R v Selby, 2023 ABCJ 91

In the Alberta Court of Justice Citation: R v Selby, 2023 ABCJ 91 Date: 20230421 Docket: 210722740P1 Registry: Calgary Between: His Majesty the King - and - Jason Shale Selby Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the victim must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Decision on Voir Dire of

Section 276 and Seaboyer Applications of the Honourable Ju stice G.S. Dunnigan Introduction [ 1 ] This decision is delivered following stage II of the Defence application and the Crown’s accompanying Seaboyer [1] application to adduce evidence of “other sexual activities” within the meaning of the provisions of s 276 and the common law principles applied in Seaboyer . It incorporates portions of my oral decision delivered in respect of Defence’s application for a hearing at stage I in the s 276 process.

Background Facts [ 2 ] During the school year of 2017 – 2018, the Complainant was 17 years old and in Grade 12 in a Calgary high school. Jason Selby was a teacher at the high school at that time and was 33 years of age. In the fall term of 2017, Mr. Selby taught the Complainant in his English 30 class but he did not teach her in 2018. The Complainant graduated in June of that year.

[ 3 ] Beginning on July 7, 2018, the Accused and the Complainant had a sexual relationship. The Complainant’s 18 th birthday was August 12, 2018. [ 4 ] Their relationship continued for 2 years until 2020. Charges Before the Court [ 5 ] The Accused is charged with two offences allegedly committed between January 1 and August 12, 2018: a. sexual assault upon KR, contrary to s 271 of the Criminal Code ; and b. being in a position of trust or authority towards a young person, or is a person with whom the young person is in a relationship of dependency, did touch KR for a sexual purpose, thereby unlawfully committing sexual exploitation contrary to s 153 (1)(

a) of the Criminal Code . Affidavit Evidence Filed by Accused [ 6 ] In support of his application, Mr. Selby filed two affidavits, the primary of which included additional facts adduced by him that Defence argues are relevant to his making full answer and defence. [ 7 ] ln

summary, those facts detail the following: • The Complainant was a student in his Grade 12 English class in the fall of 2017 and the semester classes concluded in early January 2018. • The Accused and the Complainant had a normal student/teacher relationship throughout the school year and at no time did they engage in conversations of a sexual nature. • At the end of the school year, at the Complainant’s request, the Accused exchanged phone numbers, as he did with other students in the class, also at their request. • The Complainant texted the Accused for the first time on June 26, 2018 advising that her final exam was 2 days later.

Text messages were exchanged but none of a sexual nature. • On the night of July 7, 2018, the Complainant contacted the Accused and came to his residence. She expressed an interest in engaging in sexual relations.

This is the first ever conversation of a sexual nature between the two. • The Complainant reassured the Accused that it would not be inappropriate to engage in sexual activity as she was 18 years old, he was no longer her teacher and, as an adult, she was able to make her own decisions. • The pair engaged in open and explicit discussions about who the Accused was dating and the Complainant’s sexual experience and preferences.

This included her history of dating older men, many older than the Accused, and her use of adult online dating sites including Tinder, Fetlife, and Sugardaddy.ca, which the Accused understood required participants to be 18 years of age. • The Complainant indicated she wanted to go in the hot tub, removed her dress and was completely naked. The two went to the hot tub then later on engaged in consensual sexual intercourse. • The Accused and the Complainant maintained a casual sexual relationship for the balance of the summer and thereafter until 2020.

The Complainant advised that she did not want a serious, exclusive relationship and wanted to pursue relationships online with other men. • Screenshots of text messages and copies of What’sApp communications between the parties gleaned from Crown disclosure were appended to the affidavit. • Other electronic exchanges between the parties, including photographs, were not contained in disclosure but the Accused omitted these from his affidavit. [ 8 ] A second affidavit, sworn by Defence’s counsel’s legal assistant, appended Terms & Conditions for the websites Tinder, Sugardaddy.ca and Fetlife mentioned in the Accused’s affidavit.

Nature of the Evidence Sought to be Admitted [ 9 ] In stage I of this s 276 application, the Accused applied under s 278.93 for a hearing under s 278.94 to adduce 4 categories of evidence at trial as follows: I. Evidence of specific instances where the Complainant had informed other persons of an intention to pursue a sexual relationship with the Accused; II.

