Her Majesty The Queen Appellant v. R.V., 2019 SCC 41

SUPREME COURT OF CANADA Citation: R. v. R.V., 2019 SCC 41, [2019] 3 S.C.R. 237 Appeal Heard: March 20, 2019 Judgment Rendered: July 31, 2019 Docket: 38286 Between: Her Majesty The Queen Appellant and R.V. Respondent - and - Ending Violence Association of Canada and Criminal Lawyers’ Association of Ontario Interveners Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Brown, Rowe and Martin JJ. Reasons for Judgment: (paras. 1 to 100) Karakatsanis J. (Wagner C.J. and Abella, Moldaver and Martin JJ. concurring) Joint Dissenting Reasons: (paras. 101 to 139) Brown and Rowe JJ. R. v.

R.V., 2019 SCC 41, [2019] 3 S.C.R. 237 Her Majesty The Queen Appellant v. R.V. Respondent and Ending Violence Association of Canada and

Criminal Lawyers’ Association of Ontario Interveners Indexed as: R. v. R.V. 2019 SCC 41 File No.: 38286. 2019: March 20; 2019: July 31.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Brown, Rowe and Martin JJ. on appeal from the court of appeal for ontario Criminal law — Evidence — Admissibility — Complainant’s sexual activity — Accused charged with sexual assault and sexual interference — Crown introducing evidence of complainant’s sexual activity — Accused’s application to challenge Crown’s evidence by cross-examining complainant dismissed — Accused convicted — Whether accused was entitled to cross-examine complainant on Crown-led evidence relative to her sexual activity — If so, whether curative proviso should be applied — Criminal Code, R.S.C. 1985, c.

C-46, ss. 276 , 686(1) (b)(iii) . Criminal law — Trial — Continuation of proceedings — Application judge dismissing application by accused to cross- examine complainant on Crown-led evidence of complainant’s sexual activity — Proceedings continued before different judge — Trial judge refusing to rehear accused’s application — Whether trial judge had jurisdiction to reconsider application — Whether material change in circumstances warranted reconsideration of application — Criminal Code, R.S.C. 1985, c. C-46, s. 669.2 . The accused was charged with sexual assault and sexual interference.

During pre-trial proceedings, he applied under s. 276 of the Criminal Code for permission to cross-examine the complainant about her prior sexual activity because the Crown intended to rely on the complainant’s pregnancy as evidence of sexual contact with the accused. The application judge dismissed the accused’s s. 276 application. After the voir dire and prior to trial, the application judge invoked s. 669.2 of the Criminal Code and the trial continued before another judge. At the outset of the trial, the trial judge declined the accused’s request to re-litigate the s. 276 application.

The accused was convicted of sexual interference. The Court of Appeal allowed the accused’s appeal and ordered a new trial. In the Court of Appeal’s view, it was patently unfair for the Crown to rely on the pregnancy as confirming the complainant’s story while preventing the accused from challenging this inference. The court also held that the trial judge’s conclusion that he was bound by the initial s. 276 ruling was incorrect. It ordered a new trial. Held (Brown and Rowe JJ. dissenting): The appeal should be allowed and the conviction restored.

Per Wagner C.J. and Abella, Moldaver, Karakatsanis and Martin JJ.: The application judge erred in dismissing the accused’s s. 276 application and the trial judge erred in concluding that he was bound by the initial s. 276 ruling. The ability to cross-examine the complainant was fundamental to the accused’s right to make full answer and defence. However, no miscarriage of justice occurred since the cross-examination that was permitted and actually occurred allowed the defence to test the evidence with sufficient rigour.

Sexual assault trials raise unique challenges in protecting the integrity of the trial and balancing the societal interests of both the accused and the complainant. Parliament and the courts have responded to these challenges by setting out rules of evidence tailored to this context.

Section 276 of the Criminal Code governs the accused’s right to introduce evidence regarding the complainant’s prior sexual activity. Such evidence is never admissible to support the twin myths that the complainant is less worthy of belief or more likely to have consented to the sexual activity in question. In order to respect the presumption of innocence and the accused’s right to make full answer and defence, evidence may be adduced for other relevant purposes but must satisfy rigorous criteria to ensure it does not undermine the integrity of the trial or the complainant’s dignity and privacy.

The requirements of s. 276 apply with equal force regardless of whether the accused seeks to introduce evidence to establish a defence or to challenge inferences urged by the Crown. Before evidence of a complainant’s sexual history may be introduced, the court must carefully scrutinize the potential evidence. Individuals charged with criminal offences are presumed innocent until proven guilty; accordingly, an accused has the right to call the evidence necessary to establish a defence and to challenge the prosecution’s evidence.

Full answer and defence is a principle of fundamental justice, protected by s. 7 of the Canadian Charter of Rights and Freedoms . A key element of full answer and defence is the right to cross-examine the Crown’s witnesses without significant and unwarranted restraint. In certain circumstances, cross-examination may be the only way to get at the truth. The fundamental importance of cross-examination is reflected in the general rule that counsel is permitted to ask any question for which they have a good faith basis. Uncertainty of result does not deprive a line of questioning of its probative value.

However, the right to cross-examine is not unlimited. Cross-examination questions must be relevant and their prejudicial effect must not outweigh their probative value.

Section 276 requires that the accused’s right to make full answer and defence be balanced with the dangers that cross-examination may pose to the complainant’s privacy and dignity and the integrity of the trial process. This is because inquiries into any individual’s sexual history are highly intrusive. In addition, testifying in a sexual assault case can be traumatizing and harmful to complainants.

Where challenging the Crown’s evidence of the complainant’s sexual history directly implicates the accused’s ability to raise a reasonable doubt, cross-examination becomes fundamental to the accused’s ability to make full answer and defence and must be allowed in some form. The more important evidence is to the defence, the more weight must be given to the rights of the accused. However, since permitting an accused to question a complainant on such matters treads on dangerous grounds, raising both dignity and privacy concerns, judges must tightly control such cross-examinations to minimize those risks.

Broad exploratory questioning is never permitted under s. 276 . Where targeted cross-examination of the complainant is

permitted, trial judges must strike a delicate balance between giving counsel sufficient latitude to conduct effective cross-examination and minimizing any negative impacts on the complainant and the trial process. Proposed questions should be canvassed in advance and may be re-assessed based upon the answers received. In certain cases, it may even be appropriate to approve specific wording. Section 276(1) and the common law principles apply to Crown-led evidence of a complainant’s sexual history.

Where the accused’s s. 276 application relates to Crown-led evidence, it would be prudent to consider both the Crown’s proposed use of the evidence and any challenges proposed by the accused at the same time. Section 276(2)(

a) requires the accused to identify “specific instances of sexual activity” to avoid unnecessary incursions into the sexual life of the complainant. The words “specific instances of sexual activity” must be read purposively and contextually. They limit admissible evidence to discrete sexual acts, and protect against misuse of general reputational evidence to discredit the complainant and distort the trial process. 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.

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. However, s. 276(2)(

a) does not always require an accused to come before the court armed with names, dates and locations. Requiring such details may, in some cases, be unduly intrusive, defeating one of the provision’s most important objectives. The degree of specificity required depends on the circumstances of the case, the nature of the sexual activity that the accused seeks to adduce and the use to be made of that evidence. Caution must be exercised where the proposed inquiry captures a broad range of sexual activity and is limited only by a specified timeframe.

In this case, the complainant testified that she was a virgin at the time of the assault. The Crown introduced evidence of her subsequent pregnancy and the approximate date of conception to support the complainant’s testimony that she was sexually assaulted by the accused. The presumption of innocence requires that the accused be permitted to test such critical, corroborating physical evidence before it can be relied on to support a finding of guilt.

Given the accused’s denial of any sexual contact with the complainant, and the lack of other evidence of paternity, the ability to cross-examine the complainant was fundamental to his right to make full answer and defence. It would be unfair for the Crown to rely on the complainant’s testimony that the accused caused the pregnancy while at the same time preventing the accused from challenging the complainant’s account. Furthermore, the accused’s request to cross-examine the complainant satisfied the “specific instances” requirement of s. 276(2)(

a) because it was sufficiently detailed to permit the judge to apply the regime. The cross-examination sought to establish that the pregnancy was caused by sexual activity other than the alleged assault. The Crown-led evidence implicated a specific sexual act, namely activity capable of causing pregnancy within a particular time-frame.

