R v CN, 2023 ABKB 302

Court of King’s Bench of Alberta Citation: R v CN, 2023 ABKB 302 Date: 20230524 Docket: 220190052Q1 Registry: Red Deer Between: His Majesty the King - and - CN 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(1) Information that could identify the Complainant shall not be published, broadcast, or transmitted in any way.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 .

Editorial Notice : The Court directed that this Judgment be released. The trial ended June 14, 2023. _______________________________________________________ Reasons on Application of the Honourable Justice E.J. Funk _______________________________________________________ [ 1 ] On April 28, 2023, the Accused brought this pre-trial application pursuant to ss 276 and 278.92 of the Criminal Code . On that date, I heard Stage 1 of the application and reserved my decision to June 12, 2023, for the balance of the application. [ 2 ] Pursuant to the provisions in s 278.94 , I provided these filed, unpublished, reasons to the parties prior to the June 12th return date, with a

summary of these reasons to be provided in open Court and in the presence of the Accused on June 12 th . I. Introduction [ 3 ] The Accused is charged with sexual assault, contrary to s 271 of the Criminal Code . The alleged offence took place on October 24, 2021, at a time when the Accused and Complainant were involved in an intimate relationship with each other. [ 4 ] In this application, the Accused seeks to adduce evidence of sexual activity of the Complainant that does not form the subject matter of the alleged offence. He also seeks to adduce records relating to the Complainant that are in his possession.

These records include voicemail messages the Complainant sent to the Accused, an email the Complainant sent to the Accused’s counsel, and text messages the Complainant sent to the Accused’s mother. [ 5 ] In support of this application, I received the Accused’s affidavit and some supplemental viva voce evidence. As this is Stage 1, my task is to determine if any of the proposed evidence is capable of being admitted at trial pursuant to ss 276(2) or 278.92(2).

If any of the proposed evidence is capable of being admitted at trial, then the application will be granted and a Stage 2 voir dire will be heard, at which my task will be to determine whether the evidence is, in fact, admissible at trial. II. Background [ 6 ] The Accused and Complainant met on Tinder, sometime in 2018 or 2019. When they first met, the Complainant lived in Edmonton and the Accused lived near Red Deer.

In time, the Complainant moved to Red Deer and, for about six months, the Complainant and Accused lived together at the Accused’s home before the Complainant moved back to Edmonton. [ 7 ] By the time the Complainant returned to Edmonton, she had given birth to the parties’ first child in September of 2021, about a month before the alleged offence date. The parties ended their relationship in November of 2021, about a month after the alleged offence date. [ 8 ] After the birth of the parties’ first child, the Accused faced challenges in exercising his parenting time.

In February of 2022, he brought two applications in Family Court. The first application was to establish his paternity. The second was to establish his parenting time. [ 9 ] Shortly after the Accused brought these Family Court applications, the Complainant reported this alleged offence to the police and obtained an Emergency Protection Order (EPO) against the Accused. In March of 2022, that EPO was converted into a Queen’s Bench Protection Order. [ 10 ] In July of 2022, the Complainant gave birth to the parties’ second child. III.

The Anticipated Evidence [ 11 ] The Complainant is expected to testify that on the alleged offence date, the Accused was talking with her all morning about having sex. The Complainant declined, saying “no, I don’t want to have sex with you.” The Accused continued to harass the Complainant about sex.

Out of fear of a long and escalated argument and based on prior abuse the Complainant had suffered at the hands of the Accused, she acquiesced and said “ok” to having sex. [ 12 ] The Complainant is expected to testify that she laid nearly still and almost slid off the couch during the sexual activity, that this was very different from other sexual experiences she had with the Accused, and that she only consented out of fear. IV. The Application

[ 13 ] In relation to other sexual activity of the Complainant, the Accused seeks to adduce evidence of: (

a) a previous sexual assault involving the Complainant and a person other than the Accused; (

b) sexual activity between the Accused and Complainant that took place both before and after the alleged offence date; and (

c) evidence about the nature of the relationship between the Complainant and the Accused including the fact that the Complainant became pregnant and had two children with the Accused. [ 14 ] In relation to records relating to the Complainant in his possession, the Accused seeks to adduce: (

a) an email the Complainant sent to the Accused’s counsel in which the Complainant made a prior inconsistent statement and discussed a previous sexual assault involving someone other than the Accused; (

b) four voice messages the Complainant left for the Accused; and (

c) a text message conversation between the Complainant and the Accused’s mother. [ 15 ] The Accused also seeks to lead evidence of instances of non-sexual contact between himself and the Complainant that took place both before and after the alleged offence date. A. Relevant Law [ 16 ]

