R. v. J.E., 2019 NLSC 134

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. J.E. , 2019 NLSC 134 Date : July 11, 2019 Docket : 201801G5446 Her Majesty The Queen v. J.E. Restriction on Publication: Pursuant to

section 278.95(1) of the Criminal Code , no person shall publish, broadcast or transmit in any way, any of the following: the contents of the application made under

section 278.93 ; the evidence taken, the information given and the representations made at an application under

section 278.93 or at a hearing under

section 278.94; the decision of the justice under subsection 278.93(4) and the determination made and the reasons provided under

section 278.93(4) subject to further order of the Court under

section 278.95(d). AND: Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way. AND: Restriction on Publication: Pursuant to subsection 648(1) (and subsection 645(5)) of the Criminal Code , no information regarding any portion of the trial at which the jury was not present shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.

Before: Justice Robert P. Stack Place of Hearing: St. John’s, Newfoundland and Labrador

Date(

s) of Hearing: July 3, 2019

Summary: A threshold

section 276 Criminal Code application was held pursuant to

section 278.93 . The Crown conceded, and the Court agreed, that the procedural requirements of

section 278.93(4) were met and that the evidence the accused wishes to adduce is capable of being admitted under section 276(2). A hearing will be held pursuant to

section 278.94 to determine if any of the evidence can be adduced at trial. Appearances: Jude W. Hall Appearing on behalf of the Crown Robert W. Buckingham Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Goldfinch , 2019 SCC 38 ; R. v. Barakat , 2019 CarswellOnt 1822, 153 W.C.B. (2d) 459 (Ct. J.) ; R. v. Boyle , 2019 ONCJ 11 ; R. v. J.S. , 2011 ONSC 5367 ; R. v. W.G.C. , 2016 MBQB 232 ; R. v. S.L. , 2018 ABQB 889 ; R. v. Darrach , 2000 SCC 46 . STATUTES CONSIDERED: Criminal Code , R.S.C. 1985, c.

C-46 ; Criminal Code and the Department of Justice Act and to make consequential amendments to another Act , Act to amend the , S.C. 2018, c. 29. REASONS FOR JUDGMENT Stack, J. : INTRODUCTION [ 1 ] The Applicant was charged with one count of breaching

section 271 and three counts of breaching

section 264.1 of the Criminal Code , R.S.C., 1985, c. C-46 . He has elected to be tried by judge and jury. [ 2 ] The Applicant states that in order to make a full answer and defence at his trial, he requires the opportunity to adduce evidence of sexual activity with the Complainant prior to the alleged sexual assault. [ 3 ] This Application relates to

section 276 of the Criminal Code which provides that in proceedings in respect of an offence under

section 271 , among others, 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. [ 4 ] I have conducted a hearing pursuant to

section 278.93(4) on the threshold issue of whether the Application was made in accordance with

section 278.93(2), that a copy of the Application was given to the Crown and to the Court at least seven days previously, and that the evidence is capable of being admissible under subsection 276(2). [ 5 ] Notwithstanding that the Application refers to the sections of the Criminal Code in place prior to the enactment of S.C. 2018, c. 29 (An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act), which came into force on December 13, 2018, I am satisfied, and the Crown concedes, that the procedural requirements of

section 278.93 have been met. The purpose of this decision, then, is to set forth why I have also concluded that certain of the evidence referred to in the Application is capable of being admissible under section 276(2). the statutory scheme [ 6 ] In order to understand the nature of the decision I have made at this juncture in the proceeding and the procedural steps that will follow, I will set forth the applicable Criminal Code provisions in some detail. It is important to note, however, that there are other Criminal Code sections following

section 276 that are not applicable in this matter but will have application in other matters. The

applicable provisions for this case at this time begin with

section 276 : 276

(1) In proceedings in respect of an offence under

section 151, 152, 153, 153.1, 155 or 159, 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.

(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.

(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.

(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. [ 7 ] As we have seen, the Applicant wishes to adduce evidence of prior sexual activity between him and the Complainant as part of his defence. Because of the propensity of such evidence to invoke one or both of the prohibitions identified in section 276(1), the aptly named “twin myths”, then section 276(2) is engaged. [ 8 ] The desire of an accused to adduce evidence pursuant to section 276(2) requires an application pursuant to

section 278.93, which provides as follows: 278.93

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

section 278.94 to determine whether evidence is admissible under subsection 276(2) or 278.92(2).

