R v Brennan, 2024 ABKB 35

Court of King’s Bench of Alberta Citation: R v Brennan, 2024 ABKB 35 Date: 20240122 Docket: 210591137Q1 Registry: Edmonton Between: His Majesty the King Crown - and - Allen Brennan 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(1) Information that could identify the Complainant shall not be published, broadcast, or transmitted in any way.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 . ____________________________________________________ Memorandum of Decision of the Honourable Justice A. Loparco _______________________________________________________

I. Preliminary: Order Permitting Publication [1] Pursuant to s 278.95(1)(

d) of the Criminal Code, RSC 1985, c C-46 (Criminal Code), I order that this decision may bepublished, but not until after the completion of the jury trial on this matter, currently scheduled for February 5-9, 2024. II. Overview [2] Allen Brennan (Accused) is charged with one count of sexual assault against the Complainant on December 15, 2020,contrary to Criminal Code s 271. [3] The Accused and the Complainant were in a sexual relationship for approximately 9 months.

The Complainant alleges thaton December 15, 2020, the Accused did not wear a condom before engaging in sexual intercourse with the Complainant, despite herrequest. The Accused deposes that the Complainant merely suggested the use of a condom as an option to increase intimacy, but not as apre-condition to sexual intercourse on this occasion. III. Background [4] The Accused made a previous application pursuant to Criminal Code s 276 to introduce evidence of the sexual relationshipbetween him and the Complainant for the purpose of supporting the Defence theory that the Complainant had a motive to fabricate.

TheCrown agreed that the Complainant could be cross-examined on the alleged motive to fabricate and sought a ruling pursuant to R vSeaboyer; R v Gayme, (SCC) [Seaboyer] for the purpose of examining the Complainant and cross-examining theAccused in response to the Defence. [5] On June 30, 2022, both applications were granted. The Accused is permitted to cross-examine the Complainant on the natureof the relationship and the breakdown, including communications that occurred after the alleged sexual assault.

The cross-examination isrestricted to the topic of the Complainant’s disappointment over the Accused’s lack of affection, the breakdown of the relationship, andher feeling about the Accused ignoring her and refusing to disclose the affair to his wife. In response, the Crown is permitted to ask theComplainant about the nature of their open relationship and what expectations and values the Complainant held.

This will give theComplainant an opportunity to explain why she was upset by the breakdown and the Accused’s refusal to disclose the relationship to hiswife and give context to the statement she made prior to the sexual activity that is the subject-matter of the allegation, being: “No, wait,stop, you need to use a condom this time.” [6] I held that the Complainant’s evidence is to not be limited to her upset feelings after the breakup.

A proper response to theAccused’s allegation that the Complainant had a motive to fabricate will require a full explanation of the relationship dynamics tomitigate inferences drawn from myths surrounding a “woman scorned” and delayed reporting to police. A jury charge may be needed toaddress the dangers of relying on those myths. That decision should be made by the trial judge who hears the whole of the evidence andis most suited to determine whether specific instructions are needed. [7] On December 19, 2023, the Accused made a further application pursuant to Criminal Code s 276.

The Accused now alsoseeks permission to cross-examine the Complainant and lead evidence in the Defence case that 1) the Accused and the Complainantpreviously discussed condom use as a means of enhancing intimacy between them; and 2) the Accused and the Complainant did nottypically use a condom during sexual intercourse and instead would pull out prior to ejaculation to mitigate pregnancy. IV. The Proposed Evidence [8] In an Affidavit dated November 30, 2023, the Accused deposed that he was in a sexual relationship with the Complainantfrom the spring of 2020 until December 2020.

He estimates that they had sexual intercourse on seven occasions during that time,including the last time on December 15, 2020, which is the date of the alleged offence. During all previous incidents of sexualintercourse, the parties employed the pull-out method to mitigate pregnancy.

In the Complainant’s police interview, the Complainantstates that not using a condom and using the pull-out method was the parties’ usual practice prior to the night in question, of which sheapproved. [9] With respect to the alleged offence, the Complainant is expected to testify that before the sexual intercourse on December15, 2020, she stated, “No, wait, stop, you need to use a condom this time.” The Accused is expected to testify that the Complainantasked, “Hey, wanna try a condom?” The Accused declined after which the parties engaged in sexual intercourse using the pull-outmethod. [10] The Accused argues that the proposed evidence is critical for the jury to consider in relation to whether condom use was apre-condition to consent to the sexual activity in question.

