R v RMD, 2022 ABKB 851

Court of King’s Bench of Alberta Citation: R v RMD, 2022 ABKB 851 Date: 20221216 Docket: 200857563Q1 Registry: Ft. McMurray Between: His Majesty the King Crown - and - RMD Accused Restriction on Publication Judicial Interim Release – See the Criminal Code ,

section 517 . By Court Order, this decision and the evidence taken, information given or representations made shall not be published, broadcast, or transmitted in any way.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 discharged after a preliminary inquiry or, if the Accused is ordered to stand trial, after the end of the trial. Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the Victim must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Publication Permitted – See the Criminal Code ,

section 278.95(1) (a), (

b) and (d). By Court Order, this determination and the reasons provided under the Criminal Code ,

section 278.94(4) , may be published. However, a person shall not publish in any document, or broadcast or transmit in any way: (

a) the contents of the application made under subsection 278.93; and (

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

section 278.94 . Corrected judgment: A corrigendum was issued on May 30, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment.

Editorial Notice: The restriction on publication ended on January 17, 2023. _______________________________________________________ Memorandum of Decision on

Section 276 Application of the Honourable Justice Robert A. Graesser _______________________________________________________ Introduction [ 1 ] RMD is charged with sexually assaulting his former partner while they were on a camping trip in August 2020. Their two children were with them on the camping trip. The Crown alleges that the Complainant was sexually assaulted after she refused to have sex with him. [ 2 ] The next morning, the Complainant asked to leave. The Accused drove her back to town.

They ended their relationship shortly after this. [ 3 ] RMD denies the allegations and pled not guilty. [ 4 ] The parties had been in a relationship and have a daughter from that relationship. They were parenting another child, presumably from an earlier relationship one of them was in. [ 5 ] Apparently, the parents have had difficulties over parenting and financial issues concerning their breakup.

The Accused wants to cross-examine the Complainant on these difficulties and suggests that they give her a motive to lie about him assaulting her. [ 6 ] Because this cross-examination relates to the parties’ relationship and the fact that a child resulted from the relationship, RMD brings this application under

section 276 of the Criminal Code . [ 7 ] The matter was set to be tried by judge and jury, but just before jury selection, the Accused re-elected to judge alone. The Crown opposes the application, although recognizes that some of their concerns have lessened because no jury will now be involved. [ 8 ] The application was set for the commencement of the trial on December 5, 2022. Mr. Bright was retained to represent the Complainant’s interests on the application and was able to get instructions from her in time for the application to be heard as scheduled. [ 9 ] No issue was taken by the Crown or the Complainant that the procedural requirements of

section 278.93 has been met, such that the first stage of the application was satisfied. Evidence [ 10 ] In support of the application, RMD swore an affidavit. In his affidavit, he states that the parties started dating in 2017 and have a 4-year-old daughter together. He says they had a “tumultuous relationship” and split up on a number of occasions between 2017 and August 2020 when the charges were laid. [ 11 ] RMD swears that when he was driving the Complainant back to town, he told her that he was going to go back to a lawyer he had consulted in January 2020 about their relationship.

He had initially changed his mind about separating but told her following the events of August 2020 that “he was done with her now”. [ 12 ] He says that the Complainant went to the police after that, and they have since been engaged in family law litigation.

Submissions [ 13 ] The Accused submits that the facts of the parties having lived together for several years, being engaged, having a child together, separating, and then litigating family law issues are all essential to his ability to make fair answer and defence to the charges. [ 14 ] He does not intend to question the Complainant about any sexual activity other than to confirm that they had a relationship

and have a daughter together. RMD does not intend to rely on any of this evidence on the issue of consent. Cross-examination will focuson the family law issues giving the Complainant a motive to lie. [15] Mr. Steeves, RMD’s counsel, notes that R v Goldfinch, 2019 SCC 38 makes it clear that any evidence of a sexual relationshipengages

section 276. [16] He wants to cross-examine the Complainant on the custody dispute in order to advance the defence theory that theComplainant fabricated the allegation of sexual assault to improve her position in the family law litigation. [17] The Accused also cites R v Bartholomew, 2019 ONCA 377, R v Crosby, [1995] 2 SCR 912, (SCC), R vDarrach, [2000] 2 SCR 443, 2000 SCC 46, and R v RV, [2019] 3 SCR 237, 2019 SCC 41 in support of his position. [18] RMD submitted that the evidence he proposes to adduce is not put forward to support either of the twin myths.