Section 278.93 of the Criminal Code governs the form and content of applications made pursuant to ss 276 and/or 278.92 . In bringing such applications, an accused must provide notice of the application at least seven days before trial. The application must be in writing and must set out the detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial. 1) Other sexual activity of the Complainant [ 17 ]

Section 276 governs the admissibility of sexual activity involving a complainant that does not form the subject matter of the alleged offence. This

section renders inadmissible evidence that a complainant engaged in sexual activity with the accused, or any other person, if such evidence is tendered to support an inference that, by reason of that sexual activity, the complainant is more likely to have consented to the sexual activity that forms the subject matter of the alleged offence or is less worthy of belief. These are the twin myths. [ 18 ] Applications made under s 276, proceed in two stages. At Stage 1, my task is to determine if the proposed evidence is capable of being admitted at trial by considering the factors set out in s 276(2). At this stage, I must be satisfied that the evidence: (

a) is not being adduced for the purpose of supporting twin myth reasoning; (

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. [ 19 ] If the proposed evidence is capable of being admitted at trial, then the matter advances to a Stage 2 voir dire , at which I must determine whether the evidence is in fact admissible at trial by applying the factors set out in s 276(3). 2) Records in possession of the Accused [ 20 ]

Section 278.92 governs the procedure to be followed when an accused seeks to adduce records relating to a complainant that are in his possession.

The presumption is that no such record shall be admitted into evidence: Criminal Code s 278.92(1). [ 21 ] For the purpose of applications brought under s 278.92, a “record” is defined as any form of record relating to a complainant that contains personal information over which the complainant holds a reasonable expectation of privacy and includes medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption, and social services records, personal journals, diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or Provincial Legislature: Criminal Code s 278.1. [ 22 ] Records relating to a complainant that are not enumerated in s 278.1 will be captured by the records screening regime in s 278.92 if they contain information of an intimate or highly personal nature that is integral to the complainant’s overall physical, psychological, or emotional well being: R v JJ , 2022 SCC 28 at para 42 . [ 23 ] Applications brought under s 278.92 proceed in two stages.

At Stage 1, I must determine if the record relating to a complainant is capable of being admitted at trial. If the record includes evidence of other sexual activity of the complainant, I must apply the procedures in s 276(2) and (3). [ 24 ] If the record does not pertain to other sexual activity of the complainant, I must determine if the record 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: Criminal Code s 278.92(2).

[ 25 ] If the proposed evidence is capable of being admitted at trial, then the matter advances to a Stage 2 voir dire , at which I must determine whether the evidence is in fact admissible at trial by applying the factors set out in s 278.92(3). B. The Previous Sexual Assault [ 26 ] The Accused seeks to adduce evidence of a previous sexual assault that involved the Complainant and someone other than the Accused.

The source of this evidence is an email that the Complainant sent to the Accused’s counsel that the Accused appended to his affidavit. 1) Is the email a “record”? [ 27 ] The Defence argues this email is not a “record” as contemplated by s 278.1 because the Complainant waived her reasonable expectation of privacy in it when she sent the email, unsolicited, to Defence counsel. Without a reasonable expectation of privacy, the Defence submits the provisions of s 278.92 do not apply.

I disagree. [ 28 ] In the email, the Complainant described a previous sexual assault involving someone other than the Accused; she referred to other acts of sexual violence involving the Accused; and she described the emotional impact of these events on her. [ 29 ] To my mind, this is information of an intimate and highly personal nature. It is information that is integral to the Complainant’s overall physical, psychological, or emotional well-being. The information contained in the email has implications in relation to the Complainant’s dignity and over which she holds a reasonable expectation of privacy.

In other words, the information contained in this email is precisely the type of private information that the Supreme Court contemplated in JJ (at para 42). [ 30 ] In JJ, the Court stated that complainants do not lose or waive their expectations of privacy in personal information the moment they step forward to report sexual offences. The fact that a complainant may have chosen the wrong person to trust is not determinative of her privacy interests.

Such an approach is antithetical to Parliament’s objective in protecting the privacy and dignity of a complainant during the course of a criminal trial: JJ at para 62. [ 31 ] Because of the personal and intimate nature of the information contained in the email, I am satisfied that it is a “record” within the meaning of s 278.1. As such, the email is subject to the records screening regime in s 278.92.

Because the email contains information of other sexual activity of the Complainant, s 276 is also engaged. 2) The proposed evidence [ 32 ] In the email, the Complainant described a sexual assault that happened about two years before she met the Accused. She wrote that she did not disclose the previous sexual assault to anyone because she felt “disempowered”, ashamed, and guilty. The Complainant described meeting the Accused and feeling safe and protected with him. She wrote that she did not tell the Accused about the previous sexual assault out of fear that he would see her differently.