Where condom use is a condition of a complainant’s consent to the sexualactivity in question, it will form part of the sexual activity in question and the consent analysis under Criminal Code s 273.1: R vKirkpatrick, 2022 SCC 33 [Kirkpatrick] at para 102. [11] The Accused argues that the context surrounding the parties’ understanding of condom use is relevant. Specifically, theparties had a mutual understanding that a condom would not be used during sexual intercourse, and the Accused would pull out prior toejaculation.

Also relevant are prior discussions via text message and in-person between the Accused and the Complainant during whichthe Complainant expressed an interest in using a condom solely for the purpose of enhancing intimacy. Specifically, they discussed thatthe condom would negate the need for the Accused to pull out, thereby allowing him to climax inside the Complainant without riskingpregnancy. The Accused deposes that he was not inclined to use a condom for this purpose as he was married and viewed climaxing

inside another woman as a breach of his personal moral code. [12] The Accused is no longer in possession of any text messages between him and the Complainant. As such, the Accused reliesonly on Criminal Code s 276 for his application. V.

The Statutory Regime [13] The statutory regime outlined in Criminal Code s 276, 278.93, and 278.94 (276 Regime) is designed to respect both anaccused’s right to full answer and defence, and a complainant’s right to a respectful judicial process free of any sexist myths: R vGoldfinch, 2019 SCC 38 [Goldfinch] at para 2; R v Barton, 2019 SCC 33 at para 57-58 [Barton]; R v RV, 2019 SCC 41 at para 2 [RV].The 276 Regime, along with its history and purpose, is discussed in Barton at paras 59-65 and Goldfinch at paras 28-38. [14] The 276 Regime reflects Parliament’s acknowledgement that sexual offence trials are not an occasion for putting acomplainant'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.

Cross-examination techniques that are designed to put a complainant, rather than an accused, on trial are abusive, and distort, rather thanenhance the search for the truth: R v Shearing, 2002 SCC 58 at para 76. [15] Criminal Code s 276(1) makes any evidence of sexual activity by a complainant that does not form the subject-matter of thecharge with an accused or anyone else (other sexual activity) inadmissible to support an inference that the complainant: (

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

b) is less worthy of belief (twin myths). Evidencedirectly or indirectly designed to have this effect is not relevant and not permitted. [16] The provisions governing the admissibility of evidence of other sexual activity are set out in Criminal Code s 276(2) inaccordance with the factors listed in Criminal Code s 276(3). These provisions require the Court to act as a gatekeeper through which theproposed evidence is screened to ensure that it is not being admitted for improper purposes. [17] Pursuant to Criminal Code s 276(2), evidence of a complainant’s other sexual activity is inadmissible unless the Courtdetermines that the proposed evidence: (

a) is not being adduced for the purpose of supporting a twin myths inference; (

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 ofjustice. [18] The words “specific instances of sexual activity” in Criminal Code s 276(2)(

c) 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 acomplainant and distort the trial process: RV at para 48, citing R v LS, 2017 ONCA 685 [LS] at paras 79-80.

The degree of specificityrequired depends on the circumstances of the case, the nature of the sexual activity that an accused seeks to adduce and the use to bemade of that evidence: RV at para 49, citing LS at para 83 and Goldfinch at para 53. [19] With respect to Criminal Code s 276(2)(d), an accused need not demonstrate strong and compelling reasons for admission ofthe evidence. Nevertheless, the evidence is not to be so trifling as to be incapable of, in the context of all the evidence, raising areasonable doubt. The wording of the

section serves to direct trial judges to consider the serious ramifications of using evidence of othersexual activity in recognition that it is inherently prejudicial: R v Darrach 2000 SCC 46 at paras 39-41. [20] In determining whether evidence is admissible under Criminal Code s 276(2), a Court shall take into account the factors underCriminal Code s 276(3), namely: (

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

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

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

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

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

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

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

h) any other factor that the judge, provincial court judge or justice considers relevant. [21] The admissibility of evidence of other sexual activity is examined in a two-stage proceeding. The first stage is a preliminaryscreening of the application under Criminal Code s 278.93 (Stage One). Stage One takes place in camera: s 278.93(3). The Accused

must particularize in writing the evidence they seek to adduce and explain its relevance to an issue at trial. If the statutory preconditionsof Criminal Code s 287.93 are not met, the application will terminate. If the proposed evidence is not relevant or capable of beingadmitted under s 276(2) of the Criminal Code, the application will be denied. The threshold for the analysis at Stage One is low.