He says thatthe questioning is relevant to the issue of there being a motive to lie on the Complainant’s part. That is a well-recognized response to thetruth of allegations being made, citing Bartholomew. [19] The “specific instance of sexual activity” requirement exists to protect a complainant and the trial process from misuse ofgeneral reputation evidence to discredit the complainant. Here, there having been a relationship that implies sexual activity satisfies thatrequirement, referencing Goldfinch at para 54.

Requiring further details of sexual activity could unnecessarily invade the complainant’sprivacy. [20] Here, the cross-examination is not intended to relate to any discrete sexual acts between the parties over their relationship, butrather that having a custody dispute over a child who was a product of their relationship provides a motive to lie. [21] RMD argues that this evidence can be very significant and will “fundamentally affect the Applicant’s ability to advance thedefence theory of the case and make full answer and defence.” He also argues that the intended use has nothing to do with the twinmyths. [22] He notes that the Court and the Crown can monitor the questioning to make sure that his questions do not stray from theseobjectives into myths and stereotypes, and to ensure that the Complainant’s personal dignity and right of privacy are not undulyimpacted. [23] The Accused argues that none of the other factors against questioning under

section 276 are sufficient “to substantiallyoutweigh the significant probative value of the evidence in question.” [24] He ends his submissions with a quote from Justice L’Heureux-Dube at para 11 in Crosby:

Section 276 cannot be interpreted so as to deprive a person of a fair defence. [25] The Crown argues that questioning of this nature falls within the stereotypic thinking and discrimination against womendescribed in R v Seaboyer, [1991] 2 SCR 577, (SCC) and Goldfinch. Ms. Stevens for the Crown argues that RMD hasnot established the relevance to the proposed cross-examination to an issue at trial. She also argues that the potential probative value ofsuch evidence does not outweigh the danger this evidence could present to the proper administration of justice. [26] Ms.

Stevens recognized in argument that the dangers were less serious in a bench trial, but urged that if any such cross-examination were permitted, that there should be careful limitations on how far counsel can go in this line of questioning, and that carebe taken to avoid the possibility of any myths or stereotypes being engaged. Arguments [27]

Section 276 states: 276

(1) In proceedings in respect of [various sexual offences], evidence that the Complainant has engaged in sexual activity, whetherwith the Accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity,the complainant (

a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or (

b) is less worthy of belief.

(2) In proceedings in respect of an offence referred to in subsection (1), no evidence shall be adduced by or on behalf of the Accused thatthe Complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether withthe Accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the proceduresset out in sections 276.1 and 276.2, that the evidence (

a) is of specific instances of sexual activity; (

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

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

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

(

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. [28] That

section has been given wide scope following Goldfinch, RV, and R v Barton, 2019 SCC 33. Goldfinch references theconflict between the Accused’s right to make full answer and defence and the need to protect complainants and the integrity of the trialprocess from prejudicial reasoning. Goldfinch (the “friends with benefits” case) states at paras 3-5: [3] Here, the Accused sought to introduce evidence that he and the Complainant were “friends with benefits”, a sexualrelationship.

He argued that the sexual nature of the relationship provided important context without which the jury would be left withthe artificial impression that he and the Complainant had a platonic relationship, rendering consent improbable. [4] To be admissible, relationship evidence that implies sexual activity must satisfy the requirements of s. 276 of theCriminal Code. In my view, the evidence here did not meet those requirements.