Evidence of specific communications by or actions by the Complainant to the Accused, on or around July 7, 2018, and thereafter expressing or reflecting a desire, or continued desire, to engage in sexual relations – and otherwise dictate the terms of their ongoing arrangement;

III. Evidence of specific actions of the Complainant shortly prior to the parties engaging in sexual activities on the evening of July 7, 2018, including, but not limited to, her disrobing in his presence; and IV. Evidence of specific communications by the Complainant to the Accused about her sexual preferences, specific sexual activities and sexual relations with other persons, including the details of the Complainant’s use of dating websites to engage in such relations. [ 10 ] In support of his s 276 application, Mr.

Selby filed affidavit evidence detailing particulars of his relationship with the Complainant and appending copies of text messages and WhatsApp communications with the Complainant.

These communications were provided in Crown disclosure. [ 11 ] The Crown makes a concomitant application for admission of the electronic exchanges between the Accused and the Complainant but opposes the balance of the Defence s 276 application. [ 12 ] Both Crown and Defence assert that, while portions of the electronic exchanges constitute evidence of “other sexual activity” within the meaning of s 276 and Seaboyer , the evidence is not being adduced to support twin-myth reasoning, is relevant to the prosecution and the Defence, respectively, and has probative value that is not outweighed by the danger of unfair prejudice [2] . [ 13 ] Other portions of the electronic communications, specifically, those not constituting other sexual activity or which are sexual activity forming the subject matter of the offence, are not subject to the strictures contemplated by s 276 and Seaboyer and are therefore admissible.

Objective of

Section 276 [ 14 ] We know from the SCC decision in Darrach [3] that s 276 codifies the principles enunciated in Seaboyer and prescribes procedures to restrict admission into evidence of a Complainant’s other sexual activity. [ 15 ]

Section 276 of the Criminal Code applies to specific offences listed therein, including ss 153 and 271 that are before this Court, and prohibits the Defence from introducing evidence that a Complainant has engaged in sexual activity other than that forming the subject matter of the charge. [ 16 ] Further, the

section applies whether such other sexual activity occurred with the Accused or with a third party and whether it occurred prior to the alleged offence or subsequent to it. [ 17 ] Evidence of other sexual activity:

a) cannot be adduced for the purpose of supporting a twin-myth inference;

b) must be relevant to an issue at trial;

c) must be of specific instances of sexual activity; and

d) must have significant probative value not substantially outweighed by the danger of prejudice to the administration of justice. [ 18 ] The burden is on the Defence to specify the use to be made of such sexual activity evidence that does not invoke the twin- myth reasoning, meaning an inference that by reason of this other sexual activity, the Complainant:

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

b) is less worthy of belief. [ 19 ] These twin myths are not relevant at trial, not probative of consent or credibility and distort the trial process.

Moreover, compelling a Complainant to be examined on their sexual history would invade their privacy and discourage reporting of crimes of sexual violence [4] . [ 20 ] The Crown is similarly constrained in adducing evidence of other sexual activity and must adhere to the common law principles enunciated in Seaboyer , which invoke similar considerations as those imposed on Defence by s 276. [ 21 ] With respect to the Defence application, the judge must consider the circumstances of the case, the nature of the sexual activity and the use to be made of such evidence by considering the seven factors enunciated in s 276 (3):

a) the interest of justice including the right of the Accused to make 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 of 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 mind of the trier of fact;

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

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

h) any other factor the judge considers relevant. [ 22 ] The trial judge bears the responsibility of being the gatekeeper to ensure compliance with s 276 and the principles expressed in Seaboyer . This duty persists through the pre-trial application process as well as during the trial itself [5] . Application Procedure Under

Section 276 [ 23 ] The statutory regime of s 276 contemplates a two-step process. In stage I, the Accused must apply under s 278.93 for a hearing to be held under s 278.94. [ 24 ] The formal requirements for a s 276 hearing include that the application must be in writing, must set forth particulars of the evidence that the Accused seeks to adduce, must allude to the relevance of the evidence to an issue at trial and must be capable of being admissible under the strictures of s 276(2). [ 25 ] There is not a significant amount of authority on the threshold for a stage I application for a s 278.94 hearing.

The case law appears to suggest, however, that the threshold is low. [ 26 ] Case law considering the issue often cites the Alberta Court of Appeal in Barton: “ If the trial judge does not screen out the evidence as clearly inadmissible, the written application is followed by an evidentiary hearing [6] .” [ 27 ] A number of decisions also cite Aker [7] , of the Saskatchewan Court of Appeal, which holds that stage I requires the Accused to establish “facial relevance” and that any doubts about admissibility should be resolved at the second stage in a voir dire . [ 28 ] Notwithstanding the low threshold of stage I, the Accused must be able to identify specifically the potential relevance of the evidence.