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

(3) The judge, provincial court judge or justice shall consider the application with the jury and the public excluded.

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

section 278.94 to determine whether the evidence is admissible under subsection 276(2) or 278.92(2). [ 9 ] Having been satisfied that the procedural requirements of

section 278.93 have been met, I must now explain why I have concluded that at least part of the sexual activity of the Complainant identified by the Applicant is capable of being admitted under section 276(2). Once I have done so, then a hearing will be held pursuant to

section 278.94, which provides as follows: 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).

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

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

(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.

(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. [ 10 ] The December 2018 amendments to the

section 276 regime have application in two substantive ways to the matter before me. The first is that the definition of “sexual activity” now includes any communication made for a sexual purpose or whose content is of a sexual nature (section 276(4)). The second is that once the matter proceeds past this threshold stage and goes to a hearing under

section 278.94, the Complainant, although not a compellable witness at the hearing, may appear and make submissions and has the right to be represented by counsel (sections 278.94(2) and (3)). In this case, Crown counsel has advised that the Complainant will be entitled to state-funded counsel if she desires to participate in the hearing.

[ 11 ] It is on the basis of the foregoing that I will consider the Application. the application Solicitor’s Affidavit [ 12 ] The evidentiary basis for the Application is an affidavit sworn by the Applicant’s solicitor. Although such an affidavit may be appropriate to ground an application made pursuant to 278.93, when this matter proceeds to a substantive hearing under s. 278.93, the Applicant will be required to file a personal affidavit or affidavits, sworn by himself or others, setting forth in detail personal knowledge of the matters that he claims support his section 276(2) application. I will discuss this in greater detail below when I discuss the nature of the

section 278.94 hearing. The Basis for the Application [ 13 ] The Applicant’s stated wish is to adduce evidence of specific instances of sexual activity, not with respect to the full details, but with respect to the fact that they happened. The Applicant submits that this evidence will demonstrate that the Complainant was not honest and candid with the RCMP or when testifying under oath at the Preliminary Inquiry. [ 14 ] According to the Applicant, the Complainant’s credibility and reliability will be central issues at trial.

The Applicant submits that he should be permitted to challenge the Complainant’s credibility and to do, he must present evidence of the prior sexual encounters that the Complainant denies. [ 15 ] The Applicant further submits that the Complainant’s statements about the nature and quantity of the parties’ contact in the week previous to the incident in the context of the Complainant saying she only wished to talk, she did not want to have a relationship with the Applicant and she did not have a relationship with the Applicant, if unchallenged, would distort the fact finding process at trial. [ 16 ] The Applicant states that the parties have known each other for a number of years, that the unhappy differences between the Complainant and her husband existed much longer than the week previous to the incident in question, and that the sexual relationship between the parties commenced in June or July of 2016 and continued up to and including the event in question.

The Applicant wishes to adduce evidence that challenges the Complainant’s implications that: (1) their previous communications were limited to discussions about the children; (2) the discussions about the children had stopped sometime previously; (3) the week previous, the Applicant recommenced discussions seeking a more serious relationship; and (4) the Complainant’s “rough patch” with her husband had been limited to the week previous. The Incidents Identified [ 17 ] I will now set out in detail the instances of prior sexual activity of the Complainant that the Applicant wishes to adduce at trial.

Initial Sexual Contact [ 18 ] The Applicant states the sexual relationship between himself and the Complainant commenced in the summer of 2016. In either June or July of 2016, at a social engagement at the Applicant’s house, the Complainant made sexual overtures towards him.

Specifically, the Applicant alleges that the Complainant touched him under the table at which the parties and their respective partners were sitting, touching his penis through his pants with her feet in an effort to sexually arouse him. [ 19 ] The Applicant also points to discussions he had with the Complainant regarding her medical condition and marital difficulties and asserts that these are inconsistent with her statements that she only discussed their respective children with him.

August Personal Discussions (Ottawa) [ 20 ] The Applicant states that at page 83 and 84 of the Preliminary Inquiry Transcript, the Complainant acknowledged discussions about personal issues with the Applicant in August of 2016 and that these discussions took place on the telephone. At the time, the Applicant was in Ottawa.