She said that she wanted to tell him about the previous assault but felt that she could not because of the Accused’s insecurities and accusations of her cheating on him. [ 33 ] The Complainant referred to her “original statement” in which she described incidents where the Accused ‘forced’ her to have sex with him “to prove to him that [she] loved him.” The Complainant wrote that she was triggered by the previous sexual assault, and this brought up “a lot of unresolved heavy emotions.” The Complainant went on to write, “this case is not a linear example of sexual assault more so an example of unresolved trauma.” 3) Relevance of the evidence to an issue at trial [ 34 ] The Defence argues evidence of the previous sexual assault is relevant to the Complainant’s state of mind and credibility.

It submits this evidence will show that the Complainant projected her unresolved trauma from the previous sexual assault onto the Accused in relation to this alleged offence. [ 35 ] The Defence seeks to adduce evidence of the previous sexual assault to support an argument that the Complainant either reported the alleged offence to police “to make up for” not reporting the previous assault, or that she falsified the within allegation because of her unresolved trauma over the previous sexual assault. 4) Potential admissibility of the evidence at trial [ 36 ] The basic rule of admissibility requires that evidence must be relevant, material, and not barred by any exclusionary rule: R v JW , 2020 ABQB 701 , at para 18 . [ 37 ] As the Accused is neither the sender nor the recipient of the email, it is prima facie hearsay evidence that is not capable of being adduced at trial through him.

If the Complainant does not adopt the email, the only other person capable of authenticating it is Defence counsel. Even if the Complainant adopts the email, as the recipient of this hearsay document, Defence counsel necessarily implicates herself as a witness in these proceedings by either presenting or referencing the email to the Complainant. [ 38 ] It is trite to say that counsel cannot also act as a witness. The Defence has not suggested any means by which this email might be admissible under one of the recognized hearsay exceptions.

Because of the hearsay nature of this email, I find it is not capable of being admitted at trial. [ 39 ] Even if the email could overcome its hearsay challenges, I am not satisfied that evidence of the previous sexual assault is relevant to an issue in this trial. The inferences the Defence seeks to argue from the previous assault are neither supported by the evidence in the email nor are they sufficient to satisfy the requirements of s 276(2).

[ 40 ] The suggestion that the Complainant reported the alleged offence to “make up for” not reporting the previous sexual assault is not an inference that can be drawn from the email. There is nothing in the email that supports this alleged motivation. [ 41 ] What’s more, evidence that the Complainant was the victim of an earlier, unreported, sexual assault could invite the jury to engage in prohibited reasoning surrounding how victims of sexual assault are expected to behave.

For this reason, even if the email had some probative value, I am satisfied that any probative value would be substantially outweighed by its danger of prejudice to the proper administration of justice. [ 42 ] The Defence argues that evidence from this email supports an inference that the Complainant projected her unresolved trauma from the previous sexual assault onto the Accused in relation to this alleged offence. [ 43 ] In his application, the Accused did not set out any detailed particulars of how this projected unresolved trauma is relevant to an issue at trial, as required by s 278.93(2).

Without such detailed particulars, I am unable to meaningfully engage with the requirements of s 276(2): R v Goldfinch , 2019 SCC 38 at para 51 . [ 44 ] To the extent the Defence seeks to adduce evidence of the previous sexual assault as it relates to context, narrative, and credibility, the Supreme Court has clearly stated that bare assertions that evidence is relevant for these purposes cannot satisfy the requirements of s 276(2): Goldfinch at paras 5 and 51 . [ 45 ] For these reasons, the Accused’s application to adduce evidence of the previous sexual assault is denied. C.

Other sexual activity between the Complainant and the Accused [ 46 ] The Accused seeks to adduce evidence of the sexual nature of the relationship between himself and the Complainant. The sources of this evidence are the Accused’s affidavit and viva voce evidence in this hearing in which he described routine behaviours and communications surrounding the parties’ sexual activities. [ 47 ] The Accused also seeks to adduce statements the Complainant made to police about other acts of sexual violence involving the Accused.

The source of this evidence is the email the Complainant sent to Defence counsel in which she referred to her police statement. [ 48 ] Because this evidence includes other sexual activity of the Complainant that is not the subject matter of the alleged offence, s 276 is engaged. [ 49 ] At the start of this hearing, the Crown gave notice of its intention to make an application at trial to adduce evidence of other acts of sexual violence by the Accused. The Crown indicated this evidence will be relevant to establishing that the Complainant had reason to fear the Accused at the time of the alleged offence.

