R v Fraser, 2021 ABQB 914

Court of Queen’s Bench of Alberta Citation: R v Fraser, 2021 ABQB 914 Date: 20211115 Docket: 200591857Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Bradley David Fraser Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.5 . By Court Order:

(1) Information that could identify the Complainant or witnesses shall not be published, broadcast, or transmitted in any way.

(2) No person shall publish, broadcast, or transmit in any way the contents of the publication ban application or the evidence, information or submissions at the hearing of the application. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Preliminary Inquiry – See the Criminal Code ,

section 539 . By Court Order, this decision and the evidence given in the Voir Dire shall not be published, broadcast, or transmitted in any way. NOTE: This decision is available from the court file. It may be published after the accused is ordered to stand trial, after the end of the trial. Editorial Notice : The restriction to publication ended on December 9, 2021. _______________________________________________________ Decision on Voir Dire Applications of the Honourable Mr. Justice Robert A.

Graesser _______________________________________________________ Introduction [ 1 ] Bradley David Fraser is charged with sexual assault and unlawful confinement against the Complainant AB (not her real initials) on February 20, 2019. The matter is set for trial before a jury in December 2021. [ 2 ] The applications before me relate to a series of electronic communications between the parties through an on-line application called Tinder.

After the activities complained of, the Complainant communicated with others on a Facebook chat site. [ 3 ] Both Crown and Defence seek to use these communications for various purposes at trial. Mr. Fraser argues that no

section 276 or 278.92 applications are necessary for the Tinder messages because these communications are part of the sexual activity that forms the subject matter of the charges. Alternatively, Mr. Fraser seeks orders permitting him to use the Tinder and Facebook communications in his defence. [ 4 ] The Crown argues that the Tinder messages are not part of the sexual activity in the charges and that a

section 276 application is necessary. It applies in its own right for a

section 276 order, or a Seaboyer order, for these messages. [ 5 ] Both Crown and Defence agree that the Facebook chat messages are relevant. In those messages, which begin shortly after

Mr. Fraser drove the Complainant home, the Complainant discusses what happened to her and gets advice from others as to what she should do, including whether or not to go to the police. [ 6 ] The Complainant through her counsel recognized that the Tinder messages were relevant and did not object to their use at trial, subject to limitations argued for by the Crown. She also recognized that the Facebook messages were relevant, and while she had a privacy right and interest in them, she recognized that the Accused’s fair trial rights were important.

She did not object to those messages being admitted at trial for cross-examination purposes by the Accused, as long as the privacy interests of others involved were protected. [ 7 ] I am content with the agreement between Crown and Defence that with respect to the Facebook messages, Ms. Magill will communicate with the Complainant to ascertain the timing of various of the posted messaged and when the Complainant ended her participation in the chat. Following that, Ms. Magill will provide Mr. Bottos with an edited version of the messages reacting irrelevant and unnecessary personal information.

I would also suggest an edited “name” for the chat group. [ 8 ] I will resolve any disagreements over the editing before trial. I recognize the ultimate “call” is mine to make, but the arrangements described satisfy the requirements of

section 278.92. Background [ 9 ] The parties were strangers until February 19, 2019. That morning, before the alleged sexual assault, the parties communicated through the Tinder on-line dating service. [ 10 ] The Tinder communications are appended to Mr. Fraser’s affidavit in support of his application. It is unclear what time of the day the messaging between them begins. The messages begin innocuous and playful, and then turn sexual in nature. At one point fairly early in the messages, the Complainant writes “maybe you could come into the city and we could meet up sometime”. [ 11 ] The Complaint tells Mr.

Fraser she has to work in an hour, but suggests they meet up at her place after work. Mr. Fraser says he could bring her to his place outside Sherwood Park, but in that case “sex is happening”. The Complainant replies “Lol I’m ok with that”. Mr. Fraser says “I dominate and can get rough” to which the Complainant replies “I just need to know that you’ll drive me back too”. [ 12 ] More explicit sex talk ensues, and then the Complainant says “lol stop it I have to work”. Mr. Fraser says “message me after”. [ 13 ] The messages start again at 11:27 pm that night.

The Complainant says “hey I just got home I’m guessing its too late now?” She offers up her apartment, telling him “it’s trashed but my roommate is away”. Mr. Fraser responds “I don’t mind if you let me choke you”, to which she replies “I don’t mind at all”. He tells her he’ll be there in about 35 minutes. [ 14 ] At 12:10, the Complainant messages Mr. Fraser saying “my roommate just got home”. He says “want to come to my place?

I’m almost there.” The Complainant replies “txt me when you’re here and I’ll come down”. [ 15 ] These messages are increasingly sexual in nature and include discussions as to what they will do together. [ 16 ] The Defence argues that the Tinder messages “reveal a plan between the parties to meet for the express purposes of engaging in sexual activity that evening”. [ 17 ] The Defence says that the messages, both before the Complainant left for work and when the communications resume after work, should be interpreted as the Complainant “expressing a willingness to engage in rough sex, dominant and submissive role play (with the Complainant acting as the submissive partner), her being slapped, having her hair pulled, bondage with a rope and choking”. [ 18 ] From disclosure, the Defence notes that when the Complainant went to the police she specifically listed all of those activities as having taken place against her will.