Complainant’s Spouse’s Concerns (August/September 2016) [ 21 ] The Applicant states that at pages 99 to 104 of the Preliminary Inquiry Transcript, the Complainant acknowledged that her husband found out about her communications with the Applicant in August or September of 2016 and posted derogatory comments about the Applicant on the Complainant’s Facebook page. [ 22 ] The Applicant wishes to cross-examine the Complainant on the nature of their discussions in August 2016 that prompted the

Complainant’s husband to post derogatory comments about the Complainant. Contact in a Small Community (September) [ 23 ] I have changed the heading of this instance of sexual activity in order to maintain the Complainant’s anonymity. The Applicant states that at pages 105 to 117 of the Preliminary Inquiry Transcript, the Complainant acknowledged meeting the Applicant in a nearby specified small community at the end of August, or early September, 2016. At that time, she and her husband were estranged.

The Applicant alleges that there was sexual contact between the parties including kissing, touching of genitals and arousal. The parties kissed and touched for about half an hour. The Complainant masturbated the Applicant and he ejaculated. [ 24 ] The Applicant wishes to cross-examine the Complainant on the sexual activity that happened at that meeting. Ongoing Communications and Fifty Shades of Grey Activity [ 25 ] The Applicant claims that at page 171 of the Preliminary Inquiry Transcript, the Complainant admitted, “[W]e had numerous discussions.

I am not denying any of that.” Furthermore, he says, the Complainant admitted that one of these discussions was a long distance call which lasted up to two hours. The Applicant states this happened on or about September 1, 2016 when he was returning from Ontario and overnighted in Nova Scotia. The Complainant was home alone.

There was a long sexual discussion that evening as the Complainant was watching the movie Fifty Shades of Grey . [ 26 ] The Applicant wishes to cross-examine the Complainant with respect to the Fifty Shades of Grey conversation including, but not limited to, the Complainant showing him a specific sexual position which took place in the movie and the Complainant saying to the Applicant she loved that position and other positions she wanted to try with him. The Applicant also wishes to put questions to the Complainant respecting her request that the Applicant show her his penis during that FaceTime contact.

Complainant’s Desire for Relationship [ 27 ] The Applicant submits that at page 174 of the Preliminary Inquiry Transcript, the Complainant states: (

a) she wanted a relationship with the Applicant; (

b) he was promising her the moon and the stars; (

c) she was prepared to enter into a relationship with the Applicant if he offered her the sun and the moon and the stars; and (

d) she was prepared to leave the relationship with her husband if the Applicant provided her the sun, the moon and the stars. Complainant Banned from Applicant’s Home [ 28 ] The Applicant claims that at page 205 of the Preliminary Inquiry Transcript, the Complainant acknowledged further prior contact and communication with the Applicant and noted that the Applicant’s partner had informed the Complainant she was no longer permitted around the Applicant’s house because the Complainant had been talking with the Applicant on the phone.

The Complainant noted that she had been told this by the Applicant’s partner some month or so prior. September 2016 Sexual Activity [ 29 ] I have also changed the heading of this instance of sexual activity in order to maintain the Complainant’s anonymity. The Applicant claims that in September of 2016, he met the Complainant at a specified location in St. John’s. The Applicant picked up the Complainant and they went to a nearby-specified location where there was sexual contact between the parties, consisting of petting each other’s genitals.

The parties were parked for about half an hour. [ 30 ] The Applicant claims that the night before this incident, the Complainant called the Applicant using a workplace friend’s phone. The Complainant asked the Applicant to meet at the field by the local swimming pool. The rendezvous did not happen because the Applicant had child care responsibilities. The Applicant wishes to cross-examine the Complainant on the sexual nature of that communication. [ 31 ] The Applicant also wishes to cross-examine the Complainant on plans they made to meet that did not come to pass.

October 2, 2016 Conversation [ 32 ] The Applicant claims that on October 2, 2016, the Complainant and her husband attended a children’s party at a specified location. She communicated with the Applicant asking him to sneak over to a nearby specified establishment for a drink. The Applicant declined. The Applicant wishes to cross-examine the Complainant on the purpose of the call and the context of the discussion.

Frequency of Communications: June – October 2016 [ 33 ] The Applicant claims that at pages 119 to 120 of the Preliminary Inquiry Transcript, the Complainant acknowledged having multiple discussions with the Applicant between June 2016 and October 2016 and that sometimes there were two or three conversations per day. The Complainant also acknowledged that these conversations were not always about their children. The Applicant wishes to cross-examine the Complainant on those conversations.