The Crown has not yet made this application nor adduced any evidence in support of it. 1) The proposed evidence [ 50 ] In the Accused’s affidavit, he generally described aspects of the sexual relationship between himself and the Complainant. He described the Complainant as often being insistent on having sex with him or convincing him to have sex at times when he would have preferred not to. He also generally described times when one or the other of them would be tired but would acquiesce to having sex. However, if either were firm about not wanting to have sex, they would not have sex.

In his viva voce evidence, the Accused gave a vague description of a consensual sexual encounter between himself and the Complainant in November 2021, about a month after the alleged offence date and shortly before the parties ended their relationship. [ 51 ] In relation to any statements the Complainant made to the police about other acts of sexual violence by the Accused, the Defence offered only a portion of the email the Complainant sent to Defence counsel in which the Complainant wrote, “my original statement included incidents where [the Accused] would ‘force’ me to have sex with him to prove to him that I love him.” 2) Relevance of the evidence to an issue at trial [ 52 ] The Defence argues this evidence of other sexual activity between himself and the Complainant is necessary to respond to comments the Complainant made to police about other acts of sexual violence by the Accused. [ 53 ] The Defence submits this evidence is being adduced to establish the Complainant’s state of mind and corresponding routine behaviours around sexual activity to advance a defence of honest but mistaken belief in communicated consent and is further necessary to assess the Complainant’s credibility.

The Defence submits this evidence will not lead to twin myth inferences or incorrect assumptions about sexual assault victims. [ 54 ] The Defence further argues this evidence is necessary to counter the Complainant’s claim that she feared the Accused. 3) Potential admissibility of the evidence at trial [ 55 ] As discussed, above, the email the Complainant sent to Defence counsel is not capable of being adduced at trial because it is prima facie hearsay evidence. [ 56 ] Aside from the excised portion of the Complainant’s email, referenced above, I have no evidence in relation to what the Complainant said to the police about other acts of sexual violence involving the Accused.

Nor do I have evidence in relation the Complainant’s claims that she feared the Accused.

[ 57 ] Without any evidence of the details of the proposed evidence, I am unable to determine if evidence about other alleged acts of sexual violence involving the Accused or of the Complainant being fearful of him is capable of being admitted at trial.

In other words, without detailed particulars of the evidence that the Accused intends to adduce and the relevance of that evidence to an issue at trial, the Accused’s application fails to meet the requirements of s 278.93(2). [ 58 ] The Defence argues that evidence of the Complainant’s gestures, behaviours, and words generally during sexual encounters with the Accused is critical to advancing his defence of honest but mistaken belief in communicated consent. [ 59 ] The Supreme Court has held that prior sexual activity between a complainant and an accused may be relevant to advancing the defence of honest but mistaken belief in communicated consent.

However, that belief cannot simply rest on evidence that a person has consented to sexual activity with the accused “at some point” in the past. To rely on the defence, the accused must show evidence of how the complainant previously communicated consent so that he can adequately support a belief that consent was communicated in relation to the alleged offence .

Where the relationship is defined as including sexual activity, it is critical that the relevance of the sexual nature of the relationship to an issue at trial be identified with precision : Goldfinch at paras 56 and 62 . [ 60 ] Here, the Accused’s evidence provided no description as to how the Complainant communicated her consent in the past through her gestures, behaviours, or words. Instead, he described the Complainant as often insisting on having sex with him and that he would often consent to her advances.

Nothing in his evidence offered an explanation as to how he could have had an honest but mistaken belief that the Complainant communicated her consent in relation to the alleged offence.

Instead, the Accused’s evidence is that, while he has no recollection of the alleged offence, he and the Complainant always had consensual sex and that he never forced her to have sex. [ 61 ] The Accused’s evidence does not describe how any established pattern of communicated consent was present on the date of the alleged offence that could lead him to believe that the Complainant was communicating her consent to the sexual activity that forms the subject matter of the alleged offence. [ 62 ] On this evidence, the Accused has not laid the groundwork to give an air of reality to the defence of honest but mistaken belief in communicated consent.

Instead, his evidence suggests that he believed the Complainant consented on the date in question because she always consented to having sex with him.

