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Criminal - Evidence of Sexual Activity [CCC 276] (2). R. v. E.N.
In R. v. E.N. (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal appeal, here on the appellant's CCC 276 ['Evidence of complainant’s sexual activity'] argument:Conviction Appeal
[2] The appellant argues that the trial judge erred in dismissing his s. 276 application, in which he sought to adduce evidence of a prior incident of sexual activity with the complainant. The appellant also argues that the trial judge erred in his assessment of his evidence and that of the complainant.
[3] The trial judge dismissed the s. 276 application and, in the trial proper, rejected the evidence of the appellant, found it did not raise a reasonable doubt, and accepted the evidence of the complainant, despite certain inconsistencies in her evidence. On this basis he convicted the appellant.
[4] The appellant submits that the trial judge erred on the s. 276 application by taking too narrow a view of the potential relevance of the prior incident of sexual activity, and that his findings on credibility and reliability in the trial proper relied on ungrounded assumptions and failed to take account of material inconsistencies in the complainant’s evidence. Specifically, the appellant argues that the trial judge failed to explain why the inconsistency between the complainant’s evidence and the evidence of her friend regarding a blanket did not affect the reliability of her evidence.
[5] We do not accede to these arguments. We see no error. The appellant sought to have the prior sexual activity evidence admitted to support his position that the complainant consented non-verbally to the sexual activity during the incident in question. During his colloquy with counsel during the s. 276 application hearing, the trial judge expressly recognized that consent can be communicated non-verbally.
[6] We agree with the trial judge that, given the live issues in the case, the prior encounter was irrelevant. It was factually distinct and occurred months before the encounter that gave rise to the conviction. Without engaging the twin myths, there was nothing in the prior encounter that could support the appellant’s defence that he honestly believed that the complainant was expressing non-verbal consent by way of her conduct. Moreover, the trial judge had taken off the table any basis that could render the prior encounter relevant, such as the Crown taking the position that it was implausible that the complainant would have consented to a sexual encounter with the appellant, whom she had met only twice. . R. v. T.W.W.
In R. v. T.W.W. (SCC, 2024) the Supreme Court of Canada considers the criminal code 'Evidence of complainant’s sexual activity' provisions [CCC 276], previously used commonly in sex offence charges. The case also involves related 'open court' issues where such evidence may be publically-disclosed.
Here the court considers the 'open court' doctrine aspects of the case, here particularly the statutory CCC 278.95 ['Assaults - Publication prohibited'] - which it finds inapplicable to appeal courts:[18] The Court must also determine the Crown’s motion to conduct the hearing before this Court in camera, to seal the filed materials, and to make any other order necessary to protect the information protected by ss. 276 and 278.93 to 278.95 of the Criminal Code. This requires the Court to consider its authority to do so and whether this appeal warrants additional orders that would limit court openness in this case.
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C. Limitations on Court Openness on Appeals of Section 276 Determinations
[55] The Crown brought a motion before this Court requesting orders “necessary in light of sections 278.93 to 278.95 of the Criminal Code” (p. 1), namely that the appeal proceed in camera, that the parties’ factums be sealed and only redacted versions made public, and any other order deemed necessary. The appellant opposed only the obligation to further redact his factum beyond information covered under ss. 276 and 278.93 to 278.95, arguing that certain unredacted information was already published in the judgment of the Court of Appeal. On an interim basis, the Court accepted the filed materials under seal and held the hearing in camera pending its final disposition of the motion.
[56] The Crown’s motion requires this Court to consider the source of its powers to make orders limiting court openness on appeals of s. 276 determinations. This issue engages an exercise in statutory interpretation. The modern approach to be taken is well known: “. . . the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87, as cited in Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21).
[57] The Crown argues that s. 278.95 and the discretion it affords applies to this Court; or, if it does not, then this Court can make certain orders for the conduct of the hearing and publication of their reasons pursuant to its implied jurisdiction. Section 278.95 reads as follows:Publication prohibited
278.95 (1) A person shall not publish in any document, or broadcast or transmit in any way, any of the following:
(a) the contents of an application made under subsection 278.93;
(b) any evidence taken, the information given and the representations made at an application under section 278.93 or at a hearing under section 278.94;
(c) the decision of a judge or justice under subsection 278.93(4), unless the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the decision may be published, broadcast or transmitted; and
(d) the determination made and the reasons provided under subsection 278.94(4), unless
(i) that determination is that evidence is admissible, or
(ii) the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the determination and reasons may be published, broadcast or transmitted.