October 15, 2016 Sexual Activity [ 34 ] The Applicant submits that on October 15, 2016, the parties met at the Complainant’s house. The Complainant had asked the Applicant to attend at the house to drop off the Complainant’s son’s bag. The Applicant was with his son. When he arrived at the

Complainant’s house, the Complainant asked the Applicant’s son into the house. When the Applicant’s son went into the house, the Complainant then began sexual contact with the Applicant through the window of the Applicant’s vehicle. The parties got out, moved to the side of the Complainant’s house, partially undressed, engaged in sexual activity and were about to commence intercourse when one of the Complainant’s children came out of the house. This stopped the sexual activity. The parties were partly naked from the waist down. [ 35 ] The Applicant wishes to cross-examine the Complainant on that sexual activity.

Phone and Text (Sexting) [ 36 ] The Applicant states that much of the contact and communication between himself and the Complainant was by way of phone calls and text messages. The Applicant wishes to cross-examine the Complainant on the frequency, content and nature of the telephone conversations and text messaging between them and how that communication took place over the period, June 2016 to October 2016. [ 37 ] The Applicant states he used his work phone and the Complainant used a friend’s phone to communicate between them and arrange places to meet for sexual purposes.

They used his work phone and her friend’s phone to avoid their contact and communications being found out by their respective partners. The Applicant wishes to cross-examine the Complainant on the use of the phones and what was said in the respective conversations respecting the relationship and sexual contact. Cell Phone Videos [ 38 ] The Applicant wishes to cross-examine the Complainant relating to cell phone videos when the Complainant was purchasing new underwear and sent the Applicant FaceTime videos of her asking his opinion on the colour of the underwear she should purchase.

Cinema Parking Lot Sexual Activity – August [ 39 ] The Applicant claims that in late August, mid-week, the Complainant approached the Applicant while he was in a cinema parking lot. The Complainant was on her way to work. The parties kissed and sexually touched. The Applicant wishes to cross- examine the Complainant about the sexual activity on this occasion. the law The Latest Developments in the Case Law [ 40 ] The law respecting

section 276 has recently been considered by the Supreme Court of Canada in R. v. Goldfinch , 2019 SCC 38 . [ 41 ] The decision in Goldfinch was delivered on the Friday before the hearing of this matter. It is a decision of a seven-member panel of the court.

Six judges agreed in the result, with Justice Karakatsanis writing the majority decision (Abella, Gascon and Martin, JJ. concurring), Moldaver, J. writing a concurring decision (Rowe, J. concurring), and Justice Brown writing a dissent. [ 42 ] The majority found that evidence of a relationship that implies sexual activity clearly engages section 276(1) of the Criminal Code and, to be admissible, must satisfy the requirements of section 276(2) . The risk that evidence of a relationship which implies sexual activity may be used to support twin-myth reasoning is clear.

Even relatively benign relationship evidence must be scrutinized and handled with care. If the accused cannot point to a relevant use of the evidence other than the twin myths, mere assurances that the evidence will not be used for those purposes are insufficient. [ 43 ] To be admissible under

section 276 , the evidence must be of specific instances of sexual activity. The words “specific instances of sexual activity” in section 276(2)(

a) must be read in light of the scheme and broader purpose of

section 276 . Evidence of a relationship that implies sexual activity inherently encompasses specific instances of sexual activity. To satisfy section 276(2)(a), the accused must point to identifiable activity, but the degree of specificity required in a particular case will depend on the nature of the evidence, how the accused intends to use it, and its potential to prejudice the administration of justice (paragraph 53).

It may be that where an accused specifies the parties to the relationship, the nature of that relationship and the relevant time period, requiring further details would unnecessarily invade the complainant’s privacy (paragraph 54). [ 44 ] Having identified specific incidents of sexual activity, an accused must then fulfill the second condition by establishing that the evidence is relevant to an issue at trial as required by section 276(2)(b).

The accused must identify, with precision, how the evidence is relevant to a specific issue at trial. “The application judge must be satisfied that the evidence is capable of being admitted under s. 276(2) before ordering a voir dire ” (paragraph 55). The relevant issue cannot be one of the twin myths prohibited by section 276(1) , and generic references to credibility of the accused or the complainant, narrative or context will not suffice. “Arguments for relevance must be scrutinized to ensure ‘context’ is not simply a disguised myth” (paragraph 56).

The majority acknowledged that there are circumstances in which evidence of a sexual relationship may be fundamental to the coherence of an accused’s narrative, and by extension, credibility. [ 45 ] The third condition requires balancing a number of factors to determine whether the evidence has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. [ 46 ] Importantly, Karakatsanis, J. provided direction on when evidence relating to prior sexual activity of the complainant can be relevant to an issue at trial that does not invoke the twin myths.