This is precisely the type of implied consent, broad advanced consent, or propensity to consent that the Supreme Court specifically rejected as grounding a defence of honest but mistaken belief in communicated consent: R v Barton , 2019 SCC 33 at paras 92 and 116 . [ 63 ] Further, the Accused’s evidence invites prohibited twin myth inferences that 1) the Complainant was more likely to have consented to the sexual activity that forms the subject matter of the alleged offence because she always consented to having sex with the Accused and, 2) because she had always consented to having sex with the Accused, the Complainant is lying about not consenting to the sexual activity that forms the subject matter of the alleged offence. [ 64 ] Finally, the Defence argues that evidence of the sexual nature of the relationship between the Accused and the Complainant is relevant to establishing the Complainant’s state of mind and to her credibility. [ 65 ] The Supreme Court has acknowledged that credibility is an issue that pervades most trials but stated that evidence of prior sexual activity will rarely be relevant to support a denial that sexual activity took place or to establish consent: Goldfinch at para 57 . [ 66 ] The Court further stated that aspects of a relationship may be relevant to the coherence of the Accused’s narrative, and by extension, credibility.

There may be circumstances where context will be relevant for the jury to properly understand and assess the evidence. However, general arguments that the sexual nature of the relationship is relevant to context, narrative, or credibility will not suffice to bring the evidence within the purview of s 276(2): Goldfinch , at para 65 . [ 67 ] Here, the Defence has not explained how the evidence of other sexual activity between the Accused and the Complainant will assist with context, narrative, or credibility, nor what aspect of the Complainant’s state of mind will be established by leading it.

The Accused’s argument that this evidence is necessary to challenge the Complainant’s credibility engages the same generalized arguments about context, narrative, and credibility that the Supreme Court specifically rejected: Goldfinch at paras 65 – 68 . [ 68 ] For these reasons, the Accused’s application to adduce evidence of the sexual nature of the relationship between himself and the Complainant is denied. D.

Non-sexual evidence of the relationship between the Complainant and the Accused [ 69 ] The Accused seeks to adduce evidence of aspects of the relationship between himself and the Complainant that are non-sexual in nature but may suggest the sexual nature of their relationship. This includes evidence that the parties lived together and now have two children together.

The source of this evidence is the Accused’s affidavit in which he describes this relationship, supplemented by some viva voce evidence in this hearing. 1) The proposed evidence [ 70 ] In the Accused’s affidavit, he described meeting the Complainant on Tinder and a subsequent relationship that lasted for about three years, produced two children, and ended in November of 2021, about a month after the alleged offence date. [ 71 ] During the relationship, the Complainant lived with the Accused for approximately six months before she returned to live in Edmonton.

After the birth of the parties’ first child, the Accused experienced difficulties in exercising his parenting time. In February of 2022, he brought two applications in Family Court. The first was to establish his paternity of the child. The second was to establish his parenting time.

[ 72 ] Shortly after bringing these applications in Family Court, the Complainant reported this alleged offence to the police and obtained an Emergency Protection Order (EPO) against the Accused. By March of 2022, that EPO was converted to a Queen’s Bench Protection Order. Appended to the Accused’s affidavit are copies of the Notice to Attend Family Docket Court; the Family Court Endorsement; the EPO; and the Queen’s Bench Protection Order. [ 73 ] In his viva voce evidence, the Accused described driving the Complainant and their first child to a photo shoot sometime in October of 2021.

He also described attending at the Complainant’s home sometime in November, to help her get ready for Christmas. Appended to the Accused’s affidavit is a photograph of the Accused, the Complainant, the parties’ infant child, and the Accused’s son, taken at Halloween, shortly after the alleged offence date but before the Complainant reported this alleged offence to the police. [ 74 ] The evidence of the parties meeting on Tinder, having two children together, and the Family Court application surrounding the issue of paternity of the parties’ children suggests other sexual activity of the Complainant.

Accordingly, s 276 is engaged. [ 75 ] Some of the proposed evidence does not suggest other sexual activity of the Complainant but may contain records relating to the Complainant that are in the Accused’s possession, which could engage the provisions of s 278.92. 2) Relevance of the evidence to an issue at trial [ 76 ] The Defence argues that the relationship and Family Court application evidence is necessary to advance an argument that the Complainant had a motive to fabricate the alleged sexual assault as retaliation for the Accused ending their relationship and/or to leverage the Complainant’s position in the Family Court applications. 3) Potential admissibility of the evidence at trial [ 77 ] The Supreme Court has held that trial fairness can be met by specifying the parties to a relationship, the nature of the relationship, and the relevant time period of the relationship: Goldfinch at para 54 . [ 78 ] Accordingly, evidence about those aspects of the relationship between the Accused and the Complainant are capable of being admitted at trial.

The portion of the Accused’s application as it relates to this evidence is allowed and will advance to Stage 2. The details as to how this evidence will be adduced at trial can be dealt with if it is found to be admissible at Stage 2. [ 79 ] Evidence that the parties met on Tinder and of the Family Court application surrounding the issue of paternity of the parties’ children is evidence of other sexual activity of the Complainant as contemplated in s 276. The relevance of this evidence to an issue at trial has not been established.