Further, there must be some connection between the proposed evidence and the Accused’s defence.

If such articulation is lacking, the Court may be left to conclude that the only point of the proposed evidence is to promote twin-myth reasoning. [ 29 ] While the burden upon the Accused is not onerous, if the facts in issue can only be identified in broad generalities, with reference to impermissible purposes, the evidence is not capable of admission. [ 30 ] However, credibility issues, prior inconsistent statements and “close in time” encounters have led courts to hold that the threshold was met and that the hearing should proceed to the second stage, such as in Ravelo – Corvo [8] . [ 31 ]

Section 278.93(4) requires that the evidence be both relevant and capable of being admissible. Provided that the Accused is able to do this, the court should take the position that critical analysis of the Accused’s position or any doubt should be left to the s 278.94 hearing. In other words, admissible evidence which demonstrates some connection with a relevant defence should proceed to hearing.

Ruling at Stage I [ 32 ] Following oral and written argument during stage I of the s 276 application, I ruled that the low threshold for a hearing had been met by Defence counsel and accepted the argument that, having regard to the charges before the Court and the defences available in law, there was a path to relevance, subject to further particulars the Court would hear in stage II of the application.

The areas specified by Defence did not, at stage I, raise evidence which is clearly inadmissible. [ 33 ] However, I indicated that Defence must address the how and why of the admissibility of the evidence proposed to be advanced to ensure that twin-myth reasoning would not be engaged. My decision set forth the following requirements: [50] I caution, however, that Stage II of this application will require a clear roadmap from Defence on how evidence will be adduced and how questions will be put to witnesses in examination.

The issues in this trial are sensitive and could, without diligent oversight and rigorous containment, flirt with those areas enjoined by s 276 and prohibited by the case of law. [51] In particular, questions pertaining to the nature of the websites as well as communications with third parties will require Defence to demonstrate a clear nexus to arguable defences in law, whether mistaken belief as to age, or the evolution or termination of positions of trust and authority, or others as appropriate.

As a gatekeeper, I will wish to ensure that the proposed line of questioning is specific to ensure the evidence does not stray into areas of prohibited reasoning. Elements of The Charges Before the Court Sexual Assault

Section 271 [ 34 ] Sexual assault is the application of physical force which violates a person’s sexual integrity without that person’s consent. [ 35 ] The Criminal Code provides that the age of consent is 16 years and, therefore, the Complainant in this matter was capable of

providing valid consent to engage in sexual activities. [ 36 ] Indeed, the Complainant appears to have been a willing participant in the sexual intercourse which took place in July 7, 2018 which forms the subject matter of this charge. [ 37 ] Consent, however, maybe vitiated under s 265(3)(

d) where a Complainant submits or does not resist by reason of the exercise of authority. The mere existence of the position of authority is not sufficient to vitiate consent. Rather, the offending individual must have abused their power to influence the conduct and actions of the complainant. Influence becomes coercion and apparent consent nothing more than submission. [ 38 ] Defence seeks to examine and provide evidence upon the relative positions of the parties, the Complainant’s vulnerability toward the Accused, the possibility of exploitation, and whether there existed a power imbalance between the parties as set forth in Geddes [9] . Sexual Exploitation

Section 153 [ 39 ] The elements of the offence of sexual exploitation require evidence that the Accused was in a position of trust or authority toward a young person, or was a person with whom the young person was in a dependent relationship, or who was in a relationship with the young person that was exploitative. [ 40 ] Subsection 153 (1.2) states as follows: ss 153 (1-2) A judge may infer that a person is in a relationship with a young person that is exploitative of the young person from the nature and circumstances of the relationship, including, 1. the age of the young person; 2. the age difference between the person and the young person; 3. the evolution of the relationship; and 4. the degree of control or influence by the person over the young person. [ 41 ] Case law emphasizes that the intention of the

section is to protect young persons in positions of vulnerability and weakness from individuals in positions of authority or trust. Such a person in authority should not engage in sexual activity with a young person, even if they have consented to the activity [10] . [ 42 ] Evidence related to the elements of the offence is relevant to the right of the Accused to make full answer and defence, provided such lines of questioning do not offend the twin-myths or the prohibitions set forth in ss 276(3) of the Code .

