R v BC, 2023 ABCJ 182

In the Alberta Court of Justice Citation: R v BC, 2023 ABCJ 182 Date: 20230818 Docket: 220343969P1 Registry: High Prairie Between: His Majesty the King Crown - and - BC Defendant 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 By Court Order, information that could identify the victim must not be published, broadcast, or transmitted in any way. Publication Permitted – See the Criminal Code,

section 278.95(1) (a), (

b) and (c). By Court Order, this decision under the Criminal Code ,

section 278.93(4) , may be published. However, a person shall not publish in any document, or broadcast or transmit in any way, any of the following: (

a) the contents of the application made under the Criminal Code ,

section 278.93 ; and (

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

section 278.93 . NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. As well, portions of the content of the application have been redacted from this judgment to protect the victim’s right to privacy. Corrected judgment: A corrigendum was issued on September 19, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. Ruling on an Application Pursuant to

Section 278.93 of the Criminal Code

by the Honourable Justice S.P. Hinkley [ 1 ] I heard this application in Red Earth Creek on August 1 st , 2023, and gave a

summary ruling on that date. This is my written decision. History [ 2 ] This application was scheduled to be heard on July 18 th , 2023, said date having been set in September of 2022, and the trial proper was scheduled for August 1, 2023. In anticipation of a potential hearing, counsel for the complainant was made available for the July 18 th date. [ 3 ] On the July 18 th date, no application had been filed. Counsel appeared before a different Justice to argue whether the August 1 st trial date would be adjourned as a result.

That application was denied, with leave for defence to bring this application on the August 1 st date and, if necessary, abridge service for same. [ 4 ] In the intervening time, Defence filed their materials for the application, and perfected service of same approximately 6 days before the August 1 st date. Counsel for the complainant was made available and was present for the August 1 st date. [ 5 ] Defence then requested abridgement of service and, if granted, the Court proceed to a review of the application proper.

Abridgment of Time for Service [ 6 ] On the August 1 st , 2023 trial date, I heard submissions from counsel on the abridgement of service application. Having reviewed the totality of the circumstances, I ruled time for service would be abridged and the application proceeded before me. The Application [ 7 ] The application itself consists of a two-page affidavit of the Defendant, encompassing 11 paragraphs, with two attachments.

The first attachment is a single page which purports to be an online conversation between the Defendant and the boyfriend of the complainant in January of 2022, some months after the offence date, and which does not reference any specific instances of sexual contact between the complainant and the Defendant. [ 8 ] The second attachment is a single undated excerpt purporting to be a conversation between the complainant and the Defendant, with only the singular phrase “Ugh I want that so bad” and nothing else.

There is no date, time, identifying information, or any further conversation in the attachment itself. [ 9 ] The only context given for the second attachment is the assertion by the defendant in his affidavit of more and similar text messages existing (but not reproduced) and the assertion this excerpt is part of a larger conversation where the Defendant has sent a photo of his genitals in January of 2022.

Nothing of this conversation, nor the photo, was reproduced in the materials for the Court to review. [ 10 ] The purported use of this material is to challenge the credibility of the complainant regarding when contact between the two parties ended, and the nature of that contact, in particular continued “sexting” between the two parties. The Procedure [ 11 ] As recently articulated by the SCC in R. v.

J.J. , 2022 SCC 28 , the current statutory regime under s. 278.93 , 278.94 and 276 creates a two-stage process. [ 12 ] Stage 1 of the process is encompassed by s. 278.93 (1), (2) and (3) of the Criminal Code ; 278.93

(1) Application may be made to the judge, provincial court judge or justice by or on behalf of the accused for a hearing under

section 278.94 to determine whether evidence is admissible under subsection 276(2) or 278.92(2). Form and content of application

(2) An application referred to in subsection (1) must be made in writing, setting out detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial, and a copy of the application must be given to the prosecutor and to the clerk of the court. Jury and public excluded

(3) The judge, provincial court judge or justice shall consider the application with the jury and the public excluded. [ 13 ] The task at stage 1, as articulated by JJ, supra at paragraph 23 is to;

… review the accused’s application to determine whether the evidence sought to be adduced is capable of being admissible having regard to the threshold tests set out in s. 278.92(2)(

a) and (

b) and the applicable factors in ss. 276(3) or 278.92(3), depending on the type of evidence. [ 14 ] The threshold at stage 1 is a low one, but one which still requires the Court to assess the content of the application as being capable of admission against the criteria articulated above. [ 15 ] If the Court finds the evidence capable of admissibility after consideration of the factors above, then stage 2 commences, encompassed by s. 278.93(4). Judge may decide to hold hearing

(4) If the judge, provincial court judge or justice is satisfied that the application was made in accordance with subsection (2), that a copy of the application was given to the prosecutor and to the clerk of the court at least seven days previously, or any shorter interval that the judge, provincial court judge or justice may allow in the interests of justice and that the evidence sought to be adduced is capable of being admissible under subsection 276(2), the judge, provincial court judge or justice shall grant the application and hold a hearing under

section 278.94 to determine whether the evidence is admissible under subsection 276(2) or 278.92(2). [ 16 ] During stage 2, complainants are permitted to appear with the assistance of counsel and make submissions if they choose, pursuant to s. 278.94 (2) and (3). Duty of the Court to Act as a Gatekeeper [ 17 ] I am required to review the application as it is presented to me. I am not permitted to speculate as to what other evidence exists.

