R v KML, 2022 ABKB 710

Court of King’s Bench of Alberta Citation: R v KML, 2022 ABKB 710 Date: 20221215 Docket: 210038659Q1 Registry: Peace River Between: His Majesty the King Crown - and - KML Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order:

(1) Information that could identify the Complainant shall not be published, broadcast, or transmitted in any way.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. 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 after the end of the trial. 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 December 15, 2022; the corrections have been made to the text and the corrigendum is appended to this judgment.

____________________________________________________ Memorandum of Decision of the Honourable Justice A. Loparco _______________________________________________________ 1. Preliminary: Order Permitting Publication Pursuant to s 278.95(1)(

d) of the Criminal Code , RSC 1985, c C-46 , I order that this decision may be published, but not until after the completion of the jury trial on this matter, currently scheduled for November 14-16, 2022. 2. Overview [ 1 ] The Accused is charged with two counts of sexual assault (s 271) against the Complainant, on December 9, 2019, and April 27, 2020. In this decision I will refer to the Accused as both the Accused and the Applicant. [ 2 ] The Accused and the Complainant had an intimate relationship and share a child.

At issue are certain of the Complainant’s statements to police about a break-up and the nature of their ongoing contact after the first alleged incident. If the Complainant denies an ongoing relationship after that date, the Accused wishes to impeach her in cross-examination with messages to show that they were in a relationship from December 9, 2019, to April 15, 2020.

He also seeks to use the messages to demonstrate that she had a motive to fabricate because she went to police only after the Accused received a custody order in relation to their child. [ 3 ] This decision is the outcome of a two-day in camera voir dire heard on September 7 and 8, 2022, under ss 278.92 and 276(2) of the Criminal Code . [ 4 ] The documents in question include approximately 800 pages of messages and five audio recordings. I reserved my decision and advised counsel that I would provide a written memorandum. 3.

The Proceedings [ 5 ] The Accused supported his s 276 application with three affidavits setting out the transcript of the Complainant’s two police interviews, the police notes, and the Accused’s anticipated evidence. The Accused’s s 278.92 application is supported with the same three affidavits, as well as an additional affidavit sworn by the Accused attaching the records in question on a USB stick. [ 6 ] The Complainant was given notice of this application and was represented by counsel at stage two hearing for both applications.

Written arguments were provided to the Court and oral submissions were made by all three counsel. [ 7 ] I will deal with each application separately below. 4. Anticipated Evidence [ 8 ] The Complainant is expected to testify that the Accused lived with her at her parents’ home from June 2019 to December 10, 2019. She reported to the police that the Accused was kicked out of her family’s home the day after she divulged the first alleged sexual assault to them on December 9, 2019. [ 9 ] She is also expected to testify that she and the Accused broke up at that point and no longer had a sexual relationship.

She told police that they were only friends and communicated because he was the father of her child.

At other points in her interview, the Complainant advised police that she continued an on-again, off-again relationship with the Accused. [ 10 ] The Complainant reported that on the date of the second alleged sexual assault, April 27, 2020, she was temporarily staying at the Accused’s home for the purpose of allowing him to visit with their son. [ 11 ] The Accused seeks to impeach the Complainant’s credibility on several points in time from the point of the first sexual assault to the date of the Complainant’s report to police, which coincides with the day she was required to turn over the child to the RCMP because they were enforcing a custody order.

The Accused seeks to impeach the Complainant’s narrative about their relationship and to demonstrate that she had a motive to fabricate for the purpose of gaining an advantage in the family dispute. The messages cover a period of approximately one year. [ 12 ] The specific facts that the Accused seeks to establish are: - That the Accused was not kicked out of the home on December 10 th because of the sexual assault;

- That the Complainant and the Accused had an ongoing relationship between December 9, 2019 and April 15, 2020, and were only kept apart physically because of the demands by Complainant’s father; - That the relationship included daily loving communication, explicit sexual messages, and consensual sex; - That the Accused was present at the birth of their child on February 24, 2020, and they attended celebrations together; - That the Complainant asked to move in with the Accused and his grandparents for a period of time commencing early March, 2020 until April 15, 2020; - That the Complainant’s story to police is fabricated, namely, that: she was only intending to visit the Accused for one week in March, 2020 for the purpose of allowing him access to their son; that she lived in a separate bedroom because they were not together; and, that she was forced to move into the basement with the Accused and held against her will; - That the Complainant moved out on April 15 th and that therefore her timeline of their breakup on April 25 th , followed by the second alleged assault on April 27 th as described, followed by her moving out on April 30 th is false; - That they shared parenting of the child on a two-week rotation from their separation April 15 th until the Complainant removed the child from the jurisdiction without explanation, after which time, the Accused obtained a Court Order on December 1, 2020 for the day- to-day custody of the child; and, - That the Complainant made the reports of sexual assault because she had to turn over the child to the RCMP. [ 13 ] The Accused seeks to rely on approximately 800 text messages, 5 audio recordings, and viva voce testimony to impeach the Complainant’s credibility respecting the nature of their relationship, the timeline of the events as reported to police and the Complainant’s motive to bring the allegations. [ 14 ] The majority of the text messages are not sexual in nature and will be analyzed under the records regime in s 278.92 below in order to determine if there was an expectation of privacy and whether the messages are admissible.

As per R v JJ , 2022 SCC 28 , if any of the records engage mention of prior sexual acts, they are to be examined under the 276 regime.

As such, I will proceed with the s 276(2) analysis of the subset of sexually explicit messages first and then review the remainder of the text messages under 278.92. [ 15 ] Specifically, the Accused seeks to cross examine the Complainant on text messages and audio recordings that are sexual in nature – that they contain messages of love, longing, or are considered ‘sexting’, including nude images of the Complainant. [ 16 ] In brief, the Accused seeks to cross examine the Complainant about

i) the nature and status of their relationship after the first alleged incident, and ii) the fact that they were in a child custody dispute and the timing of the allegations being only after the Accused sought to enforce a Custody Order. The Accused also seeks to lead direct evidence about the nature and status of their relationship. [ 17 ] The Accused argues that the evidence of their intimate and sexual relationship, including that they have a child, is key to his full answer and defence.