Submissions by Counsel [ 43 ] Supplementary oral and written submissions for Stage II were provided by Defence and the Crown prosecutor. Counsel for the Complainant provided the Court with written submissions. Defence Submissions [ 44 ] On behalf of the Accused, Mr. Hepner referred to his original oral and written argument at Stage I, as amplified by his written submissions at Stage II. [ 45 ] I would summarize the Defence on the application as a whole as follows: •

Section 276 is not a complete bar to the admission of sexual history evidence, provided it respects the constraints imposed by s 276, as interpreted by case law, and may be used to rebut material elements of the prosecution case [11] . • Counsel advises that he has no intention to stray into prohibited areas which might support an inference embodied by the twin myths. • Rather, Mr.

Hepner seeks to establish that consent was valid and not vitiated by examining whether authority was exercised improperly to induce consent, or whether the degree of control, influence or persuasiveness of the Accused over the Complainant resulted in vulnerability, a power imbalance, or exploitation. • The Accused wishes to adduce the evidence not to support the prohibited inferences but rather to gainsay the elements of the offences charged and the Crown’s case that Accused used his authority, influence or position of trust to improperly induce consent or to exercise control or influence over the Complainant as a vulnerable and exploited person. • As consent is not an issue, in that both parties were willing participants on July 7 th , 2018, and thereafter, Defence seeks not to establish that the Complainant is less worthy of belief but rather to demonstrate that the relationship between the parties was not

exploitative and that there existed no power imbalance in favour of the Accused. • The Complainant told the Accused, both prior to and during their sexual relationship, that she was 18 years of age, with the maturity and capability to make her own decisions, and that she had pursued and engaged in various romantic and sexual endeavours with older men through online dating and social networking sites. • The internet dating sites Tinder, Sugardaddy and Fetlife the Complainant said she frequented require that users attest that they are at least 18 years of age. • The evidence sought to be adduced is relevant to the charges before the court and is necessary to allow the Accused to make full answer and defence: i.

With respect to s 153(1)(a), the issue is whether there existed a relationship of dependency or the Accused exploited the Complainant. Evolution of the relationship, and any influence over the Complainant are factors to be considered by the court. ii. Subsection 153(2) specifically defines “young person” as an individual 16 years of age or more but under the age of 18 years. Defence counsel asserts, however, mistaken belief as to age may be a defence to the charge so long as reasonable steps were taken to ascertain that age.

Further, the Crown must prove beyond a reasonable doubt that the Accused did not honestly believe she was 18 and did not take reasonable steps to ascertain her age. iii. Factors relevant to determining if exploitation occurred include the parties’ age difference, the evolution of their relationship, the relative status of the two, the degree of control, influence or persuasiveness over the Complainant, and the expectations of the parties affected. iv.

The fact that the Complainant expressed or had an actual desire to pursue a relationship with the Accused of her own volition makes it less likely that the Accused improperly exercised authority to induce consent or that the Complainant’s decision to engage in sexual relations with the Accused was not an exercise of her free will. It further refutes that the Accused possessed a degree of control or influence over her, that the Complainant was vulnerable or that there was a power imbalance in favour of the Accused. v.

The issue of how s 276 applies in cases of sexual exploitation and cases involving vitiated consent by the exercise of authority remain relatively unsettled in law [12] . vi. The evidence has significant probative value that is not substantially outweighed by the danger of prejudice. A statement of a desire to pursue a sexual relationship with another person is not unusual. It is an expression of the exercise of sexual autonomy. vii. This matter is proceeding by judge alone, and the Complainant will also have access to independent counsel who will assist her. viii.

The evidence sought to be adduced is of specific instances of sexual communications between the Complainant and other persons. ix. Evidence that the Complainant was actively participating in sophisticated arrangements with adults and much older men is relevant to exploitation and whether the Accused exercised control, influence or persuasion over her. It is also relevant to the Accused’s understanding of the Complainant’s age, autonomy, maturity and confidence. It is an express factor for the defence of mistake in age. x.

With respect to the s 271 charge, given that the Complainant was presumptively capable of valid consent at age 17, the Crown must prove beyond a reasonable doubt that the Accused improperly used his authority to vitiate consent. The Court must determine if the Complainant was vulnerable and whether there was a power imbalance. xi. The mere existence of a position of authority is not sufficient to vitiate consent.