Section 669.2 of the Criminal Code does not displace the general rule that a trial judge has discretion to re-consider rulings made earlier in the proceedings if there is a material change of circumstances. An order related to the conduct of trial may be varied or revoked if there is a material change of circumstances as s. 276 continues to operate even after an initial evidentiary ruling has been rendered. In this case, the trial judge held that he could not re-consider the ruling and also observed that no material change of circumstances had occurred between the s. 276 ruling and the start of trial.

Given the trial judge’s decision, counsel for the accused may have thought it would be futile to apply for a re-consideration, even if the circumstances changed during the trial. Section 686(1)(b)(iii) of the Criminal Code permits a court of appeal to dismiss an appeal from a conviction where “no substantial wrong or miscarriage of justice has occurred”. Applying the curative proviso is appropriate in two circumstances: (1) where the error is harmless or trivial; or (2) where the evidence is so overwhelming that the trier of fact would inevitably convict.

Because cross-examination is a key element of the right to make full answer and defence, a failure to allow relevant cross-examination will almost always be grounds for a new trial. In this case, a correct balancing of the interests set out in s. 276(3) would have allowed the accused to make limited inquiries into: (

i) the complainant’s understanding of the types of sexual activity capable of causing pregnancy and (ii) whether she engaged in any such activity at the relevant time. The scope of permissible cross-examination would not have been any broader than the questioning that actually occurred. The accused was not precluded from adequately testing the evidence in this case, despite the errors in the s. 276 ruling. The application and trial judge’s errors are harmless and there is no reasonable possibility that the verdict would have been different had the errors not been made.

Per Brown and Rowe JJ. (dissenting): There is agreement with the majority that the application judge misapplied the admissibility criteria under s. 276 of the Criminal Code and further, that the trial judge erred in holding that he had no jurisdiction to reconsider the s. 276 ruling in light of the evidence adduced by the Crown. However, there is disagreement as to the appropriate remedy for the errors of the application and trial judges. The errors in this case were not harmless or minor, nor was the evidence overwhelming.

Cross-examination was restricted in a manner not consistent with the purpose behind s. 276 and as a result, the accused was denied a fair trial. The right to test the Crown’s evidence through relevant cross-examination is guaranteed by both the common law and the Charter as a core element of the right to make full answer and defence. A n accused has the right of cross-examination in the fullest and widest sense of the word as long as that right is not abused. An accused’s fair trial rights include not just the fact of cross-examination, but also control over the rhythm of cross-examination.

C ross-examination is not so much a series of questions as a process of questioning. Cross-examination involves putting careful questions to a witness that are designed to explore bit by bit the nature and extent of that witness’s knowledge, and therefore is effective only where it is permitted to proceed step by step towards the ultimate point, where the examiner can pose the final question (or questions), knowing by that time what the answer(

s) will be, having regard to the earlier evidence elicited. When cross-examination is unduly restricted, the effects on the fairness of the trial will often reverberate beyond, and cannot be fully appreciated by parsing, the particular words in a transcript. However, a cross-examination that is not unduly restricted does not mean a cross-examination that is boundless. Parliament has specifically legislated limits on questioning related to a complainant’s sexual history into the Criminal Code .

If an accused’s right to test the Crown’s evidence is irremediably impaired through an inability to challenge a crucial part of the case against them, it will be inappropriate to invoke or apply the curative proviso provided for in s. 686(1)(b)(iii) of the Criminal Code . Where there has been a legal error, the default is to order a new trial; the proviso allows a departure from this default rule only in very narrow circumstances. The curative proviso is rarely (successfully) invoked, and applies where, and only where, the error is minor or harmless, or the evidence is overwhelming.

It is a high bar for the Crown to meet. The high bar on the proviso’s use strongly affirms

the need to safeguard the integrity of the criminal justice system from the risk of wrongful conviction. Given the interests the proviso protects, it cannot be invoked here. In the absence of overwhelming evidence, its applicationturns on whether the erroneous s. 276 ruling was so minor or harmless that it could not have had an impact on the verdict. The errorswere significant and their cumulative effect deprived the accused of the right to engage in a process of questioning protected by both theCharter and the common law.

Had the accused been able to effectively challenge the sexual history evidence presented by the Crown, hemay have been able to elicit something that was sufficient to raise a doubt: cross-examination may well have been the only way to elicitevidence that was not apparent at the outset. The accused, therefore, was denied a fair trial, and where fair trial rights have beeninfringed, the appeal should run its natural course. The appeal should be dismissed. Cases Cited By Karakatsanis J. Referred to: R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3; R. v. Seaboyer, (SCC), [1991] 2 S.C.R. 577;R. v.

Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443; R. v. Osolin, (SCC), [1993] 4 S.C.R. 595; R. v. Lyttle, 2004 SCC 5,[2004] 1 S.C.R. 193; R. v. Mills, (SCC), [1999] 3 S.C.R. 668; R. v. L.S., 2017 ONCA 685, 40 C.R. (7th) 351; R. v.Crosby, (SCC), [1995] 2 S.C.R. 912; R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390; R. v. Nkemka, 2013 ONSC2121; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579; R. v. Akumu, 2017 BCSC 533; R. v. Adams, (SCC), [1995] 4S.C.R. 707; R. v. Calder, (SCC), [1996] 1 S.C.R. 660; R. v.

La, (SCC), [1997] 2 S.C.R. 680; R. v.Pittiman (2005), (ON CA), 198 C.C.C. (3d) 308, aff’d 2006 SCC 9, [2006] 1 S.C.R. 381; R. v. Brothers (1995),1995 ABCA 185 , 169 A.R. 122; R. v. Bevan, (SCC), [1993] 2 S.C.R. 599; R. v. Khan, 2001 SCC 86, [2001] 3S.C.R. 823; R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272; R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716; R. v. Shearing, 2002 SCC58, [2002] 3 S.C.R. 33. By Brown and Rowe JJ. (dissenting) R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579; R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3; R. v. Sekhon, 2014 SCC15, [2014] 1 S.C.R. 272; R. v.

Sarrazin, 2011 SCC 54, [2011] 3 S.C.R. 505; R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716; R. v. Brown,2018 ONCA 481, 361 C.C.C. (3d) 510; R. v. Bomberry, 2010 ONCA 542, 267 O.A.C. 235; R. v. Hill, 2015 ONCA 616, 339 O.A.C. 90;R. v. Osolin, (SCC), [1993] 4 S.C.R. 595; R. v. Levogiannis, (SCC), [1993] 4 S.C.R. 475; R. v. N.S.,2012 SCC 72, [2012] 3 S.C.R. 726; R. v. Schmaltz, 2015 ABCA 4, 593 A.R. 76; Regina v. White (1976), (AB KB), 1Alta. L.R. (2d) 292; R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193; R. v. Anandmalik (1984), 6 O.A.C. 143; R. v. Wallick (1990), (MB CA), 69 Man. R. (2d) 310; R. v.

Borden, 2017 NSCA 45, 349 C.C.C. (3d) 162; R. v. Shearing, 2002 SCC 58, [2002]3 S.C.R. 33; Fox v. General Medical Council, [1960] 1 W.L.R. 1017; Adams v. United States ex rel. McCann, 317 U.S. 269 (1942);Michelson v. United States, 335 U.S. 469 (1948); R. v. Seaboyer, (SCC), [1991] 2 S.C.R. 577; R. v. Sarrazin, 2010ONCA 577, 268 O.A.C. 200; R. v. Crosby, (SCC), [1995] 2 S.C.R. 912.

Statutes and Regulations Cited Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts inrelation thereto or in consequence thereof, S.C. 1980-81-82-83, c. 125, s. 246.6(1)(a) [rep. & sub. 1985, c. C-46, s. 276(1)(a)]. Bill C-51,

An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act,1st Sess., 42nd Parl., 2018. Canadian Charter of Rights and Freedoms, ss. 7, 11(d). Criminal Code, R.S.C. 1985, c. C-46, ss. 276, 276.1(2) [ad. 2018, c. 29, s. 25], (4) [idem], 669.2, 686(1)(b)(iii). Authors Cited Adair, Geoffrey D. E. On Trial: Advocacy Skills, Law and Practice, 2nd ed. Markham, Ont.: LexisNexis Butterworths, 2004. Craig, Elaine. Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession. Montréal: McGill-Queen’s UniversityPress, 2018.

