R. v. A.H., 2021 BCPC 219

Citation: R. v. A.H. 2021 BCPC 219 Date: 20210625 File No: 9243-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. A.H. BAN ON PUBLICATION PURSUANT TO

SECTION 486.4(1) OF THE CRIMINAL CODE OF CANADA RULING ON APPLICATION OF THE HONOURABLE JUDGE R. McQUILLAN Counsel for the Crown: L. Kristjanson Counsel for the Defendant: V. de Jong Counsel for the Complainant: K. Blok Place of Hearing: Port Coquitlam , B.C. Date of Hearing: June 4, 2021 Date of Judgment: June 25, 2021 A Corrigendum was released by the Court on June 25, 2021. The corrections have been made to the text and the Corrigendum is

A Corrigendum was released by the Court on June 25, 2021. The corrections have been made to the text and the Corrigendum is appended to this document. [ 1 ] The accused young person, A.H., is facing three charges on this information. Those offences were all alleged to have occurred on January 13, 2019, and consist of: • One count of sexual assault of A.J., contrary to s. 271 of the Criminal Code . • One count of rendering A.J. unconscious or incapable of resisting by choking, suffocating or strangling her, with the intent to assist himself commit the indictable offence of sexual assault, contrary to s. 246 (

a) of the Criminal Code . • One count of unlawfully confining A.J., contrary to s. 279(2) of the Criminal Code . [ 2 ]

Section 276 of the Criminal Code prohibits the admission of evidence in a sexual assault trial that the complainant has engaged in sexual activity, with the accused or another person, other than the sexual activity that forms the subject matter of the charge, unless a judge determines that it is admissible in accordance with the criteria set out in s. 276(2) and (3) of the Code . [ 3 ] On this application, the accused seeks permission to adduce such evidence in the trial. That proposed evidence is comprised of (

i) that portion of a Medical Legal Report of Forensic Nurse Examiner Melanie Allen that states that the complainant had consensual intercourse within seven days of the incident at issue; and (ii) Cross-examination of the complainant about the previous incident of consensual intercourse, including reference to the later statement she provided to Crown counsel. [ 4 ] The accused submits that the proposed evidence should be admitted for two reasons: (

i) to explore the credibility and reliability of the complainant; and (ii) to establish causation of the complainant’s injuries. [ 5 ] On an application of this nature, the accused bears the burden of proving that the proposed evidence should be admitted on a balance of probabilities. Such evidence is presumptively inadmissible. Factual Background [ 6 ] The complainant alleges that in the early morning hours of January 13, 2019, she was physically and sexually assaulted by the accused at his residence. She alleges that after he tried kissing her, she attempted to move away.

He then refused to let her leave, and pinned her down. She says that when she reached for her phone, he punched her in the face and choked her until she was unconscious. When she regained consciousness, he was on top of her, touching her, with one hand up her shirt and one hand down her pants, which were still on. [ 7 ] Later that day, the complainant attended Surrey Memorial Hospital and submitted to a Forensic Nurse Exam, which was conducted by Forensic Nurse Examiner, Melanie Allen. Ms. Allen subsequently prepared a written medical legal report regarding her examination (the “FNE Report”).

The Crown intends to rely on the FNE Report in the trial. [ 8 ] According to the FNE Report, the complainant told Ms. Allen that she had been pushed, punched, slapped, kicked, bitten and had her hair pulled. The only visible injuries Ms. Allen noted in the report, which were not stated by the complainant to be pre-existing, were some brown bruises on her front right lower leg and on the left side of her lower leg. Further, the complainant told Ms. Allen that the right and left side of her buttock next to the perineum were sore on palpation. [ 9 ] As noted above, the complainant also reported to Ms.

Allen that within seven days of the incident, she had had consensual intercourse, which involved vaginal and oral penetration, and a condom was used. That reference was redacted from the version of the FNE Report that the Crown seeks to rely on at the trial as it offends the prohibition in s. 276 . [ 10 ] On the first day of the trial, on February 8, 2021, Crown counsel spoke with the complainant and asked her whether she had consensual intercourse within seven days of the incident. She advised that she had not, but rather she had consensual intercourse approximately two to three weeks prior to the incident.