He requires this evidence to demonstrate that the Complainant had a motive to fabricate the allegations in response to the custody order for their son. [ 18 ] He further seeks to establish inconsistent statements by the Complainant. The text messages are intended to show that the Complainant deliberately mischaracterized the nature of the relationship in her statements to police during the key points in time between the first alleged sexual assault and the second alleged sexual assault.

Section 276 Application [ 19 ] 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. [ 20 ] For s 276 evidence applications, if the judge determines that the proposed evidence is not s 276 evidence, the application will terminate.

If the proposed evidence is s 276 evidence but the judge concludes that it is not capable of being admissible, the application will be denied. If the s 276 evidence is capable of being admissible, the application proceeds to a Stage Two hearing. [ 21 ] For s 276 evidence applications, the governing conditions are set out in s 276(2), as directed by s 278.92(2)(

a) and in accordance with the factors listed in s 276(3). [ 22 ] 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). [ 23 ] 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. [ 24 ] The key questions at this initial stage are: (

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. [ 25 ] 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”: R v Kapustinsky, 2020 ABQB 611 atpara 23. A. Admissibility Procedure [26]

Section 276 is designed to respect both the accused’s right to full answer and defence and the complainant’s right to arespectful 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, 2019SCC 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 atparas 28-38. [27] 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 thesubject-matter of the charge; or (

b) is less worthy of belief. Evidence directly or indirectly designed to have this effect is not relevant andnot permitted (“The Twin Myths”). [28] Under s 276(2), no evidence of a complainant’s other sexual activity is admissible unless the Court determines that theproposed 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. [29] Stage one of the analysis is to ensure factors (a)-(

c) above are met. [30] Finally, in determining whether evidence is admissible under s 276(2), the court shall take into account the factors unders 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. [31] This legislative scheme reflects Parliament’s acknowledgement that sexual offence trials are "not an occasion for putting thecomplainant's lifestyle and reputation on trial," and that a "complainant should not be unduly harassed or pilloried to the extent ofbecoming a victim of an insensitive justice system": R v Osolin, (SCC), [1993] 4 SCR 595 at 669, 672.

Further, cross-examination techniques which are designed to put the complainant, rather than the accused, on trial are abusive, and distort rather thanenhance the search for the truth: R v Shearing, 2002 SCC 58 at para 76, [2002] 3 SCR 33. B. Stage 1 [32] The threshold for the accused to overcome at the first stage is low. The Court conducts only a facial consideration of thematter, 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 ABQB889 at para 9; R v AM, 2020 ONSC 4541 at para 32; R v Sandhu, 2021 ABQB 614 at para 30.

This first stage takes place in camera: s278.93(3). [33] This Court examined the materials in question, which included a large number of text messages and audio recordings thatspoke about the child, love and longing for the Accused, and some others, which were explicit exchanges of sexual words and photos,along with mention of prior sexual acts. [34] The application materials met the procedural and temporal requirements for holding of a hearing under s 278.93. Therequirement that the proposed evidence constitute “specific instances of sexual activity” was also met.

Although not all the evidenceproposed to be adduced is sexual in nature, it is now well settled that evidence describing a relationship, e.g., that they share a child,which implies past sexual conduct satisfies this definition. [35] At this initial stage, it is sufficient that the accused’s exculpatory version of events is capable of casting him “in anunfavorable 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, at para 27,11 CR (6th) 179, [2002] OJ No 4951 (SC).

[ 36 ] Without evidence showing that there was an intimate and sexual relationship between the Complainant and the Accused, the Accused’s story that he left the home for reasons unrelated to any sexual assault and that their relationship continued to be strong because nothing untoward happened, is untenable.

Without being able to adduce such evidence, the Accused will be unable to contradict the Complainant’s account that they broke up because of the sexual assault on December 9 th and that she was only visiting him on April 27 th , 2020 to allow him time with their child, when the second alleged sexual assault took place. [ 37 ] The Accused’s proposed evidence is intended to demonstrate that the Complainant had no animus towards him and in fact, continued a relationship with the Accused because nothing happened, and that he was involved in the baby’s birth and upbringing until she decided to unilaterally terminate access.

The Accused seeks to impeach the Complainant on the timing of the allegations and to suggest that the reporting of them were fabricated in conjunction with the Accused obtaining a custody order in relation to the child. [ 38 ] The nature of the parties’ relationship is, on its face, “capable of changing the lens through which the Accused’s actions and beliefs will be judged”: Kapustinsky at para 49 .

Unless the Accused is permitted to impugn the Complainant’s credibility on her own characterization of the relationship, his narrative of the timeline, backed by the text messages and audio recordings, to show that she had a motive to fabricate at the time she reported the allegations is not believable.

Simply put, the Accused would be cast in an unfavorable light if the trial were to proceed on the basis that the Complainant reported the first sexual assault immediately to her family, that the Accused was kicked out of the house as a result of that sexual assault, that they no longer had a relationship following the first sexual assault, and that in April 2020 the Complainant was only visiting the Accused to allow him to see their child when he sexually assaulted her a second time. [ 39 ] On September 7, 2022, I ruled that the application materials met 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” was also met as the affidavit of the Accused provided the records that included the specific references to the relationship, affection, sexual acts, and sexual communications, which he seeks to adduce in cross-examination if necessary, and through his own viva voce testimony. [ 40 ] I also ruled that the test of relevance at stage one was met: the Accused demonstrated “a connection between the complainant's sexual history and the accused's defence”, namely that there was a motive to fabricate, and that the Complainant had lied to police: R v Darrach , 2000 SCC 46 at para 56 ; Goldfinch at para 113 (per Moldaver J concurring), which was not based in Twin Myth reasoning. [ 41 ] The Applicant’s materials, as supplemented by Defence counsel’s oral submissions, set out the relevance of the Other Sexual Activity, namely:1) to impeach the Complainant’s credibility on various statements she gave to police about the nature of their relationship between the first and second allegations, and prior to the custody order obtained by the Applicant; and, 2) to demonstrate that the Complainant had a motive to fabricate given the timing of the report to police and the ongoing child custody dispute.

