HIS MAJESTY THE KING - v. -, 2022 SKKB 261

REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 261 Date: 20 22 11 30 Docket: CRM-RG-00196-2021 Judicial Centre: Regina BETWEEN: HIS MAJESTY THE KING - and - D.E. PUBLICATION RESTRICTION: The publication of these reasons is restricted pursuant to ss. 486.4(1) of the Criminal Code such that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way. Counsel: Dawid Werminski for the Crown Brian G. Pfefferle for the applicant Norma L.

Buydens for the complainant RULING ON S. 276 APPLICATION (STAGE TWO) November 30, 2022 TOCHOR J. I. INTRODUCTION 1. Overview [ 1 ] The applicant is charged with sexual assault. He applies under s. 276(2) of the Criminal Code, RSC 1985, c C-46 for an order permitting him to cross-examine the complainant on certain issues relating to the nature of their relationship. He seeks to cross-examine on the following three points: (

a) That the complainant and the applicant met virtually on the Tinder dating app and that they communicated with each other on this app from time to time prior to the alleged incident on April 15, 2020; (

b) That the complainant and the applicant arranged to meet in person on several occasions and that, on some of these occasions, they participated in consensual sexual activity; (

c) T hat the complainant heard part of a conversation between the applicant and his father on April 15, 2020, in which the father was critical of the applicant’s behavior with young women . [ 2 ] In my ruling on stage one of the application delivered on October 28, 2022, I ruled the areas of proposed cross-examination in parts (

a) and (

c) above do not involve s. 276. Therefore, the applicant is not prohibited from cross-examining the complainant on these areas, provided the cross-examination is otherwise relevant and admissible.

[ 3 ] However, I also ruled the proposed cross-examination set out in part (

b) involves s. 276 evidence which is capable of being admissible at trial. I therefore ordered this part of the application to proceed to a stage two hearing pursuant to s. 278.93(4). 2. The Re-Formulated Application [ 4 ] The stage two hearing was heard on November 18, 2022, with the participation of counsel for the respective parties, as well as the applicant and the complainant. [ 5 ] The applicant, in both the stage one and stage two hearings, submits it is necessary to cross-examine the complainant on the information set out in part (

b) of the application in order to provide appropriate context to the trier-of-fact. The applicant argues that, without this kind of context, the trier-of-fact could be misled into believing that the applicant and complainant were strangers, without any previous history of interaction.

The applicant submits the proposed cross-examination is necessary to show the parties were known to each other before the alleged incident on April 15, 2020. [ 6 ] During the parties’ submissions on the stage two hearing, the discussion turned to whether the interests of the applicant, the interests of the complainant, and the policy interests underlying the s. 276 regime in the Criminal Code might be appropriately addressed by using different language than that set out in part (

b) of the application. Discussion ensued whether a change in focus from what the parties’ relationship was , to a focus on what the parties’ relationship was not , might be of assistance to all stakeholders in this application. [ 7 ] Therefore, after counsel provided submissions, an agreement was reached to address the stage two hearing on a different basis than that expressly set out in the stage one application. [ 8 ] With the consent of the parties, including counsel for the complainant, part (

b) of the application was re- formulated to articulate the proposed areas of cross-examination as follows: (

i) At all material times, the applicant and complainant were not in a dating relationship; (ii) At all material times, the applicant and complainant were not work colleagues; (iii) At all material times, the applicant and complainant were not friends in any other context; (iv) The applicant and complainant met by using the Tinder dating app; (

v) The applicant and complainant communicated through the Tinder dating app from time to time prior to April 15, 2020, and, through communications on this app, they arranged to meet on a number of occasions. [ 9 ] On the question of whether part (

b) of the application involves s. 276 evidence, all counsel – including counsel for the complainant – submitted that a ruling should be made that this is s. 276 evidence and that an order should be made permitting the applicant to cross-examine on the re-formulated areas. 3.

Summary of Decision [ 10 ] After considering the application materials and the submissions of counsel, I conclude the proposed cross- examination of the complainant in the re-formulated version of part (

b) of the application is not s. 276 evidence. Therefore, the applicant shall be permitted to cross-examine the complainant on that basis. [ 11 ] However, if I am in error in this conclusion, I alternatively conclude that, after considering the conditions for admissibility set out in s. 276(2) and the relevant factors set out in s. 276(3), as well as the relevant case authorities, the application to cross-examine the complainant on the re-formulated version of part (

b) should be granted. I conclude that if the proposed cross- examination is s. 276 evidence, the applicant should be permitted to cross-examine the complainant on the proposed basis. II.