She also advised that prior to the incident she had never had any pain or medical issues related to intercourse. [ 11 ] Both the Crown and the complainant, who was separately represented by counsel for this application, oppose the admission of this evidence in the trial. Legal Framework [ 12 ]

Section 276 of the Code sets out the circumstances in which evidence of prior sexual activity of the complainant may be admissible and the criteria that must be applied in making that determination. It provides: Evidence of complainant’s sexual activity 276

(1) In proceedings in respect of an offence under

section 151, 152, 153, 153.1 or 155, subsection 160(2) or (3) or

section 170, 171, 172, 173, 271 , 272 or 273, evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant (

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. Conditions for admissibility

(2) In proceedings in respect of an offence referred to in subsection (1), evidence shall not be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94, that the evidence (

a) is not being adduced for the purpose of supporting an inference described in subsection (1); (

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

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. Factors that judge must consider

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

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.

Interpretation

(4) For the purpose of this section, sexual activity includes any communication made for a sexual purpose or whose content is of a sexual nature. [ 13 ]

Section 276 contemplates two stages to this hearing: a threshold stage and an admissibility stage. Both stages are to be held in camera. At the threshold stage the judge is required, based on the written materials set out in the application, to determine whether the evidence sought to be adduced is capable of being admissible (s. 278.93 (4)).

If that threshold is met, the judge shall grant the application and hold a hearing under s. 278.94 to determine if the evidence should be admitted. [ 14 ] In the case at bar, the Crown noted that the accused did not file an affidavit in support of his application, which has been noted in a number of cases to be a requirement at the threshold stage.

However, despite that apparent procedural deficiency, the Crown acknowledges that the basis for the admissibility hearing has been met by the accused, as he has sufficiently set out the evidentiary basis for the application, and particularized the details in his Amended Notice of Application. I also note that the recent case of R. v. T.A.H. , 2019 BCSC 1614 concluded that the court has discretion to proceed to the admissibility stage, in the absence of an affidavit, so long as the accused sets out detailed particulars of the evidence he seeks to adduce to an issue at trial in some evidentiary form (para 37).

I am satisfied that criteria has been met and as such it is appropriate to turn to the admissibility stage of the hearing. [ 15 ] The policy reasons behind the enactment of s. 276 have been frequently considered by the courts. In R. v. Goldfinch , 2019 SCC 38 , the Supreme Court of Canada stated at paragraph 37: [37] The mischief Parliament sought to address in enacting s. 276 remains with us today. Sexual assault is still among the most highly gendered and underreported crimes (J. Desrosiers and G. Beausoleil-Allard, L’agression sexuelle en droit canadien (2nd ed. 2017), at pp. 41-42).

Even hard-fought battles to stop sexual assault in the workplace remain ongoing (compare, e.g. K. Lippel, “Conceptualising Violence at Work Through A Gender Lens: Regulation and Strategies for Prevention and Redress” (2018), 1 U of OHRH J 142, and C. Backhouse, “Sexual Harassment: A Feminist Phrase that Transformed the Workplace” (2012), 24 C.J.W.L. 275). As time passes, our understanding of the profound impact sexual violence can have on a victim’s physical and mental health only deepens.

Parliament enacted s. 276 to address concrete social prejudices that affect trial fairness as well as the concrete harms caused to the victims of sexual assault.