Twin myth reasoning [ 42 ] As stated in RV at para 44: “Section 276(1) sets out an absolute bar against introducing evidence for the purpose of drawing twin-myth inferences…” [ 43 ] It is a myth that a complainant would avoid the assailant or change her behaviour towards the assailant after being sexually assaulted: R v JC , 2021 ONCA 131 at para 66 .

Further, a court may not infer that a complainant is less credible in her allegations solely from the fact that she maintained contact with the accused after an alleged sexual offence: R v ARJD , [2017] ABCA 237 at paras 39-48; aff’d 2018 SCC 6 ; R v Diabas , 2020 ONCA 283 at paras 37-8 . [ 44 ] The Accused does not seek to use the proposed evidence to show that the Complainant was more likely to have consented to the alleged sexual incidents or that she is less worthy of belief on account of the prior sexual activity.

Instead, the proposed evidence is being advanced for the sole purpose of impeaching her statements to police about the nature of their relationship at certain critical points in the timeline of events, which she voluntarily provided to police.

Specifically, the reason why the Accused moved out of her parents’ home in December, 2019, the status of their relationship thereafter, the reason and length of time she remained living with the Accused’s grandparents around March-April, 2020, and the status and timing of events surrounding the custody dispute. [ 45 ] 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.

Here, the Accused wishes to use it to demonstrate that the Complainant deliberately mischaracterized the nature of the relationship to bolster her credibility. Without this evidence, the jury would be left with a distorted picture of the nature of their interactions and cast the Accused in an unfavorable light, being the aggressor who was previously kicked out of the house and then perpetrated a second sexual assault at his next opportunity alone with the Complainant.

In R v LS , 2017 ONCA 685 at paras 82-99 , Doherty JA held that the Applicant was entitled to lead evidence to support the argument that the parties’ relationship carried on as before because nothing had happened. He found that all the statutory criteria had been met. [ 46 ] 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 these requirements to have been met, I granted a full hearing pursuant to 278.94. [ 47 ] The second stage of the analysis will address the substantive question of whether the accused’s credibility, against the backdrop of the relationship evidence, has sufficient probative value that outweighs the risk that it would feed into the Twin Myths. C. Stage 2 [ 48 ] For s 276 evidence applications, the governing conditions are set out in s 276(2), as directed by s 278.92(2)(

a) and in accordance with the factors listed in s 276(3).

[49] Complainants are permitted to appear at the Stage Two hearing and make submissions, with the assistance of counsel, if theyso choose.

In this case, the Complainant exercised her participatory rights with the assistance of counsel to oppose the application. [50] Crown counsel argued that the proposed material is not relevant, does not have significant probative value, and perpetuatesthe twin myths. [51] Counsel for the Complainant concedes that the evidence of prior sexual activity set out in the Applicant’s materials fromDecember 9, 2019 to April 15, 2020, may be used to impeach the Complainant if she denies the existence of a relationship, but states thatI should examine the messages carefully and exclude the more explicit ones where the prejudicial effect exceeds any probative value.

Counsel for the Complainant and the Crown have not identified which of these messages fall into this category. I have reserved mydecision so that I could undertake this task. Relevance to Trial [52] In order to meet s 276, the proposed evidence must be adduced for relevant purposes.

The Accused argues that the proposedevidence is relevant to the Complainant’s credibility, to her motive to fabricate, and to prior inconsistent statements and specifically hernarrative about how the events unfolded, including the reason for the Accused’s removal from her parents’ home and their allegedbreak-up. [53] In order to be relevant to an issue at trial, the proposed evidence must have some tendency to make the proposition for whichit is advanced more likely than the proposition would be otherwise: see R v Calnen, 2019 SCC 6 at para 108. [54] As a starting point, it is trite that in a criminal trial the motivation of every witness in any case is open to examination andscrutiny.

In R v Batte (2000), , 145 CCC (3d) 449,34 CR (5th) 197, 49 OR (3d) 321 CA), the Ontario Court of Appealmade this observation (at paras 120-121): Questions directed to show that a witness has a motive to fabricate evidence are admissible, as is evidence from other witnesses that awitness had a motive to fabricate evidence: R. v. M. (B.), [(1998), 130 CCC (3d) 355] supra, at p. 373; R. v. P. (H.P.) (1996), (MB CA), 112 C.C.C. (3d) 140 (Man. C.A.), at 150; P. McWilliams, Canadian Criminal Evidence, para 37:20530. Juriesare told to use their common sense and combined life experience in assessing credibility.

It is difficult to think of a factor which, as amatter of common sense and life experience, would be more germane to a witness' credibility than the existence of a motive to fabricateevidence. Similarly, the absence of any reason to make a false allegation is a factor which juries, using their common sense, will andshould consider in assessing a witness' credibility.

What must be avoided in instructing a jury is any suggestion that the accused has an onus to demonstrate that a complainant has a motiveto fabricate evidence, that the absence of a demonstrated motive to fabricate necessarily means that there was no motive or, finally, thatthe absence of a motive to fabricate conclusively establishes that a witness is telling the truth.

The presence or absence of a motive tofabricate evidence is only one factor to be considered in assessing credibility. [55] Bare assertions that the proposed evidence will be relevant to credibility, context, or narrative cannot satisfy s 276(2):Goldfinch at para 51.

Where the Complainant’s credibility is the reason for the requested admission, the proposed evidence must have amaterial impact on the credibility assessment and cannot lead to twin myth reasoning: Goldfinch at para 124. [56] Evidence of a sexual relationship may be relevant where the complainant has offered inconsistent statements regarding thevery existence of a sexual relationship with the accused (Goldfinch at para 63).

Further, evidence of a prior sexual relationship may beadmitted for its non-sexual features, such as to show a pattern of conduct or a prior inconsistent statement (Darrach at para 35). [57] This principle is illustrated in R v Harris, , 118 CCC (3d) 498, 10 CR (5th) 287 (OntCA), where the trialjudge had refused to allow evidence of prior sexual activity between the accused and the complainant. At trial, the complainant testifiedthat she was shocked when the accused asked her if they were “going to have sex” on the night of the alleged offence.