Relevant Sections of Criminal Code [ 19 ] These applications raise sections 276 and

Section 276 provides: 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. Conditions for admissibility

(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 (

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. Factors that judge must consider

(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.

Interpretation

(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.

Section 278.92 states: 278.92

(1) Except in accordance with this section, no record relating to a complainant that is in the possession or control of the Accused — and which the Accused intends to adduce — shall be admitted in evidence in any proceedings in respect of any of the following offences or in any proceedings in respect of two or more offences at least one of which is any of the following offences: (

a) an offence under

section 151 , 152 , 153 , 153.1 , 155 , 160 , 170 , 171 , 172 , 173 , 213 , 271 , 272 , 273 , 279.01 , 279.011 , 279.02 , 279.03 , 286.1 , 286.2 or 286.3 ; or (

b) any offence under this Act, as it read from time to time before the day on which this paragraph comes into force, if the conduct alleged would be an offence referred to in paragraph (

a) if it occurred on or after that day. Requirements for admissibility

(2) The evidence is inadmissible unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94 , (

a) if the admissibility of the evidence is subject to

section 276 , that the evidence meets the conditions set out in subsection 276(2) while taking into account the factors set out in subsection (3); or (

b) in any other case, that the evidence is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. Factors that judge shall consider

(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account (

a) the interests of justice, including the right of the Accused to make a full answer and defence; (

b) society’s interest in encouraging the reporting of sexual assault offences; (

c) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences; (

d) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case; (

e) the need to remove from the fact-finding process any discriminatory belief or bias; (

f) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury; (

g) the potential prejudice to the complainant’s personal dignity and right of privacy;

(

h) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and (

i) any other factor that the judge, provincial court judge or justice considers relevant. Application to This Case [20] The Tinder and Facebook records are in the possession of the Accused, having been disclosed to him during the proceedings.He intends to use these records at his trial for various purposes. [21] No issue has been raised that the records are generally sexual in nature or for a sexual purpose as the Tinder messages discusssexual practices and preferences as well as the parties meeting for sex.

The Facebook messages relate to past sexual acts, namely theComplainant’s version of events as expressed to the Facebook group she was chatting with immediately following the events of February20, 2019 which are the subject matter of the charges Mr. Fraser faces. [22] Individually, some of the messages might not be sexual in nature, but it is important to read the whole conversation to put it incontext and understand it. It is not necessary for me to distinguish between or among the various individual sexual and non-sexualmessages. Case Law [23] Mr.

Bottos referenced a number of cases in his written submission: R v Seaboyer, (SCC), [1991] 2 SCR 577; R v Darrach, 2000 SCC 46; R v Temertzoglu, (ONSC); R v BB, (ONSC); R v Barton, 2019 SCC 33; R v Goldfinch, 2019 SCC 38; R v RV, 2019 SCC 41; R v Lennox, 2019 ONSC 3844; R v HSS, 2020 BCPC 196; R v Fryday, 2021 ONSC 3201; R v XC, 2020 ONSC 410; R v Lovequist, 2020 ABQB 464; and R v Briscoe, 2010 SCC 13. [24] Also raised were: R v Barton, 2020 ABQB 448 (“Barton retrial”); and R v McKnight, 2019 ABQB 775. Analysis Tinder messages [25] It is clear that the Tinder messages are relevant.

They provide the background and context for the physical sexual encounterthat took place. The Crown acknowledges that the Tinder messages are relevant for the potential defences of honest but mistaken beliefin consent as well as to answer any suggestion of willful blindness or recklessness on the Accused’s part. Admissibility for thosepurposes is not disputed. [26] The Defence goes further, however. It argues that the Tinder messages should be admissible not only for honest but mistakenbelief in consent and to negate willful blindness or recklessness, but also on the issue of consent.

Briefly put, the Defence submits thatfrom the time the messages turned sexual, it was clear that the Complainant was interested in “rough sex” including being choked. Later,when the physical encounter was arranged, it was clearly understood and agreed between Mr.

Fraser and the Complainant that he wouldbe picking her up from her apartment and taking her to his home where they would have sex and amongst other things she would let himchoke her. [27] While the Accused does not suggest that the Complainant could not change her mind and withdraw her consent, he believesthat the Tinder messages are relevant in assessing the Complainant’s credibility on her anticipated evidence that she withdrew consent

and communicated that to Mr. Fraser. [ 28 ] There are two aspects to this.

Section 276 bars evidence of prior sexual activity (which may include messaging and other communications) without prior court approval, and secondly, even with such court approval, the evidence cannot be used to support either of the twin myths. [ 29 ] Mr. Bottos answers this by saying that

section 276 is not engaged, because the Tinder messages and the physical encounter are all part of the sexual activity that forms part of the charges against Mr. Fraser. According to Mr. Bottos, the sexual activity began before the Complainant went to work on February 19, 2019, when the parties met online and after preliminary introductions, began to talk about and plan a sexual encounter. That was interrupted by the Complainant going to work, but resumed late that evening when the Complainant contacted Mr. Fraser to initiate a sexual encounter. The increasingly sexual nature of the chat led to Mr.