Craig, Elaine. “The Ethical Obligations of Defence Counsel in Sexual Assault Cases” (2014), 51 Osgoode Hall L.J. 427. Ozkin, Senem. “Balancing of Interests: Admissibility of Prior Sexual History under

Section 276” (2011), 57 Crim. L.Q. 327. Woolley, Alice. Understanding Lawyers’ Ethics in Canada, 2nd ed. Toronto: LexisNexis, 2016. APPEAL from a judgment of the Ontario Court of Appeal (MacFarland, Watt and Paciocco JJ.A.), 2018 ONCA 547, 141O.R. (3d) 696, 362 C.C.C. (3d) 434, 46 C.R. (7th) 309, [2018] O.J. No. 3162 (QL), 2018 CarswellOnt 9555 (WL Can.), setting aside theconviction for sexual interference entered by Gee J. and ordering a new trial. Appeal allowed, Brown and Rowe JJ. dissenting. Katie Doherty, for the appellant. Michael Dineen and Megan Savard, for the respondent. Greg J.

Allen and Jorie Les, for the intervener the Ending Violence Association of Canada. Marie Henein and Lauren Mills Taylor, for the intervener the Criminal Lawyers’ Association of Ontario.

The judgment of Wagner C.J. and Abella, Moldaver, Karakatsanis and Martin JJ. was delivered by Karakatsanis J. — I. Introduction [ 1 ] Sexual assault trials raise unique challenges in protecting the integrity of the trial and balancing the societal interests of both the accused and the complainant. Parliament and the courts have responded to these challenges by setting out rules of evidence tailored to this context. [ 2 ] Parliament enacted s. 276 of the Criminal Code , R.S.C. 1985, c. C-46 , to govern the accused’s right to introduce evidence regarding the complainant’s prior sexual activity.

Such evidence is never admissible to support the twin myths that the complainant is less worthy of belief or more likely to have consented to the sexual activity in question.

In order to respect the presumption of innocence, evidence may be adduced for other relevant purposes but must satisfy rigorous criteria to ensure it does not undermine the integrity of the trial or the complainant’s dignity and privacy. [ 3 ] The issue in this case is how these requirements apply where the Crown introduces evidence relating to the complainant’s sexual activity and the accused seeks to challenge that evidence by cross-examining the complainant. [ 4 ] Here, the complainant testified that she was a virgin at the time of the assault.

The Crown introduced evidence of her subsequent pregnancy and the approximate date of conception to support the complainant’s testimony that she was sexually assaulted by the accused. The accused denied the allegations and sought to question the complainant as to whether anyone else could have caused the pregnancy. [ 5 ] The application judge ruled that the accused was not permitted to ask whether the complainant had engaged in any other sexual activity because the accused had no evidence of “specific instances of sexual activity” — one of the requirements of s. 276(2) of the Criminal Code .

The accused was, however, permitted to cross-examine the complainant about her claim that she was a virgin at the time of the assault. [ 6 ] I conclude that the application judge erred. The cross-examination sought to establish that the pregnancy was caused by sexual activity other than the alleged assault. The Crown-led evidence implicated a specific sexual act, namely activity capable of causing pregnancy within a particular timeframe.

The accused’s request satisfied the “specific instances” requirement of s. 276(2) because it was sufficiently detailed to permit the judge to apply the regime. [ 7 ] The Crown clearly intended to rely on evidence of the pregnancy to establish the actus reus . The presumption of innocence requires the accused to be permitted to test such critical, corroborating physical evidence before it can be relied on to support a finding of guilt.

Given the accused’s denial of any sexual contact with the complainant, and the lack of other evidence of paternity, the ability to cross-examine the complainant was fundamental to his right to make full answer and defence. [ 8 ] Nonetheless, permitting an accused to question a complainant about such matters treads on dangerous ground, raising both dignity and privacy concerns. Judges must tightly control such cross-examination to minimize those risks. The accused’s right to make full answer and defence must be balanced with other interests protected in s. 276(3).

Here, balancing those interests would have required any cross-examination to be narrow in scope. [ 9 ] That said, I am of the view that no miscarriage of justice occurred in this case. The cross-examination that was permitted and actually occurred allowed the defence to test the evidence with sufficient rigour. I would allow the appeal and restore the conviction. II. Background [ 10 ] The accused and the complainant are cousins. During the Canada Day weekend of 2013, they went camping with several members of their extended families. At the time, R.V. was 20 years old and the complainant was 15.

The complainant testified that R.V. sexually assaulted her in the early morning hours of July 1st. [ 11 ] The complainant testified that on the families’ last night together, she played cards and hung out with her cousins. The parents in the group went to bed around 2:00 a.m. while the complainant stayed awake with several of her cousins. She said that around 4:00 a.m., R.V. suggested the cousins go to the beach for a swim. After briefly venturing into the lake, the cousins headed back to their campsites.

R.V. borrowed the complainant’s phone to use as a flashlight on the walk back. [ 12 ] The complainant explained that she returned to her tent, realized R.V. still had her phone and went to his tent to retrieve it. Upon her arrival at his tent, R.V. told the complainant he needed to speak to her in private. He took her by the wrist and led her into a men’s washroom near the beach. [ 13 ] Once inside the washroom, the complainant said R.V. tried to kiss her and remove her shirt, which she resisted. Then he told her to lay down on the floor.

She complied out of fear and he pulled down her pants and underwear as well as his own. R.V. then placed himself on top of her. She believes he tried to penetrate her vagina with his penis but her memory of this moment is blank. Her next memory is of R.V. asking her if she heard one of the cousins calling for her. After warning the complainant not to tell anyone what had happened, R.V. got up, put his clothes on and left. After he left, the complainant went to the women’s washroom to clean up. She said the area outside her vagina felt wet and sticky and she felt disgusted.

She then returned to her tent and fell asleep. [ 14 ] R.V. denied the allegations and the complainant’s account of the evening. He acknowledged being around the bonfire with the family. But, he stated, he went to bed at around the same time as the parents and had no further interaction with the complainant

that evening. [ 15 ] Initially, the complainant did not tell anyone about the assault. In late August, she went to see a doctor, complaining of abdominal pain and nausea. When asked, she denied being sexually active. A urine test taken during a physical exam on August 29th subsequently confirmed that she was pregnant. Based on an ultrasound performed on September 18th, the doctor estimated that conception had occurred at the end of June or the beginning of July. [ 16 ] The doctor asked the complainant whether she had any interactions capable of causing pregnancy around the date of conception.

During this discussion, the complainant told the doctor about the incident with R.V. Because the complainant was underage, later that day the doctor relayed this information to the Children’s Aid Society, which in turn contacted the police. [ 17 ] After consulting with her doctor again on September 19th, the complainant terminated the pregnancy on September 21st. The clinic disposed of the fetal remains that day, making a DNA paternity test impossible. The police contacted the complainant the following week and took a statement from her on September 24th.

The complainant told the police (and testified at trial) that she was a virgin at the time of the assault. The police charged R.V. with sexual assault and sexual interference. A. The Voir Dire: Baker J. [ 18 ] In light of the medical evidence about the date of conception, the Crown tendered evidence of the pregnancy to support the complainant’s testimony that the alleged assault was the cause. During pre-trial proceedings, R.V. applied to question the complainant “about her prior sexual activity, with the [accused], or any other individual, that may have occurred between June 1st and July 1st, 2013” (A.R., vol.

II, at p. 3). Because the Crown intended to rely on the complainant’s pregnancy as evidence of sexual contact with the accused, R.V. argued his right to make full answer and defence entitled him to inquire into “whether any other individual could have impregnated the complainant” (A.R., vol. II, at p. 4). [ 19 ] Baker J. dismissed the s. 276 application. In her view, R.V. had failed to point to specific instances of sexual activity. Instead, she found, the request was “more in the nature of a fishing expedition” (A.R., vol.