Offence
(2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction. Section 278.95 thus prohibits the publication of information and evidence adduced for applications and admissibility hearings pursuant to ss. 278.93 and 278.94, but provides trial judges with a discretion to permit the publication of their decision or determination under s. 278.93(4) or 278.94 by others after considering the complainant’s right of privacy and the interests of justice.
[58] As I will explain, this Court’s implied jurisdiction grants it authority to make orders for the conduct of its hearings and publication of its reasons, not s. 278.95. I begin first by summarizing the history and purpose of the prohibition on publication under s. 278.95 before considering its application to this Court.
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(2) Text and Legislative Scheme of Section 278.95
[63] The Crown suggests that the mandatory ban under s. 278.95 of the Criminal Code extends to appellate proceedings and allows the Court to order that this appeal hearing proceed in camera (as it did at trial, pursuant to s. 278.94) and to seal the filed materials. The corollary of this argument is that the Court may also displace the presumptive prohibition on publication under s. 278.95 and permit the publication, broadcast or transmission of the trial judge’s decision under s. 278.93 or determination under s. 278.94, after balancing the complainant’s privacy and dignity and the interests of justice.
[64] In my view, there are several reasons s. 278.95 does not support the Crown’s proposition. First, a plain reading of the text suggests that it is aimed not at courts but at other entities who would otherwise publish a court’s decisions, such as law reporters, media outlets and reporters, and the general public. Section 278.95(1) prohibits publication by “[a] person” while s. 278.95(2) creates an offence for “[e]very person” who contravenes subs. (1). The definition of “every person” in the Criminal Code, while specifically including His Majesty and organizations, does not mention courts (see s. 2). “Person” is not a defined term in the Criminal Code, and is defined in the Interpretation Act, R.S.C. 1985, c. I-21, simply as including a corporation (s. 35(1)). Applying the ordinary sense of the word “person”, this clearly would not include a court. It is notable that some neighbouring provisions to s. 278.95 make specific reference to a “judge, provincial court judge or justice” (see ss. 278.92 and 278.93) and that a “court of appeal” is a defined term in the Criminal Code that is used throughout (s. 2). Importantly, a court cannot be found guilty of the offence created by s. 278.95(2). It is thus not evident on a plain reading that “a person” could reasonably be expanded to include judges, justices, or courts of appeal. The wording of s. 278.95 also states that it is only “the judge or justice” who made a decision under s. 278.93(4) or 278.94(4) who may order the publication, broadcast or transmission of otherwise prohibited information. This indicates that the power to displace the presumptive statutory prohibition is limited to trial judges who have the ability to make such orders in trial proceedings.
[65] The scope and application of s. 278.95 must also be interpreted in light of its scheme and object. Section 278.95 is situated among a series of provisions dictating the procedural requirements where the accused seeks to obtain or adduce evidence relating to a complainant in which there is a privacy and personal dignity interest (see Criminal Code, ss. 278.1 to 278.98). These issues are matters of evidentiary admissibility, an issue which does not typically arise in appellate proceedings. The purpose of these procedural provisions as a whole is to provide a means of ensuring that the substantive protections against improper use of other sexual activity evidence are enforced (Darrach, at para. 20); their primary focus is aimed at thwarting attempts to bring distorting evidence into the trial in the first place. Read in this context, the objects of s. 278.95 can be understood as furthering the goal of keeping improper evidence out of trial proceedings by restricting the publication of evidence and information that would ordinarily occur in the normal course of a trial, and entrusting the decision as to whether publication of the s. 278.93(4) decision or s. 278.94(4) determination is appropriate to the judge or justice who has had the benefit of hearing all submissions on the admissibility of the proposed information or evidence. In this respect, too, s. 278.95 seems primarily concerned with the conduct of trial proceedings.
[66] Finally, the provisions relating to the admissibility of other sexual activity evidence contemplate the appeal of such determinations (see s. 278.97) but do not explicitly extend the trial protections to appellate proceedings or otherwise indicate the appropriate procedure on appeal. Had Parliament intended for s. 278.95 to apply to reviewing courts, it could have explicitly stated so.
[67] For these reasons, I am not convinced that s. 278.95 applies to this appeal, as the Crown suggests. In the absence of a legislatively imposed exception to the open court principle, the presumption of court openness persists.