TheCourt need only determine whether the proposed evidence is “capable of being admissible.” The Court conducts only a facialconsideration of the matter, with any doubts that exists as to the admissibility of the evidence left to be determined during the secondstage voir dire hearing: R v SL, 2018 ABQB 889 at para 9; R v AM, 2020 ONSC 4541 at para 32; R v Sandhu, 2021 ABQB 614 at para30.

If that threshold is met, the application proceeds to a full hearing in a voir dire pursuant to Criminal Code s 278.94 for adetermination as to whether the evidence is actually admissible under Criminal Code s 276(2) (Stage Two). [22] At Stage One, it is sufficient that an accused’s exculpatory version of events is capable of casting him in an unfavourable lightthat makes his evidence untenable or utterly improbable if his words and actions are judged absent the information sought to be admittedunder Criminal Code s 276: Goldfinch at para 68; see also R v Temertzoglou, at para 27 (ON SC).

The standard iswhether the proposed evidence has a reasonable possibility of admissibility: R v Harnett, 2022 ABQB 122 at paras 12-13. [23] The key questions at Stage One are 1) is the proposed evidence sufficiently well-defined and circumscribed to serve a properpurpose?; and 2) can the accused articulate the mechanism of relevance to which those specific facts relate?

If the application proceeds toStage Two, then the relevance mechanism, the overall balancing of interests, and the probative and prejudicial value of the evidence areexamined in detail: R v Kapustinsky, 2020 ABQB 611 at para 23. [24] To be relevant to an issue at trial, the proposed evidence must have some tendency to make the proposition for which it isadvanced more likely than the proposition would be otherwise: see R v Calnen, 2019 SCC 6 at para 108. [25] Criminal Code s 276(1) sets out an absolute bar against introducing evidence of other sexual activity for the purpose ofdrawing twin myths inferences: RV at para 44.

If the evidence proposed potentially elicits one of the twin myths, the evidence may stillbe admitted for a separate and legitimate purpose: Goldfinch at para 93. Evidence of a prior sexual relationship may be admitted for itsnon-sexual features, such as to show a pattern of conduct or a prior inconsistent statement: Darrach at para 35. Bare assertions that theproposed evidence will be relevant to credibility, context, or narrative cannot satisfy the test: Goldfinch at para 51.

Where theComplainant’s credibility is the reason for the requested admission, the proposed evidence must have a material impact on the credibilityassessment and cannot lead to twin myths reasoning: Goldfinch at para 124. [26] The question of what sexual activity is included in the “sexual activity in question” will depend on the facts of the case:Kirkpatrick at para 102. Sex with a condom is a distinct physical act from sex without a condom. Consent to sex with a condom does notalso mean consent to sex without a condom: Kirkpatrick at para 2.

If the Complainant conditioned her consent on the use of a condom, itwill form part of the “sexual activity in question”: Kirkpatrick at para 102. VI. Analysis A. Stage One [27] In this case, the Crown concedes that the Accused’s application meets the Stage One threshold. After reviewing theAccused’s materials, I agree. The Application materials meet the procedural and temporal requirements in ss 278.93(2) and (4) forholding a hearing under Criminal Code s 278.94.

The requirements that the proposed evidence is not being adduced to support twinmyths reasoning, that it is relevant to an issue at trial, and that it constitutes specific instances of sexual activity are also met. Theevidence is sufficiently well-defined and circumscribed to serve a proper purpose. The mechanism of relevance to which the facts relateis also sufficiently articulated.

The Accused has demonstrated that the question of consent or his possible honest but mistaken belief incommunicated consent is predicated on the understanding between the parties based on prior interactions and relate to 1) the purpose ofthe condom use; and 2) whether the condom was a condition of consent to the sexual activity in question and thus, formed part of thesexual activity in question. [28] The Accused seeks to rely on the evidence to support his understanding that the condom was an option, not a pre-condition, tothe sexual activity in question.