Throughout their lives, survivors may experience a constellation of physical and psychological symptoms including: high rates of depression; anxiety, sleep, panic and eating disorders; substance dependence; self-harm and suicidal behaviour. [4] A recent Department of Justice study estimated the costs of sexual assault at approximately $4.8 billion in 2009, an astonishing $4.6 billion of which related to survivors’ medical costs, lost productivity (due in large part to mental health disability), and costs from pain and suffering. [5] The harm caused by sexual assault, and society’s biased reactions to that harm, are not relics of a bygone Victorian era. [ 16 ]

Section 276 was enacted to protect against reasoning based on the twin myths – that evidence of prior sexual activity supports an inference that the complainant is more likely to have consented to sexual activity that forms the subject of the charge, or that the complainant is less worthy of belief. Cross-examination of a complainant on prior sexual history, if relied on to support the reasoning

underlying one or both of the twin myths, undermines the truth seeking function of the court, and threatens the equality, privacy and security rights of complainants ( Goldfinch at para 1 ). [ 17 ] In R. v. R.V., 2019 SCC 41 , (“ R.V. ”) the Supreme Court explained: [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. [ 18 ] Put another way, the purposes behind the s. 276 regime are to protect the integrity of the trial by excluding irrelevant and misleading evidence, protect the accused’s right to a fair trial, and encourage the reporting of sexual offences by protecting the security and privacy of complainants: R. v. Barton, 2019 SCC 33 at para 58 .

Trial judges must act as gatekeepers to ensure that evidence of sexual activity is not allowed to taint the trial, unless it has been permitted based on an application of the specific criteria and listed factors in that section. Alternative Explanations for Physical Evidence [ 19 ] The Crown intends to rely on the injuries described in the FNE Report as being corroborative of the assault. Specifically, those injuries are the leg bruising and the reported soreness upon palpation of the right and left side of the buttock next to the perineum.

The accused emphasizes that despite the complainant’s statement that she has never had pain or medical issues related to intercourse, the soreness was not detected until palpation. The complainant had specifically stated earlier to police that when she woke up she did not feel sore in her vagina or anus area. Since the soreness only became apparent on palpation, the accused says that it could be attributed to prior sexual activity within the previous seven days, but that she just had not noticed it prior to the examination.

Similarly, with the leg bruising, the accused submits that it could also be attributable to the prior sexual intercourse. [ 20 ] The accused relies on R.V. as supporting his position. In that case, the complainant claimed 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 sought to question the complainant as to whether anyone else could have caused the pregnancy.

The application judge would not permit such cross-examination because the accused had no evidence of “specific instances of sexual activity” as required in s. 276(2)(c). However, the S.C.C. disagreed, with Karakatsanis J. stating: [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. [ 21 ] Karakatsanis J. further explained the proper approach that should be taken in such cases is as follows: [45] If, as in this case, evidence that the complainant has engaged in sexual activity is to be adduced for another purpose, it is 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-led evidence, the analysis will often turn on the balancing exercise mandated by s. 276(2)(c). This third step involves weighing the factors set out in s. 276(3) to determine whether the probative value of the cross-examination is significant enough to substantially outweigh the dangers 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 the right to full answer and defence requires some cross-examination, judges should tailor their rulings to best safeguard the other interests protected by s. 276(3). [ 22 ] The accused also relies on the case of R. v. Edgar , 2020 BCSC 381 . In that case, the accused had been charged with sexually assaulting the complainant while she and her husband had been staying at the accused’s home.

The doctor who had examined the complainant on the morning of the incident found a small abrasion in the entrance area of the vagina and slight swelling of the vaginal tissues. She was also generally sore intervaginally. The Crown intended to lead evidence of those injuries identified by the doctor as corroborative of the sexual assault. [ 23 ] The complainant told the doctor that the accused had penetrated her vaginally without using a condom and had ejaculated inside her. She also indicated that she had vaginal intercourse within the previous seven days.

DNA profiles were obtained from several vaginal swabs and analysis showed the male profile to be the complainant’s husband. The accused sought to cross-examine the complainant about her consensual intercourse with her husband immediately preceding the incident, including whether he ejaculated and whether he used a condom.

He also sought the admission of the forensic laboratory reports showing that the husband’s DNA was found and the accused’s was not. [ 24 ] The Crown conceded that questions about the previous intercourse, as well as its timing, were admissible on the issue of the vaginal injuries that were evident during the same period. However, the Crown opposed the admission of the DNA evidence. Upon a consideration of the factors described in s. 276(2) and (3), the court concluded that the evidence was admissible.