At paragraphs 61 to 68 she wrote: 61 Moreover, while the case law provides examples of how evidence of previous sexual activity between an accused and a complainant may be relevant to an issue at trial, none of them apply here. 62 Prior sexual activity may be particularly relevant to a defence of honest but mistaken belief in communicated consent ( Seaboyer , at

pp. 613-16; Darrach, at para. 59; Barton, at paras. 91 et seq.). However, an honest but mistaken belief cannot simply rest upon evidencethat a person consented at “some point” in the past: that would be twin-myth reasoning. By definition, the defence must rely uponevidence of how the complainant previously communicated consent so that the accused can adequately support a belief that consent wasexpressed.

Here, the trial judge properly instructed the jury not to rely on the “friends with benefits” evidence in evaluating the defenceof honest but mistaken belief. 63 Evidence of a sexual relationship may also be relevant when complainants have offered inconsistent statements regarding the veryexistence of a sexual relationship with the accused (see e.g., R. v. Harris (1997), (ON CA), 118 C.C.C. (3d) 498 (Ont.C.A.); R. v. Temertzoglou (2002), (ON SC), 11 C.R. (6th) 179 (Ont. S.C.J.)).

There were no such contradictorystatements from the complainant in the record at the time of the voir dire and Goldfinch did not proceed on this basis. 64 To the extent that Goldfinch sought to establish a pattern of behaviour, the “pattern” here was hardly distinctive; it would not beadmissible as similar fact evidence (Handy, at paras. 82, 127 and 131). As I have noted, the limited admissibility of similar fact evidenceprotects the truth-seeking function of the trial by excluding evidence that is overly prejudicial to the accused.

By imposing the sameevidentiary standard under s. 276, neither the accused nor the complainant is denied equal protection of the law on the basis of lifestyle,character or reputation (Craig, “Section 276 Misconstrued”, at p. 71). 65 Finally, Goldfinch submits that the sexual aspect of a relationship may be relevant to the coherence of the accused’s narrative, andby extension, credibility. There will, of course, be circumstances in which context will be relevant for the jury to properly understand andassess the evidence. That assessment, however, must be free of twin-myth reasoning.

General arguments that the sexual nature of arelationship is relevant to context, narrative or credibility will not suffice to bring the evidence within the purview of s. 276(2). 66 That Goldfinch points to only two cases in which evidence was admitted as necessary “context” illustrates the rarity of suchcircumstances (Temertzoglou; R. v. M. (M.) (1999), (ON SC), 29 C.R. (5th) 85 (Ont. S.C.J.)). In both of these cases,the evidence admitted was fundamental to the coherence of the defence narrative. It was not merely helpful context.

This was not thecase here. 67 Before this Court, Goldfinch sought to articulate specific issues which made the sexual nature of the relationship critical to hisdefence. He advanced that his narrative would be inherently improbable if the jury did not know he and the complainant were “friendswith benefits”.

Among other things, he argued that the evidence was relevant to the jury’s assessment of the complainant’s callsuggesting Goldfinch owed her “birthday sex” as well as to his testimony that the complainant smiled when he mouthed “I’m going tofuck you”. 68 In my view, there is nothing about Goldfinch’s testimony that casts him in an unfavourable light or renders his narrative untenableor utterly improbable absent the information that the two were “friends with benefits”. The complainant’s request for “birthday sex” doesnot reflect on Goldfinch’s character or behaviour.

As well, her reaction to his comment was a smile — hardly an indication that thisbehaviour was beyond the pale of their relationship. Tellingly, the complainant did not deny the call, Goldfinch’s comment or the smile. The Threshold Hearing [47] On February 11, 2019, Doody, J. of the Ontario Court of Justice rendered one of the first decisions relating to

section 276following the December 2018 amendments (R. v. Barakat, 2019 CarswellOnt 1822, 153 W.C.B. (2d) 459 (Ct. J.)). It provides a usefulbasis for my consideration of the procedural aspects of the matter before me. [48] Although its analysis on section 276(2) and (3) may not entirely survive post-Goldfinch scrutiny, Doody, J. confirms in Barakatthat the

section 276 procedure remains a two-stage application. At the first stage, the court is required to determine whether theapplication meets the standards set out in