I, at p. 15). [ 20 ] The application judge also observed that other means could be used to challenge the inference that R.V. caused the complainant’s pregnancy. First, the gestational age of the fetus might not align with the date of the alleged offence. She based this conclusion on the voir dire submissions of R.V.’s counsel, who suggested the date of conception was approximately June 14th, 17 days prior to the assault. [ 21 ] Second, R.V. could question the complainant on her understanding of the term “virgin” and the truthfulness of her statement that she was a virgin at the time of the alleged offence.

The application judge held that questions regarding virginity do not fall within s. 276. However, R.V.’s right to ask these limited questions did not “give the defence carte blanche to cross-examine the complainant on any sexual activity she may have undertaken in the month immediately preceding the alleged offence” (A.R., vol. I, at p. 15). [ 22 ] The application judge accepted that R.V. was not intending to rely on the cross-examination evidence to further the twin myths.

Nevertheless, the complainant’s personal dignity and right of privacy outweighed the “highly uncertain probative value of the proposed evidence” (A.R., vol. I, at p. 16). B. The Trial: Gee J. [ 23 ] After the voir dire and prior to trial, the application judge invoked s. 669.2 of the Criminal Code and the trial continued before another judge. At the outset of the trial, Gee J. declined R.V.’s request to re-litigate the s. 276 application. He held that where a trial is continued by another judge, s. 669.2 does not provide for the re-consideration of pre-trial motions decided by the previous judge.

In any event, he concluded there was no reason to re-hear the application because no change of circumstances had occurred. [ 24 ] The complainant, the complainant’s doctor and the accused testified at trial. During the doctor’s testimony, it became clear that defence counsel’s calculation of the conception date at the voir dire was wrong. [1] Based on the ultrasound, conception would have occurred between June 21st and July 5th, 2013. [ 25 ] The trial judge rejected R.V.’s account of the night in question.

In assessing R.V.’s credibility, he considered inconsistencies in R.V.’s trial testimony and interview with the police, as well as his admission that he had lied during both. The trial judge ultimately concluded that R.V. was not a credible witness and did not accept his evidence. [ 26 ] In contrast, the trial judge found the complainant to be “a very compelling witness” (A.R., vol. I, at p. 46) whose account was detailed and precise. He accepted her testimony that prior to July 1st she had never had intercourse.

He also concluded that her pregnancy was “compelling evidence supportive . . . of her allegations” (A.R., vol. I, at p. 47). [ 27 ] R.V. was convicted of sexual interference and received a four-year custodial sentence. C. The Court of Appeal: MacFarland, Watt and Paciocco JJ.A. [ 28 ] Writing for the Court of Appeal for Ontario, Paciocco J.A. allowed the appeal and ordered a new trial. He held that it was patently unfair for the Crown to rely on the pregnancy as confirming the complainant’s story while preventing the accused from challenging this inference.

While the request to cross-examine the complainant about her sexual activity “that may have occurred between June 1st and July 1st, 2013” was “extravagant”, the accused should still have had the opportunity to ask relevant questions: 2018 ONCA 547 , 141 O.R. (3d) 696, at paras. 27 and 29-30 . [ 29 ] Paciocco J.A. held that s. 276(2) requires the accused to adequately identify targeted evidence and proposed lines of

questioning so as to permit the application judge to perform the balancing required by s. 276. Here, the probative value of the cross-examination was clear — it had the potential to neutralize the Crown’s reliance on the pregnancy. Uncertainty about whether a line ofquestioning will succeed does not eliminate its potential probative value. Thus, the application judge erred in requiring an evidentiaryfoundation for the proposed cross-examination. [30] Paciocco J.A. also concluded that the application judge had erred in characterizing the requested cross-examination asa “fishing expedition”.

In his view, the proposed questioning was “responsive to an important plank in the Crown’s case”, and thealternative methods of challenging the complainant’s claim of virginity did not adequately protect the accused’s right to a fair trial: paras.69-84. [31] According to the Court of Appeal, the impact of the application judge’s errors was compounded by the trial judge’sincorrect conclusion that he was bound by the initial s. 276 ruling. A new trial was therefore warranted because the trial judge’s refusalto reconsider the application effectively prevented future meritorious applications from being considered.

III. Analysis [32] The question in this case is how s. 276 operates when the accused seeks to cross-examine the complainant tochallenge sexual history evidence led by the Crown.

Section 276 requires that the accused’s right to make full answer and defence bebalanced with the dangers that cross-examination may pose to the complainant’s privacy and dignity and to the integrity of the trialprocess. This analysis applies with equal force regardless of whether the accused seeks to introduce evidence to establish a defence or tochallenge inferences urged by the Crown. A. Challenging the Crown’s Evidence Within the Limits of

Section 276 [33] Testifying in a sexual assault case can be traumatizing and harmful to complainants: see E. Craig, Putting Trials onTrial: Sexual Assault and the Failure of the Legal Profession (2018), at pp. 4 et seq. Questions about a complainant’s sexual history areoften irrelevant, serving no purpose other than supporting the “twin myths” — that a complainant’s past sexual acts make her lessworthy of belief or more likely to have consented to the sexual activity in question.

Historically, wide-ranging and intrusive inquiries intothe complainant’s sexual history were used to distort the trial process and essentially put the complainant on trial: see R. v. Goldfinch,2019 SCC 38, [2019] 3 S.C.R. 3, at para. 33. [34] In an effort to abolish “outmoded, sexist-based use of sexual conduct evidence”, Parliament, in 1982, enacted ablanket ban on all evidence of a complainant’s prior sexual activity, subject to three limited exceptions: R. v. Seaboyer, (SCC), [1991] 2 S.C.R. 577, at p. 625.

One exception covered evidence “that rebuts evidence of the complainant’s sexual activity orabsence thereof that was previously adduced by the prosecution”:

An Act to amend the Criminal Code in relation to sexual offences andother offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, S.C. 1980-81-82-83, c.125, s. 246.6(1)(a) (later s. 276(1)(a)). In Seaboyer, the Court struck down the 1982 provision as unconstitutional because it was toorestrictive — it had the potential to exclude relevant evidence crucial to a fair trial: Seaboyer, at p. 625.

The Court emphasized that therelevance of all evidence, including sexual history evidence, must be assessed on a case-by-case basis: p. 609. [35] In response, Parliament amended s. 276, codifying the guidelines outlined in Seaboyer: R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, at para. 20. The modern version of s. 276[2] seeks to preserve the integrity of the administration of justice, and thetrial, by striking a balance between the rights of the accused and those of the complainant: 276

(1) In proceedings in respect of [various sexual offences], evidence that the complainant has engaged in sexual activity, whether withthe accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, thecomplainant (

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

b) is less worthy of belief.

(2) In proceedings in respect of an offence referred to in subsection (1), no evidence shall be adduced by or on behalf of the accused thatthe complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether withthe accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the proceduresset out in sections 276.1 and 276.2, that the evidence (

a) is of specific instances of sexual activity; (

b) is relevant to an issue at trial; and (

c) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take intoaccount (

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

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

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

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

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

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

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

h) any other factor that the judge, provincial court judge or justice considers relevant. [36] Before evidence of a complainant’s sexual history may be introduced under s. 276(2), the court must carefullyscrutinize the potential evidence.

First, the accused must set out in writing the “detailed particulars of the evidence that the accused seeks to adduce” and its relevance “to an issue at trial”: s. 276.1(2).[3] If the judge is persuaded that the evidence is “capable of being admissible under subsection 276(2)”, a voir dire is held: s. 276.1(4).[4] Evidence adduced to support the twin myths is categoricallybarred.

And, even where it has some relevance for another purpose, evidence may still be excluded if admitting it would endanger the“proper administration of justice”: s. 276(2)(c). [37] In many cases, when the accused applies to adduce evidence pursuant to s. 276, they have an evidentiary basis forknown sexual activity (i.e., “detailed particulars” of “specific . . . sexual activity”).

In this case, however, while R.V. maintained thatother activity necessarily occurred because the complainant became pregnant, he had little knowledge of the particulars of that activity.He thus sought to adduce evidence of the other sexual activity by cross-examining the complainant. [38] Individuals charged with criminal offences are presumed innocent until proven guilty. As a result, an accused has theright to call the evidence necessary to establish a defence and to challenge the prosecution’s evidence: R. v.