As such, the Accused is not seeking to adduce the evidence for the purpose of supporting twin mythsreasoning and thus, meets the threshold for a Stage Two hearing pursuant to Criminal Code s 276(2)(a). However, this does not concludethe assessment of whether the twin myths are implicated by the introduction of the proposed evidence.

They remain an important part ofthe balancing exercise and factors under Stage Two of the analysis and pursuant to Criminal Code s 276(3). [29] The Accused’s materials, as supplemented by Defence counsel’s oral submissions, set out the relevance of prior conversationsbetween the Complainant and the Accused about condom use.

Although some of the proposed evidence is about text messages betweenthe parties, the Accused is no longer in possession of those text messages. [30] The Accused submits that for him to advance a defence of consent or honest but mistaken belief in communicated consent, thejury needs to hear about prior conversations about condom use for the sole purpose of enhancing intimacy and not as a pre-condition tosexual intercourse.

The parties’ understanding that the purpose of a condom was for increased intimacy would be untenable unless theAccused is permitted to impugn the Complainant’s credibility on whether her consent to the sexual activity in question was predicated oncondom use or whether it was an option that would improve their experience and level of intimacy.

The Accused argues that evidence ofprior sexual intercourse without a condom is also necessary for the jury to understand that, based on prior conversations about condomuse, the Accused had an understanding that condom use was optional during the sexual activity in question. [31] With respect to Stage One, the evidence has an reasonable possibility of admissibility. The Accused would be cast in anunfavourable light if the trial were to proceed solely on the evidence that the Complainant demanded condom use, and the Accusedignored her and proceeded with sexual intercourse without a condom and against her wishes.

B. Stage 2 [32] The Complainant exercised her Stage Two participatory rights with the assistance of counsel to oppose the Accused’sapplication in its entirety. The Complainant argues that the evidence implicates the twin myths in a highly prejudicial manner. Theparties’ respective understanding of condom use is not relevant just as the use of a sex toy would not be relevant if it was for the purposeof increasing intimacy. The Complainant argues that the demand for condom use during the sexual activity in question was clear and thequestion of whether it was an option is not made out in the evidence.

Further, the defence of honest but mistaken belief in communicatedconsent cannot arise from any prior conversations between the parties regarding condom use. The relevant conversations are too distantin time and advanced consent is not permissible at law. [33] The Crown argues that the Accused has met the test in Criminal Code s 276(2) with respect to the parties’ conversationsabout condom use to enhance intimacy but not with respect to the parties’ usual practice of not using a condom during sexual intercourseand pulling-out prior to ejaculation.

The Crown also cross-applies to adduce evidence through direct examination of the Complainant andcross-examination of the Accused regarding the parties’ conversations about condom use to enhance intimacy. 1. Relevance to an Issue at Trial [34] The Accused argues that the proposed evidence is relevant to his understanding of consent at the time of the sexual activity inquestion based on prior conversations between him and the Complainant as to the purpose of introducing a condom to their sexualactivity.

Specifically, he submits that the parties had a mutual understanding that a condom was like the addition of a sex toy to improvethe experience and not a pre-condition for consent to the sexual activity in question. A condom was to be an optional intimacy enhanceras opposed to any sort of protection.

To put the conversations about condom use into context, the Accused seeks to adduce evidence ofthe parties’ usual practice of not using a condom during sexual intercourse and pulling out prior to ejaculation. [35] There is a significant divergence in the narratives of the Complainant and the Accused in relation to condom use during thesexual activity in question. The Accused will testify that he understood that the Complainant only suggested they use a condom.

TheComplainant will testify that she made condom use a pre-condition to the sexual activity in question. [36] The Accused wants the jury to hear evidence of 1) prior conversations about condom use, and 2) prior sexual intercoursewithout a condom as they collectively define the nature of condom use as an optional intimacy enhancer and so that they can then usethis information to evaluate the credibility of the Complainant.

Evidence on this point is therefore relevant to understanding the purposeof condom use during the sexual activity in question to determine whether the Complainant was proposing it as a condition of the sexualactivity in question or an optional add-on.