section 278.93. If so, the court will grant the application and hold a hearing under section278.94. After that hearing, the court will determine whether the evidence is admissible under section 276(2). He does note, however, thatthe practice that had developed in which both stages of the process were dealt with at the same hearing can no longer be followed. Thatprocess involved the court determining first whether the application met the standards set out in what was then

section 276.1(4) and then,if so, proceeding to determine whether the evidence was admissible as required by what was then

section 276.2(3). As we have seen,sections 278.94(2) and (3) now provide that a complainant may be represented by counsel, appear and make submissions at the secondstage hearing. This requires that the complainant be given a copy of the application record and appropriate notice to allow her to appear,alone or with counsel, should she wish to do so. The complainant is not, however, entitled to appear at and make submissions at the firststage hearing (R. v. Boyle, 2019 ONCJ 11).

Consequently, two separate hearings are required. [49] As to the first phase analysis itself, Doody, J. points out at paragraph 18 that: 18 Sub-section 278.93(4) entails only a facial consideration of the matter and a tentative decision concerning the capability of theevidence being admissible. Courts should be cautious in limiting the defendant’s rights to cross-examine and adduce evidence. Unlessthe evidence clearly appears to be incapable of admissibility, having regard to the criteria of s. 276(2) and the indicia of s. 276(3), thecourt should proceed to the second stage and hold a hearing under s. 278.94.

Any doubts under s. 278.93(4) are better left for decision on

the evidentiary hearing under s. 278.94. (R. v. Ecker (1995), (SK CA), 96 C.C.C. (3d) 161 (Sask. C.A.); R. v. B. (B.),[2009] O.J. No. 862 (Ont. S.C.J.). [50] The same line of reasoning was employed by Healy, J. in R. v. J.S., 2011 ONSC 5367; by Greenberg, J. in R. v. W.G.C., 2016MBQB 232; and by Feehan, J. in R. v. S.L., 2018 ABQB 889. I agree with this approach. [51] Nevertheless, I, as the gatekeeper on this threshold application, must ensure that on its face the Application is not being broughtfor an impermissible purpose under section 276(1).

If so satisfied, I must then determine whether the evidence is capable of beingadmitted under section 276(2) (see Goldfinch at paragraph 55). The bar is not set high and, if it is met, I will then

schedule a hearingpursuant to

section 278.94. At that hearing, the Applicant will be limited to the nature of and purposes for the evidence set out in theApplication as I have decided they are capable of being admitted under section 276(2). [52] I also note that although the Crown has agreed that the Application meets the procedural and substantive thresholds set out insection 278.93(4), that does not obviate from my duty to satisfy myself on these points. analysis [53] The issue before me at this stage is whether the evidence sought to be adduced by the Applicant is capable of being admissibleunder subsection 276(2). [54] To repeat, pursuant to section 276(2), the Applicant must show that the evidence: (

a) is not being adduced for the purpose of supporting an inference that the Complainant is more likely to have consented to the sexualactivity that forms the subject-matter of the charge or is less worthy of belief; (

b) is relevant to an issue at trial; (

c) is of specific instances of sexual activity; and (

d) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration ofjustice. [55] Given the facial consideration of the Application at this threshold stage, if the Applicant has shown that the proposed evidenceis capable of being admitted under section 276(2), a more detailed consideration of the factors set forth in section 276(3) will beundertaken at the

section 278.94 hearing. [56] The Applicant has stated that the proposed evidence is necessary for him to make full answer and defence for the followingreasons: The Applicant wishes to adduce evidence of the specific instances of sexual activity not with respect to the full details but with respect tothe fact that they happened. The Applicant submits that this evidence will demonstrate that the Complainant was not honest and candidwith the RCMP or when testifying under oath at the preliminary inquiry. The Complainant’s credibility and reliability will be a central issue at trial.

The Applicant submits that he should be permitted tochallenge the Complainant’s credibility and to do he must present evidence of the prior sexual encounters that the Complainant denies.

The Applicant further submits that the Complainant’s statements about the nature and quantity of the parties contact in the weekprevious to the incident in the context of the Complainant saying she only wished to talk, she did not want to have a relationship with theApplicant and she did not have a relationship with the Applicant, if unchallenged, would distort the fact finding process at Trial. [57] The Applicant takes the position that the Complainant effectively denied any sexual activity with the Applicant until the eventthat forms the basis of the charge under

section 271. Specifically, the Applicant argues that he should be permitted to cross-examine theComplainant and adduce his own evidence about the nature of their relationship to rebut her claims that she never engaged in priorsexual conduct with him. [58] The Crown submits that the Complainant at no point in her statement to the police or in her testimony at the Preliminary Inquirymade any inconsistent statements relating to sexual activity with the Applicant.