In doing so, it held that evidence capable of undermining a critical element of how the complainant says the offence was committed – that the accused had ejaculated – could be vital to undermining the credibility and reliability of that account. Furthermore, there were no alternative means available to pursue this legitimate defence approach without leading the evidence itself. [ 25 ] Similarly, in R. v. Nkemka , 2013 ONSC 2121 , the court considered a s. 276 application to cross-examine a complainant about alternative explanations for her injuries.

She had been very intoxicated at the time of the incident and alleged that she awoke with the defendant’s fingers insider her vagina. A medical exam the next day revealed three tears immediately inside and outside her vagina and

redness in the cervix. DNA analysis from the leggings she was wearing detected a minor amount of DNA from at least three maleindividuals in the crotch and upper leg area. The court concluded that the evidence was admissible as it may identify other causes for herinjuries that might raise a reasonable doubt. The proposed evidence had significant probative value that was not outweighed by danger ofprejudice to the administration of justice.

To ensure that there was minimal impact to the complainant’s personal dignity and privacy,questions to be asked of her were agreed upon by counsel and approved of by the court in advance. Material Inconsistencies [26] The accused also asserts that he should be able to cross-examine the complainant on the apparent inconsistency between herstatement in the FNE Report - that she had consensual intercourse within seven days of the incident - and her later statement to Crowncounsel that it had actually occurred two to three weeks before the incident.

He relies on the Supreme Court of Canada case of R. v.Crosby, (SCC), [1995] 2 S.C.R. 912. In that case, in the complainant’s original statement, she said she had engaged inconsensual intercourse three days prior to the incident. She also said that she had visited the accused the day of the incident with theintention of having sexual intercourse with him again.

However, at the preliminary inquiry, she testified that she did not visit the accusedthat day with the intention of having sex with him. [27] The SCC found that the trial judge had erred in preventing the accused from cross-examining the complainant on what was amaterial inconsistency in her statements. The material inconsistency was inextricably linked with the reference to the earlier sexualcontact. Credibility was a central issue at the trial and an inconsistency on a material and pertinent issue is highly relevant in suchcircumstances.

Turning to the enumerated factors to be balanced in determining whether the cross-examination should be permitted, thecourt said the following (paras 12-14): 12 The interests of justice, including the right of the accused to make full answer and defence, therefore militated in favour ofadmitting the evidence (s. 276(3)(a)).

So, too, did the fact that there was a reasonable prospect that the evidence would have assisted thejury in arriving at a just determination in the case (s. 276(3)(c)). 13 Moreover, under the circumstances, I do not believe that, if the jury had been apprised of the November 1 incident, this wouldhave unduly aroused in them sentiments of prejudice or hostility toward the complainant (s. 276(3)(e)), nor unduly injected into the fact-finding process any discriminatory belief or bias which could not reasonably be mitigated by a cautionary instruction to the jury (s.276(3)(d)).

It is equally significant that, on the scale of potential prejudices to the complainant's personal dignity and right of privacy (s.276(3)(f)), admission of this particular instance of prior sexual activity was far less prejudicial than could be contemplated in many othercircumstances. Finally, the "other factors" mentioned in s. 276(3)(

h) require consideration of the fact that it would be unfair for theCrown, by virtue of conduct over which the accused had no control, to render inadmissible certain evidence that would otherwise havebeen admissible and relevant to the defence of the accused. 14 As such, under the circumstances, the judge should have admitted the prior statement on the basis that it had significant probativevalue on the issue of credibility which was not substantially outweighed by the danger of prejudice to the proper administration ofjustice.

Analysis [28] In the case at bar, it is clear that the accused does not seek to rely on the evidence of prior sexual activity to support one of thetwin myths. It is also common ground that the proposed evidence relates to a specific incident of sexual activity. [29] I am also satisfied that the proposed evidence is relevant to an issue at trial, being whether the complainant’s injuries have analternative explanation other than a sexual assault, as well as the credibility and reliability of the complainant. However, I am alsomindful of the fact that relevance is different than probative value.

