R. v. Fardy, 2022 NSSC 331

SUPREME COURT OF Nova Scotia Citation: R. v. Fardy , 2022 NSSC 331 Date: 20221115 Docket: CRK-507778 Registry: Halifax Between: His Majesty the King v. Jakob M. Fardy DECISION ON s. 276 APPLICATION Restriction on Publication: By court order made under subsection 486.4 of the Criminal Code , information that may identify the person described in this decision as the complainant may not be published, broadcasted or transmitted in any manner. Judge: The Honourable Justice Joshua Arnold Heard: November 9, 2022, in Kentville, Nova Scotia Counsel: Robert Kennedy and Erica Koresawa, for the Crown Zeb Brown, for Jakob Fardy Order restricting publication - sexual offences 486.4

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). Mandatory order on application

(2) In proceedings in respect of the offences referred to in paragraph (1)(

a) or (b), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (

b) on application made by the victim, the prosecutor or any such witness, make the order. By the Court:

Overview [ 1 ] Jakob Fardy is charged with sexual assault and assault in relation to four separate complainants. He is in the midst of a judge alone trial in relation to all four complainants. At the commencement of his trial Mr. Fardy advised that he was bringing an application pursuant to s. 276 of the Criminal Code , to cross-examine one of the complainants, E.L., on a specific instance of sexual activity that is not the subject of the charges he faces at trial.

Facts [ 2 ] I am aware through other pre-trial applications, and it is agreed to by the parties, that prior to making complaints to the police the complainants all communicated to some degree with each other via a Group Chat on Apple Messages about Mr. Fardy. [ 3 ] The additional facts on this application are detailed in the affidavit of Melanie Hobbs, which states: 1. I am the mother of the Applicant and the information herein was communicated to me by Jakob’s lawyer Zeb Brown and I believe it to be true. 2.

On July 15, 2020, E.L. gave a statement to police in which she described an alleged sexual assault by Jakob in vivid detail. 3. On July 12, 2020, Ms. L. told the group chat that she did not remember the sexual encounter and that she only remembered it hurting to sit down and that she had injuries and bleeding when she got home (Exhibit “A”). 4. On July 12, 2020, J.M. posted a message to the group chat in which she embedded a screen shot of a message she had sent to “ _________ ”, which in turn contained an embedded screen shot of a message from E.L. stating that she was “blackout drunk” when assaulted by Mr.

Fardy (Exhibit “B”). 5. On October 26, 2022, the Crown disclosed that Ms. L. will say that she denied remembering the sexual assault “because she didn’t want to go into detail”. 6. In text messages on July 13, 2020, Ms. L. posted messages in the group chat in which she described an unrelated sexual assault with intimate detail (Exhibit “C”). [ 4 ] In his Notice of Application, Mr. Fardy says: The fact that Ms.

L. posted the text messages is relevant to the assessment of her credibility, in relation to her anticipated evidence that she denied any memory of the alleged sexual assault by Jakob Fardy because she did not want to go into detail about it on the group chat. Stage One [ 5 ] At Stage One of the s. 276 hearing, because of the timing of the disclosure leading to this application, the Crown agreed that the usual seven-day notice requirement be abridged.

The Crown also agreed that the Stage One requirements had been met, in that the application was made in accordance with ss. 278.93(2) and (4), and that the evidence is capable of being admissible under s. 278.92(2) and s. 276(2). Having considered the proposed evidence and the statutory requirements I agreed that the Stage One test had been met and the parties moved on to Stage Two. Stage Two Position of the Crown [ 6 ] The Crown agrees that with certain parameters on cross-examination, which Mr. Fardy has now agreed to, the test for admissibility has been met and the proposed evidence is admissible.

The Crown states variously: 15. It is further the Crown’s understanding that defence seeks to question the complainant, E.L., about her willingness to disclose personal details of the unrelated sexual assault in the ____ chat in contrast to her apparent unwillingness to disclose the details of the alleged sexual assault involving Mr. Fardy in that same group chat. The parties anticipate that the complainant, E.L., will testify that she told the group chat that she “didn’t remember sex” because she did not want to disclose any details of the alleged sexual assault involving Mr. Fardy. 16.

Therefore, the Crown understands that defence seeks to ask questions about the ____ chats in order to allow this Court an opportunity to evaluate the credibility of the complainant, E.L., as it relates to her explanation for having stated that she “didn’t remember sex”. 17. The Crown acknowledges that the credibility of the complainant, E.L., will be an “issue” that this Court must assess in determining whether the Crown has met its ultimate burden. 18.

To that end, the Crown submits that the evidentiary basis does contain sufficient particulars from which to draw the inference that the evidence sought to be referenced in cross-examination (the ____ chats) is relevant to an issue at trial. … 19. The ____ chats are not admissible to support either or both of the “twin myths” identified in s. 276(1). 20. The Crown is satisfied that the defence is not seeking to use the ____ chats to argue that the complainant, E.L., is less worthy of

belief because of her involvement in other sexual activity. Rather, the Crown acknowledges that, if permitted to cross-examine on the ____ chats, defence may argue that the complainant, E.L., is less worthy of belief because her explanation for providing details in the ____ chats (and not with respect to her allegations against Mr. Fardy) should negatively impact her credibility. … 23. Here, the Crown accepts that there is a specific way in which this evidence is relevant to the complainant’s credibility: as it relates to her explanation for not having disclosed details of the alleged sexual assault with Mr.

Fardy to the other participants in the group chat. … 30. The Crown submits that, with proper limitations to the cross-examination, the prejudicial impact of the proposed evidence may be sufficiently attenuated such that it does not substantially outweigh the significant probative value of the evidence. Therefore, the application should be allowed. [ 7 ] The Crown advised the court that E.L. had spoken to a lawyer, Carbo Kwan, who provided E.L. with independent legal advice about the s. 276 application. The Crown also advised the court that, having received advice from Ms.

Kwan, E.L. did not want to make any submissions on this s. 276 application and does not object to the admissibility of the proposed evidence. Analysis [ 8 ] I agree that the proposed evidence meets the conditions set out in s. 276(2), taking into account the nine factors set out in s. 278.92(3) of the Criminal Code , and the eight factors set out in s. 276(3) of the Criminal Code . [ 9 ] Mr.

Fardy has proven on a balance of probabilities that the proposed evidence: • Is not being adduced for the purpose of supporting a prohibited inference or twin myth; • Is relevant to an issue at trial; • Is of specific instances of sexual activity; • Has significant probative value that is not substantially outweighed by the prejudicial effect, in particular, the danger of prejudice to the proper administration of justice. Conclusion [ 10 ] The text messages in question from E.L. involving the specific incident of sexual activity as identified are admissible for the limited purpose delineated in this decision. Mr.

Fardy will be permitted to cross-examine E.L. on relevant issues relating to those text messages. Arnold, J.