Specifically, the Crown submits that the Complainant hasnever been directly asked, nor has she given a denial, about past sexual contact with the Applicant.

The Crown states that the onlyexception to this arises out of the new section 276(4) (which provides that sexual activity includes any communication made for a sexualpurpose) where a question put to her on cross-examination at the Preliminary Inquiry as to whether she offered the Applicant fellatio as abirthday gift; the Complainant denied that any such communication occurred. [59] To determine the threshold issue, I must decide first, whether the evidence that the Applicant wishes to adduce is barredabsolutely by section 276(1), and, if not, whether it is capable of meeting the criteria outlined in section 276(2).

I am satisfied that basedupon a facial consideration, there may be a basis for the Applicant to point to what the Complainant has said to the police and at thePreliminary Inquiry to provide a basis for admission of evidence of specific sexual activity between the Applicant and the Complainant.If I am satisfied following a

section 278.94 hearing that the Complainant has offered inconsistent statements regarding the very existenceof a sexual relationship with the Applicant, the evidence may be able to be adduced for that limited purpose. This would be in accordancewith paragraph 63 of Goldfinch and the cases of R. v. Harris and R. v. Temertzoglou cited therein. [60] The Application does not seek to adduce any of the evidence of prior sexual activity for the purposes of a defence of honest but

mistaken belief in communicated consent ( Goldfinch at paragraph 62 ) and therefore the evidence may not be adduced for that purpose. [ 61 ] Nor has the Applicant submitted that the sexual aspect of the relationship is relevant to the coherence of his narrative, and by extension, his credibility. The Supreme Court in Goldfinch at paragraphs 65 and 66 recognized that there will be circumstances in which context will be relevant for the jury to properly understand and assess the evidence. That assessment, however, must be free of twin-myth reasoning.

As stated by Karakatsanis, J., general arguments that the sexual nature of a relationship is relevant to context, narrative or credibility will not suffice to bring the evidence within the purview of section 276(2). [ 62 ] Nevertheless, the Application before me does not seek leave to adduce the evidence of the prior sexual activity of the Complainant for such a purpose and so it may not be used for that purpose. [ 63 ] Let us now look at the specific evidence the Applicant wishes to adduce. The Crown has correctly pointed out that not all of it is of specific instances of sexual activity.

I will deal with each heading of proposed evidence as set forth in the Application. [ 64 ] As to the “Initial Sexual Contact”, the evidence of sexual contact outlined at paragraph 18 above is of specific sexual activity. The evidence of prior communications about health issues and about the Complainant’s marital difficulties outlined in paragraph 19 is not. Moreover, so long as he does not stray into evidence of prior sexual activity on the part of the Complainant, and they are otherwise relevant to an issue at trial, pursuit of these latter matters by the Applicant’s counsel with the Complainant would not engage

section 276 in any event. [ 65 ] Nor is any of the following evidence identified in the Application evidence of specific instances of sexual activity: (a) “August Personal Discussions (Ottawa)” set forth at paragraph 20 above; (b) “Complainant’s Spouse’s Concerns (August/September 2016)” at paragraphs 21 and 22 above; (

c) the “Complainant’s Desire for Relationship” at paragraph 27 above; (d) “Complainant Banned from Applicant’s Home” at paragraph 28 above; (e) “September 2016 Sexual Activity” at paragraph 31 above; (f) “October 2, 2016 Conversation” at paragraph 32 above; and (g) “Frequency of Communications: June – October 2016” at paragraph 33 above. Again, so long as counsel for the Applicant does not stray into evidence of prior sexual activity on the part of the Complainant and these matters are otherwise relevant to an issue at trial, pursuing them with the Complainant would not engage

section 276. [ 66 ] The following instances identified by the Applicant are also of specific sexual activity and are capable of being admitted pursuant to section 276(2) following a

section 278.94 hearing: (a) “Contact in a Small Community (September)” at paragraph 23 above; (b) “Ongoing Communications and Fifty Shades of Grey Activity” at paragraphs 25 and 26 above; (c) “September 2016 Sexual Activity” at paragraphs 29 and 30 above; (d) “October 15, 2016 Sexual Activity” at paragraph 34 above; and (e) “Cinema Parking Lot Sexual Activity – August” at paragraph 39 above. [ 67 ] The evidence relating to “Phone and Text (Sexting)” at paragraphs 36 and 37, although relating to sexual activity, may lack the specificity necessary to be considered under section 276(2) (see Goldfinch at paragraphs 53 and 54 ).