As noted by counsel for the complainant, evidence may be relevant,and yet have little probative value. [30] In my view, the real issue is whether the proposed evidence has significant value that is not substantially outweighed by thedanger of prejudice to the proper administration of justice. That determination is based on a balancing of the factors in s. 276(3). Inconducting that assessment, it is essential to keep in mind that the term “significant value” signals a higher standard than just “probativevalue”.

This serves to exclude evidence of trifling relevance that, even though not proffered to support the twin myths, would stillendanger the “proper administration of justice”. There are inherent damages and disadvantages presented by the admission of suchevidence: R. v. Darrach, 2000 SCC 46 at para 41. a. The interests of justice, including the right of the accused to make full answer and defence [31] The Crown seeks to rely on the complainant’s injuries as corroborative of the assault.

The only way that the accused is able toundermine that assertion is to be permitted to cross-examine the complainant on an alternative explanation for them, which, given thenature of the injuries in the genital area, may have been caused by sexual activity. The decisions in R. V., Nkemka and Edgar aresupportive of that proposition. [32] Although, as the complainant points out, there is no expert evidence before me which would suggest that such injuries could becaused by consensual intercourse with a condom, in my view, that is not a requirement.

Moreover, although the complainant said that shehad never experienced any pain or soreness related to intercourse previously, her soreness was only noted upon palpation of the area. It isnot unreasonable to infer that she could have been sore from prior recent sexual activity, if she had been palpated in that area. [33] The connection is considerably less compelling with respect to the bruising on the complainant’s legs, which the complainantsaid were not pre-existing. These are non-specific injuries and could have been caused by anything.

There is no obvious connectionbetween the bruising and a prior incident of sexual activity. [34] Turning to the inconsistent statements regarding the timing of the prior sexual activity, the issue is whether that inconsistency is“material and pertinent” as described in Crosby. In my view, the apparent contradiction on timing does not meet that threshold. The

discrepancy is between “within seven days”, and “two to three weeks”. As noted by the Crown, the timing of an inconsequential event in the complainant’s life over two years earlier is too tangential and insignificant to be material. This inconsistency is not the same quality as the inconsistency in Crosby – whether the complainant intended to have sex with the accused or not – which was central to the credibility and reliability of the complainant in that case.

Indeed, a different inconsistency in the complainant’s evidence in Crosby was found to be properly excluded since, “even when viewed together with the other inconsistencies” it was “so minor and so ancillary as to fail to be capable of undermining in any meaningful way her credibility”. (para 18) b. Society’s interests in encouraging the reporting of sexual offences [ 35 ] There are many reasons victims of sexual offences may be reluctant to report them. Doubtless, one of those reasons is the concern about having their sexual history, beyond the assault itself, shared in a public setting such as a courtroom.

However, the court is able to minimize the extent of such information by limiting the evidence as appropriate. In the present case, evidence of a single previous act of intercourse should have a relatively minimal deterrent impact on others reporting sexual offences against them. c. Whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case [ 36 ] For the reasons set out above, I am not persuaded that the inconsistent statements are material, or that the inconsistency would assist in arriving at a just determination.

However, as for the injuries to the complainant’s genital area, the accused’s ability to challenge the Crown’s evidence as to the cause of those injuries will assist the court in arriving at a just determination. I do not believe that limiting the accused to cross-examining on other possible causes for the injuries in the genital area, without referencing the prior incident of consensual intercourse is adequate. d.

The need to remove from the fact-finding process any discriminatory belief or bias [ 37 ] There is always a risk that evidence of this nature carries with it a risk of reliance on a discriminatory belief or bias in the fact- finding process. Judges are not immune from such biases, unconscious or otherwise. However, it is also clear that this evidence does not tie to any discriminatory belief or myth that s. 276 is designed to exclude.

As noted in Crosby , the admission of a single prior sexual act would not unduly inject into the fact-finding process any discriminatory belief or bias which could not be mitigated by a cautionary instruction to the trier of fact (para 13). e. The risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility [ 38 ] I find that it is very unlikely that evidence of a consensual sexual act in these circumstances would arouse any sentiments of prejudice, sympathy or hostility against or towards the complainant. f.