The evidence is relevant to the issues of consent or honest but mistaken belief incommunicated consent and to credibility in respect of what the Complainant said to the Accused. [37] The Accused submits that the proposed evidence will be adduced for the sole purpose of demonstrating that the parties had anunderstanding about the nature of condom use as optional and to increase intimacy, and not to support any twin-myths inferences.Specifically, the Accused seeks to use the proposed evidence to demonstrate that the Complainant’s suggested condom use in relation tothe sexual activity in question was based on the parties’ mutual understanding gained from their prior conversations about condom useand their usual practice of not using a condom during sexual intercourse and instead pulling out prior to ejaculation.

The Accused arguesthat without this evidence, the jury would be left with a distorted picture of the interaction, which is what occurred in R v Harris, (ON CA) [Harris]. [38] In Harris, the trial judge refused to allow evidence of an incident of prior sexual activity between the accused and thecomplainant. At trial, the complainant testified that she was shocked when the accused asked her if they were “going to have sex” on thenight of the alleged offence.

The Appeal Court found that credibility was the only issue in the case (para 47), and concluded that once thecomplainant testified in chief, the proposed evidence became relevant and highly probative of the issue of credibility. The probativevalue of the evidence did not depend upon resort to twin myths inferences by suggesting some connection between the prior sexualactivity and a lack of veracity but in its ability to contradict specific evidence given by the complainant that was central to her version ofthe relevant events (para 50).

By failing to permit the accused to lead evidence of another incident of sexual activity between the accusedand the complainant, the jury was deprived of the tools needed to fully and fairly assess the conduct of the parties during the sexualactivity in question and the believability of their respective positions (para 49).

A sharp warning from the trial judge that the evidence ofthe prior incident of sexual activity could only be used to assess the complainant's credibility in relation to the specific events formingthe subject-matter of the charge and not to draw twin myths inferences would have overcome any possible prejudice resulting from itsadmission (para 50). 2. Specific Instances of Sexual Activity [39] The two areas of evidence proposed in the Accused’s Affidavit are sufficient to meet the requirement for the evidence torelate to specific instances of sexual activity as contemplated by Criminal Code s 276(2)(c). 3.

Probative Value v Prejudicial Effect [40] The specific use of the proposed evidence is to determine whether the Complainant and Accused had an understanding as tothe purpose of condom use. a. Prior Conversations About Condom Use [41] The Accused argues that the proposed evidence of prior conversations about condom use, both by text message and in person,is critical to rebutting the Complainant’s anticipated testimony that during the sexual activity in question, she made condom use a pre-condition to the sexual activity.

The purpose is twofold 1) to determine whether the parties’ understood condom use to be an optional

intimacy enhancer and not part of the sexual activity in question; and, 2) whether the Complainant is believable that during the sexual activity in question, she made condom use a pre-condition to that sexual activity. [ 42 ] The Accused will testify that he and the Complainant had conversations in the past in which the Complainant indicated an interest in using a condom during sexual intercourse to enhance intimacy between them and not as a pre-condition of consent to that sexual activity.

If a jury accepts the Accused’s evidence about these conversations, they may find it supports his version of events that during the sexual activity in question, the Complainant offered condom use as an option for the parties to consider, and stated: “Hey, wanna try a condom?” [ 43 ] I agree with the Accused that the proposed conversations are relevant to evaluating the Complainant’s credibility with respect to what she communicated to the Accused about condom use in relation to the sexual activity in question.

The proposed conversations are circumstantial evidence that directly addresses the Complainant’s subjective non-consent to the sexual activity in question. They are also relevant to the Accused’s state of mind at the relevant time as to whether he held an honest belief that condom use was not a pre- condition to consent to the sexual activity in question. Although it is not clear whether this defence will crystalize at trial, the Accused must have the option to full answer and defence, including potential defences.

To raise the defence of honest but mistaken belief in communicated consent, the Accused will nevertheless need to show that he had had an honest but mistaken belief that the Complainant had communicated her consent by words or conduct, and that he took reasonable steps in the circumstances to ascertain consent. [ 44 ] A consideration of the factors weighs in favor of permitting the proposed cross-examination of the Complainant and direct examination of the Accused with respect to the conversations about condom use.