Osolin, (SCC), [1993] 4 S.C.R. 595, at p. 663. “Full answer and defence” is a principle of fundamental justice, protected by s. 7 of the CanadianCharter of Rights and Freedoms. In Seaboyer, McLachlin J. explained, at p. 608: The right of the innocent not to be convicted is dependent on the right to present full answer and defence. This, in turn, depends on beingable to call the evidence necessary to establish a defence and to challenge the evidence called by the prosecution. . . .

In short, the denial of the right to call and challenge evidence is tantamount to the denial of the right to rely on a defence to which the lawsays one is entitled. . . . [39] Generally, a key element of the right to make full answer and defence is the right to cross-examine the Crown’switnesses without significant and unwarranted restraint: R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, at paras. 1 and 41; Osolin, at pp.664-65; Seaboyer, at p. 608. The right to cross-examine is protected by both ss. 7 and 11(

d) of the Charter. In certain circumstances,cross-examination may be the only way to get at the truth. The fundamental importance of cross-examination is reflected in the generalrule that counsel is permitted to ask any question for which they have a good faith basis — an independent evidentiary foundation is notrequired: Lyttle, at paras. 46-48. [40] However, the right to cross-examine is not unlimited. As a general rule, cross-examination questions must be relevant

and their prejudicial effect must not outweigh their probative value: Lyttle, at paras. 44-45. In sexual assault cases, s. 276 specificallyrestricts the defence’s ability to ask questions about the complainant’s sexual history. By virtue of s. 276(3), full answer and defence isonly one of the factors to be considered by the trial judge; it must be balanced against the danger to the other interests protected by s.276(3). These additional limits are necessary to protect the complainant’s dignity, privacy and equality interests: Osolin, at p. 669; seealso R. v. Mills, (SCC), [1999] 3 S.C.R. 668, at paras. 61-68.

They also aim to achieve important societal objectives,including encouraging the reporting of sexual assault offences: s. 276(3)(b). [41] Thus, the fact that the accused’s ability to make full answer and defence requires that the complainant be cross-examined is not the end of the analysis.

The scope of the permissible questioning must also be balanced with the danger to the otherinterests protected by s. 276(3), including the dignity and privacy interests of the complainant. [42] Here, the Crown introduced evidence of the complainant’s pregnancy and virginity to corroborate her testimony thatthe assault occurred. In his s. 276 application, R.V. sought to challenge that inference by questioning the complainant about her sexualactivity from June 1st to July 1st, 2013 in order to determine “whether any other individual could have impregnated the complainant”(A.R., vol.

II, at pp. 3-4). [43] When the accused seeks to inquire into the complainant’s sexual history, the three subsections of s. 276 work togetherto achieve the provision’s objectives. [44] Section 276(1) sets out an absolute bar against introducing evidence for the purpose of drawing twin-myth inferences.Here, R.V.’s request to challenge the inference that the pregnancy resulted from the alleged assault did not engage the twin myths.

Assuch, the application judge correctly concluded that the cross-examination was not barred by s. 276(1). [45] If, as in this case, evidence that the complainant has engaged in sexual activity is to be adduced for another purpose, itis presumptively inadmissible unless the accused satisfies s. 276(2)(

a) and (

b) by identifying specific instances of sexual activity,relevant to an issue at trial. Where the accused applies to cross-examine the complainant about her sexual history to challenge Crown-ledevidence, the analysis will often turn on the balancing exercise mandated by s. 276(2)(c). This third step involves weighing the factorsset out in s. 276(3) to determine whether the probative value of the cross-examination is significant enough to substantially outweigh thedangers of prejudice to the proper administration of justice.

This provision requires judges to determine the permissible scope of cross-examination in light of the competing rights of the accused and the complainant and the other interests set out in s. 276(3). Where theright to full answer and defence requires some cross-examination, judges should tailor their rulings to best safeguard the other interestsprotected by s. 276(3). [46] I now turn to the application of s. 276(2) to the facts of the case. (1) Section 276(2)(a): “Specific Instances of Sexual Activity” [47] Broad exploratory questioning is never permitted under s. 276.

Open-ended cross-examination concerning acomplainant’s sexual history clearly raises the spectre of the impermissible uses of evidence that the provision was intended to eliminate.Section 276(2)(

a) requires the accused to identify “specific instances of sexual activity” to avoid unnecessary incursions into the sexuallife of the complainant. [48] That said, the words “specific instances of sexual activity” must be read purposively and contextually. They limitadmissible evidence to discrete sexual acts, and protect against the misuse of general reputation evidence to discredit the complainant anddistort the trial process: see R. v. L.S., 2017 ONCA 685, 40 C.R. (7th) 351, at paras. 79-80.

The “specific instances” requirement isbuttressed by the procedural aspects of a s. 276 application, which require the accused to set out “detailed particulars” of the evidence tobe adduced: s. 276.1(2). By requiring “detailed particulars”, the Criminal Code ensures that judges are equipped to meaningfully engagewith 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. [49] Section 276(2)(

a) does not always require an accused to come before the court armed with names, dates and locations.As counsel for the intervener Criminal Lawyers’ Association of Ontario pointed out, requiring such details may, in some cases, beunduly intrusive, defeating one of the provision’s most important objectives.

Rather, as Doherty J.A. observed in L.S. and this Courtaffirmed in Goldfinch, the degree of specificity required depends on the circumstances of the case, the nature of the sexual activity thatthe accused seeks to adduce and the use to be made of that evidence: L.S., at para. 83; Goldfinch, at para. 53. [50] Here, R.V. proposed to cross-examine the complainant about other sexual activity that could have caused herpregnancy, without knowing what her answers would be. Because his defence was a bare denial, he obviously sought to establish that thepregnancy was the result of some other activity.

Is this enough to qualify as “detailed particulars” of “specific instances of sexualactivity” in the circumstances of this case? Does it provide sufficient notice to the complainant and Crown and equip the judge to applys. 276? [51] The Crown argues that it does not. In its view, s. 276 requires the accused to identify “concrete particulars” and toprovide an evidentiary basis in support of a s. 276 application.

The Crown agreed with the application judge that R.V.’s requestamounted to nothing more than a “fishing expedition” — precisely the kind of free-ranging cross-examination s. 276 aims to prevent. [52] In my view, the application judge erred when she concluded that the accused failed to identify evidence of specificinstances of sexual activity.

As Paciocco J.A. rightly noted, this requirement must be interpreted purposively and the objectives of therequirement would have been satisfied here. [53] R.V. sought to cross-examine the complainant on a specific instance of sexual activity — the activity that caused herpregnancy — evidence of which was introduced by the Crown. The pregnancy itself demonstrated only that sexual activity capable ofimpregnating the complainant took place around July 1st. The existence of such activity was not speculative. But the fact of pregnancyhere did not reveal exactly when or with whom that sexual activity occurred.

The proposed cross-examination was directed at challenging

the inference that R.V. caused the pregnancy. [54] During oral arguments before this Court, Crown counsel submitted that a bare denial cannot satisfy the “specificinstances” requirement. However, this submission turns the presumption of innocence on its head. The Crown’s assertion that thepregnancy arose from the sexual activity that formed the subject-matter of the charge cannot prevent the accused from leading evidenceto suggest that the pregnancy was caused by someone else or by some other sexual act.

The presumption of innocence requires that R.V.be allowed to challenge the Crown’s evidence that he committed a sexual assault. Of course, the trier of fact may ultimately reject theaccused’s denial. But, as Paciocco J.A. emphasized, it would be unfair for the Crown to rely on the complainant’s testimony that theaccused caused the pregnancy while at the same time preventing the accused from challenging the complainant’s account. [55] Moreover, pregnancy is evidence of sexual activity that can be situated within a particular timeframe.

R.V.’s s. 276application set out a specific, albeit broad, timeframe of one month. At trial, the medical evidence established a rough two-week windowduring which conception would have occurred. In either case, the clearly identified time period, along with the specific nature of theactivity — activity capable of causing pregnancy — was sufficiently specific to satisfy s. 276(2)(a). (2) Section 276(2)(b): “Relevant to an Issue at Trial” [56] The accused’s s. 276 application must also identify the relevance of the evidence to be adduced.

As a matter of logic,evidence tendered to rebut Crown-led evidence implicating the accused will be relevant to the accused’s defence.