Fraser picking the Complainant up at her residence and driving her to his own residence, where physical sexual activity ensued. [ 30 ] The issue for me to decide, according to the Defence, is: when did the sexual activity for which Mr. Fraser is being charged begin? [ 31 ] The Crown responds arguing that the Tinder messages are prior sexual activity, and the sexual activity for which Mr.

Fraser is charged began when they arrived at his residence. [ 32 ] As can be seen from the cases cited, evidentiary issues in sexual assault cases are evolving somewhat rapidly, and have been considered and re-formulated by the Supreme Court of Canada in a number of recent cases : Barton , Goldfinch , and RV , all in 2019. [ 33 ] In support of his arguments on this point, Mr. Bottos relies on a number of trial-level decisions. Neither he nor the Crown cited any appellate level authority.

At least two of the Alberta cases ( Barton retrial and McKnight ) are under appeal, and I have no knowledge of the status of any of the other cited decisions. [ 34 ] In Alberta, the issue of when the sexual activity began has been dealt with in three Queen’s Bench reported decisions: Barton retrial , Lovequist , and McKnight . [ 35 ] In Lovequist , Justice Little considered similar arguments to those raised in this case. There, the accused met the complainant and Ms. G in a bar, and went back to the complainant’s residence with her and Ms. G. Initially, Ms.

G and the accused had some consensual sexual activity that was interrupted by the complainant telling them “not in my room”. The issue on the

section 276 application was whether the sexual activity that had taken place earlier on between the accused and the Ms. G’s roommate partly observed by the complainant could be referred to at the accused’s trial for sexually assaulting the Complainant sometime later, after the accused woke up and started to leave the complainant’s residence. [ 36 ] Little J discussed the Crown’s “bright line” approach from Goldfinch and Barton . The Crown argued that because the complainant and Ms. G had asked the accused to leave at some stage, the only sexual activity that was relevant and admissible was what occurred after that time. Justice Little carefully examined the tests under

section 276 and concluded at paragraph 10 that the evidence about what happened earlier was not being adduced for the purposes of either of the twin myths, that it was relevant to an issue at trial (consent), that it was of “specific instances”, and that it had significant probative value. He stated at paragraphs 11 and 12: [11] The purpose of subjecting the evidence to this test is to balance the privacy and dignity rights of the Complainant against the right of the Accused to make full answer and defence, and I have done so by considering the factors set out in subsection 276 (3). [12] Factors (

a) and (

c) favour admission of the evidence. And I do not see how it might discourage the reporting of sexual offences pursuant to subsection (b), the perpetuation of any discriminatory belief or bias pursuant to subsection (d), prejudice, sympathy or hostility in the jury pursuant to subsection (e), or potential prejudice to the Complainants’ personal dignity and rights of privacy or personal security pursuant to subsections (

f) and (g). Justice Little concluded at paragraphs 16 and 17: [16] In this case, I see Mr. Lovequist’s evidence as being his explanation of the entire transaction that is inextricable from the specific allegations made against him, and without being able to lead that evidence, he cannot properly make full answer and defence. It does not perpetuate a prohibited myth, nor does it encroach upon the dignity or privacy of the Complainants to any degree other than is necessary given the nature of the offence alleged.

It is not so much a case of prior or other sexual acts but a case of two very different versions of the events. [17] This does not, of course, mean that Mr. Lovequist has carte blanche respecting the evidence he wishes to bring or the questions his counsel may put to the Complainants. [ 37 ] Little J referred to R v Lennox , 2019 ONSC 3844 in his analysis. In that case, the accused sought to introduce communications between him and the complainant on a dating website “Plenty of Fish”.

Some of the messages were sexually explicit, and the accused said there were other messages between them that were even more sexually explicit. [ 38 ] In permitting the accused to introduce these messages and to cross-examine the complainant on them, MacLeod J held at paragraphs 25 and 26: 25 There is a grey area about the application of s. 276 which arises from the dual requirement that evidence cannot be introduced that the “complainant has engaged in sexual activity other than the sexual activity that forms the subject matter of the charge”.

To engage s. 276 the communication must be sexual activity and it must be sexual activity other than the activity in question. At some point parsing each moment in a sequence of events and defining it as a separate activity becomes ridiculous.

26 To take an obvious example, it is the evidence of the Accused that the Complainant met him on the street, embraced him, kissed him passionately and then led him to the supply room in her empty work place. There he says she kissed, him, unbuttoned his shirt and then unzipped his pants. No one is suggesting that each of the elements in this sequence of events is other sexual activity subject to a s. 276 analysis.