Introducing evidence of the sexual nature of therelationship served no purpose other than to support the inference that because the Complainant had consented in the past, she was morelikely to have consented on the night in question. It was therefore barred by s. 276(1). Nor could it satisfy the conditions of admissibilityunder s. 276(2).

While the sexual aspect of the relationship was evidence of “specific instances of sexual activity”, it was not “relevant toan issue at trial”. [5] A s. 276 application requires the Accused to positively identify a use of the proposed evidence that does not invoketwin-myth reasoning. In other words, relevance is the key which unlocks the evidentiary bar, allowing a judge to consider the s. 276(3)factors and to decide whether to admit the evidence. Bare assertions that such evidence will be relevant to context, narrative or credibilitycannot satisfy s. 276.

The evidence in this case should not have been admitted and a new trial is required. I would dismiss the appeal. [29] Goldfinch recognizes the fundamental principle that for evidence to be admissible, it must be relevant and material to a liveissue in the case. The corollary is stated in para 30: that all relevant and material evidence is admissible. The latter principle is, however,subject to some legislative limits and judicial pronouncements on relevance. Those pronouncements include

section 276, and casesincluding Darrach and Seaboyer. [30] Goldfinch continues at paras 39-40: [39]

Section 276 protects the integrity of the trial process by striking a balance between the dignity and privacy ofcomplainants and the right of Accused persons to make full answer and defence. This appeal asks us to examine that balance as itconcerns evidence of a relationship from which sexual activity can reasonably be inferred. [40] As Gonthier J. explained in Darrach, s. 276 is “designed to exclude irrelevant information and only that relevantinformation that is more prejudicial to the administration of justice than it is probative” (para. 43). Sections 276(1) and (2) operatetogether to achieve this objective.

First, s. 276(1) sets out an absolute bar against introducing evidence of the Complainant’s prior sexualactivity for the purpose of drawing twin-myth inferences. Where an Accused seeks to introduce such evidence for some other purpose,that evidence is presumptively inadmissible unless the Accused satisfies s. 276(2).

To do so, the Accused must identify the evidence andits purpose with sufficient precision to allow the judge to apply s. 276(2) and weigh the factors set out in s. 276(3). [31] Importantly the Court states at para 54: [54] Evidence of a relationship that implies sexual activity, such as “friends with benefits”, as defined by the Accusedhere, inherently encompasses specific instances of sexual activity. Requiring further details would unnecessarily invade theComplainant’s privacy, defeating an important objective of the provision.

I agree with the statement in L.S. that specifying the parties tothe relationship, the nature of that relationship and the relevant time period satisfies the purposes of trial fairness (para. 83). Thosecriteria are met in this case. [32] RV amplifies on principles concerning the Accused’s right to cross examine their accuser at paras 40 and 41: [40] However, the right to cross-examine is not unlimited. As a general rule, cross-examination questions must be relevantand their prejudicial effect must not outweigh their probative value: Lyttle, at paras. 44-45.

In sexual assault cases, s. 276 specificallyrestricts the defence’s ability to ask questions about the Complainant’s sexual history. By virtue of s. 276(3), full answer and defence isonly one of the factors to be considered by the trial judge; it must be balanced against the danger to the other interests protected by s.276(3). These additional limits are necessary to protect the Complainant’s dignity, privacy and equality interests: Osolin, at p. 669; seealso R v. Mills, (SCC), [1999] 3 S.C.R. 668, at paras. 61-68.