As noted above, evenin the 1982 iteration of s. 276, Parliament carved out an exception for evidence rebutting Crown-led evidence of the complainant’ssexual activity or absence thereof. [57] In Seaboyer, McLachlin J. noted that the complainant’s other sexual activity “may be relevant to explain the physicalconditions on which the Crown relies to establish intercourse or the use of force, such as semen, pregnancy, injury or disease”: p. 614.L’Heureux-Dubé J., writing in dissent, agreed that where the Crown contends that physical consequences such as pregnancy were causedby an assault, the defence may adduce sexual history evidence in rebuttal: p. 682. [58] In this case, the Crown suggests that because the answers to R.V.’s questions were unknown, the relevance of thosequestions was speculative.

I cannot accept this proposition. The relevance of the proposed questioning was clear. The Crown relied onthe pregnancy as corroborating the complainant’s account. Regardless of her answers, the complainant’s testimony would be relevant. Ifshe denied the existence of other sexual activity, this could strengthen the Crown’s case.

But if other sexual activity could have occurredduring the relevant time period, the probative value of the pregnancy would be significantly reduced. [59] Given the clear relevance of challenging Crown-led evidence, in cases like the present appeal, the outcome of theanalysis will generally turn on balancing the probative value of the evidence with its potential prejudice to the complainant and theproper administration of justice. (3) Section 276(2)(c): Balancing Competing Interests [60] Even where proposed evidence is sufficiently specific and relevant, cross-examination about a complainant’s sexualhistory is only allowed if the proposed line of questioning has “significant probative value that is not substantially outweighed by thedanger of prejudice to the proper administration of justice”: s. 276(2)(c).

This balancing requires judges to pay careful attention to thefactors listed in s. 276(3) in assessing the potential impact of the evidence on the accused, the complainant and the administration ofjustice. [61] The application judge appears to have concluded that the s. 276(3) factors also militated against granting R.V.’sapplication. At the voir dire, defence counsel suggested that the evidence indicated that conception occurred mid-June. This in itselfweakened the Crown’s inference that the pregnancy resulted from the July 1st assault.

In addition, the application judge was of the viewthat R.V. could question the complainant about her claim of virginity without engaging s. 276. Accordingly, she held that the probativevalue of any further questions about the complainant’s sexual activity was highly uncertain.

In her assessment, the complainant’s dignityand privacy interests outweighed the “speculative” probative value of the proposed questioning. [62] While R.V. did not know the answers to the questions he sought to ask, I agree with Paciocco J.A. that “uncertainty ofresult does not deprive a line of questioning of its probative value”: para. 64. The application judge should not have considered theprobability that R.V.’s questioning would be successful, but rather whether the answers would be probative.

Because the answers had thepotential to undermine or confirm important Crown evidence, their probative value was high. In my view, two factors related to theprobative value of the evidence required that some form of cross-examination of the complainant be allowed: (

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

c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case. [63] In R. v. Crosby, (SCC), [1995] 2 S.C.R. 912, L’Heureux-Dubé J. wrote that “[s]ection 276 cannot beinterpreted so as to deprive a person of a fair defence”: para. 11; see also Darrach, at para. 43; Seaboyer, at p. 616. Thus, in weighinghow the accused may respond to Crown-led evidence, the judge must ensure the accused is not denied the right to make full answer anddefence. [64] Simply put, the more important evidence is to the defence, the more weight must be given to the rights of the accused.

For example, the need to resort to questions about a complainant’s sexual history will be significantly reduced if the accused can advancea particular theory without referring to the complainant’s sexual history. But in other circumstances — where challenging the Crown’sevidence of the complainant’s sexual history directly implicates the accused’s ability to raise a reasonable doubt — cross-examinationbecomes fundamental to the accused’s ability to make full answer and defence and must be allowed in some form: Mills, at paras. 71 and94. [65] This is such a case.

Here, there was no independent evidence of paternity. In light of R.V.’s denial, the only way hecould challenge the inference urged by the Crown was by cross-examining the complainant with respect to other sexual activity. In thesecircumstances, the complainant’s privacy must yield to cross-examination in order to avoid convicting the innocent. [66] In addition, where the accused’s defence involves challenging Crown-led evidence, cross-examination assists the trierof fact in arriving at a just determination: Seaboyer, at p. 609; see also S.

Ozkin, “Balancing of Interests: Admissibility of Prior SexualHistory under

Section 276” (2011), 57 Crim. L.Q. 327, at pp. 331-32. Because the window for conception overlapped with the date ofthe alleged assault, the pregnancy could corroborate the complainant’s account. However, the trial judge’s ability to rely on thepregnancy depended on the extent to which he could rule out the possibility that other sexual activity had caused it. Thus, both ss. 276(3)(

a) and 276(3)(

c) required permitting some form of cross-examination of the complainant. [67] This does not, however, open a door to wide-ranging inquiries. The right to a fair trial does not guarantee the mostfavourable procedures imaginable: R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390, at para. 64; Darrach, at para. 24; Mills, at para.75. Even where the right to a fair trial requires cross-examination of the complainant, it does not entitle an accused to pursue the mostexpansive cross-examination. The scope of the permissible questioning must also be determined by balancing the accused’s rights withthe other rights and interests protected by s. 276(3), including: (

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

g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law. The trial judge must therefore narrow the scope of the questioning to minimize the impact on the complainant, while maintaining theaccused’s ability to answer the charges. [68] Inquiries into any individual’s sexual history are highly intrusive. The threat to the complainant’s dignity and privacyis even higher when the proposed questions surround the conduct of a 15-year-old.

Both the length of the relevant time period and thedegree of detail to be adduced impact the potential prejudice to the complainant: see, e.g., R. v. Nkemka, 2013 ONSC 2121, at paras. 10-20 . Open-ended questioning about an individual’s sexual activity, even during a particular timeframe, risks devolving into thevery type of inquiry that s. 276 was intended to prevent.

Caution must be exercised where the proposed inquiry captures a broad range ofsexual activity and is limited only by a specified timeframe. [69] Determining the boundaries of permissible cross-examination will always be a challenging and fact-specific task. Inthe present case, where the complainant maintained she was a virgin and had no boyfriend at the time of the assault, only limitedquestioning was appropriate. In other cases, more latitude may be warranted. [70] In

summary, R.V.’s right to make full answer and defence required some means of challenging the Crown’s relianceon the pregnancy. In my view, a correct balancing of the interests set out in s. 276(3) would have allowed R.V. to inquire into: (

i) thecomplainant’s understanding of the types of sexual activity capable of causing pregnancy and (ii) whether she engaged in any suchactivity at the end of June and the beginning of July. However, to minimize the impact on the complainant’s privacy and dignity, thatinquiry needed to be limited. As I discuss below, even when a s. 276 application is granted, the trial judge must continue to keep theseinterests in mind throughout the trial.

(4) The Trial Judge’s Gatekeeper Role [71] This Court recently emphasized the important “gatekeeper” role trial judges play in sexual assault cases: R. v. Barton,2019 SCC 33, [2019] 2 S.C.R. 579, at paras. 68 and 197; Goldfinch, at para. 75. The procedural and evidentiary context of this caseillustrates two aspects of this role: (

i) the importance of remaining alive to the objectives of s. 276 as the trial unfolds by activelysupervising cross-examination and adapting s. 276 rulings as necessary when new evidence comes to light; and (ii) the advantages ofassessing the evidence of other sexual activity to be adduced by both the defence (as required by s. 276) and the Crown (in light of s.276(1) and the common law Seaboyer principles). (

a) Monitoring Cross-Examination and Re-Visiting

Section 276 Applications Throughout the Trial [72]

Section 276 continues to operate even after an initial evidentiary ruling has been rendered. Trial judges must thereforeremain vigilant in ensuring the objectives of the provision are upheld as the trial unfolds. Cross-examination about the complainant’ssexual history, where permitted, should be closely monitored to ensure it remains within the permissible limits.

And as evidenceemerges, it may become necessary to re-consider prior s. 276 rulings. [73] First, where targeted cross-examination of the complainant is permitted, trial judges must strike a delicate balancebetween giving counsel sufficient latitude to conduct effective cross-examination and minimizing any negative impacts on thecomplainant and the trial process. Proposed questions should be canvassed in advance and may be re-assessed based on the answersreceived. In certain cases, it may even be appropriate to approve specific wording: see, e.g., Nkemka, at para. 18; R. v.