THE LEGAL FRAMEWORK [ 12 ] Before addressing the merits of this application, it is helpful to consider the legal framework within which the application must be assessed. [ 13 ] The statutory authority for a stage two hearing is set out in s. 278.93(4) which requires a hearing to determine if the proposed evidence meets the criteria set out in s. 276(2): Judge may decide to hold hearing 278.93(4) If the judge, provincial court judge or justice is satisfied that the application was made in accordance with subsection (2), … and that the evidence sought to be adduced is capable of being admissible under subsection 276(2) , the judge, provincial court judge or justice shall grant the application and hold a hearing under

section 278.94 to determine whether the evidence is admissible under subsection 276(2) … [Emphasis added] [ 14 ] The procedural requirements for stage two hearings are then outlined in s. 278.94: Hearing — jury and public excluded

278.94

(1) The jury and the public shall be excluded from a hearing to determine whether evidence is admissible under subsection 276(2) or 278.92(2). Complainant not compellable

(2) The complainant is not a compellable witness at the hearing but may appear and make submissions. Right to counsel

(3) The judge shall, as soon as feasible, inform the complainant who participates in the hearing of their right to be represented by counsel. Judge’s determination and reasons

(4) At the conclusion of the hearing, the judge, provincial court judge or justice shall determine whether the evidence, or any part of it, is admissible under subsection 276(2) or 278.92(2) and shall provide reasons for that determination, and (

a) if not all of the evidence is to be admitted, the reasons must state the part of the evidence that is to be admitted; (

b) the reasons must state the factors referred to in subsection 276(3) or 278.92(3) that affected the determination; and (

c) if all or any part of the evidence is to be admitted, the reasons must state the manner in which that evidence is expected to be relevant to an issue at trial. Record of reasons

(5) The reasons provided under subsection (4) shall be entered in the record of the proceedings or, if the proceedings are not recorded, shall be provided in writing. [ 15 ] The substantive element of stage two hearings is governed by s. 276(2)-(3).

The conditions for admissibility of evidence of a complainant’s sexual activity are defined in s. 276(2): Conditions for admissibility 276(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. [ 16 ] The required considerations are then listed in s. 276(3): Factors that judge must consider 276(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. [ 17 ] Important direction for the practical application of these factors is found in R v Goldfinch , 2019 SCC 38 , [2019] 3 SCR 3 [ Goldfinch ] and R v R.V. , 2019 SCC 41 , [2019] 3 SCR 237 [ R.V. ]. It is helpful to emphasize two points which are illustrated in

these decisions. [18] The first point is a recognition of the need to carefully balance the interests of the accused and the interests ofthe complainant. In R.V., at paras 40-41, the court held there is no priority given to either party’s interests; instead, appropriateconsideration must be given to the interests of both: [40] … By virtue of s. 276(3), full answer and defence is only one of the factors to be considered by the trial judge; it must bebalanced against the danger to the other interests protected by s. 276(3).

These additional limits are necessary to protect thecomplainant’s dignity, privacy and equality interests: Osolin [R v Osolin, (SCC), [1993] 4 SCR 595], at p. 669; seealso R. v. Mills, (SCC), [1999] 3 S.C.R. 668, at paras. 61-68… [41] Thus, the fact that the accused’s ability to make full answer and defence requires that the complainant be cross-examined is notthe end of the analysis.

The scope of the permissible questioning must also be balanced with the danger to the other interests protectedby s. 276(3), including the dignity and privacy interests of the complainant. [19] The second point is the need to carefully evaluate the importance of the proposed cross-examination to theaccused’s case. An application to adduce evidence of the complainants’ sexual history must be addressed contextually, against thespecific facts in each case. The relative value of the proposed evidence must be measured against the possible harm that may befall aparticular complainant.

R.V. explained this aspect as follows, at para. 64: [64] Simply put, the more important evidence is to the defence, the more weight must be given to the rights of the accused. Forexample, the need to resort to questions about a complainant’s sexual history will be significantly reduced if the accused can advance aparticular 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… [20] Similarly, Goldfinch also highlighted the need for an assessment of the importance of the proposed evidence tothe accused’s case. For example, if an accused can appropriately argue his case without reference to the proposed evidence, theimportance of that evidence is low.