I must be satisfied at Stage 1 the proposed evidence as outlined by the Defendant meets all the criteria under 278.92(3) as a precursor to moving to a hearing. [ 18 ] This duty was recently and forcibly articulated by the Supreme Court in R. v. Barton , 2019 SCC 33 (locus para 66); …The ultimate responsibility for enforcing compliance with the mandatory s. 276 regime lies squarely with the trial judge, not with the Crown.

After all, it is the trial judge, not the Crown, who is the gatekeeper in a criminal trial… (emphasis added) The Law [ 19 ] At stage 1, my task is to determine if the proposed evidence is capable of being admitted at trial. I must therefore be satisfied 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. [ 20 ] The case law is clear these requirements are cumulative, and each must be satisfied as a condition precedent to admission, or the application must be dismissed at stage 1. The Requirement for Specificity [ 21 ] To allow the Court to meaningfully engage in a review of the merits of the application, there must be sufficient detail in it. [ 22 ] This requirement was reiterated by the majority of the S.C.C. in R. v.

R.V. , 2019 SCC 41 (locus paragraph 48); …the words "specific instances of sexual activity" must be read purposively and contextually. They limit admissible evidence to discrete sexual acts, and protect against the misuse of general reputation evidence to discredit the complainant and distort the trial process: see R. v. L.S. , 2017 ONCA 685 , 40 C.R. (7th) 351 (Ont. C.A.), at paras. 79-80 . The "specific instances" requirement is buttressed by the procedural aspects of a s. 276 application, which require the accused to set out "detailed particulars" of the evidence to be adduced: s. 276.1(2).

By requiring "detailed particulars," the Criminal Code ensures that judges are equipped to meaningfully engage with the s. 276 analysis and that defence evidence does not take the Crown or complainant by surprise: Darrach , at para. 55, Goldfinch , at para. 51; see also L.S. , at paras. 82-85 . [ 23 ] During oral argument, Defence raised the issue of the tension between the requirement of “defence disclosure” in a 276 application versus placing sufficient evidence before the Court to make an evaluation of its merits. [ 24 ] This issue has been settled for some time. [ 25 ] R v Darrach , 2000 SCC 46 , reviewed this argument and rejected it.

Section 276 does not require the accused to make premature or inappropriate disclosure to the Crown. For the reasons given above, the accused is not forced to embark upon the process under s. 276 at all. As the trial judge found in the case at bar, if the defence is going to raise the complainant’s prior sexual activity, it cannot be done in such a way as to surprise the complainant. The right to make full answer and defence does not include the right to defend by ambush.

The Crown as well as the Court must get the detailed affidavit one week before the voir dire, according to s. 276.1(4)(b), in part to allow the Crown to consult with the complainant. The Crown can oppose the admission of evidence of sexual activity if it does not meet the criteria in s. 276. Neither the accused’s s. 11(

c) right not to be compelled to testify against himself nor his s. 11(

d) right to be presumed innocent are violated by the affidavit requirement. This is borne out by the way in which the admissibility procedure operates. 56 The defence must satisfy the trial judge that the evidence it seeks to adduce meets the statutory requirements for admissibility. To admit evidence of sexual activity at trial, the judge must provide written reasons about how the evidence “is expected to be relevant to an issue at trial” and the factors she considered in making this determination (as per ss. 276.2(3)(

b) and ( c )). It is perfectly appropriate that, to this end, the affidavit must disclose evidence that is “capable of being admissible under subsection 276(2)”. Among other things, the evidence must be adduced for a permissible purpose and must be relevant to an issue at trial. The affidavit must therefore establish a connection between the complainant’s sexual history and the accused’s defence.

As the trial judge put it, “there would have to be evidence to establish the link between the potential defences ... and the prior sexual conduct”. [ 26 ] It is therefore incumbent on the party making the application to ensure the Judge or Justice reviewing it is placed in a position to undertake a meaningful review of its contents. To do otherwise obviates the reason for the procedure. Evaluation of the Content of the Application [ 27 ] I have carefully reviewed the affidavit of the Defendant and its attachments. Of concern is the lack of detail within the affidavit as to what the proposed evidence consists of.