This is not the case to resolve this issue but there is some question about how connected or disconnected in time communication would have to be to constitute other sexual activity. [ 39 ] In McKnight , Justice Sulyma faced argument on the issue of the admissibility of interactions between the Accused and various complainants before they arrived at his apartment where the alleged physical contact occurred. Justice Sulyma ruled that the sexual activity that resulted in the charges commenced when the parties arrived at Mr. McKnight’s residence, and not before.

She described the accused’s arguments at para 58: [58] The Accused has suggested that proximate sexual activity evidence is inherently relevant, and s 276 excludes evidence by reason of its “limited relevance”: Darrach at para 45 . I cannot agree. As I concluded above, there remains a risk that proximate sexual activity evidence will be used for impermissible reasoning. Such a use is what renders it of limited relevance, and within the purview of s 276.

Additionally, s 276 also operates to “exclude ... relevant information that is more prejudicial to the administration of justice than it is probative”: Darrach at para 43 . I therefore hold that subjecting proximate sexual activity evidence to the screening mandated by s 276 is consistent with that section’s purpose to protect the Accused’s right to a fair trial. [ 40 ] Justice Sulyma held at paragraph 62: [62] The purposes of s 276 – including protecting trial integrity, protecting the Accused’s right to a fair trial, and the encouragement of reporting of sexual offences – are fundamental.

In Barton at para 74 , the Supreme Court of Canada held that giving the s 276 regime a “broad, generous

interpretation” without undue restriction would best achieve these objectives. Concluding that proximate sexual activity is subject to legislated screening best achieves these objectives . Proximate sexual activity evidence can be highly relevant, and will often be admitted.

However, the harm presented by impermissible reasoning from such evidence is poisonous to our system, and warrants the filters of s 276. [ 41 ] Sulyma J had earlier agreed with the Accused that “Proximate sexual activity may bear on whether consent is proved beyond a reasonable doubt, or whether the Accused had an honest but mistaken belief in consent, without asking the jury to engage in twin myths reasoning” (at paragraph 48). [ 42 ] She noted at paragraph 49 that her conclusion above did not answer the question of whether proximate sexual activity required

section 276 screening. [ 43 ] In Barton retrial , Hillier J considered the admissibility and relevance of evidence of the complainant’s behaviour in the lounge in the hotel before Mr. Barton and the complainant went to his hotel room to engage in sexual activity. Mr. Barton made a similar argument in that case to the argument made here: the sexual activity started before the parties went to the room so no

section 276 application was necessary. Justice Hillier considered McKnight , and stated at paragraph 259 : [259] By the very broadest

interpretation, the rubbing of a leg in a lounge might arguably be taken by some observers to be a sexual activity. But I find no basis for such an

interpretation as would invoke the screening requirements of s. 276. It is sufficiently relevant to the dynamics between the parties in the time period immediately preceding the sexual activity in Mr. Barton’s room, much as would be the case if Ms. Gladue was observed trying to place her leg on Mr. Barton’s lap in the lounge and he resisted. It is for the jury to assess what weight, if any, to give to the Lounge Interaction.

Nothing derives from inclusion of such evidence as would discourage reporting or jeopardize trial fairness. [260] I do note, however, that because the Lounge Interaction is not relevant to consent, the evidence would be included as part of the jury caution that consent must be communicated at the time of the offending sexual activity. [261] I find nothing which could support a finding that the Lounge Interaction was part of the sexual activity in question as that term is clarified in Hutchinson . There is no rational link to Fisting at all.

It was simply an interaction and does not need to be labelled as platonic or non-platonic. Although it occurred at the hotel the same night, it was in a different and public space with no link to the sex for money transaction as later negotiated. Individual freedom includes the right to make physical contact without it being interpreted as a sexual prelude or any commitment to something more. [ 44 ] Justice Hillier referenced R v Hutchinson , 2014 SCC 19 regarding “proximate sexual activity”. That case does not consider

section 276 and does not discuss “proximate” sexual activity. It does discuss “the sexual activity in question” under

section 273.1 and is thus analogous to

section 276. [ 45 ] While that case predates the 2019 trilogy of Barton , Goldfinch and RV , none of these latter cases appear to cast doubt on what was said in Hutchinson at paragraphs 54 and 57 : [54] We conclude that Farrar J.A. was correct to interpret the “sexual activity in question” in s. 273.1(1) to refer simply to the physical sex act itself (for example, kissing, petting, oral sex, intercourse, or the use of sex toys). The Complainant must agree to the specific physical sex act.

For example, as our colleagues correctly note, agreement to one form of penetration is not agreement to any or all forms of penetration and agreement to sexual touching on one part of the body is not agreement to all sexual touching. [57] In our view, “voluntary agreement . . . to . . . the sexual activity in question” also encompasses both the sexual nature of the activity (i.e., that the act was sexual in nature as opposed to being for a different purpose, such as a medical examination) and the identity of the partner (defined in the narrow sense of the specific identity of a partner who is personally known to the Complainant). [ 46 ] Mr.