Rather, the authority must be exercised improperly to secure consent by influencing the conduct and actions of the Complainant [13] . [ 46 ] Dealing with the four specific categories of evidence sought to be adduced, as referred in paragraph 9, above, the Defence submits as follows: I. Evidence of the Complainant’s Express Intention to Engage in Sexual Activities with the Accused [ 47 ] This evidence is relevant to an issue at trial, does not engage the twin-myth reasoning and is admissible based on the four criteria under s 276 (2).

The evidence pertains to the genesis and evolution of the relationship between the parties, whether the Complainant decided to engage in sexual relations of her own free will, whether the Accused improperly exercised authority to induce

consent and whether the Complainant was vulnerable or subject to the control or influence of the Accused. [ 48 ] As this matter is proceeding by judge alone and the Complainant has access to independent counsel, any concerns regarding the possibility of impermissible reasoning will be significantly reduced. II.

Evidence of Communications and Actions of the Complainant Expressing a Desire to Engage in or Continue Sexual Relations with the Accused [ 49 ] Evidence of specific communications wherein the Complainant attempted to persuade the Accused to pursue a sexual relationship and asserting her level of maturity, as well as her indications that she was 18 years of age, are relevant and do not engage twin-myth reasoning.

These communications are relevant to material issues regarding whether the Accused exerted authority over the Complainant’s vulnerability and his degree of power or influence over her. [ 50 ] These communications directly engage the defence of mistaken belief in age and are therefore admissible. III. Evidence of Specific Acts of the Complainant on July 7, 2018 [ 51 ] This evidence does not properly fall within the ambit of s 276. It is part of the sequence of events that form the subject matter of the sexual activity in question. [ 52 ] It similarly does not engage twin-myth reasoning as consent is not at issue.

The question is whether there was valid consent. The evidence is also relevant to the issue of whether the Accused exercised influence or control over the Complainant and would refute suggestions of relative inexperience or naivete of the Complainant. IV.

Evidence of Complainant’s Sexual Preferences and Activities and the Use of Online Services to Solicit Relationships with Older Men [ 53 ] The Accused seeks to adduce evidence of the Complainant’s communications about her sexual preferences, her romantic or sexual relations with other older men and her use of online services to solicit those relationships. [ 54 ] The evidence would include the nature of the sites and the details requiring users to affirm that they are 18 years of age or older.

The evidence is vital to the Accused’s subjective belief about the existing state of affairs and the actual state of affairs. It is also relevant to the credibility of the Complainant respecting attestation to being 18 years of age. [ 55 ] The evidence is also relevant to the Complainant’s vulnerability and the existence of a power imbalance, if any.

As the evidence the Accused seeks to adduce is not about general sexual reputation, it is proposed that the questioning will be limited to specific communications between the parties. [ 56 ] The Accused acknowledges that this evidence raises sensitive and delicate issues of a personal nature and must be carefully weighed for its potential probative value against the danger of prejudice. [ 57 ] Facts about the relationship will evolve as part of the trial process and the Court will remain an evidentiary gatekeeper to protect the dignity of the Complainant and preclude impermissible reasoning.

Crown Submissions [ 58 ] In

summary, the Crown submits as follows: • An Accused who seeks to cross-examine a Complainant on other sexual activity or to introduce evidence of the Complainant’s other sexual activity for a purpose other than engaging the twin-myths must satisfy the substantive requirements of s 276 to overcome the presumptive inadmissibility of the evidence, as per Goldfinch [14] and R.V. [15] . • The Accused must propose a specific use of the evidence that does not invoke myth reasoning.

Mere assurances do not satisfy the onus. • The instances of specific sexual activity must be specific to ensure that the evidence does not relate to the general reputation of the victim, as per Quesnelle [16] , and to prevent aimless and sweeping inquiries into the Complainant’s sexual history. • The Crown need not establish that the Accused actually abused his position or relationship with the young person: “ The implication from the wording of s 153 is that notwithstanding the consent, desires or wishes of the young person, it is the adult in the position of trust who has the responsibility to decline having any sexual contact with that young person. ” ( E.J.B. [17] , quoting with approval Audet [18] and Hann [19] ) • It is common sense that a teacher is in a position of trust toward his students and the Crown need only prove that the position of

trust existed on the facts at bar. Questions of the morality or propriety of the relationship are not relevant to the issues before the Court. It would be an error to require the Crown to prove that the Accused actually abused his position of trust or authority [20] . • The cases cited by the Accused to support his