As such, this portion of the Accused’s application is denied. [ 80 ] Any evidence that the Complainant continued in her relationship with the Accused or continued to interact with him after the alleged offence date is not capable of being admitted for the purpose of supporting an inference that the Complainant is less worthy of belief.

The law is clear that victims of sexual assault do not all react the same way and assessments of their credibility or reliability cannot be grounded on stereotypical notions of how they are expected to act: R v Seaboyer , [1992] 2 SCR 577 at paras 147 – 152 ; R v CMG , 2016 ABQB 368 at para 63 – 81 ; R v ADG , 2015 ABCA 470 at para 33 . [ 81 ] The timing of the Complainant reporting this alleged offence to the police and obtaining an EPO against the Accused proximate to him bringing applications in Family Court is evidence capable of being adduced at trial as it relates to the Complainant’s credibility and possible motive to fabricate.

This portion of the Accused’s application is allowed, and this evidence will advance to Stage 2 to determine its admissibility at trial. The details as to how this evidence will be adduced at trial will be discussed if it is found to be admissible at Stage 2. [ 82 ] The Notice to Attend Family Docket Court and the Family Court Endorsement engage s 276 to the extent those documents refer to issues surrounding paternity of the parties’ children. The relevance of this evidence to an issue at trial has not been established.

The Accused’s application as it relates to adducing portions of the Family Court documents that include references to paternity of the parties’ children is denied. [ 83 ] The EPO and Queen’s Bench Protection Order do not, on their face, relate to other sexual activity of the Complainant. As such, s 276 is not engaged. [ 84 ] I am satisfied that the balance of the Court documents, as described above, are not “records” as that term is defined in s 278.1, nor as contemplated by the Supreme Court in JJ (at para 42).

These are copies of publicly available Court documents over which the Complainant does not have a reasonable expectation of privacy. Accordingly, these Court documents are not subject to the s 278.92 records screening regime. [ 85 ] Any other non-sexual contact between the Accused and the Complainant as described in his affidavit and viva voce evidence is not the subject of either s 276 or s 278.92. This includes contact between the parties in October of 2021 surrounding the two photo shoots and the Accused attending at the Complainant’s home in November of 2021 to help her set up for Christmas.

Since neither s 276 nor s 278.92 are engaged, a Stage 2 voir dire is not required to determine the admissibility of this evidence. [ 86 ] Similarly, the family photograph taken at Halloween is not a “record” within the meaning of s 278.1. The photo reveals no information of an intimate or highly personal nature that is integral to the Complainant’s overall physical, psychological, or emotional well-being. As such, the admissibility of the photograph is not governed by s 278.92 and a Stage 2 voir dire is not required to determine its admissibility. E. The Complainant’s prior inconsistent statement

[ 87 ] The Accused seeks to adduce evidence of a prior inconsistent statement made by the Complainant. The source of this evidence is the email the Complainant sent to Defence counsel in which she wrote: While my original statement included incidents where [the Accused] would ‘force’ me to have sex with him to prove to him that I love him, I realize now that I never truly felt forced to have sex with him.

My love for him always left me willing to and the compassion I had for him made me want to reassure his insecurities. [ 88 ] As discussed previously, the email engages s 276 because it refers to other sexual activity of the Complainant. The email is also a “record” and is subject to the s 278.92 records screening regime. Also, as discussed, the email is prima facie inadmissible hearsay because Counsel for the Accused is the recipient of it. [ 89 ] The Crown has conceded that the excised portion of the email is a prior inconsistent statement that is essential to the Accused’s defence and should advance to Stage 2.

The Crown is prepared to make any necessary procedural admissions should this evidence be deemed admissible at trial. [ 90 ] I agree that the excised portion of the email is a prior inconsistent statement and is therefore relevant to an issue at trial. With the Crown’s procedural concessions to address the hearsay issue, this portion of the Accused’s application is allowed, and the excised portion of the email will advance to Stage 2 to determine its admissibility at trial . The details as to how this evidence will be adduced at trial can be dealt with if it is found to be admissible at Stage 2. F.

Voicemails the Complainant left for the Accused [ 91 ] The Accused seeks to adduce evidence of voicemails the Complainant left for him during the time that he was bound by conditions to not have contact with her. The source of this evidence is the Accused’s affidavit that appends to it recordings and transcripts of the voicemails. 1) Are the voicemails “records”? [ 92 ] The Defence argues the voicemails are not “records” for the purposes of this application because the Complainant waived any reasonable expectation of privacy she may have had when she left the voicemails, unsolicited, for the Accused.