Fraser also relies on R v XC , 2020 ONSC 410 . There, the accused and the complainant exchanged “WeChat” messages to

plan future of sexual activity. Dawe J held that such messages could fall outside

section 276 if the complainant’s allegations were particularized enough to connect the chat messages to acts later stated to be non-consensual. [ 47 ] Justice Dawe held that because the complainant’s evidence had not yet been heard yet, the complainant’s allegations as provided in the Crown’s disclosure were too vague to determine if the sexual activity anticipated in the messages actually took place, and if that sexual activity was alleged to be non-consensual.

The Court concluded that this issue could not be determined until the Complainant had testified. [ 48 ] Justice Dawe stated at paragraphs 38-42: [38] In my view, “sexual activity”, in the form of both sexual acts and communications about sexual acts, can properly be considered to “form the subject matter of the charge” if it is part of the “transaction” that is captured by the charge, even if the “sexual activity” in question is not in itself an element of the charged offence.

For instance, a complainant may allege that what began as a consensual sexual encounter became non-consensual when the Complainant withdrew consent, or when the defendant performed some specific sexual act to which the Complainant did not consent.

In this situation, I do not believe the defendant is obliged to bring a s. 276 application in order to adduce evidence of the consensual sexual activity that immediately preceded or followed the activity that the Complainant alleges was non-consensual… [39] In my view there is no principled reason to treat communications about sexual activity – which s. 276(4) now deems to also themselves be “sexual activity” – any differently.

As I see it, a communication about the physical sexual activity that is directly at issue in a sexual assault charge can properly be seen as part of the “subject matter of the charge” if it is sufficiently closely connected by time and circumstance to be considered to be part of the same transaction. [41] . . .A statement by a complainant expressing an interest in engaging in some form of sexual activity at a specified future time can be highly relevant to the issue of whether she or he then did consent at the time that the activity actually then took place, even though it will not be dispositive because the Complainant could have changed his or her mind during the intervening time.

Cases like J.A. where a prior statement has no bearing on the issue of contemporaneous consent because the Complainant was unconscious or otherwise incapable of consenting when the sexual activity actually occurred are relatively unusual. Moreover, consent as an element of the actus reus will not necessarily be the only live issue in the case.

A communication discussing future sexual activity may also be relevant to the issue of mens rea , and whether the Crown can prove beyond a reasonable doubt that the Accused knew that the Complainant was not consenting at the time, or was reckless or wilfully blind about the Complainant’s lack of consent. [42] At the same time, I agree that a discussion about future sexual activity will only be properly treated as part of “the sexual activity that forms the subject matter of the charge” if it occurs closely proximate in time to the physical sexual activity in issue.

Not every communication in which a complainant expresses a generalized interest in engaging in some form of sexual activity at some point in the future will fall outside the scope of s. 276. Indeed, interpreting the exception in s. 276(2) so broadly would potentially undermine the main purposes of the provision.

I also recognize that deciding whether a particular communication about future sexual activity is sufficiently closely tied to a specific future act of physical sexual activity will necessarily be a highly fact-specific and case-dependent exercise. [ 49 ] R v HSS , held that Instagram text messages exchanged between the accused and the complainant in the four days leading up to the sexual encounter that formed the subject-matter of the charge did not come within

section 276. The text messages showed a mutual plan to meet to engage in specific types of sexual activity, and since they were close in time to the alleged sexual assault, the messages were considered probative evidence of the parties’ state of mind at the time of the offence.

Judge Chen held at paragraphs 57 -59: [57] However the main conclusion that I draw regarding the messages at pages 193 to 213, and from Crown’s submissions about them, is that they are evidence of the Accused’s state of mind at the time of the alleged offence. [58] However, these messages contain the contents of a conversation between two people. If they are evidence relevant to the state of mind of the Accused at the time of the offence, they must also be evidence relevant to the Complainant’s state of mind at the time of the offence.

Accordingly, they must also be evidence of the sexual activity that forms the subject-matter of the charge. [59] The “…subject-matter of the charge…” described in Subsection 276(2) includes each and every essential element of the offence that the Crown is required to prove beyond a reasonable doubt in order to secure a conviction. The absence of the Complainant’s consent is one of those essential elements. [ 50 ] There are great similarities between the situation in HSS and the facts here.

As described by Judge Chen at paras 61-63: [61] In my view, the appropriate characterization of the messages exchanged between the Accused and the Complainant is, that they are evidence of a plan to meet in their school’s handicapped bathroom for the purpose of engaging in sexual activity – a plan that the Complainant was as much the architect of as the Accused. [62] That plan is evidence of the Complainant’s consent to meeting in the school’s handicapped bathroom for the purpose of engaging in sexual activity.

The numerous messages after that, affirming and re-affirming that plan is evidence of continuous and ongoing consent to that plan being carried out, notwithstanding that the later messages did not display the same full-throated, enthusiastic consent, as the earlier messages did.