In concluding thatthe trial judge should have allowed evidence of the parties’ previous sexual relationship, Moldaver JA (as he then was) noted at paras 47and 49 that “credibility was the central and indeed the only issue in the case at hand” and that “[b]y failing to permit the appellant to leadevidence of the [other] incident, the jury was deprived of the tools needed to fully and fairly assess the conduct of the parties and thebelievability of their respective positions.” Moldaver JA concluded as follows (at para 50): I am satisfied that once the complainant testified in-chief, the proposed evidence became relevant and highly probative of the issue ofcredibility.

The probative value of the evidence did not depend upon resort to the now debunked myths suggesting some connectionbetween prior sexual activity and a lack of veracity but in its ability to contradict specific evidence given by the complainant that wascentral to her version of the relevant events.

A sharp warning from the trial judge that the evidence of the Tuesday night incident couldonly be used to assess the complainant's credibility in relation to the specific events forming the subject- matter of the charge and not todraw the general inferences that she was more likely to have consented or that she was less worthy of belief would have overcome anypossible prejudice resulting from its admission. [58] In a recent case, R v Brown, 2022 ABQB 195 at paras 32-38, Whitling J reviewed the caselaw which hold that an accused isentitled to lead evidence designed to rebut a complainant’s testimony and cross-examine the complainant where the complainant placesthe nature of her relationship with the accused in issue. [59] In Brown, at paras 44-6, Whitling J also noted that an accused who challenges the credibility of a Crown witness may attemptto identify a motive for fabrication, whereby evidence to that effect may be highly relevant, provided that improper reasoning is notemployed.

The caselaw reveals examples where the courts have permitted an inquiry into the motive of a complainant in a sexual assaultcase. [60] One important example is found in R v Gordon, 2018 ONSC 2702 [Gordon]. There, the accused argued that the sexual

activity with the complainant was consensual, but that she fabricated the allegations because: (

a) she was afraid of retribution from hermother; and (

b) she feared a negative reaction from her boyfriend. [61] A number of important points are illustrated in Gordon. [62] First, the decision makes clear that the complainant’s motivation was an appropriate issue to address at trial.

In fact, hermotivation was a live issue, at the front and center of the case: see paras 128-132 for the court’s finding on the complainant’smotivation vis-a-vis her mother; and paras 133-139 for the court’s finding on the complainant’s motivation vis-a-vis her boyfriend. [63] Second, at the same time, the court addressed the motivation of the complainant, Gordon articulated the dangers of“stereotypical assumptions and discredited rape myths”. The court said this (at paras 125-126): The existence or absence of a motive by the complainant to fabricate is a relevant factor to be considered. R. v.

Hughes, 2017 ONCA814 at paras.4, 6-10. However, I must be cautious not to be mis-guided by stereotypical assumptions and discredited rape myths inassessing whether AB had a motive to lie about what happened. Female sexuality is routinely scrutinized and judged in our society. A woman’s sexual behavior is often effectively monitored by thecommunity and (depending on her age and cultural background) may also be monitored by her parents, brother, boyfriend and/orhusband.

As a result of this phenomenon, and because of the unfounded but pervasive view that sexual assault complainants aregenerally untrustworthy, an assumption is often made that, if a girl or woman says she was sexually assaulted, it must be because sheconsented to sex that she was not supposed to have, got caught, and now wants to get back into the good graces of whomever’ssurveillance she is under.

Seaboyer [R v Seaboyer, (SCC), [1991] 2 SCR 577], at para.141(8), per L’Heureux-Dubé,dissenting in part. [64] After reviewing Gordon, I am satisfied s 276 does not automatically preclude consideration of a complainant’s motivation.Instead, I conclude that considerations of a complainant’s motivation can, and must, co-exist alongside the required considerationsaddressed in s 276. [65] Third, Gordon makes specific reference to s 276; in footnote one emanating from para 25, the court explained the treatment ofcertain parts of the evidence in accordance with the principles set out in that section.

It is evident that Gordon acknowledgedParliament’s aims and objectives in enacting s 276. [66] Fourth, in an important passage, Gordon highlights the need for a careful contextual analysis in each case. There is no roomfor assumptions or presumptive inferences; instead, the evidence in each case must be carefully assessed. Gordon said this, at para 127: It would not be appropriate to draw a presumptive adverse inference regarding AB’s credibility based on this faulty sexistreasoning.

Instead, a careful unbiased review and analysis of the evidence regarding the presence or absence of a motive to fabricatemust be undertaken. [Emphasis added] [67] Rather than precluding an examination of a complainant’s motive, Gordon requires a “careful unbiased review” of thatevidence.

In this way, Gordon offers support to the Accused’s application. [68] There are other examples where a trial judge addressed an accused’s submission that a complainant had a motive to lie. [69] In an oft-cited case, R v Hughes, 2017 ONCA 814, the Ontario Court of Appeal upheld a trial judge’s decision in which themotivation of the complainant was considered. The Court held (at paras 8-10): The finding that the complainant did not have a motive to mislead was not unreasonable. The trial judge was entitled, on the evidence heheard, to conclude that the complainant did not have a motive to make up the allegation.

He found that the appellant and complainantwere mere acquaintances, there was no indication of malice in her testimony, and she was ready to make concessions. Simply put, she didnot present as a witness with an agenda. The trial judge rejected the submission that she was motivated by her embarrassment at being caught by her roommate in the middle ofhaving sex. Counsel’s submission that the complainant may have had some “unknown” motive, not revealed by the evidence, cannotassist. The trial judge, as the trier of fact, came to a different assessment.

The submission that the trial judge moved directly from his conclusion that the complainant had no motive to fabricate to a finding thatthe complainant was credible, is also belied by the extracts from the reasons quoted above. The trial judge’s reference to the absence of amotive by the complainant to make up the allegation was one of many factors the trial judge identified in his assessment of thecomplainant’s credibility. [Emphasis added] [70] Similarly, in R v GA. 2017 ONSC 7493, the Court considered the accused’s submission that a complainant had a motive to lieabout allegations of sexual interference.