(3) The Court Has Implied Jurisdiction To Make Orders Limiting Court Openness
[68] The Court’s power to make an order limiting court openness in this case is derived from the implied jurisdiction of courts to control their own processes and records (Canadian Broadcasting Corp. v. New Brunswick (Attorney General), 1996 CanLII 184 (SCC), [1996] 3 S.C.R. 480 (“C.B.C. v. New Brunswick”), at para. 37; R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1457; Attorney General of Nova Scotia v. MacIntyre, 1982 CanLII 14 (SCC), [1982] 1 S.C.R. 175, at p. 189). Pursuant to this implied jurisdiction, a court may exercise its discretion to make orders for the conduct of a hearing, including orders that a hearing proceed in camera, and for the sealing of filed materials. Accordingly, this Court may consider whether this is an appropriate case to exercise its discretion in this manner.
[69] I note at the outset that a court’s discretion to make orders that limit court openness is not to be exercised lightly. This Court has long recognized the importance of the open court principle as a vehicle to give effect to freedom of expression and fair trial rights under the Canadian Charter of Rights and Freedoms, as well as to promote confidence and integrity in the administration of justice (Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835, at pp. 876-77 and 882; R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442, at para. 29; MacIntyre, at p. 185; C.B.C. v. New Brunswick, at paras. 21-22; Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R. 75, at paras. 30 and 39). But while court openness is the rule, it is not an absolute or overriding principle. It is balanced against other interests that are worth protecting, such as the legislative objectives underlying the s. 276 regime. The exercise of this Court’s discretion must give effect to these legislative objectives, notwithstanding that, in this case, they do not operate through the vehicle of s. 278.95. In this regard, I echo the observation by the court in R. v. Davies, 2022 BCCA 103, 412 C.C.C. (3d) 375, that while the legislative provisions governing the disclosure and use of personal and private information in sexual offence cases do not apply on appeal, their “substantive purpose, protecting the dignity and privacy of complainants, is not limited to the trial process” (para. 18 (emphasis added)). The complainant’s personal interest in privacy and dignity, and the public’s shared interest in the same, are still present on appeal, though the interests of justice that are weighed against privacy and dignity interests are informed by the particular function of this Court as the apex appellate court.
[70] Further, when considering restrictions on appellate court openness, a court of appeal should also consider what orders were previously made in relation to the trial. As courts of second or third instance, appellate courts act in sequence and have a unique position: not only do they have the ability to uphold or overturn prior decisions about court openness restrictions, but whether and what restrictions were imposed in the proceedings below may impact an appellate court’s decision to add, remove, or modify such restrictions on appeal. This may be especially salient when Parliament has imposed mandatory restrictions at the trial level in an attempt to encourage the reporting of sexual offences (see Canadian Newspapers Co. v. Canada (Attorney General), 1988 CanLII 52 (SCC), [1988] 2 S.C.R. 122, at para. 15). . R. v. T.W.W.
In R. v. T.W.W. (SCC, 2024) the Supreme Court of Canada considers the criminal code 'Evidence of complainant’s sexual activity' provisions [CCC 276], previously used commonly in sex offence charges. The case also involves related 'open court' issues where such evidence may be publically-disclosed.
Here the court considers CCC 276 evidentiary issues:[17] The appellant argues that the majority of the Court of Appeal for British Columbia erred in finding that the trial judge made no error in dismissing the appellant’s s. 276 application. The appellant submits that the evidence of prior sexual activity was necessary to challenge the complainant’s credibility and to provide necessary context to the defence’s case.
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B. The Use of Other Sexual Activity Evidence for Credibility and Context
[24] In 1982, to address the detrimental and truth-distorting uses of other sexual activity evidence that permeated the jurisprudence, Parliament chose to set parameters for when evidence of other sexual activity can be introduced at trial. Either the Crown or the defence can bring an application for a voir dire or a s. 278.94 hearing where it seeks to adduce “evidence that the complainant has engaged in sexual activity” (s. 276). There is no need to do so where the parties only seek to establish that a relationship existed between the accused and the complainant, unless the very nature of that relationship is sexual, as was the case in Goldfinch.