If, on the other hand, the accused needs the evidence in order to advance his case, the importance ishigh. Goldfinch explained this at para. 69: [69] …Balancing the s. 276(3) factors ultimately depends on the nature of the evidence being adduced and the factual matrix of thecase. It will depend, in part, on how important the evidence is to the accused’s right to make full answer and defence… [21] In

summary, Goldfinch and R.V. require a court to undertake a careful analysis of the factors in s. 276(3) inorder to achieve a balance between the interests of the accused and those of the complainant. III. ANALYSIS [22] In order to determine stage two of this application, two issues must be addressed: (

i) Does the proposed cross-examination involve s. 276 evidence?; and (ii) If the proposed cross-examination is s. 276 evidence, should it be permitted? [23] I address each of these issues below, in turn. 1.

Does the Proposed Cross-Examination Involve s. 276 Evidence? [24] Counsel submit the best way to proceed in this application is to conclude that the proposed evidence is subjectto the s. 276 regime and, after consideration of the factors set out in s. 276(3), to order that the cross-examination should be permitted.However, while I am reluctant to disagree with the considered consensus of all three counsel on this issue, for the reasons that follow, Iconclude the proposed cross-examination does not constitute s. 276 evidence. [25] First, a plain reading of s. 276 persuades me the proposed cross-examination in part (

b) is not subject to thissection. Section 276(2) is expressly directed at evidence of “sexual activity”. Nothing in the re-formulated version of part (

b) involvesevidence about this. Further, subsection 276(2)(

c) is concerned with “specific instances of sexual activity”. Again, nothing in the re-formulated version involves evidence about this. The proposed cross-examination does not involve evidence of sexual activity, asrequired by s. 276(2). [26] I also conclude that reference in the proposed cross-examination to the Tinder dating app does not automaticallyinvoke the operation of s. 276. [27] An individual’s use of the Tinder app, by itself, does not lead to an inference that the user consents to futuresexual activity.

More specifically, an individual’s use of the Tinder app to communicate with another person does not permit an inferencethat the user consents, or is more likely to consent, to future sexual activity. [28] This type of reasoning is wholly incompatible with at least three key directions given by the Supreme Court.First, such reasoning is incompatible with the direction that a person cannot consent in advance to sexual activity that is expected tooccur at some point in the future: R v Barton, 2019 SCC 33 at para 99, [2019] 2 SCR 579 [Barton].

Second, such reasoning isincompatible with the direction that consent cannot be implied by a pre-existing relationship between the accused and complainant: R vJ.A., 2011 SCC 28 at paras 47 and 64, [2011] 2 SCR 440 [J.A.]; Barton at para 98. Third, such reasoning is incompatible with the

direction that consent can be revoked at any time: J.A. at paras 40 and 43-44 ; see also s. 273.1(2) (

e) of the Criminal Code . Therefore, any attempt to argue that an individual’s use of the Tinder app connotes consent to sexual activity is misguided and wrong in law. [ 29 ] Further, it would be incorrect to conclude that reference to the Tinder app will never be subject to s. 276, just as it would be equally incorrect to conclude that reference to the Tinder app will always be subject to s. 276. While there may exist some circumstances where the use of the Tinder app, or any other messaging platform, may involve s. 276 evidence, it would be unwise to attempt to delineate a general rule.

Whether the use of a messaging app involves s. 276 evidence must always be determined in the context of the circumstances of each case. [ 30 ] Second, while all counsel agree the safest course of action would be to treat the re-formulated part (

b) evidence as being subject to s. 276, I am concerned about the future consequences of following this course of action. To do so, in my respectful view, would interpret s. 276 in a way that was not intended by Parliament. In fact, it could be argued that treating the proposed evidence as being subject to s. 276, when the evidence should not be, is contrary to Parliament’s direction.

Parliament set out certain pre-requisites to the exercise of the powers set out in s. 276(2) and a ruling that extends or broadens those pre-requisites – to include evidence that does not describe sexual activity – is unwarranted. [ 31 ] Put another way, if the simple act of using the Tinder app in these circumstances was determined to constitute “sexual activity” or “specific instances of sexual activity” under s. 276(2), an individual’s use of any form of communication could constitute sexual activity. This is not Parliament’s intention.

A ruling to this effect would, in my respectful view, be inconsistent with Parliament’s aims and objectives in enacting s. 276. [ 32 ] Therefore, while I respect that counsels’ position on this issue is properly borne out of caution, I conclude the proposed cross-examination set out in the re-formulated part (

b) is not s. 276 evidence. 2.