Evidence about the parties’ prior conversations about condom use would ensure that the jury hears both parties’ understanding of the purpose of condom use to determine whether condom use formed part of the actus reus or mens rea for the sexual activity in question. Evidence about the conversations regarding condom use is critical to this assessment and in line with the factors outlined in Criminal Code ss 276(3)(

a) and (c). [ 45 ] Society’s interest in encouraging the reporting of sexual offences ( Criminal Code s 276(3)(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 also has an interest in ensuring that the offences reported are truthful: R v AI , 2020 BCSC 1791 at para 132 . [ 46 ] Evidence of the proposed conversations would not introduce discriminatory belief of bias or risk unduly arousing sentiments of prejudice, sympathy, or hostility in the jury ( Criminal Code ss 276(3) (

d) and (e)). Nor would it prejudice the Complainant’s dignity or privacy ( Criminal Code s 276(3)(f)) or unduly impact on the personal security of the Complainant ( Criminal Code s 276(3)(g)). b. Other Sexual Activity [ 47 ] The Accused submits that he will not be introducing evidence of each and every incident of sexual intercourse without a condom and seeks only to reference the parties’ usual practice.

However, the Accused argues that he needs to go beyond the conversations about condom use and adduce evidence of the parties’ usual practice of not using a condom during sexual intercourse and pulling out prior to ejaculation to ensure he is afforded his right to full answer and defence. [ 48 ] The Accused argues that if the jury believes that the sexual activity in question was the parties’ first sexual interaction, the jury might consider the words, “Hey, wanna try a condom?” to be a strict condition coached in polite language by the Complainant. I disagree.

The words, if believed, convey a question, not a condition. What the jury accepts as fact will depend on their credibility assessment of the response received to the question and any other words or actions taken as a whole. [ 49 ] I do not believe the jury will be left in a factual vacuum if they do not hear evidence about prior sexual intercourse without a condom. Evidence about the parties’ conversations about condom use will alert the jury to the fact that the parties previously discussed condom use as a means of enhancing sexual intimacy.

As such, the Accused’s evidence regarding consent or honest belief in communicated consent would not be untenable or improbable without the evidence of prior sexual intercourse without a condom. [ 50 ] The need to resort to questions about the parties’ prior sexual activity is reduced because the Accused can advance his theory without referring to that sexual history: see RV at para 64. The Accused’s ability to make full answer and defence will not be impaired as he will be able to provide the necessary context to give his testimony effect.

The Accused’s evidence that supports his understanding that condom use was an option to enhance intimacy will be available to the assessment of consent and/or honest but mistaken belief in communicated consent. Going further to show that the parties previously engaged in sexual intercourse without a condom would discourage the reporting of sexual offences and does not assist in arriving at a just determination of the case.

Rather, it risks overwhelming the analysis with discriminatory belief of bias, and unduly arousing sentiments of prejudice, sympathy, or hostility in the jury. [ 51 ] Even with an appropriate jury instruction on the question, the dignity and privacy concerns of the Complainant would be irremediably impaired due to pervasive myths and stereotypes that would paint her in an unfavourable light and unfairly damage her credibility. This cannot be saved by circumscribing the cross-examination to eliminate any other details of the prior sexual activity.

Merely allowing the Accused to rely on the parties’ usual practice of not using a condom during sexual intercourse and pulling out prior to ejaculation still risks undue prejudice. [ 52 ] The fact that the Complainant advised police that she was not opposed to sexual intercourse with the Accused without a condom provided he pulled out does not make the evidence any less prejudicial or impermissible.

It is not significantly probative as to outweigh the dangers of prejudice to the proper administration of justice. [ 53 ] The Accused’s ability to make full answer and defence is only one of the factors to be considered. It must be balanced against the dangers to the other interests protected by Criminal Code s 276(3). When balancing these interests, appropriate consideration must be given to the interests of both parties: RV at paras 40-41.

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: R v JJ , 2022 SCC 28 [ JJ ] at para 185 . The value of the proposed evidence must be measured against the possible harm that may befall the Complainant: RV at para 64; Goldfinch at para 69 .