interpretation relate to offences other than s 153. • Respecting Category 1, the Accused has failed to proffer specific evidence, beyond generalities, it seeks to adduce at trial. Lacking the required specificity with respect to the Complainant’s intention, the Category 1 proposed evidence fails to pass the test of s 276(2) (c). Furthermore, the Accused confirmed in cross-examination that nothing the Complainant said to any of her friends about him played any

part in his decision to have sex with her on July 7, 2018. ( Transcript, pages 94-95 ) • While the Category 2 and Category 3 communications of a sexually charged nature between the pair leading up and just prior to the sexual activity on July 7, 2018 lack specificity, they are likely relevant to and form part of the subject matter of the charges.

However, the Category 3 evidence, while admissible, must not be used for an improper purpose, whether to transfer responsibility to the Complainant or to shame her. • It is irrelevant whether the Complainant initiated the conversation or whether she was the first to disrobe. It was the Accused, as the adult in the position of trust, who had the responsibility to decline having any sexual contact with the young person [21] . • With respect to the evidence regarding the Complainant’s involvement with “Adults Only” websites and relationships with other older men, the proposed evidence again lacks specificity.

Fishing trips on intimate and potentially embarrassing topics can only distort the truth-seeking function of the Court and discourage the reporting of sexual offences. It also engages the twin-myth reasoning. • The Accused has not set out a road map on how the evidence will be adduced, which questions will be put to the Complainant, or a nexus to the arguable defences in law to ensure the evidence does not stray into prohibited reasoning.

These details were required by the ruling at Phase I of this application. • In sum, the evidence regarding sexual activity with other older men and the use of “Adults Only” websites lacks specificity, is not relevant, and can only support twin-myth reasoning. The Accused has failed to meet his burden to overcome the presumptive inadmissibility of this evidence.

Complainant Submissions [ 59 ] The Complainant takes no position with respect to the electronic communications appended to the Accused’s affidavit but, for the most part, reiterates and adopts the submissions of the Crown respecting the balance of the evidence sought to be adduced. [ 60 ] The Complainant argues the description of the evidence lacks sufficient specificity to allow the Court to perform a proper s 276 analysis and therefore should not be admitted into evidence. [ 61 ] The Complainant’s greatest concerns pertain to the Category 4 evidence sought to be admitted, namely, communications by the Complainant about her sexual preferences, romantic or sexual relations with other older men, and her purported use of online services to solicit or engage in those relationships. [ 62 ] The Complainant submits this evidence has no relevance to the defence on either the s 271 or s 153 charges and could only serve an improper, prohibited purpose.

It further fails to meet the criteria in s 276 (2)(b), (c), and (d). Conclusion and Decision [ 63 ] I propose to give this decision by reference to the specific categories of evidence set forth in the Accused’s s 276 application as referred to earlier. Category I [ 64 ] The evidence proposed to be adduced under Category 1, namely, evidence of the Complainant advising third parties of a prior intention to engage in sexual activities with the Accused is inadmissible.

Defence has pointed to no specific evidence of such communications and has not demonstrated to the court in any meaningful way how such evidence would be relevant to a defence in law or how it might comply with the strictures of s 276 (3). I accept the submissions of counsel for the Complainant and the Crown regarding Category I. [ 65 ] Efforts to fish for unspecified evidence that the Complainant plotted to engage the Accused in sexual activity risk becoming blame-shifting and casting the Complainant as a predator.

Even if the Complainant expressed such intentions to others, any such wishful thinking or youthful braggadocio provides no nexus to a defence in law. It is simply not relevant. [ 66 ] In my view, such evidence would also be highly prejudicial, potentially embarrassing and would raise the very spectre of discriminatory reasoning addressed by Parliament in s 276 and by the courts in Darrach and Barton . Category II

[ 67 ] The evidence proposed to be adduced under Category 2, namely, evidence of communications and actions of the Complainant to the Accused expressing a desire to engage in or to continue sexual relations, is admissible. [ 68 ] Evidence of the electronic messages exchanged by the parties by text and What’sApp is relevant to the prosecution and defence of this case.

It is not evidence of “other sexual activity” as connoted by s 276, or pertains to the actual sexual activity the subject of the charges. [ 69 ] However, the Court will continue to serve as gatekeeper to ensure examination does not stray into areas of prohibited reasoning or raise concerns of prejudice or embarrassment to the Complainant. Category III [ 70 ] Evidence of specific acts of the Complainant on July 7, 2018 is part of the sexual activity the subject of the charges. As such, it falls outside the ambit of s 276 and is admissible.