They also aim to achieve important societal objectives,including encouraging the reporting of sexual assault offences: s. 276(3)(b). [41] Thus, the fact that the Accused’s ability to make full answer and defence requires that the Complainant be cross-examined is not the end of the analysis. The scope of the permissible questioning must also be balanced with the danger to the other

interests protected by s. 276(3), including the dignity and privacy interests of the complainant. [ 33 ] Paras 48 and 49 discuss the statutory requirement that only questioning or cross-examination concerning “specific instances of sexual activity” may be permitted under

section 276 if all the required conditions are met: [48] That 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 . [49] Section 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 . [ 34 ] At para 52 the majority in the Supreme Court approved a “purposive” approach to the

interpretation and application of

section 276: [52] In 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. [ 35 ] Seaboyer is the seminal case in this area, and

section 276 is essentially a codification of the principles identified in that case. Seaboyer was focused on the need to exclude highly prejudicial and irrelevant evidence from sexual assault and the “myths and stereotypes”. In this case, the Crown urges the Court to apply

section 276 beyond the twin myths identified in that section. An alternative argument I am perhaps putting in the Crown’s mouth is that Seaboyer remains authority for the Court to exclude other evidence that may lead to similarly false myths, including that women are fickle, that they are filled with malice and seek revenge, and that they will fabricate sexual activity out of spite. [ 36 ] Seaboyer deals with 10 of these myths at para 141: 1. Struggle and Force: Woman As Defender of Her Honor There is a myth that a woman cannot be raped against her will, that if she really wants to prevent a rape she can… 2.

Knowing the Defendant: The Rapist As a Stranger. There is a myth that rapists are strangers who leap out of bushes to attack their victims. . . . the view that interaction between friends or between relatives does not result in rape is prevalent… 3. Sexual Reputation: The Madonna--Whore Complex . . . . women... are categorized into one-dimensional types. They are maternal or they are sexy. They are good or they are bad. They are madonnas or they are whores. 4. General Character: Anything Not 100 Percent Proper and Respectable . . . .

Being on welfare or drinking or drug use could be used to discredit anyone, but where women are involved, these issues are used to imply that the woman consented to sex with the defendant or that she contracted to have sex for money. 5. Emotionality of Females. Females are assumed to be "more emotional" than males. The expectation is that if a woman is raped, she will get hysterical during the event and she will be visibly upset afterward. If she is able to "retain her cool," then people assume that "nothing happened". . . . 6. Reporting Rape . Two conflicting expectations exist concerning the reporting of rape.

One is that if a woman is raped she will be too upset and ashamed to report it, and hence most of the time this crime goes unreported. The other is that if a woman is raped she will be so upset that she will report it. Both expectations exist simultaneously. 7. Woman as Fickle and Full of Spite. Another stereotype is that the feminine character is especially filled with malice. Woman is seen as fickle and as seeking revenge on past lovers. 8. The Female Under Surveillance: Is the Victim Trying to Escape Punishment? . . .

It is assumed that the female's sexual behavior, depending on her age, is under the surveillance of her parents or her husband, and also more generally of the community. Thus, the defense argues, if a woman says she was raped it must be because she consented to sex that she was not supposed to have. She got caught, and now she wants to get back in the good graces of whomever's surveillance she is under. 9. Disputing That Sex Occurred . That females fantasize rape is another common stereotype. Females are assumed to make up stories that sex occurred when in fact nothing happened. . . .

Similarly, women are thought to fabricate the sexual activity not as part of a fantasy life, but out of spite. 10. Stereotype of the Rapist. One stereotype of the rapist is that of a stranger who leaps out of the bushes to attack his victim and later abruptly leaves her .... stereotypes of the rapist can be used to blame the victim. She tells what he did. And because it often does not match what jurors think rapists do, his behavior is held against her. A corollary of this myth is the belief that rapists are not "normal" and are "mentally ill".

[ 37 ] The Crown opposes the proposed line of questioning as not having been shown to be relevant or anything more than a fishing expedition. Ms. Stevens argues that there is no evidence of a custody dispute before the Court or an ongoing custody dispute between the parties. The only evidence is the bare assertion that the parties “are engaged in family law litigation”. She submits that the mere presence of family law litigation does not form the basis for a motive to lie. [ 38 ] In the alternative, Ms.