The right to cross-examine is not unlimited and must be balanced by countervailing factors such as the potential prejudice to the Complainant and the trial process itself: JJ at para 184. [ 54 ] The Accused submits that there would be a factual vacuum if there are references to conversations about condom use without linking them to prior sexual intercourse without a condom. I disagree. [ 55 ] The Accused can appropriately argue his case without reference to prior sexual intercourse without a condom. The additional limits are necessary to protect the Complainant’s dignity, privacy, and equality interests.

If the jury hears that during prior incidents of sexual activity between the Accused and the Complainant, the Complainant raised the issue of condom use but then consented to sexual intercourse without a condom, the prejudicial effect will outweigh the probative value of the evidence and stir up twin-myths reasoning.

It tempts the prejudicial reasoning that the Complainant is less worthy of belief because of prior sexual intercourse with the Accused without a condom and the incorrect reasoning that her prior consent to sexual intercourse with the Accused without a condom makes her more likely to have consented on this occasion. [ 56 ] Whether the parties had a usual practice of not using a condom during sexual intercourse is irrelevant to the Complainant’s consent to the sexual activity in question based on contemporaneous communications and what the jury accepts as to the words uttered by the Complainant.

This is distinct from the situation where a signal used by the parties on previous occasions was understood to constitute a trademark way of communicating consent or the withdrawal of consent: see for example R v MC , 2022 ONSC 2794 at paras 16 , 79-80. [ 57 ] The Accused’s version of events is not untenable or utterly improbable without evidence of prior sexual intercourse without a condom as it is explained by the conversations about condom use. The jury will already hear that the parties were in a sexual relationship to address the question of whether the Complainant had a motive to fabricate.

Whether the parties had prior sexual intercourse without a condom would unduly prejudice the jury’s ability to determine what defined the sexual activity in question (i.e., with or without a condom). The jury is open to conclude that past sexual activity between the Accused and Complainant included a condom or did not involve vaginal-penile intercourse.

Attempted reliance on usual practices during prior sexual activity to establish consent or mistaken belief in communicated consent directly implicates the twin myths. [ 58 ] In the Accused’s previous application before this Court with respect to motive to fabricate, the Accused disclaimed reliance on the Complainant’s consent to sexual activity on previous occasions, the mode and circumstances in which that consent was given, or whether it involved a condom.

I determined that the jury need only understand the relationship dynamics and the moral expectations, and not the specific nature of the sexual activity, or whether a condom was previously used, or expected to be used. The evidence I permitted be introduced would therefore minimally engage the parties’ prior sexual history. [ 59 ] This application does not change my perspective on whether evidence of prior sexual intercourse without a condom is relevant and necessary to the Accused’s defence.

The Complainant’s ability to explain what she meant by “you have to use a condom this time” does not automatically lead to the conclusion that the parties had sexual intercourse without a condom on previous occasions. Depending on how the evidence comes out at trial, it is also possible that the Complainant’s response will be interpreted as it relates to the previous conversations about condom use. [ 60 ] Introducing evidence of prior sexual intercourse without a condom would risk encroaching into impermissible use of the prior sexual relationship evidence.

The Accused will still be able to explain his moral position, being that he was cheating on wife and did not want to use a condom to climax inside the Complainant.

He does not need evidence of the parties’ usual practice of not using a condom during sexual intercourse and pulling out prior to ejaculation to make this point as it is explainable in the context of the conversations about condom use alone. [ 61 ] Similarly, on the question of the Accused’s potential defence of honest but mistaken belief in communicated consent, prior sexual intercourse without a condom does nothing to explain why on this occasion, if the Complainant required a condom as a condition of consent, the Accused would have been mistaken in interpreting the Complainant’s words.

Rather, the crux of the issue is whether the jury believes the Complainant made condom use a requirement versus an option. Whether the Complainant made condom use a requirement or not on past occasions is irrelevant to the Accused’s understanding of the Complainant’s words on this occasion. The probative value of this evidence would be substantially outweighed by the danger of prejudice. [ 62 ] Even if the proposed cross-examination is permitted, it is not a foregone conclusion that the evidence will establish that the Complainant proposed the use of a condom as an option versus a condition.

The evidence may, or may not, support such a finding. That determination can only be made by the jury after a consideration of all the evidence. VII.