Akumu, 2017BCSC 533, at paras. 26-31 and 35-54 .

[74] Second, as a general rule, an order related to the conduct of trial may be varied or revoked if there is a material changeof circumstances: C.A. reasons, at paras. 98-103; see also R. v. Adams, (SCC), [1995] 4 S.C.R. 707, at para. 30;R. v. Calder, (SCC), [1996] 1 S.C.R. 660, at para. 21; R. v. La, (SCC), [1997] 2 S.C.R. 680, at para.28. As evidence emerges at trial, both the probative value and potential prejudice of proposed evidence may change.

If a material changeof circumstances occurs, either party may request that a previous evidentiary ruling be re-visited. [75] In this case, the application judge refused R.V.’s request to question the complainant on her sexual history. At theoutset of the trial, the trial judge subsequently held that because the trial had been continued before him under s. 669.2 of the CriminalCode, the pre-trial motions could not be re-litigated and he was bound by the application judge’s s. 276 ruling.

But as the Court ofAppeal correctly stated, s. 669.2 does not displace the general rule that a trial judge has discretion to re-consider rulings made earlier inthe proceedings if there is a material change of circumstances: paras. 98-108. [76] In this case, the trial judge also observed, correctly, that no material change of circumstances had occurred betweenthe s. 276 ruling and the start of trial.

Nevertheless, given that the trial judge held that he could not re-consider the ruling — whichincluded the erroneous conclusion that the proposed cross-examination did not qualify as a specific instance of sexual activity — I acceptthat counsel for the accused may have thought it would be futile to apply for a re-consideration, even if the circumstances changedduring the trial. [77] Indeed, the evidentiary foundation did shift in this case. At the voir dire, counsel for R.V. suggested that the date ofconception was approximately June 14th — 17 days prior to the alleged offence.

However, the doctor’s testimony at trial established thatconception would have occurred between June 21st and July 5th. As the potential conception date coincided more closely with the dateof the assault, the probative value of the pregnancy as evidence of the assault increased. The narrower timeframe also decreased thepotential prejudice to the complainant. Both are factors that would likely have provided grounds for re-considering the s. 276 ruling. (

b) The Admissibility of Crown Evidence and the Possibility of Joint Assessments [78] While s. 276(2) applies only to evidence “adduced by or on behalf of the accused”, s. 276(1) and the common lawprinciples apply to Crown-led evidence of a complainant’s sexual history: Barton, at para. 80. In Seaboyer, McLachlin J. emphasized theimportance of the trial judge’s gatekeeper role in ensuring that sexual history evidence “possesses probative value on an issue in the trial. . . [that] is not substantially outweighed by the danger of unfair prejudice flowing from the evidence”: p. 635.

Irrespective of whichparty adduces evidence of the complainant’s sexual history, the trial judge must guard against twin-myth reasoning as well as prejudiceto the complainant, the trial process and the administration of justice. [79] Where, as in this case, the accused’s s. 276 application relates to Crown-led evidence, it would be prudent to considerboth the Crown’s proposed use of the evidence and any challenges proposed by the accused at the same time.

A view of how both sidesintend to use the evidence would allow trial judges to more accurately assess the impact of admitting such evidence and appropriatelytailor the ways in which it may be adduced. Further, the Crown’s decision to adduce evidence, or even to call a particular witness, is amatter of prosecutorial discretion: Darrach, at para. 69.

If the manner in which the evidence may be challenged is clear from the outset,the Crown can make an informed decision about whether the interests of justice are served by adducing the evidence in the first place. [80] Here, the Crown introduced evidence of the complainant’s sexual history. In direct examination, the Crown asked thecomplainant if she was a “virgin” at the time of the assault and when that “physical state” changed. The complainant responded that shewas a virgin on July 1st and indicated that she had sexual intercourse for the first time on September 2nd.

The complainant’s doctor alsotestified to conversations regarding the complainant’s sexual activity. It is not clear on the record why the Crown adduced this evidencein this way. Whether these statements were admissible, as well as how the defence would be permitted to challenge them, should havebeen decided in advance. [81] Whether sexual inactivity is captured by either s. 276 or the Seaboyer principles is not directly at issue before thisCourt. There is appellate authority stating that s. 276 does not prevent the complainant from testifying as to virginity: R. v.

Pittiman(2005), (ON CA), 198 C.C.C. (3d) 308 (Ont. C.A.), aff’d 2006 SCC 9, [2006] 1 S.C.R. 381, on a different point, atpara. 33; R. v. Brothers (1995), 1995 ABCA 185 , 169 A.R. 122 (C.A.), at paras. 26-29. However, these cases also recognizethat admitting evidence of virginity raises further questions, including: (

i) the inferences the finder of fact may be asked to draw from thefact of the complainant’s virginity and (ii) how the accused may challenge this claim: see Pittiman, at paras. 34-37; Brothers, at paras.30-35. While I leave this issue for another day, I agree with Paciocco J.A. that it would be incongruous to hold that the statement “I am avirgin” does not engage s. 276 while an answer to the contrary would clearly be a reference to sexual activity: para. 79. [82] Nonetheless, questions regarding when the complainant ceased to be a virgin undoubtedly fell within the ambit of s.276 and the Seaboyer principles.

In this case, the Crown presumably sought to confirm that the complainant had not engaged in sexualactivity during the timeframe when conception could have occurred. How the Crown intended to adduce this evidence — and whether discussion of her activity on September 2nd, well beyond the conception timeframe, was necessary — should have been evaluated inadvance and considered alongside R.V.’s s. 276 application. B. Section 686(1)(b)(iii): Has a Miscarriage of Justice Occurred? [83] The application judge erred in adopting an overly restrictive approach to s. 276.

Asking the complainant whether shehad engaged in other sexual activity that could have resulted in pregnancy during the relevant timeframe was sufficient to satisfy the“specific instances” requirement of s. 276(2). Some cross-examination on other possible causes of the pregnancy was warranted tosafeguard R.V.’s ability to defend himself on the charges. Further, the trial judge erred in concluding, at the outset of the trial, that he didnot have the discretion to re-hear the s. 276 application.

As I explained above, given the application judge’s refusal to grant theapplication, the evidence that emerged at trial would likely have constituted a material change of circumstances, justifying a re-consideration. The effect of these errors, however, must be viewed in light of the fact that the trial judge permitted the defence to cross-examine the complainant on the issue of virginity.

[84] Section 686(1)(b)(iii) of the Criminal Code permits a court of appeal to dismiss an appeal from a conviction where“no substantial wrong or miscarriage of justice has occurred”. In my view, R.V. suffered no substantial wrong because despite theseerrors, the questions he was permitted to ask allowed him to adequately challenge the inference urged by the Crown. [85] The curative proviso set out in s. 686(1)(b)(iii) may be applied where there is no “reasonable possibility that theverdict would have been different had the error . . . not been made”: R. v. Bevan, (SCC), [1993] 2 S.C.R. 599, at p. 617;R. v.

Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 28. Applying the curative proviso is appropriate in two circumstances: (

i) wherethe error is harmless or trivial; or (ii) where the evidence is so overwhelming that the trier of fact would inevitably convict: R. v. Sekhon,2014 SCC 15, [2014] 1 S.C.R. 272, at para. 53; R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 34; Khan, at paras. 29-31. [86] Cross-examination is undoubtedly a key element of the right to make full answer and defence.

This Court has heldthat sometimes “there will be no other way to expose falsehood, to rectify error, to correct distortion or to elicit vital information thatwould otherwise remain forever concealed”: Lyttle, at para. 1 (emphasis in original); see also Osolin, at p. 663. Thus, as a general rule,counsel “may pursue any hypothesis that is honestly advanced on the strength of reasonable inference, experience or intuition”: Lyttle, atpara. 48.

Because it is difficult to predict what lines of questioning counsel might pursue and what evidence may have emerged hadcross-examination been permitted, a failure to allow relevant cross-examination will almost always be grounds for a new trial: R. v.Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 151; Crosby, at para. 20; Osolin, at pp. 674-75. [87] The key question at this stage is whether the errors in this case prevented R.V. from making full answer and defence.More specifically, is it clear that R.V. was able to adequately challenge the inference that the pregnancy confirmed his participation inthe assault?