Stevens submits that if questioning is permitted, it “must be limited only to that which is necessary and relevant to the issues at trial”. Ms. Stevens proposes that any such evidence be presented by way of an agreed statement of fact and that cross examination: …be strictly limited to ensure otherwise inadmissible or prejudicial testimony is not accidentally elicited from either party. Analysis [ 39 ] The practical effect of

section 276 is that a significant percentage of sexual crimes trials requires an application.

For many trials, an application is required even there is no intention of using any relationship evidence other than as background or providing context. [ 40 ] For example, in this case, I cannot see how any of the evidence would make sense without an understanding that the alleged assault happened on a family camping trip. [ 41 ] Here, the proposed line of questioning has nothing to do with prior sexual activity of the Complainant but for the fact that the parties must have had sex at least once, three or four years ago (unless their child was adopted or born through artificial insemination or surrogacy). [ 42 ] The proposed line of questioning has to do with whether the Complainant fabricated evidence of sexual assault to enhance her position in the family litigation, presumably by portraying the Accused as a criminal who committed family sexual violence against her. [ 43 ] Neither of the twin myths is engaged.

The proposed cross-examination has nothing to do with whether the Complainant is more likely to have consented to the sexual activity in question because of their relationship, or that she is less worthy of belief because of her sexual past. [ 44 ] That leads to the next three questions in section 276(2). First, is it relevant to an issue at trial? [ 45 ] The issue here is the Complainant’s credibility. The Accused says the Complainant has made up the allegation of sexual assault. She will testify, and the Accused wants to cross-examine her to weaken her credibility.

It is not fanciful that someone might lie about an assault. A common line of cross-examination is to probe whether the witness has a motive to lie about what happened to them in order to gain an advantage in some collateral matter.

I can take judicial notice that it is not unheard of for a party involved in family law litigation to lie or exaggerate about violence having been committed against them to gain an advantage in parenting matters or property matters. [ 46 ] The Crown does not dispute any of that but says here that the Accused has not demonstrated that the family law proceedings are actually acrimonious, and that the Complainant has actually referenced the criminal charges in any way or for any purpose. Ms. Stevens argues that RMD’s affidavit does not include evidence that there is an “ongoing custody dispute”.

She says the mere presence of family law litigation does not form a basis for a motive to fabricate. [ 47 ] I recognize that some

section 276 applications require some evidence from the Accused to show why the evidence is relevant to a live issue. That is especially so when the risk of improper use of the evidence is high, such as questions that may impact on the Complainant’s general character rather than on a factual issue. [ 48 ] In R v Ponicappo , 2022 ABKB 734 , I dealt with a

section 276 application in the context of an anticipated defence of honest but mistaken belief in communicated consent. There, it was essential that the proposed evidence be shown to be relevant to that issue. Basically, the accused had to show that there was something in the evidence that would demonstrate some behaviour or pattern that might lead the accused to believe that consent was being communicated in some non-verbal way. The accused’s materials were devoid of any such connection, and the 276 application was dismissed. [ 49 ] Here, the circumstances of this application are very different.

The presence of any collateral dispute between a Complainant and the Accused may form the basis for a motive to fabricate. I agree that it might be helpful for there to be more information in the affidavit, but it is rare for cross-examining counsel to broadcast in advance the list of questions they intend to ask the witness. Where the potential for a motive to lie is clear, I don’t think detailed evidence of that is required on a

section 276 application. The accused’s denial and a statement about the defence theory should generally suffice.

Section 276 is a restriction on cross-examination and applied carefully and in the context of the importance cross-examination plays in the search for truth. [ 50 ] R v Lyttle , 2004 SCC 5 discusses the importance of cross-examination at paras 1 and 2: 1 Cross examination may often be futile and sometimes prove fatal, but it remains nonetheless a faithful friend in the pursuit of justice and an indispensable ally in the search for truth.