The Court held at para 145: The existence or absence of a motive by the complainant to fabricate is a relevant factor to be considered: The Queen v.K.G.B. (1993), (SCC), 79 C.C.C. (3d) 257 (S.C.C.), at p. 300; R. v. Hughes, 2017 ONCA 814, at paras. 4, 6-10; R. v.Greer, 2009 ONCA 505, at para. 5; R. v. Prasad, [2007] A.J. No. 139 (C.A.), at paras. 2-8; K.(A.) [(1999), (ON CA),137 CCC (3d) 554 (Ont CA)], at p. 173; R. v. Jackson, [1995] O.J. No. 2471 (C.A.), at paras. 4, 5.

I make this observation, sensitive tothe fact that the burden of production and persuasion is upon the prosecution and that an accused need not prove a motive to fabricate onthe part of a principal Crown witness. Evidence of a witness' motive to lie may be relevant as well to the accused qua witness: R. v.Laboucan, 2010 SCC 12, at paras. 12, 15, 22; R. v. Murray (1997), (ON CA), 99 O.A.C. 103 (C.A.), at paras. 11-14. [Emphasis added] [71] In R v Smith, 2018 BCSC 1376, the accused was charged with sexual assault and the court acknowledged the motivation of

the complainant was a relevant consideration, at para 199: A lack of motive to lie supports the complainant’s credibility in appropriate circumstances: R. v. Hughes , 2017 ONCA 814 at paras. 7 to 9 . [ 72 ] Further, in R v FB , 2018 ONSC 3319 , the accused argued the complainant was motivated to lie because she was fearful of repercussions from her parents for engaging in sexual activity (para 91).

The Court recognized this is a relevant line of inquiry (at para 122): [ 73 ] Other examples include R v Greer , 2009 ONCA 505 at para 5 ; R v Foster , 2020 NBCA 7 at para 71 , 61 CR (7th) 51 ; and R v Zepeda , 2018 ABCA 425 at para 10 . [ 74 ] It is important to note that in all these cases the evidence was being admitted for the purpose of assessing credibility and not for the purpose of inferring consent. [ 75 ] There may also be limited circumstances in which the timing of disclosure of a sexual assault to the authorities may be relevant to assessing a complainant’s credibility: R v RR , 2022 ONCJ 158 at para 86 . [ 76 ] Moreover, the accused can be permitted to cross-examine the complainant as to the existence of a prior sexual relationship between them where she denies it: R v Brown , 2022 ABQB 195 at paras 27-8 ; R v Harnett , 2022 ABQB 150 at paras 70-74 , 88-92 ; R v DS , 2021 ONSC 1138 at para 24 , R v NK , 2017 ONSC 3482 at paras 21-23 , and R v FA , 2019 ONCJ 848 at paras 69-74 . [ 77 ] In

summary, there are numerous authorities which supports the Accused’s request to consider the motivation of the complainant and her narrative respecting the nature of their relationship. Specific Instances of Sexual Activity [ 78 ] In RV , the Court explained that (at paras 48 -9): … 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 . Section 276(2) … does not always require an accused to come before the court armed with names, dates and locations. … Rather … 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 . [ 79 ] The relationship evidence and the text messages relate to sexual communications sent on specific dates between the two alleged incidents.

I find this to be sufficient to meet the requirement for this condition.

Probative Value v Prejudicial Effect [ 80 ] Having determined there is no blanket prohibition against permitting cross-examination of the complainant on prior inconsistent statements and a possible motive to lie, I now turn to an assessment of whether the proposed evidence has significant probative value which is not substantially outweighed by the danger of prejudice to the proper administration of justice in accordance with the statutory factors and the guidance provided in Goldfinch and RV [ 81 ] In Harnett , the accused sought to cross-examine the complainant on text messages which were apparently inconsistent with her testimony that she “wanted nothing to do with” him.

Renke J allowed the application and stated the following respecting the balancing of probative value against prejudicial effect (at para 110): In my opinion, permitting an accused to cross-examine a complainant on text messages sent to the accused inconsistent with trial testimony would not have any adverse impact on society’s interest in encouraging the reporting of sexual assault offences (s. 276(3)(b)). The proposed cross-examination does not delve into the Complainant’s life apart from her interactions with Mr. Harnett. The proposed cross-examination does not delve into her life before Mr.

Harnett, her life after Mr. Harnett, or her life insofar as it did not involve Mr. Harnett. The proposed cross-examination concerns only communications she had with Mr. Harnett about a week after the sexual contact. The communications have a relationship with her testimony that, in the interests of justice, should be addressed. The messages do contain passages that all counsel agreed were sensitive. Those passages can be redacted.

In my opinion, the proposed cross-examination could not reasonably be perceived as unreasonably intrusive and so as a type of deterrent to reporting of sexual offences. [ 82 ] 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. [ 83 ] These factors have been listed above; however, for ease of reference, I repeat them below:

Factors that judge must consider 276

(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. [84] I start my consideration of these factors with the specifics of the proposed evidence: whether the complainant and accused hadan ongoing relationship after the first alleged sexual assault and up to the second allegation and that all allegations only arose after theaccused obtained a custody order. [85] On a scale of sensitivity of personal information, most of the messages may be considered closer to the less sensitive side ofthe spectrum.

Because of this, a consideration of the factors weigh in favor of permitting the proposed cross-examination. [86] Society’s interest in encouraging the reporting of sexual offences, set out in factor (b), would not be unduly impacted, if at all,by the examination of this type of evidence.

While society has an interest in encouraging the reporting of sexual offences, society alsohas an interest in ensuring that the offences reported are truthful: R v A I, 2020 BCSC 1791 at para 132. [87] I also conclude that the majority of the proposed evidence would not prejudice a complainants’ dignity or privacy, as set out infactor (f).

Finally, such evidence would not unduly impact on the personal security of the complainant, as set out in factor (g). [88] The Accused agrees that the application is only brought out of an abundance of caution and the records of Other SexualActivity will only be used if the Complainant denies the status of the relationship at various points in time. [89] In general, I agree that it is necessary to permit the proposed evidence and cross-examination of the Complainant if she deniestheir continued relationship since it contradicts what she had reported to police. [90] However, I questioned counsel on why the more explicit sexual messages are necessary as there are many other messages thatwould effectively serve the purpose of impeaching the Complainant on the issue of the relationship.