The potential prejudice to the complainant’s personal dignity and right of privacy [ 39 ] There is no question that all sexual activity is deeply intimate and personal. Being required to share details of that activity in a public setting is inherently intrusive and, by definition, would have a negative impact on the complainant’s personal dignity and right of privacy. That is amplified by the fact that the complainant was only 17 years old at the time of the alleged assault. However, it is possible to minimize the prejudice to her by narrowing the scope of questioning.

That process may include canvassing proposed questions with the court and having them approved in advance. g. The right of the complainant and of every individual to personal security and to the full protection and benefit of the law [ 40 ] This factor reminds us that the complainant must be afforded protections, no less than an accused person does. One must not lose sight of the fact that the complainant is not on trial. [ 41 ] I am satisfied that admission of the proposed evidence, tightly controlled, will not undermine her personal security and full protection and benefit of the law.

On the scale of potential prejudices to her, limited cross-examination on this one instance of previous sexual activity is far less than could occur in many other circumstances. Conclusion [ 42 ] Upon a balancing of the above factors, I am satisfied that the evidence of the complainant’s incident of intercourse in the period within two to three weeks before the date of the alleged sexual assault has significant probative value, that is not substantially outweighed by the danger of prejudice to the administration of justice.

For the reasons stated above, however, that does not include the bruising to the claimant’s legs nor the inconsistency between her statements regarding the timing of that sexual activity. [ 43 ] In order to ensure a proper balancing of the factors in ss. (3), I will require that the accused provide his proposed questions in advance to the Crown and complainant’s counsel and attempt to reach agreement on the scope of the questions given my ruling.

A short hearing should be scheduled before me in advance of the trial continuation dates in order to settle those questions. [ 44 ] I am most grateful to all counsel for providing such thorough and helpful submissions in writing. _____________________________ The Honourable Judge R. McQuillan Provincial Court of British Columbia

CORRIGENDUM - Released June 25, 2021 In the Ruling on Application dated June 25, 2021 , the following changes have been made: [1] The accused young person A. H.-C. is now referred to as A.H. [2] The complainant A.

J.-B. is now referred to as A.J. [3] Throughout the ruling, “ Criminal Code ” should be formatted as “ Criminal Code ”. [4] In paragraph [3](i), the word “with” should be the word “within”. [5] Throughout the ruling, “Code” should be formatted as “ Code ”. [6] In paragraph [14] the sentence “In the case at bar, the Crown noted that the accused did not file an affidavit in support of its application, which has been noted in a number of cases to be a requirement at the threshold stage.” should read “In the case at bar, the Crown noted that the accused did not file an affidavit in support of his application, which has been noted in a number of cases to be a requirement at the threshold stage.” [7] Throughout this ruling, "SCC" should read as "S.C.C.". [8] In paragraph 22 the citation “R. v.

E. 2020 BCSC 381 ” in the first line should read as “ R. v.

Edgar , 2020 BCSC 381“. [9] In paragraph 24 the last sentence “ Furthermore, there was no alternative means available to pursue this legitimate defence approach without leading the evidence itself.” should read as “Furthermore, there were no alternative means available to pursue this legitimate defence approach without leading the evidence itself.” [10] In paragraph 30, the sentence “ In conducting that assessment, it is essential keep in mind that the term ‘significant value’ signals a higher standard than just ‘probative value’.” should read as “In conducting that assessment, it is essential to keep in mind that the term ‘significant value’ signals a higher standard than just ‘probative value’.” [11] In paragraph 30, “ R v.

Darrach 2000 SCC 46 ” should be cited as “ R. v. Darrach , 2000 SCC 46”. [12] In paragraph 31, the last line “The decisions in R.V. , Nkemka , and E. are supportive of that proposition.” should read as “The decisions in R. V., Nkemka and Edgar are supportive of that proposition.” _____________________________ The Honourable Judge R. McQuillan Provincial Court of British Columbia