At times, there will be no other way to expose falsehood, to rectify error, to correct distortion or to elicit vital information that would otherwise remain forever concealed. 2 That is why the right of an Accused to cross examine witnesses for the prosecution — without significant and unwarranted constraint — is an essential component of the right to make full answer and defence. [ 51 ] Those principles have not changed.

Section 276 is what might be described as “warranted constraint”, but as is always observed, there are competing interests that must be balanced, and the limitations on the right of the Accused to make full answer and

defence should not be expanded without good reason. [52] In my view, identifying the area of questioning and stating the reason for the questions and the hoped-for outcome of theanswers are sufficient here. The Complainant will not be taken by surprise by the line of questioning, and in briefing she can be toldabout the types of questions she might expect. This is far more helpful to a witness than is usually the case when preparing for a cross-examination. [53] The second requirement is that it be of a specific instance of sexual activity. I agree with Mr.

Steeves that in the circumstancesof this case, this requirement is satisfied by Goldfinch at para 54: [54] Evidence of a relationship that implies sexual activity, such as “friends with benefits”, as defined by the Accusedhere, inherently encompasses specific instances of sexual activity. Requiring further details would unnecessarily invade theComplainant’s privacy, defeating an important objective of the provision. I agree with the statement in L.S. that specifying the parties tothe relationship, the nature of that relationship and the relevant time period satisfies the purposes of trial fairness (para. 83).

Thosecriteria are met in this case. [54] The third requirement is that the proposed evidence must have significant probative value that is not substantially outweighedby the danger of prejudice to the proper administration of justice. [55] RV discusses this requirement recognizing that an analysis of the probative value of the line of questioning is done withoutthe benefit of the answers.

At para 62, the uncertainty of result was considered: [62] While R.V. did not know the answers to the questions he sought to ask, I agree with Paciocco J.A. that “uncertainty ofresult does not deprive a line of questioning of its probative value”: para. 64. The application judge should not have considered theprobability that R.V.’s questioning would be successful, but rather whether the answers would be probative.

Because the answers had thepotential to undermine or confirm important Crown evidence, their probative value was high… [56] At para 63 and 64, the Court speaks of the balancing of the competing interests under

section 276: [63] In R. v. Crosby, (SCC), [1995] 2 S.C.R. 912, L’Heureux-Dubé J. wrote that “[s]ection 276 cannot beinterpreted so as to deprive a person of a fair defence”: para. 11; see also Darrach, at para 43; Seaboyer, at p. 616. Thus, in weighinghow the Accused may respond to Crown-led evidence, the judge must ensure the Accused is not denied the right to make full answerand defence. [64] Simply put, the more important evidence is to the defence, the more weight must be given to the rights of theaccused.

For example, the need to resort to questions about a Complainant’s sexual history will be significantly reduced if the Accusedcan advance a particular theory without referring to the Complainant’s sexual history.

But in other circumstances — where challengingthe Crown’s evidence of the Complainant’s sexual history directly implicates the Accused’s ability to raise a reasonable doubt — cross-examination becomes fundamental to the Accused’s ability to make full answer and defence and must be allowed in some form: Mills, atparas. 71 and 94. [57] Here, we know what the questions are; we have no idea what the answers will be. As described in Lyttle, the answers may befutile or fatal, but they might also be significant in exposing falsehood.

Time will tell, but only if the line of questioning is permitted. [58] This is a significant defence and the answers will have significant probative value on the issue of motive to lie.

That said, whatis the danger of prejudice to the proper administration of justice if the questions are allowed to be asked? [59] In this context, it should be remembered that whatever the questions and answers may be, they will have no bearing on theissue of consent, or that the Complainant is less worthy of belief because of previous sexual activity. [60] The Crown alleges that this area of questioning may engage myths and stereotypes such as that women fabricate inappropriatesexual activity out of spite, or because women are fickle, or because they are spiteful and malicious, or because they are vengeful. [61] If any stereotypical thinking or use of false myths were the potential result of a line of questioning, those would likely fallwithin