Defence argued that they should bepermitted to use all the messages to demonstrate the pronounced nature and extent of the Complainant’s lies, which is essential to theirability to full answer and defence. [91] The Accused removed the nude images from the materials and advised that he does not intend to put the actual photos to herin cross-examination unless she denies the nature of the message.

Nevertheless, I find that there are many other messages with lewd andsexually explicit messages that would be highly prejudicial, particularly in front of a jury. [92] There are numerous texts and Facebook messages that encompass a wide range of messages, including on one end -expressions of love, affection, longing, to on the other end - more explicit and salacious exchanges involving desire to have sexualrelations, nude photos, and sexting. I reviewed the specific records to ensure the probative value of each one outweighs the prejudicialeffect.

Specifically, I queried why it was necessary to an accused’s right to make full answer and defence to rely on the explicit sexualcontent in order to impeach the Complainant’s credibility on the status of their relationship. [93] Important direction for the practical application of these factors is found in R v Goldfinch, 2019 SCC 38 [Goldfinch] and R vRV, 2019 SCC 41 [RV]. I find it convenient to emphasize two points which are illustrated in these decisions. [94] The first point is the recognition of a careful balance between the interests of the accused and the interests of thecomplainant.

In RV, the court held there is no priority given to either party’s interests; instead, appropriate consideration must be givento the interests of both. The Court stated (at paras 40-41): … By virtue of s. 276(3), full answer and defence is only one of the factors to be considered by the trial judge; it must be balancedagainst 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 [R v Osolin, (SCC), [1993] 4 SCR 595], at p. 669; see also R. v.

Mills, (SCC), [1999] 3 S.C.R. 668, at paras. 61-68… Thus, the fact that the accused’s ability to make full answer and defence requires that the complainant be cross-examined is not the endof the analysis. The scope of the permissible questioning must also be balanced with the danger to the other interests protected bys. 276(3), including the dignity and privacy interests of the complainant. [95] The second point regards the need to evaluate the importance of the proposed cross-examination to the accused’s case.

Anapplication to adduce evidence of the complainants’ sexual history must be addressed contextually, against the specific facts in each case.The relative value of the proposed evidence must be measured against the possible harm that may befall a particular

complainant. RV explained this aspect as follows (at para 64): Simply put, the more important evidence is to the defence, the more weight must be given to the rights of the accused. For example, the need to resort to questions about a complainant’s sexual history will be significantly reduced if the accused can advance a particular theory without referring to the complainant’s sexual history.

But in other circumstances — where challenging the 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… [ 96 ] 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”. [ 97 ] In Goldfinch , the Court similarly also highlighted the need for an assessment of the relative importance of the proposed evidence to the accused’s case.

For example, if an accused can appropriately argue his case without reference to the proposed evidence, the relative importance of that evidence is low. If, on the other hand, the accused needs the evidence in order to advance his case, the relative importance is high. Goldfinch explained this at para 69 : …Balancing the s. 276(3) factors ultimately depends on the nature of the evidence being adduced and the factual matrix of the case.

It will depend, in part, on how important the evidence is to the accused’s right to make full answer and defence… [ 98 ] Finally, it must be remembered that the trial process does not only consider the fair trial interests of the accused. It also includes considerations of the rights of witnesses including their personal dignity and privacy interests. The right to cross-examination is not unlimited and must be balanced by countervailing factors such as the potential prejudice to a witness and the trial process itself: JJ at para 184 .

The accused is not entitled to procedures that would distort the truth-seeking function of a trial by permitting irrelevant and prejudicial material at trial: JJ at para 18 5 . [ 99 ] In

summary, Goldfinch , RV requires a court to undertake a careful analysis of the factors in s 276(3) in order to achieve a balance between the interests of the accused and those of the complainant. [ 100 ] Factors 276(3)(

a) and (

c) weigh in favor of permitting the proposed cross-examination. It is necessary for him to make full answer and defence. While it is not possible for me to assess the strength of his proposed argument before any evidence is called at trial, I must be mindful of his right to present his case as he sees fit. [ 101 ] Finally, I consider factor 276(3)(

d) which regards the need to remove any discriminatory belief or bias from the fact-finding process. I conclude that with the guidance of Goldfinch and RV in mind, as well as the cautions stipulated in Gordon at paras 125 and 126 , the prospect of impermissible reasoning will be extinguished. [ 102 ] It must also be highlighted that, even if the proposed cross-examination is permitted, it is not a foregone conclusion the evidence will establish the complainant had a motive to lie or that she did in fact lie. A hearing of the evidence may, or may not, support such a finding.

That determination can only be made after a consideration of all the evidence. [ 103 ] Given the anticipated evidence, I am satisfied the Accused should be permitted to advance this argument if he chooses.

This result, I conclude, is in keeping with the ruling in Gordon and the other authorities. [ 104 ] Therefore, after considering the factors in s 276(3) in the context of the aims and objectives of s 276, I conclude an appropriate balancing of the interests of the accused and complainant is achieved by permitting the Accused to cross-examine the complainant on the proposed areas if required to impeach her credibility on the timing and nature of the relationship and motive to fabricate. [ 105 ] The proposed evidence meets the test in Goldfinch such that the absence of the evidence would render the Accused’s evidence that the Complainant lied to police and fabricated the events “untenable or utterly improbable”.

The Complainant would be unimpeachable on those critical points and events in the timeline that she provided police. [ 106 ] However, I find that the sexually explicit messages are highly prejudicial and go beyond meeting the requirements of the stated purpose. The Applicant argues that they are necessary to demonstrate the extent of the Complainant’s lies. I disagree. [ 107 ] The legislative changes sought to expose and eliminate the insidious nature of the Twin Myths.