If the Proposed Cross-Examination is s. 276 Evidence, Should it be Permitted? [ 33 ] However, exercising the same caution as that proposed by counsel, I will go further and alternatively address the factors in s. 276(3), in case I am in error in concluding the proposed cross-examination is not s. 276 evidence. [ 34 ] After considering the conditions for admissibility set out in s. 276(2) and the relevant factors set out in s. 276(3), as well as the relevant case authorities, I conclude the applicant should be permitted to conduct the cross-examination proposed in the re- formulated part (b). [ 35 ] I now turn to an assessment of the statutory factors set out in s. 276(3) in accordance with the guidance provided in Goldfinch and R.V .

These factors have been listed above; however, for ease of reference, I repeat them below: Factors that judge must consider 276

(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. [ 36 ] When considering the proposed cross-examination on a scale of sensitivity, I conclude this evidence is on the lower end of the scale. Because of this, a consideration of factors (b), (f), and (

g) weigh in favor of permitting the proposed cross- examination. Or, stated another way, a consideration of these factors does not weigh against permitting the proposed cross-examination. Society’s interest in encouraging the reporting of sexual offences, set out in factor (b), would not be unduly impacted, if at all, by permitting cross-examination on this evidence. I also conclude this proposed evidence would not prejudice a complainant’s dignity or privacy, as set out in factor (f). Finally, such evidence would not unduly impact, if at all, the personal security of the complainant, as set out in factor (g). [ 37 ] Factor (

e) has no application because this trial, as a result of the applicant’s re-election, will be conducted before a judge sitting alone. [ 38 ] Factors (

a) and (

c) weigh in favor of permitting the proposed cross-examination. The applicant argues such evidence is necessary for him to make full answer and defence. When I consider the importance of this proposed cross-examination to the applicant’s case, I conclude it is in the middle of the scale. I do not conclude it is of the highest importance to the applicant’s defence, but I also do not conclude it is situated at the least important side of the scale. While it is not possible for me to accurately pinpoint the importance of this proposed evidence before hearing all the evidence at trial, I am mindful of the applicant’s right to present his case as he sees fit. Therefore, factors (

a) and (

c) weigh – to some extent – in favor of permitting the proposed cross-examination.

[ 39 ] Finally, I consider factor (

d) which addresses the need to remove any discriminatory belief or bias from the fact- finding process. As set out above, I conclude evidence of an individual’s use of the Tinder dating app in these circumstances does not connote any suggestion of consent to sexual activity. Frankly, a ruling that evidence of the use of the Tinder app in any circumstances automatically invokes s. 276 would have the unfortunate effect of creating a discriminatory belief or bias in the fact-finding process. Such a ruling could be erroneously interpreted to suggest that an individual’s use of the Tinder app automatically connotes an intention to engage in, or consent to, sexual activity. This

interpretation is not accurate or logical and would result in the same kind of discriminatory belief or bias that s. 276 specifically intends to prohibit. [ 40 ] I stress again these considerations must be centred on the specific circumstances of the case. In these circumstances, I conclude factor (

d) weighs heavily in favor of permitting the proposed cross-examination. This conclusion, in effect, works to remove any discriminatory belief or bias about an individual’s use of the Tinder app. [ 41 ] Therefore, after considering the factors in s. 276(3) in the context of the aims and objectives of s. 276, I conclude an appropriate balancing of the interests of the accused and complainant is achieved by permitting the applicant to cross- examine the complainant on the proposed areas set out in the re-formulated part (

b) of the application. IV. CONCLUSION [ 42 ] In

summary, I come to the same conclusion whether the areas of proposed cross-examination are determined to be s. 276 evidence or not. [ 43 ] Here, I conclude these areas are not s. 276 evidence and, on that basis, the proposed cross-examination shall be permitted. [ 44 ] If I am in error in coming to this conclusion, and the proposed cross-examination is s. 276 evidence, I then turn to a consideration of the proposed cross-examination in the context of the factors set out in s. 276(3). After undertaking an assessment of those factors, I come to the same result.

I conclude the proposed cross-examination should be permitted on this basis as well. [ 45 ] Therefore, for the reasons set out above, the applicant shall be permitted to cross-examine the complainant on the following areas: (

i) At all material times, the applicant and complainant were not in a dating relationship; (ii) At all material times, the applicant and complainant were not work colleagues; (iii) At all material times, the applicant and complainant were not friends in any other context; (iv) The applicant and complainant met by using the Tinder dating app; (

v) The applicant and complainant communicated through the Tinder dating app from time to time prior to April 15, 2020, and, through communications on this app, they arranged to meet on a number of occasions. J. M.D. TOCHOR