section 276 even though the

section itself only refers to the twin myths. Leading triers of fact to false reasoning is in any contextcontrary to the proper administration of justice, whether the triers be a jury or a judge alone. [62] In that regard, I cannot see a connection between the proposed questioning and improper reasoning. Here, no myths orstereotypes are involved. Lying is not influenced by gender, and motives to lie are gender neutral. Advantages in litigation do not directlyrelate to spite, malice, or vengeance. Those are all significant motivators, but the litigation battle is about things that can be litigatedrather than the motivations. [63] I certainly acknowledge that prejudice for the purposes of

section 276 may go beyond the twin myths and that

section 276requires a careful analysis of the purposes for which the evidence is sought. There is a significant interest in ensuring trial fairness,which includes the right of the Accused to make full answer and defence as well as the need for the triers of fact to decide cases on thefacts and to not be influenced by improper considerations and apply flawed reasoning. [64] However, I do not see that any prejudice arises here. The line of questioning may be offensive to the Complainant, and shemay be uncomfortable by it. But those concerns do not make the questioning prejudicial in the meaning of

section 276. [65] Having found that the proposed line of questioning satisfies the requirements of section 276(2), I must move to the factors insection 276(3). In my view, none of these factors weigh against the admissibility of the proposed line of questioning. [66] Here, (

a) there is no apparent prejudice to the proper administration of justice to weigh against the Accused’s right to make

full answer and defence. (

b) I do not see that this line of questioning might impact on reporting sexual assaults. It is only aimed at false reports. (

c) The evidence is clearly relevant to an identified important issue. (

d) There are no discriminatory or bias-related inferences being sought. (

e) The evidence should not arouse any “sentiments of prejudice, sympathy or hostility” against the Complainant. (

f) The Complainant’s personal dignity and privacy rights are not being impacted in any unusual way, and certainly in no way related to her gender. Cross-examination of many witnesses involves them being called liars. This case is not out of the ordinary. (

g) This questioning does not impact the Complainant’s personal security or deprive her of the full protection and benefit of the law. These are questions that could be asked in the family law proceedings without any pre-clearance by a judge. Conclusion [ 67 ] The application is granted. The Defence may cross-examination the Complainant about the circumstances of the breakdown of their relationship as well as the Complainant’s conduct in the family law litigation between her and the Accused. I do not limit the questions on the litigation to parenting issues. They may also include questions on property issues.

In saying this, the questions themselves must still be relevant to the issue of a motive to lie. [ 68 ] As anticipated by Mr. Steeves, both I as trial judge and Ms. Stevens as Crown Counsel, will be diligent to ensure that the questions are relevant and appropriate. [ 69 ] If the case were proceeding with a jury, I would encourage the parties to craft an agreed statement of facts that would put the bare facts of the relationship before them, and it would be necessary for me to charge the jury on the dangers and unfairness in false reasoning arising from stereotypes and myths.

In judge alone trials, the same cautions apply and bear repeating. Heard on the 5 th day of December, 2022. Dated at the City of Ft. McMurray, Alberta this 16 th day of December, 2022. Robert A. Graesser J.C.K.B.A. Appearances: Corinna Stevens, Crown Prosecutors Office Fort McMurray for the Crown Curtis Steeves, Pringle Chivers Sparks Teskey for the Accused Cyril Bright, Aurora Law Group, for the Complainant _______________________________________________________

Corrigendum of the Memorandum of Decision of The Honourable Justice Robert A. Graesser _______________________________________________________ Added Publication Ban under

section 278.95(1) (a), (

b) and (d). of the Criminal Code of Canada . Publication Permitted – See the Criminal Code ,

section 278.95(1) (a), (

b) and (d). By Court Order, this determination and the reasons provided under the Criminal Code ,

section 278.94(4) , may be published. However, a person shall not publish in any document, or broadcast or transmit in any way: (

a) the contents of the application made under subsection 278.93; and (

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

section 278.94 . Paragraph 35 - 176 has been changed to reflect 276.