I believe that using the sexually explicit messages and photos will, whether deliberately or inadvertently, damage the credibility and dignity of the Complainant for the purpose of tarnishing her reputation, inciting sentiments of bias, and distorting the truth-seeking function of the trial. Achieving the purpose of impeaching the complainant’s credibility on certain facts about the relationship, the timeline, and any motive to fabricate does not require attacking her dignity and exposing her to unnecessary embarrassment. There are hundreds of other messages that will achieve the stated purpose.

As mentioned, t he right to cross-examination is not unlimited, and the accused is not entitled to procedures that would distort the truth-seeking function of a trial by permitting the use of prejudicial and irrelevant material. [ 108 ] Further, there is a danger that the jury may conclude that since the complainant had been sending explicit signals that she was interested in sexual activity with the Accused, she was therefore more likely to have consented to the sexual activity that is at the heart of the charges. [ 109 ] For the reasons stated, some of the messages must be redacted as follows before being adduced at trial: - sexually explicit words and nude photos in Exhibits A & C to the Accused’s s 278 Application [ 110 ] The risks associated with admission of the other sexual activity evidence may be attenuated by: (

i) use of an agreed statement of fact; (ii) absence of any salacious details; and (iii) election to be tried by judge alone: Kapustinsky at para 85 . [ 111 ] The use of an agreed statement of facts, as suggested by the Supreme Court in Goldfinch at para 75 , gives the Court better

control over the other sexual activity evidence. However, in this case, it may not be possible to agree to the facts since it is anticipatedthat the Complainant will deny the relationship.

It is the Complainant’s credibility that is directly implicated in cross-examination of herstatements to police. [112] Given the voluminous nature of the records and inability to predict at this time which of the specific messages might berequired, if the Complainant denies the existence and nature of the relationship during her examination in chief, counsel must then seekthe court’s guidance on what materials can be used in a further voir dire prior to commencing the cross-examination of the Complainant. D.

Conclusion on this application [113] The proposed evidence reveals inconsistencies which have significant probative value. At best, they demonstrate materialinconsistencies and, at worst, a motive and propensity to lie. Indeed, there would be prejudice to the proper administration of justice ifthe application to cross-examine was not granted as it would prevent the accused from advancing a full answer and defence. [114] I am satisfied that the proposed evidence is relevant to the complainant’s credibility and reliability which will be the centralissue at trial.

I am further satisfied that the probative value greatly outweighs any prejudicial effect. Finally, I am further satisfied that itis not being advanced for either of the Twin Myths. [115] I find that the evidence may be adduced without the salacious details in the specific references I parsed out above. As noted inRV at para 64, the Accused may meet his objective without resort to this highly prejudicial evidence.

Out of an abundance of caution, thequestion of what specifically must be redacted from the messages to be used will be revisited in a voir dire prior to cross-examination ofthe Complainant. [116] This avoids any risk of undue intrusion on the dignity of the Complainant, or sensationalism surrounding the sexual nature ofthat evidence, and satisfies the concerns raised by ss 276(3)(b,d,g).

It would also allay the concern about arousal of prejudice in the mindof the jury (s 276(3)(e)). [117] Finally, in order to reduce the risk that the trier of fact might apply stereotypical or discriminatory reasoning, a limiting juryinstruction will be required cautioning the jury that the only significance of this evidence is in relation to the effect of the inconsistentstatements on the complainant's credibility and a possible motive to lie.

The jury must not infer from the parties prior sexual relationshipor the complainant’s messages that she was therefore more likely to have consented to the sexual activity that forms the subject-matter ofthe charges.

Section 278.92 Application [118] Sections 278.92 to 278.94 were designed to protect the interests of complainants in their own private records when an accusedhas possession or control of the records and seeks to introduce them at a hearing in their criminal proceeding.

Specifically, they createprocedures and criteria to assist the judge in deciding whether the records should be admitted, balancing the rights and interests of theaccused, the complainant, and the public. [119] Like s 276, s 278.93 is designed to prevent unwarranted fishing expeditions that had occurred in the past, and to ensure thatneither the in camera procedure, nor the trial become forums for demeaning and abusive conduct by defence counsel: R vSeaboyer, (SCC), [1991] 2 SCR 577 at 636. [120] The application under s 278.93 is to determine whether form and notice aspects of the application were statutorily-compliantand to determine whether the evidence sought to be adduced is capable of being admissible under s 276(2).

If satisfied of these matters, ahearing is held under s 278.94 to determine whether the evidence is admissible. [121] Thus, like s 276, s 278.92 requires a two-stage hearing. The initial stage involves only a “facial” consideration of the potentialadmissibility of the proposed evidence, [122] At the stage two hearing, the presiding judge decides whether the proposed evidence meets the tests for admissibility.

The testfor admissibility is whether the evidence is relevant to an issue at trial and has significant probative value that is not substantiallyoutweighed by the danger of prejudice to the proper administration of justice. This determination is made in accordance with the factorslisted in s 278.92(3).

Other than the additional factor set out in s 278.92(3)(c) – i.e., society’s interest in encouraging complainants insexual offence cases to obtain treatment, the factors are the same as those set out in s 276(3). [123] Complainants are permitted to appear at the Stage Two hearing and make submissions, with the assistance of counsel, if theyso choose. A.

Stage One [124] At Stage One, the presiding judge reviews the accused’s application to determine whether the evidence sought to be adduced iscapable of being admissible. [125] For applications under the record screening regime, if the judge determines that the proposed evidence is not a “record”under s 278.1, the application will terminate. If the proposed evidence is a “record” but the judge concludes that it is not capable of beingadmissible, the application will be denied. If the evidence is a “record” and it is capable of being admissible, the application proceeds toa Stage Two hearing.

[ 126 ] A record is defined in s 278.1 as: “any form of record that contains personal information for which there is a reasonable expectation of privacy and includes medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence” [ 127 ] The SCC explained that this definition in fact creates two distinct groups: (1) records that fall within the enumerated categories; and (2) records that do not fall within the enumerated categories but otherwise contain personal information for which there is a reasonable expectation of privacy: JJ at para 38 .