Accordingly, the Defence argues that the provisions of s 278.92 do not apply. I disagree. [ 93 ] In the voicemails, the Complainant speaks of: (

a) being on Tinder; (

b) conversations and frustrations she is having with the Accused’s mother; (

c) trying to get the charges against the Accused dropped; (

d) reconciling their family; (

e) parenting of the parties’ child; (

f) worrying about being pregnant and having low iron; (

g) worrying about giving birth; (

h) wanting the Accused to be present for the birth of the parties’ second child; and, (

i) wanting to meet with the Accused. [ 94 ] To my mind, this is information of an intimate and highly personal nature. It is the type of information that is integral to the Complainant’s overall physical, psychological, or emotional well being and has implications for her dignity. By definition, this is private information.

The fact that the Complainant shared or communicated this information with the Accused does not diminish her privacy expectations in relation to it: JJ , at paras 49 and 62. [ 95 ] Because of the intimate and personal nature of the information contained in the voicemails, I am satisfied that they are “records” within the meaning of s 278.1 and are subject to the s 278.92 records screening regime. [ 96 ] In addition, because the voicemails contain information of other sexual activity of the Complainant, including being on Tinder and her pregnancy, s 276 is engaged. 2) Relevance to an issue at trial [ 97 ] The Defence argues evidence from these voicemails is relevant to the Complainant’s state of mind, credibility, and in direct response to the Complainant’s assertions in her police statement that she fears the Accused. 3) Potential admissibility of the evidence at trial [ 98 ] In this application, I have no evidence in relation to what the Complainant may have told the police about being fearful of the Accused.

Without any detailed particulars of the evidence the Accused seeks to adduce, his application to adduce the voicemail evidence to respond to the Complainant’s statements to police is denied for its failure to meet the requirements of s 278.93(2).

[ 99 ] Evidence of the Complainant being on Tinder is s 276 evidence that is not relevant to an issue at trial and is therefore not capable of being admitted. The portion of the Accused’s application to adduce the voicemail evidence in relation to the Complainant being on Tinder is denied. [ 100 ] The fact of the Complainant being pregnant with the parties’ second child is not being adduced for the purposes of engaging the twin myths .

This evidence is potentially relevant to an issue at trial as it relates to the Accused’s applications in Family Court proximate to the timing of the Complainant reporting this alleged offence to the police. The portion of the Accused’s application to adduce evidence in which the Complainant discussed her pregnancy is allowed. This evidence will advance to Stage 2 to determine its admissibility. The details as to how this evidence will be adduced at trial can be dealt with if it is found to be admissible at Stage 2. [ 101 ] The balance of the evidence in the voicemails does not engage s 276.

This evidence appears to have sufficient probative value that is not outweighed by the danger of its prejudice to the proper administration of justice. As such, the Accused’s application as it relates to the balance of the voicemail evidence is allowed. This evidence will advance to Stage 2 to determine its admissibility at trial. The details as to how this evidence will be adduced at trial can be dealt with if it is found to be admissible at Stage 2. G.

Text messages between the Complainant and the Accused’s mother [ 102 ] The Accused seeks to adduce evidence of a text message exchange between the Complainant and the Accused’s mother. The source of this evidence is the Accused’s affidavit that appends to it screen shots of the text messages. As the Accused is neither the sender nor recipient of the text messages, they are prima facie inadmissible hearsay and cannot be adduced by him.

In the event the Complainant refuses to adopt the text messages, the Accused will have no other way of introducing this evidence without calling his mother to testify. 1) Are the text messages “records”? [ 103 ] The Defence argues the text messages are not “records” for the purposes of this application because the Complainant waived any reasonable expectations of privacy she may have had when she sent them to the Accused’s mother. Therefore, according to the Defence, the provisions of s 278.92 do not apply. I disagree. [ 104 ] In these text messages, the Complainant discusses: (

a) needing the Accused to trust and contact her and that she can’t navigate things without talking to him; (

b) wanting to get the charges dropped; (

c) not being okay with lying about things just to get him off; (

d) wanting to meet with the Accused; and (

e) that the Accused broke up with the Complainant just before they found out the Complainant was pregnant and that he was awful to her and accused her of cheating and that the Accused got aggressive and that’s why things kept escalating. [ 105 ] I am satisfied this is information of an intimate and personal nature that engages the Complainant’s psychological and emotional well being.