Here, the Court of Appeal did not specifically address the scope of the permissible cross-examination. However, it held thatwhatever cross-examination occurred was “not a fair substitute for the cross-examination that should have been allowed”: para. 91. [88] I disagree. In this case — where the proposed cross-examination involved the conduct of a 15-year-old who testifiedshe was a virgin — wide-ranging questions would have been inappropriate. Instead, the circumstances of this case warranted tightlycontrolled questioning of the complainant.

R.V.’s right to make full answer and defence entitled him to test whether someone else couldhave caused the complainant’s pregnancy. As discussed above, a correct balancing of the interests set out in s. 276(3) would haveallowed R.V. to make limited inquiries into: (

i) the complainant’s understanding of the types of sexual activity capable of causingpregnancy and (ii) whether she engaged in any such activity at the end of June and the beginning of July. As I shall explain, the defencewas allowed to do so — despite the errors in the s. 276 ruling. [89] Before this Court, counsel for R.V. advanced the theory that the complainant had engaged in such sexual activity withher boyfriend during June or July. Afraid of the potential repercussions once her family found out she was pregnant, the complainantfabricated the story about the assault.

Counsel argued a new trial is required because R.V. was unable to pursue this theory at trial and itis impossible to know whether this strategy would have succeeded. [90] I remain unpersuaded.

Having reviewed the trial transcripts in light of the questioning that actually occurred as wellas that suggested by counsel, I am satisfied that the accused was not precluded from adequately testing the evidence in this case. [91] First, the application judge’s ruling permitted R.V. to ask the complainant about her understanding of “virginity” andto challenge whether she was telling the truth about being sexually inactive. [92] Defence counsel asked the complainant about her understanding of the types of sexual activity capable of causingpregnancy.

He asked, “you knew that sexual intercourse could lead to pregnancy” and “if there was contact between the male genitalsand the female genitals, sexual intercourse didn’t have to occur, but you could become . . . pregnant from that type of sexual conduct”?The complainant responded affirmatively to both questions (A.R., vol. V, at pp. 26-27). [93] The complainant consistently maintained (to her doctor, the police and the court) that she was both a virgin and notsexually active prior to September 2013. In challenging this evidence, defence counsel asked about her definition of “virginity” and“sexual activity”.

Among a number of questions on these issues, he asked, “your knowledge . . . of virginity is somebody who hasn’t hadactual full sexual intercourse” and she replied, “Yes” (A.R., vol. V, at p. 28). At another point in her testimony, the complainant broadlydefined “sexual activity” so as to include even the touching of genitals. Counsel also challenged the complainant’s statement to herdoctor during the following exchange: Q. And, [the doctor] asked you, specifically, if you had been having sexual activities? A. Yes, she did. Q. And, you said, no? A. Yeah. Q.

And, that wasn’t accurate, what you’re telling the court is true?

A. I’m sorry. Q. When you told the doctor you were having sexual activity, that was, wasn’t accurate? A. But, that was true, because I wasn’t having sexual activity before September 2nd. Q. Well, but the incident itself is a form of sexual activity, wouldn’t you agree? A. Yes, but, at that time, I, I hadn’t told anyone, so I didn’t. . . Q. You didn’t want to tell her? A. I, I didn’t. I felt super uncomfortable. Q. Okay. And, so, you said, no, even though you, in your mind, you probably knew that this had happened, right? It didn’t go away, you. . . A. Yes, and. . . Q. . . . were thinking about it? A. Yeah. Q.

But, when you talked to the doctor on the 22nd of August, the first day, I take it, that when she asked that, I guess you just said, no, because you didn’t want to tell her? A. Yes, and because I also wasn’t sure if it had occurred exactly that day, or if it didn’t. Q. Okay. But, contact of the nature that you’ve described is a form of sexual activity, you’d agree? A. Yeah. (A.R., vol.

V, at pp. 37-38 (emphasis added)) [ 94 ] At no point did the trial judge prevent defence counsel from further exploring the complainant’s definition of “virginity” or what she meant when she told her doctor she was not sexually active prior to September 2nd. [ 95 ] During cross-examination, the complainant was also questioned about when she met her boyfriend. She testified that she “met up with him, I think, after July, and we officially started dating on December 26th”. Defence counsel challenged this testimony, suggesting she was “hanging out with him in July and August”.

The complainant responded, “[a]t the end of July, beginning of August” (A.R., vol. V, at pp. 15-17). Defence counsel chose not to press her further on this point. [ 96 ] In short, nothing in the record, apart from speculation, suggests that the 15-year-old complainant was sexually active or even had a romantic partner at any time relevant to challenging the pregnancy evidence, despite cross-examination on both issues. As such, I am persuaded that the scope of permissible cross-examination would not have been any broader than the questioning that actually occurred.

[ 97 ] Second, the s. 276 ruling did not prevent defence counsel from advancing the theory that the complainant lied to protect her relationship with her boyfriend. Counsel asked the complainant to confirm that she told the police in September 2013 that she had a boyfriend she “really, really” liked, which she did. Counsel also asked whether the complainant’s mother had threatened to kick her out of the house if she ever became pregnant — the complainant acknowledged that she had.

Counsel further suggested that the complainant wanted to hide the assault and pregnancy so she did not “look bad” to her family — the complainant agreed she had thought about this. [ 98 ] I acknowledge that this cross-examination may have been less effective because counsel could not ask the final question: “I put to you that it’s actually your boyfriend that you were having sex with in July”. However, the implication of the questions asked at trial was clear and the trial judge could have considered the possibility of a motive to lie.

Indeed, before this Court, counsel for R.V. candidly admitted that nothing prevented the defence from further probing the complainant’s testimony about when she began seeing her boyfriend or her motive to lie. Accordingly, it cannot be said that any error with respect to s. 276 prevented the accused from making this argument. IV. Conclusion [ 99 ] For these reasons, I conclude that neither the application judge’s interpretive error with respect to s. 276(2)(

a) nor the trial judge’s conclusion that he was bound by the previous s. 276 ruling prevented R.V. from making full answer and defence at trial. On the facts of this case, the errors are harmless and there is no reasonable possibility that the verdict would have been different had the errors not been made. R.V. suffered no substantial wrong as a result of these errors. [ 100 ] I would allow the appeal and restore R.V.’s conviction. The following are the reasons delivered by Brown and Rowe JJ. (dissenting) — [ 101 ] This is the third appeal decided in recent weeks, along with R. v.

Barton , 2019 SCC 33 , [2019] 2 S.C.R. 579, and R. v. Goldfinch , 2019 SCC 38 , [2019] 3 S.C.R. 3, where the Court is called upon to interpret the purpose, scope, and application of s. 276 of the Criminal Code , R.S.C. 1985, c. C-46 . Sexual offence trials are unique among criminal trials in Canada (A.F., at p. 1).

Evidence of a complainant’s sexual history is inadmissible where it is tendered by the accused, unless and until the accused meets the admissibility criteria set out in s. 276(2). [ 102 ] In Barton and Goldfinch , the Court explained how the admissibility criteria operates where the accused seeks to lead evidence of a complainant’s sexual history at trial. This appeal, however, turns on how to apply the admissibility criteria where the Crown leads evidence of a complainant’s sexual history, and the accused seeks to challenge that evidence through relevant cross- examination.

We stress that, in this appeal, the Crown was not merely introducing evidence of the complainant’s sexual history for the purposes of providing “background”, or as the necessary link to explain a series of events, but as a central plank of the case incriminating R.V. [ 103 ] The Crown’s position is that the admissibility criteria remains the same for the accused, regardless of who elicits the evidence. The application judge adopted the Crown’s position.

In her s. 276 ruling, the application judge found that R.V. could not pursue certain lines of inquiry because he did not know, in advance of cross-examination , what the complainant’s evidence would be. R.V. could not, therefore, establish “specific instances of sexual activity” as she interpreted s. 276(2). His proposed inquiries were nothing more than a “fishing expedition” into the complainant’s sexual history, and the probative value was “speculative” at best (A.R., vol. I, at pp. 15-16).

At trial, the trial judge held that he lacked the jurisdiction under s. 669.2 of the Criminal Code to revisit the application

[…]