In brief, t he definition captures records which contain personal information of an intimate or highly personal nature that is integral to the complainant’s overall physical, psychological or emotional well-being: JJ at para 42. [ 128 ] At stage one of the hearing, I ruled some of the documents were not ‘records’ and therefore did not form part of the s 278.92 screening regime, as there was no expectation of privacy. The Accused included them out of an abundance of caution, as suggested by JJ at para 72.

Those that I ruled are not included are: • The Facebook messages between the Complainant, the Accused, and a third party as there was nothing of a personal nature discussed; • An affidavit filed by the Complainant in a family proceeding as there can be no expectation of privacy in a sworn affidavit; • Text messages between the Complainant’s father and the Accused’s father. [ 129 ] The messages that I ruled do form part of this regime are: • 663 pages of Facebook messages between the Complainant and the Accused; • 141 pages of text messages between the Complainant and the Accused; • 5 recordings taken by the Accused between April 12th and April 14th. [ 130 ] Not all of the nearly 800 messages directly relate to subjects in which the Complainant has an expectation of privacy.

However, I found they could not be separated from the analysis since they form part of an ongoing discussion and are the background that leads to the portions that do touch on subjects involving the Complainant’s mental health, in which there is an expectation of privacy. [ 131 ] I was satisfied that the form and content of the application is sufficient to satisfy s278.93(2), and that the evidence was capable of being admissible under s278.92(2). I concluded that the above list of records is capable of being admissible for the following reasons:

a) they contradict what the Complainant told police about the nature of the relationship between December 10, 2019, and April 15, 2020, and therefore go to the Complainant’s credibility;

b) they may be used to impeach the Complainant’s timeline of events;

c) they may be used to demonstrate a motive to fabricate. A. Stage Two [ 132 ] In JJ , the SCC explained that private records are analogous to s 276 evidence, as they can also implicate the twin myths that are insidious and inimical to the truth-seeking function of the trial. Like s 276 evidence, private records encroach on the privacy and dignity of complainants. They too require screening to ensure trial fairness under ss 7 and 11(

d) of the Charter . [ 133 ] The SCC further explained that t he accused’s right to a fair trial does not include the unqualified right to have all evidence in support of their defence admitted. The admissibility threshold of the record screening regime establishes that private records are only admissible if 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 (at para 127). This is also one of the conditions for s 276 evidence, which has been constitutionally upheld by the Court.

Both regimes seek to protect complainants against harmful myths and stereotypes. The right to make full answer and defence will only be violated if the accused is prevented from adducing relevant and material evidence, the probative value of which is not outweighed by its prejudicial effect. The admissibility threshold in the record screening regime does not give rise to such a violation. [ 134 ] In my view, the same reasoning applies in respect of the criteria set out in s 276 and s 278. The proposed evidence reveals inconsistencies which have significant probative value.

At best, they demonstrate material inconsistencies and, at worst, a motive and propensity to lie. Indeed, there would be prejudice to the proper administration of justice if the application to cross-examine was not granted as it would prevent the accused from advancing a full answer and defence. [ 135 ] I am satisfied that the proposed evidence is relevant to the complainant’s credibility which will be the central issue at trial. I am further satisfied that the probative value greatly outweighs any prejudicial effect. Finally, I am further satisfied that it is not being advanced for either of the Twin Myths.

Without the proposed evidence, the Accused would be unable to challenge the Complainant’s assertion that he was removed from her family’s house because of the alleged first incident, and that their relationship ceased at that point. Such evidence would point to serious inconsistencies with the statements made by the Complainant to the police. [ 136 ] However, in the hundreds of pages of messages and the audio, there are numerous references that touch upon the Complainant’s mental health issues or discuss suicidal ideation.

In my view, these are highly sensitive topics in which the Complainant would have an expectation of privacy. As with my ruling above in respect of the sexually explicit messages, the references to the Complainant’s mental health are not required to achieve the purpose of impugning her credibility on the relationship issues. Use of the entirety of the messages

could be prejudicial given the potential for societal stigma about mental health. [ 137 ] Prior to any cross-examination of the Complainant, if any text messages intended to be used contain references to mental health issues or suicidal ideation, those passages must be redacted.

Counsel may seek guidance in a voir dire prior to the cross-examination, if required. [ 138 ] In my opinion, without the redactions, the proposed cross-examination would be unreasonably intrusive and act as a deterrent to reporting of sexual offences. [ 139 ] I have attempted to balance the Accused’s right to make full answer and defence with society’s interest in encouraging the reporting of sexual assault offences while attempting to remove any discriminatory beliefs or biases.

I believe that the redacted evidence will assist the jury in arriving at a just determination in the case and will not unduly arouse any sentiment of prejudice, sympathy or hostility. I realize I will be the gatekeeper to preserve these goals as the trial unfolds. B. Conclusion on this application [ 140 ] The accused may adduce evidence (redacted as noted above) from the period between the first alleged incident and the reporting of the allegations, that demonstrate that he and the complainant were communicating by text and Facebook.

He may also adduce evidence that he and the complainant were in a child custody dispute just prior to the reporting of the allegations. 7. Decision [ 141 ] In

summary, I grant the Accused’s applications under s 276 and 278. I find that the Accused may adduce the proposed evidence to

i) cross-examine the Complainant with respect to a motive to fabricate; iii) cross-examine the Complainant with respect to inconsistent statements vis a vis her statements made to the police and possible trial testimony respecting the status and nature of the parties’ relationship, in particular after the alleged first incident; and iii) allow the Accused to testify as to their prior and allegedly ongoing sexual and intimate relationship. However, the evidence can only be adduced if the intimate and private details as discussed above are removed.

Given that the use of any specific message is unknown at this time, rather than making a determination on each of the over 800 messages, a further voir dire may be required prior to cross-examination to assess what portion of the records will need to be redacted. Heard on the 7 th and 8 th days of September, 2022. Dated at Peace River, Alberta this 25th day of October, 2022 . Honourable Justice A. Loparco J.C.K.B.A. Appearances: Robert Lavalley Liberty Law for the Accused Sheldon Ostopowich Alberta Justice for the Crown Lisa Trach & Melissa Erickson

Trach Law for the Complainant _______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Justice A. Loparco _______________________________________________________ The Docket number was corrected.