Evidence of confirmation to that consent can be found right up to and including the final message directing the Accused to go to that handicapped bathroom, which appears to be minutes prior to the activity that gives rise to the charge. [63] Applying the factors considered by Judge Malakoe in Paulette – separation in time, context and place – I find that the proper characterization of the text messages exchanged between the Accused and the Complainant between April 30, 2019 and May 3, 2019 that are evidence of the Complainant’s sexual activity, is that they are evidence of the sexual activity that forms the subject-matter of the charge. [ 51 ] HSS references two cases: R v Langan 2019 BCCA 467 and R v Paulette , 2020 NWTTC 13 .

Langan is an interesting case as

it involves pre-incident texts and post-incident texts. The pre-incident texts discussed plans for the forthcoming weekend, but could notbe interpreted as being indicative of a willingness to have sex. The majority in the Court of Appeal considered the pre-incident texts as“relationship evidence” in the context of Goldfinch and held that the trial judge erred by not subjecting it to a

section 276 examination.Chief Justice Bauman dissented, and did not see the pre-incident texts as being evidence of sexual history and would not have appliedsection 276 or Goldfinch. [52] Ultimately, I do not see that this case bears on the issues in the case at bar. [53] In Paulette, Judge Malakoe summarized the issue in paragraph 1: [1] This decision regards the admissibility of certain words allegedly uttered by the Complainant in this sexual assault case. Inparticular, the Complainant is alleged to have whispered to the Accused, Jason Paulette that she wanted to have sex with him.

The exactwords that she is said to have uttered are: “I want to fuck you.” Within 4 ½ hours of saying these words, the Accused is alleged to havesexually assaulted the Complainant. [54] He noted the importance of the timing of consent to the sexual activity at paragraph 28 [28] The consent issue is key to the trial. Active consent is required at the time of the sexual activity with the Accused which formsthe subject matter of the charge. At paragraph 44 of R. v.

Goldfinch, 2019 SCC 38, the Court described this as follows: Today, an accused may no longer argue that consent was implied by a relationship: contemporaneous, affirmatively communicatedconsent must be given for each and every sexual act (R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330; R. v. J.A., 2011SCC 28, [2011] 2 S.C.R. 440, at paras. 34 and 47; R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, at para. 27; R. v. Barton, 2019SCC 33, at paras. 90-94). Today, not only does no mean no, but only yes means yes. Nothing less than positive affirmation is required. [55] Judge Malakoe performed a

section 276 analysis and concluded at para 57: [57] The evidence of Betty Ann Abraham of the Complainant’s utterance made to the Accused is admissible under s. 276(2). Thisevidence is relevant to the issue of whether or not the Complainant consented to the sexual activity which forms the subject matter of thecharge against Mr. Paulette. The Complainant can be cross-examined as to whether or not she made the utterance. If she admits that shemade the utterance, she can be questioned as to the meaning of the utterance and how it relates, if at all, to consent to sexual intercoursewith the Accused.

If she admits that she made the utterance, she can be questioned as to why she did not tell the police about making theutterance. [56] Another Ontario case is R v Cole, 2020 ONSC 6239. There, the complainant showed the accused a “raunchy” video of herdancing naked. After the accused viewed the video, he made advances, which led to the complained-of sexual activity. In consideringwhether the video could be put to the complainant, Andre J held at paragraph 43: [43] This incident cannot be clinically, and in my view, artificially separated from the sexual assault that forms the subject of thecharge.

To make full answer and defence Mr. Cole is entitled to challenge the Complainant’s version of events. He is entitled, as part ofhis defence that the Complainant consented to the sexual activity, to put to her that she voluntarily showed him a sexually suggestivevideo as a prelude to the alleged impugned act.

It will be up to the jury to decide what weight, if any, it should place on this evidence. [57] Finally, in R v Fryday, the Court held that Facebook messages between the accused and the complainant within the hourbefore the alleged sexual assault took place was part of the sexual activity that formed the subject matter of the charge.

The Facebookmessages were sexual in nature, as the accused had asked the complainant about her favourite sexual position, about foreplaypreferences, and if she liked to role play during sexual intercourse. [58] Chown J referenced R v XC at paragraph 23: [23] Justice André (in Cole)referred with approval to a case that is not currently on CanLII and which I have not been able to find, R.v.

X.C., 2020 ONSC 410, where it was held: I do not believe the defendant is obliged to bring a s. 276 application in order to adduce evidence of the consensual sexual activity thatimmediately preceded or followed the activity that the complainant alleges was non-consensual. [59] Justice Chown also referred to R. v. Akumu, 2017 BCSC 403, where the Court noted at para. 9 that: s. 276 does not really contemplate a minute by minute or hour by hour temporal change in sexual activity.

I agree with the Crown that thetransaction that forms the subject matter of the charges applies to the whole factual nexus of the events in question. [60] Justice Chown held at paragraph 36: [36] I conclude that my reasoning here appropriate. It is correct to be concerned that exclusion of the evidence would lead to the storyhaving an unnatural and distorted beginning. This, in combination with the immediate temporal proximity of the text messages, supportsmy conclusion that the text messages are part of the sexual activity that forms the subject-matter of the charge.