This is an aspect of the matter that can be more fully reviewed at the

section 278.94 hearing. [ 68 ] The evidence relating to “Cell Phone Videos” at paragraph 38 concerning the Complainant purchasing undergarments may or may not constitute evidence of sexual activity. This aspect of the matter may be pursued at the

section 278.94 hearing to determine whether it is evidence of sexual activity and, if so, whether it is admissible pursuant to section 276(2). [ 69 ] Based upon the foregoing, I am satisfied that the identified proposed evidence of specific sexual activity, and perhaps the evidence outlined at paragraphs 67 and 68 above, is capable of being adduced for a purpose other than that of supporting an inference that the Complainant is more likely to have consented to the sexual activity that forms the subject matter of the charge or is less worthy of belief. Following the

section 278.94 hearing, it may be that the evidence is relevant to disprove statements by the Complainant denying any sexual relationship with the Accused. Finally, the evidence may have significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. conclusion on the threshold hearing [ 70 ] I have determined that it is appropriate to hold a hearing pursuant to

section 278.94 of the Criminal Code to determine whether any of the evidence that I have identified above as relating to specific sexual activity on the part of the Complainant may be adduced by the Applicant pursuant to section 276(2) of the Criminal Code . [ 71 ] As a result, I order that a hearing pursuant to

section 278.94 of the Criminal Code be held. The purpose of the hearing will be to determine whether any of the evidence of specific instances of sexual activity identified in this decision may be used by the Applicant

under section 276(2) . the hearing pursuant to

section 278.94 [ 72 ] Because the Applicant’s trial before a judge and jury has been set for five days commencing on November 4, 2019, at an earlier pre-trial conference it was decided that any necessary pre-trial applications will be heard on October 11, 2019 (there is at least one other application that may also have to be dealt with on that date). To that end, I have ordered that the Applicant file any affidavits upon which he wishes to rely and his

section 278.94 hearing brief on or before August 8, 2019, and that the Crown do likewise on or before August 30, 2019. [ 73 ] Furthermore, pursuant to sections 278.94(2) and (3) of the Criminal Code , Crown counsel has undertaken to inform the Complainant of this decision as well as to advise her that she will be entitled to state-funded counsel if she decides to participate in the hearing. To this end, a pre-trial conference has been set for September 13, 2019, at which will appear the Applicant, the Crown and, if she so choses, the Complainant, with or without counsel. We will then discuss further filing dates and other logistics for the hearing. [ 74 ] As for the

section 278.94 hearing itself, I have already drawn to the attention of the Applicant’s counsel that a solicitor’s affidavit will not suffice for that hearing. A personal affidavit from the Applicant or some other affidavit evidence based upon personal knowledge will be necessary. In addition, at this threshold hearing the Applicant relied upon the statement that the Complainant gave to the RCMP. For the

section 278.94 hearing, however, it will be necessary that any evidence be properly adduced. With regard to the Complainant’s statement to the police, for example, it will have to be either entered by consent or proven in the normal course. [ 75 ] The nature of the evidence that may be adduced at what is now a

section 278.94 hearing was addressed in R. v. Darrach , 2000 SCC 46 , at paragraph 53 : 53

Section 276.1(2)(

a) requires the defence to enter an affidavit with “detailed particulars” of the evidence it seeks to adduce. The trial judge allowed an information and belief affidavit at this first stage but then insisted on an affidavit from the accused for the voir dire stage. In my view, this procedure is permissible. It minimally impinges upon the accused, in the sense that if the information and belief affidavit is not accepted, he has not testified at all. The trial judge was correct to require a personal affidavit at the voir dire because part of the purpose of the voir dire is to cross-examine the affiant.

It need not be the accused himself who presents evidence; it can be anyone with relevant information who can personally testify to its truth. Whoever is the source of the evidence, however, must supply an affidavit with detailed particulars. [ 76 ] The Complainant will be entitled to receive the record to date and any further materials that are filed in respect of this matter, whether by the Applicant or by the Crown. I ask that the Crown be the conduit for forwarding materials provided by the Applicant.

This would change, of course, if the Complainant engages counsel to represent her interests; at such time, any materials may be served upon her counsel in the ordinary course. _____________________________ Robert P. Stack Justice