Conclusion [ 63 ] After considering the factors in Criminal Code s 276(3) in the context of the aims and objectives of Criminal Code s 276, an appropriate balancing of the interests of the Accused and the Complainant is achieved by permitting the Accused to lead evidence and cross-examine the Complainant on the parties’ prior conversations about condom use if required to impeach the Complainant’s credibility on the question of condom use during the sexual activity in question and the understanding of a condom’s purpose during that sexual activity. [ 64 ] The proposed evidence of conversations about condom use reveals a possible understanding about the purpose of condom use, and thus, is a triable and critical question about whether it formed part of the sexual activity in question.

Indeed, there would be prejudice to the proper administration of justice if the application to lead evidence and cross-examine on this issue was not granted as it would prevent the Accused from making full answer and defence. [ 65 ] I am satisfied that the proposed evidence is relevant to the Complainant’s credibility, which will be the central issue at trial. I am also satisfied that the probative value greatly outweighs any prejudicial effect and that it is not being advanced for either of the twin

myths. The absence of the proposed evidence would render the Accused’s evidence that he proceeded without a condom after the Complainant raised the issue as untenable or utterly improbable. [ 66 ] The Accused’s right to full answer and defence will be met without evidence of the parties’ prior sexual activity without a condom. That evidence is highly prejudicial. The Accused may meet his objective without referring to it: RV at para 64. [ 67 ] The Accused provided me with a list of proposed questions, which I reviewed.

I permit the questions proposed so long as they do not implicate prior occurrences of sexual intercourse without a condom. In particular, the following questions on the list may not be asked in cross-examination: On prior occasions, you and the Accused had agreed that he would pull out and ejaculate outside of you?

You were comfortable with that as it, to your mind, would also reduce the risk of pregnancy? [ 68 ] Instead, the Complainant may be asked the following question: In prior discussions with the Accused, you said that you were comfortable with using the pull-out method to reduce the risk of pregnancy? [ 69 ] Similarly, the Accused may not discuss prior sexual intercourse without a condom but may reference that they discussed it, and that the Complainant was comfortable with the pull-out method. [ 70 ] Finally, I grant the Crown’s Seaboyer Application to lead evidence of conversations about condom use through direct examination of the Complainant and cross-examination of the Accused. [ 71 ] The proposed evidence is not being adduced to support a twin myth: Seaboyer at pp 634-35.

The purpose of direct examination of the Complainant on the conversations about condom use is to confirm that those conversations happened and to understand the Complainant’s perspective of them. Both Crown and Defence will be able to test the evidence about these conversations during their cross-examinations of the Accused and the Complainant respectively. [ 72 ] The evidence is admissible for purposes other than an inference relating to the consent or credibility of the Complainant.

The evidence possesses probative value on the issues of subjective non-consent and honest but mistaken belief in communicated consent. The probative value of the evidence is not substantially outweighed by the danger of unfair prejudice flowing from the evidence: Seaboyer at p 635. A proper mid-trial or final jury instruction may be required: Seaboyer at p 635. The jury may require an instruction that they may not infer from the conversations themselves either that the Complainant might have consented to the sexual activity in question or that she is less worthy of belief.

Rather, the only significance of this evidence is in relation to the understanding of the purpose of the condom use and whether it was an option or a pre-condition to the sexual activity in question. This is a decision for the trial judge to make after hearing the whole of the evidence. [ 73 ] The risks associated with admission of evidence regarding conversations about condom use may be attenuated by 1) use of an agreed statement of fact; 2) absence of any salacious details; and 3) election to be tried by judge alone: Kapustinsky at para 85 .

The use of an agreed statement of facts gives the Court better control over the evidence of prior sexual activity between the Complainant and the Accused: Goldfinch at para 75. The Complainant is not expected to deny the conversations about condom use. As such, I urge counsel to use an agreed statement of facts. Heard on the 19 th day of December 2023. Delivered orally on the 16 th day of January, 2024. Dated at Edmonton, Alberta this 22 nd day of January, 2024. Honourable Justice A. Loparco J.C.K.B.A. Appearances: William J Van Engen Bottos Law Group for the Accused Benjamin Weibe

Alberta Justice for the Crown Carli Ryan-Jean Hopkins and Company for the Complainant