Thus, s. 276 is notengaged by the evidence. [61] In some ways, McKnight may seem at odds with the other cited cases. Hiller J refers to that decision as “a very cautiousapproach” (Barton retrial at paragraph 258). Hillier J took a more expansive position in the Barton retrial. It was clear from thatdecision that counsel focused on specific activity and was clear as to how he intended to use the evidence at trial. The issue was framedin terms of “proximate” sexual activity, the same wording used by Sulyma J in McKnight.

Section 276 focuses on sexual activity otherthan the activity on which the charges are based. Both McKnight and Barton retrial reference “proximate sexual activity” and dealspecifically with

section 276.

[ 62 ] It is difficult to equate McKnight to the other cases, as little detail is given of the communications between the complainants and the accused before the actual sexual activity for which the accused was charged. Most significantly, from the decision it is not clear of any of the so-called “proximate sexual activity” was later objected to, or if it was related to the later complained of activity.

I do not see that decision as relevant to the situation here. [ 63 ] Similarly, while Barton retrial may be seen as taking a less restrictive approach than McKnight , the lounge evidence was clearly described by Hillier J as not being relevant to consent. It was also expressly found to not be part of the sexual activity for which Mr. Barton was charged. It is not of assistance here. [ 64 ] Lennox , Lovequist , XC , HSS, and Fryday focus on what constitutes the sexual activity forming the subject matter of the charges, and all concluded that

section 276 was not engaged because the pre-physical conduct activities were logically and temporally connected to the physical conduct that ensued. [ 65 ] Paulette followed a

section 276 approach and found the pre-physical contact utterance admissible on the issue of consent, but not to support either of the twin myths. [ 66 ] Ultimately, I prefer the reasoning in the Lennox line of cases. In my view, a distinction should be drawn between “proximate” sexual activity and the activity that forms part of the charges. Proximate sexual activity is the sort of relationship activity described in Goldfinch . Admissibility of that sort of evidence requires

section 276 screening. However, if it can be shown that the pre-physical contact activity actually is part of the sexual activity forming the subject matter of the charges,

section 276 is not engaged. [ 67 ] The “bright line” between the two is the determination of when the sexual activity forming the subject matter of the charges began. The common threads that run through the cases where

section 276 has been found inapplicable is that the contested events cannot be fairly and properly separated from what went on before, what went on before such as actions or communications were explicit as to what sexual acts the parties intended to engage in, and plans to actually get together physically to perform those acts.

Essentially an unbroken chain of events leading to the incident that resulted in the charges. [ 68 ] From the cases (all at the trial level so far) there appear to be two extremes: McKnight where the trial judge considered anything before the parties actually met physically to be “prior” sexual activity. At the other end is HSS , where the trial judge considered the communications of some four days leading to the physical meeting to be part of one continues episode of sexual activity. [ 69 ] I find the analysis in R v MacMillan , 2019 ONSC 6018 to be instructive.

Recognizing the approach to consent mandated in Goldfinch and Barton , Dambrot J held at paragraph 19: [19] With the meaning of consent properly understood, it becomes clear that the sexual words and gestures immediately before and during the sexual activity in question will generally be admissible, while earlier comments and gestures generally will not. Crown counsel seeks to draw a bright line of admissibility between words and gestures immediately prior to a sexual encounter, and earlier words and gestures. I would not go so far.

Undoubtedly, as a matter of law, consent must be specifically renewed, and communicated, for each sexual act, and the proposition that the Complainant could give broad advance consent to whatever the Accused wanted to do to her is a mistake of law ( Barton , para. 118 ) . But this does not mean that everything said earlier than immediately before the activity in question is inadmissible.

In my view, however, earlier words in the nature of the words alleged to have been spoken here, such as “I like being spanked”, “I like them big like a muddler”, “I like BDSM”, “I get turned on by being humiliated”, “I want you to make me squirt” (unrelated to any particular time or place), and even words of consent to an earlier sexual act are wholly irrelevant, highly prejudicial to the administration of justice, and inadmissible.

On the other hand, words such as “come up to my hotel room for sex” if subsequently anchored to evidence of contemporaneous communicated consent to sex in the hotel room, such as “what took you so long to get here - let’s get started” probably would be admissible. But that is not this case. [ 70 ] From an analysis of these cases, from three large jurisdictions in Canada, in cases where the time of commencement of the sexual activity forming part of the subject matter of the charges is important, the principles that emerge are that: 1.

The “sexual activity that forms part of the charges” can begin before physical sexual contact is made between the parties; 2. Sexual activity may include oral and written communications between the parties leading to the physical sexual contact; 3. The scope of the “sexual activity that forms part of the charges” is highly fact specific and situational; 4. Proximity and continuity are major considerations; 5. Explicit language describing specific planned sexual activities is also a major consideration; 6.

