposed evidence is the linchpin of the defence’s case, it may warrant a more detailed stage two review despite my earlier finding. [ 80 ] In Goldfinch at para 69 , the Court stated: “…It will depend, in part, on how important the evidence is to the accused’s right to make full answer and defence”. [ 81 ] Section 276(2) requires that the proposed evidence have “significant probative value that is not substantially outweighed by

the danger of prejudice to the proper administration of justice.” Section 276(3) provides a list of factors the judge must balance in assessing the outcome. [ 82 ] The Accused argues that the evidence is essential to his right to make full answer and defence. I disagree. In this case, if it is offered to explain the Complainant’s disposition toward him, and if the kissing is so minor in nature and offers no other evidence of communicated consent, it is not required.

The Accused is still able to cross-examine the Complainant on their other friendly interactions prior to the sexual act in question. [ 83 ] Counsel argues that it is necessary because it demonstrates sexual interest and is a notch above the other friendly interactions that occurred that evening, i.e., dancing and asking for a phone number. Therein, in my view, lies the reason why such

an act is presumptively inadmissible and why it was prohibited in Goldfinch .

Without more evidence of how it properly relates to consent, it is the very type of sexual act that could lead to impermissible and dangerous logic in how humans interact in social settings, particularly young adults drinking at a bar. [ 84 ] Contemporary jurisprudence on this very issue seeks to change such beliefs and behaviours; allowing any prohibited reasoning to invade a jury’s logic would risk that impermissible link being formed between a prior sexual act and the act in question by evoking prejudices. [ 85 ] In this case, there is no obvious probative value that would outweigh the prejudicial effect of the proposed evidence such that a further examination is required.

The explanation by the Accused of how the Complainant found herself in the vehicle is not artificial or unnatural; even without the evidence of the Complainant initiating the kissing on the dance floor, the Accused’s version of events would indicate that the Complainant had a friendly disposition towards him (e.g., dancing, exchanging a phone number, asking for a ride). [ 86 ] The proposed evidence of the other sexual act therefore does not meet the test in Goldfinch such that the absence of the prior act would render his evidence “untenable or utterly improbable”.

Other evidence of friendliness or familiarity between the Accused and the Complainant exists such that the acts that are alleged to have occurred in the vehicle would not be so shocking to a jury. Therefore, the Accused’s ability to explain the Complainant’s disposition towards him is not fatally impaired. [ 87 ] Moreover, it is the sequence of events in the vehicle that are critical to the jury’s analysis of consent or honest belief in consent. The Accused will be able to provide his account of the acts in the vehicle as set out in his Affidavit.

However, consent simply cannot be anchored in a prior sexual act without a more exceptional case demonstrated in the evidence such as a pattern of behaviour between a complainant and accused: Kapustinsky . [ 88 ] Moreover, there is a break in the temporal and physical progression of sexual activity - i.e., kissing at the bar does not form part of the sexual acts in the vehicle even if it happened just prior to leaving the bar.

A person’s interest can change rapidly and it is recognized that even a withdrawal of previous consent requires a renewed series of steps to ensure consent prior to continuation of any sexual activity: R v AE , 2021 ABCA 172 at paras 28-31 . [ 89 ] As in Goldfinch , there are other ways that could adequately explain the context of the situation. The prior sexual act would be highly prejudicial and could not be saved with a limiting instruction to the jury. [ 90 ] I therefore dismiss the application for a hearing on the admission of the proposed evidence of prior sexual activity.

Heard on the 21 st day of June, 2021. Oral Decision on the 22 nd day of June, 2021. Dated at the City of Edmonton, Alberta this 4th day of August 2021. A. Loparco J.C.Q.B.A. Appearances: Jennifer Danker for the Crown Eamon O’Keeffe

for the Accused Jennifer Galarneau for the Complainant