The fact the Complainant shared this information with the Accused’s mother does not diminish her privacy interests in relation to it: JJ , at paras 49 and 62. [ 106 ] While not as intimate as the information contained in the voicemails, I am satisfied the text messages are “records” within the meaning of s 278.1 and are subject to the s 278.92 records screening regime. [ 107 ] The text messages contain information of other sexual activity of the Complainant. This includes discussions that the Accused alleged that the Complainant cheated on him and that she will soon be giving birth to the parties’ second child.

As such, s 276 is engaged. 2) Relevance to an issue at trial [ 108 ] The Defence argues the text message evidence is relevant to the Complainant’s state of mind, credibility and in direct response to the Complainant’s assertions in her police statement that she fears the Accused. 3) Potential admissibility of the evidence at trial [ 109 ] As with the voicemails, I have no evidence in this application in relation to any statements the Complainant may have made to the police about being fearful of the Accused.

Without detailed particulars of the evidence the Accused seeks to adduce, his application to adduce the text messages in response to the Complainant’s statements to police is denied for its failure to meet the requirements of s 278.93(2). [ 110 ] Any evidence that the Accused alleged the Complainant cheated on him is s 276 evidence that appears to have no relevance to an issue at trial and is therefore not capable of being adduced at trial.

This portion of the Accused’s application to adduce evidence from the text messages is denied. [ 111 ] The fact of the Complainant being pregnant with the parties’ second child is not being adduced for the purpose of supporting twin myth reasoning. This evidence appears to relate to an issue at trial as it relates to the Family Court applications proximate to the timing of the Complainant reporting this alleged offence to the police. The Accused’s application to adduce evidence from the text

messages in which the Complainant discussed being pregnant with their second child is allowed and will advance to Stage 2. The details as to how this evidence will be adduced at trial, including any hearsay issues relating to this evidence, can be dealt with if it is found to be admissible at Stage 2. [ 112 ] The balance of the evidence in the text messages does not engage s 276. The evidence appears to have sufficient probative value that is not outweighed by its danger of prejudice to the proper administration of justice.

The Accused’s application to adduce evidence from the balance of the text messages is allowed and will advance to Stage 2. The details as to how this evidence will be adduced at trial can be dealt with if it is found to be admissible at Stage 2. V. Conclusion [ 113 ] For all of these reasons, I find: 1. The Accused’s application to adduce evidence of the previous sexual assault is denied. 2. The Accused’s application to adduce evidence of the sexual nature of the relationship between the Accused and Complainant is denied. 3.

The Accused’s application to adduce evidence of the non-sexual aspects of the relationship between the Accused and Complainant is allowed in part. The application to adduce evidence of the nature of the relationship, the relevant time period of the relationship, and the fact the relationship produced two children is allowed and will advance to Stage 2. The application to adduce the Family Court applications proximate to the timing of the Complainant reporting this alleged offence and obtaining an EPO is allowed and will advance to Stage 2.

The application to adduce evidence of the parties meeting on Tinder and evidence surrounding the Accused’s paternity of their children is denied. 4. The evidence of the Accused and Complainant attending at a photo shoot together in October of 2021 and of the Accused attending at the Complainant’s home in November of 2021 to help get ready for Christmas is not s 276 evidence. 5. The Family Court documents engage s 276 to the extent they reference issues surrounding the Accused’s paternity of the parties’ children. The Accused’s application to adduce these portions of the Family Court documents is denied. 6.

Otherwise, the Family Court documents, the EPO and the Queen’s Bench Protection Order are not “records” for the purposes of this application. 7. The family photograph is not a “record” for the purposes of this application. 8. The Accused’s application to adduce the email the Complainant sent to Defence counsel is allowed in part. The application to adduce evidence of the Complainant’s prior inconsistent statement is allowed and will advance to Stage 2. The application to adduce the remaining content of the email is denied. 9.

The Accused’s application to adduce evidence from the voicemails the Complainant left for him is allowed in part. The application to adduce this evidence to respond to the Complainant’s statements to police of being fearful of the Accused is denied. The application in relation to adducing evidence of the Complainant being on Tinder is denied. The application as it relates to the balance of the evidence in the voicemails is allowed and will advance to Stage 2. [ 114 ] The Accused’s application to adduce evidence from the text messages exchange between the Complainant and the Accused’s mother is allowed in part.

The application to adduce this evidence to respond to the Complainant’s statements to police of being fearful of the Accused is denied. The application in relation to adducing evidence of the Accused’s alleging the Complainant cheated on him is denied. The application as it relates to the balance of the evidence in the text messages is allowed and will advance to Stage 2. Heard on the 28 th day of April, 2023. Dated at the City of Red Deer, Alberta this 24 th day of May, 2023. E.J. Funk J.C.K.B.A. Appearances: Davin Mitchell for the Crown

Janan Jarrah for the Accused