Care must be taken to avoid “parsing each moment in a sequence of events and defining it as a separate activity” (as per Lennox ); 7. Care must be taken to ensure that the evidence is not being adduced for twin myths purposes; and 8. In such cases,

section 276 may not apply, subject to the proviso that the trier of fact must ensure that no improper use be made of the evidence, including (if appropriate) mid-trial instructions to the jury about the permitted and prohibited uses of such evidence. [ 71 ] Here, both Crown and Defence want to be able to use the Tinder communications. Despite their agreement, and following Barton , it is clear that it is the trial judge’s decision as to the applicability and scope of

section 276 and not counsels’ (including counsel for the Complainant). [ 72 ] Applying the principles to the case at bar, I am of the view that in the specific facts of this case as outlined on this voir dire ,

section 276 does not apply to any of the Tinder communications.

[ 73 ] It might be tempting to split the Tinder messages into two parts: the first part before the Complainant went to work, and the second when she finished work and contacted Mr. Fraser to get together. Even if that were the case, I would find that the Tinder messages starting at 11:57 pm on February 19 were part of the sexual activity that forms part of the charges. Having regard to the explicit and urgent nature of the messages, it would be unnatural and artificial to conclude that the sexual activity for which Mr.

Fraser stands charged commenced when the parties actually met face to face. [ 74 ] It can easily be concluded that the Tinder messages were a modern form of “foreplay” especially when proximately connected to the physical activities by minutes. [ 75 ] The Tinder messages commencing at 11:57 pm cannot be put into their proper context or even understood without referencing and reviewing the earlier messages. Those messages were exchanged the same day and are closely connected to the later messages in their description of what would be done when they got together physically.

Essentially, immediately after finishing work, the Complainant carried on where the parties had left off earlier that day. [ 76 ] To treat the later messages differently from the early ones would, in my view, be the type of parsing of the sequence of clearly connected events that Lennox speaks against. [ 77 ] On a practical basis, I cannot conceive how a jury could be instructed as to how to treat the messages differently: that the later ones only may be relevant and admissible on the issue of consent as well as honest but mistaken belief in consent and willful blindness, while the earlier ones are only relevant to honest but mistaken belief in consent and willful blindness.

Alternate Conclusion [ 78 ] If a

section 276 analysis were required, I would be required to do an analysis before admitting the Tinder messages for any purposes. I would in those circumstances follow the process used by Judge Malakoe in Paulette . Here, as there, the purpose of the evidence is to provide evidence of consent, not to rely on either of the twin myths. [ 79 ] I would answer the tests as follows: (

a) the interests of justice, including the right of the Accused to make a full answer and defence [ 80 ] I cannot imagine how the Accused’s frame of mind and mens rea could fairly be adjudicated without reference to the Tinder messages. (

b) society’s interest in encouraging the reporting of sexual assault offences [ 81 ] I do not see this factor as being relevant here. I do not think that a complainant should be dissuaded about reporting if her relevant communications with the accused leading to the contested circumstances were potentially or actually admissible as evidence in the case. (

c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case [ 82 ] The Accused’s state of mind could not be fairly assessed without reference to the communications leading to the parties’ physical encounter. (

d) the need to remove from the fact-finding process any discriminatory belief or bias [ 83 ] The evidence by itself does not attract the twin myths; any concerns can be addressed by mid-trial instructions or appropriate instructions to the jury. (

e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury [ 84 ] That risk is not made out on the facts of this case. (

f) the potential prejudice to the Complainant’s personal dignity and right of privacy [ 85 ] This is a factor that must be weighed against the Accused’s right to make full answer and defence and to a fair trial, and any concerns here must yield to the Accused’s rights. (

g) the right of the Complainant and of every individual to personal security and to the full protection and benefit of the law [ 86 ] This concern is not engaged by the proposed use of the Tinder messages. (

h) any other factor that the judge, provincial court judge or justice considers relevant [ 87 ] None are apparent on the facts of this case. [ 88 ] As such, if a

section 276 analysis were required, I would allow the Tinder evidence to be put to the Complainant in the manner suggested in Paulette : the Complainant can be cross-examined as to whether or not she made the utterance. If she admits that she made the utterance, she can be questioned as to the meaning of the utterance and how it relates, if at all, to consent to sexual intercourse with the Accused. (at paragraph 57). Conclusion

[ 89 ] The Tinder messages may be used by Crown and Defence and are not subject to the provisions of

section 276. The ultimate permitted use of them by the jury will be determined with appropriate language in the charge and by mid-trial instructions if necessary or appropriate. [ 90 ] The Facebook messages will be redacted for relevance and to preserve privacy as appropriate, and may be used by the Defence for cross-examination purposes. [ 91 ] As noted in Lennox at paragraph 32, this is a “threshold” ruling. It does not preclude objections to the propriety or admissibility of evidence for any other reason and it does not preclude objections to questions that may appear to go beyond the scope of this ruling.

As well, it does not preclude the possibility that evidence adduced by the Crown might open the door to further argument. Heard on the 5 th day of November, 2021. Dated at the City of Edmonton, Alberta this 15 th day of November, 2021. Robert A. Graesser J.C.Q.B.A. Appearances: Alison Magill, Justice and Solicitor General for the Crown Dino Bottos, QC, Bottos Law Group for the Accused Michael Mussieux, Mussieux Law for the Complainant