What was given to the Court is one sentence of one alleged conversation, without any context. The affidavit of the Defendant consists of bare assertions of further conversations, but no details of same and nothing for the Court to meaningfully engage with, despite the Defendant possessing and having the ability to reproduce it. [ 28 ] The only specific evidence produced for my review is evidence the Defendant alleged at paragraph 9 of his affidavit was created from his own instigation of contact with the complainant in a sexual context.

However, none of that conversation or context from the Defendant was reproduced in the affidavit or its attachments for the Court to review. [ 29 ] I am left to speculate as to what the content, context and dates of the individual conversations might potentially be and told only they may be relevant to the credibility of the complainant. [ 30 ] The jeopardy in this sparsity of detail lies in my inability to evaluate the potential use and therefore potential admissibility of the proposed evidence. How am I to enumerate “specific instances of sexual activity”?

How am I to engage with the potential for twin- myths reasoning? How am I to evaluate potential relevancy to an issue at trial, beyond a blanket statement of “credibility”? Finally, how am I to review whether there is significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice? [ 31 ] I am required to evaluate the content of the application as it is offered to the Court. For the purposes of stage 1 of this review, I will.

Application of the Law to the Application [ 32 ] In reviewing the content of the application, I adopt the reasoning of Justice Mandziuk in R v PO , 2020 ABQB 647 ; [22] …the Crown argues that Stage 1 requires particulars tying the evidence to a credibility determination. [23] I agree that such particulars are absent; saying that the evidence is relevant to credibility is not enough: Bare assertions that such evidence will be relevant to context, narrative or credibility cannot satisfy s. 276(2).

A s. 276 application must provide “detailed particulars” which will allow a judge to meaningfully engage with the tests set out at s. 276(2) and (3). The accused must propose a use of the evidence that does not invoke twin-myth reasoning. These requirements are key to preserving the integrity of the trial by ensuring twin-myth reasoning masquerading as “context” or “narrative” does not ambush the proceedings ( Goldfinch at 51).

To be clear, however, just as generic references to “context” or “narrative” will not suffice to justify the admission of sexual activity evidence under s. 276(2), bare invocations of “credibility” will not be enough. Credibility is a key issue in almost every sexual assault trial — the centrality of credibility assessments does not, however, allow the accused to bypass the rigours of s. 276 .

Instead, where credibility is concerned, the accused must identify specific facts or issues that require reference to the sexual activity evidence to be understood and that could have a material impact on a credibility assessment ( Goldfinch at 124). [ 33 ] The present application suffers from the same deficiencies. [ 34 ] In attempting to introduce vague evidence of sexual conversations between the complainant and Defendant, the danger of twin myths reasoning increases greatly.

This lack of detail renders impossible any evaluation of what relevance this potential sexual activity has to the trial proper without engaging the prohibited reasoning. [ 35 ] There is a final evaluation for potential admissibility of this type of evidence. It requires a balancing of having significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. Without sufficient detail available to the Court, such an evaluation is simply not possible.

[ 36 ] Stage 1 requires an evaluation to the low threshold of “capable of admission”. Logically, the Court must be able to review the proposed evidence in a manner consistent with the large volume of guidance available from the jurisprudence. Without that ability, the Court will simply be unable to make a finding the proffered evidence is “capable of admission”, as it cannot review the evidence in any meaningful way against the standards for admissibility. Ruling [ 37 ] Based on the information contained in the Defendant’s application, I do not find the low threshold to proceed to stage 2 of the process has been met on the following grounds. (

a) The application lacks the required specificity to allow this Court to properly exercise its gatekeeping function and evaluate it against the criteria for potential admission. (

b) The application in its current form invites prohibited reasoning, by potentially asking the Court to find the complainant less worthy of belief due to unrelated sexual activity, or the complainant may have consented to the sexual activity alleged on the basis of having consented to other unrelated sexual activity. (

c) Finally, given the paucity of specifics, I am unable to find this evidence capable of having significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. [ 38 ] The application is denied at stage 1. [ 39 ] I note, should evidence in the trial proper arise allowing this application to be renewed, the reasoning of the Supreme Court in Barton , supra does allow for this [1] . Heard at the Hamlet of Red Earth Creek, Alberta on the 1 st day of August, 2023. Dated at the Town of High Prairie, Alberta this 18 th day of August, 2023. S.P.

Hinkley A Justice of the Alberta Court of Justice Appearances: Adriene Shapka for the Crown Lisa Trach, Trach Law for the Defendant _______________________________________________________ Corrigendum of the Ruling on an Application Pursuant to

Section 278.93 of the Criminal Code by the Honourable Justice S.P. Hinkley

_______________________________________________________ Restriction on Publication was amended to allow publication with restrictions pursuant to: Publication Permitted – See the Criminal Code,

section 278.95(1) (a), (

b) and (c).