This includes evidence that statements were made by the Complainant leading up the act of intercourse. [ 71 ] However, this statement evidence is admissible for the limited purpose of establishing that the statements were made and formed part of the events that transpired on July 7, 2018.

Cross-examination on the truthfulness of the statements that were made is permissible, but only insofar as these statements might found a defence of mistaken belief in age. [ 72 ] Should the statements refer to prior sexual activity on the part of the Complainant, no cross-examination on these elements of the statements will be permitted.

The Complainant’s sexual history is not relevant, even if she makes reference to it in her examination- in-chief describing conversations they had on the night in question. [ 73 ] Evidence of what activities and websites the Complainant might have actually engaged in is not relevant, highly prejudicial, potentially embarrassing and prohibited as engaging the very twin-myth reasoning the Supreme Court cautions against. [ 74 ] Contrary to the submissions of Defence counsel, the law in Alberta has been settled for some time that there need not be an abuse of the position of trust for an offence under s 153 to have occurred [22] . [ 75 ] This has been echoed in textbook commentary regarding the offence: “Under s. 153, in contrast to s. 273(2)(c), the Crown need not show that the accused abused the position or the relationship in order to obtain a conviction.

Once one of the three relationships has been found to exist, and the complainant is found to have been between the ages of 16 and 18, s. 153 makes the accused criminally responsible for any sexual touching or invitation to sexual touching (subject, of course, to proof of the appropriate fault elements).

Section 153 would be largely redundant if proof of abuse of the accused’s position was an element of the offences it creates.” (Hamish C. Stewart, Sexual Offences in Canadian Law (Toronto: Thomson Reuters Canada, 2023) at s4.17) “Under s 153, it is not necessary to prove that the accused’s position actually influenced the sexual contact. In G. (T.F.) , the Ontario Court of Appeal held that the purpose of the provision is to make it clear that a person in a position of authority or trust is not to engage in sexual activity with a young person in their charge regardless of whether consent is present.

This position has now been adopted by the Supreme Court of Canada.” (Morris Manning & Peter Sankoff, Manning, Mewett & Sankoff: Criminal Law, 5 ed (Toronto: LexisNexis Canada, 2015 at paragraph 21.161) [ 76 ] This is also consistent with the way the elements of the offence of sexual exploitation are discussed. In order to prove that sexual exploitation has occurred, the Crown needs to prove that sexual touching as described in s 153 occurred involving a young person and an Accused in a position of trust.

Not included in the elements of the offence is any requirement for the Crown to prove that the position of trust was abused. For instance, in The Practitioners Criminal Code , the elements of the offence are described as follows: Elements of offence: To obtain a conviction, the Crown must prove beyond a reasonable doubt: 1. that the Complainant is a young person within the meaning of s 153(2); 2. that the Accused engaged in one of the activities referred to in s 153(1); and 3. that when the acts in question were committed, the Accused was in a position of trust towards the young person.

The combined intent of s150.1(1) and 153 (1)(

a) is not to focus on the young person’s conduct

but to concentrate solely on that of the person in the position of trust or authority who has the complete responsibility to avoid such engagements. (Alan D. Gold, 2023 ed. (Toronto: LexisNexis Canada, 2022 at paragraph 153-2) [ 77 ] As a consequence, cross-examination on elements of the Category III evidence sought to be adduced will be restricted as described above.

Category IV [ 78 ] Evidence of the Complainant’s sexual preferences and activities or her use of online services to solicit relationships with older men, as noted above, can only invoke prohibited twin-myth reasoning. [ 79 ] The Court must not countenance examination on unspecified subjects in service of arguments suggesting that a sexually experienced or adventurous Complainant should be treated differently respecting the protection of s 276. [ 80 ] Intimations regarding chasteness of character are the very evidence enjoined by Parliament in s 276. The Category IV evidence is therefore inadmissible.

Dated at the City of Calgary, Alberta this 21 st day of April, 2023. G.S. Dunnigan A Justice of the Alberta Court of Justice Appearances: P. McCluskey for the Crown A. Hepner for the Accused M. Gilchrist For the Complainant [6] R v Barton , 2017 ABCA 216 at para 93

[22] R v E.J.B., above see also R v Dunk, (1991) 1991 ABCA 185 , 117 AR 161 (ABCA)