[25] Over time, those parameters have been further refined to create a rigorous statutory regime that prohibits entirely the use of other sexual activity evidence to support twin-myth reasoning — that is, the reliance on inferences that, based on the other sexual activity evidence, the complainant is more likely to have consented to the impugned sexual activity or that they are less worthy of belief. Under the s. 276 regime, a trial judge may only admit evidence of other sexual activity when it is not used to support twin-myth reasoning; is adduced for specific, relevant and permissible purposes; and when its probative value to the trial is not substantially outweighed by the prejudice it might occasion (s. 276(2)). The proper application of this regime ensures that “the right to present one’s case [is not] curtailed in the absence of an assurance that the curtailment is clearly justified by even stronger contrary considerations” (R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, at p. 621). The statutory regime therefore requires trial judges to ensure that evidence that is misleading, irrelevant, or substantially more prejudicial than probative is excluded to avoid tainting the trial’s fairness (R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, at paras. 37 and 42-43; R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668, at para. 74; D. Brown and J. Witkin, Prosecuting and Defending Sexual Offence Cases (2nd ed. 2020), vol. 4, at p. 354).
[26] Evidence of other sexual activity can be adduced for permissible reasoning: “The phrase ‘by reason of the sexual nature of that activity’ in s. 276 is a clarification by Parliament that it is inferences from the sexual nature of the activity, as opposed to inferences from other potentially relevant features of the activity, that are prohibited” (Darrach, at para. 35 (emphasis in original)). However, as I will elaborate below, it is incumbent on the accused to identify in a detailed manner how the evidence is necessary for that permissible reasoning without relying on twin-myth reasoning. The need for precision is especially important where the proposed uses are for credibility and context, two issues that not only exist in nearly every criminal case but have broad and, at times, vague spectrums of use.
(1) Witness Credibility, Context, and the Permissible Uses of Other Sexual Activity Evidence
[27] Other sexual activity evidence may be admissible for issues of credibility or context, but the applicant must establish a specific use for this information that is permitted by the s. 276 regime. Goldfinch instructs that “[b]are assertions that such evidence will be relevant to context, narrative or credibility cannot satisfy s. 276(2)” (para. 51; see also para. 65), and the same caution applies to probative value. In order to be potentially admissible, the relevance and probative value of the evidence in each case must go beyond a general ability to undermine the complainant’s credibility or to add helpful context to the circumstances of the case; it must respond to a specific issue at trial that could not be addressed or resolved in the absence of that evidence (Brown and Witkin, at pp. 379-81). The applicant also bears the burden of establishing that any such probative value is not substantially outweighed by prejudicial effect.
[28] Trial judges must guard against improperly widening the scope of when other sexual activity evidence should be admitted given that, as Karakatsanis J. noted in Goldfinch, “[c]redibility is an issue that pervades most trials” (para. 56); the same is true of the significance of context. Too broad an approach to credibility and context would cast open the doors of admissibility, overturning Parliament’s specific intention and this Court’s longstanding jurisprudence that evidence of other sexual activity will be admitted only in cases where it is sufficiently specific and essential to the interests of justice. Given the specific thresholds set by Parliament and their underlying objectives, something more is required to show that admission is justified. The applicant must demonstrate with particularity not only that credibility or context is relevant to an issue at trial but that, in the absence of the evidence, their position would be “untenable” or “utterly improbable” (see Goldfinch, at para. 68).
[29] The appellant raised three cases where prior sexual activity evidence was admitted to challenge a complainant’s credibility or to provide necessary context. Each is illustrative of the instructions in Goldfinch on the proper use of prior sexual activity evidence for context or challenging credibility.
[30] The first case the appellant raises is R. v. Crosby, 1995 CanLII 107 (SCC), [1995] 2 S.C.R. 912, where the complainant told police that she had visited the accused with the intention of having sex; however, at the preliminary inquiry she testified that she did not intend to have sex with the accused when she visited him. The trial judge excluded the complainant’s statement to the police under s. 276. When the complainant testified again on cross-examination that she did not intend to have sex with the accused when she visited him, the earlier ruling barred defence counsel from challenging this testimony as inconsistent with her statement to police.
[31] Justice L’Heureux-Dubé, writing for a majority of this Court, held that the trial judge erred in excluding the evidence because the starkly opposing versions of events testified to by the complainant and the accused placed credibility as the central issue at trial, and the complainant’s statements presented a material inconsistency. Balancing the evidence’s probative value against its prejudicial effect, the interests of justice favoured admitting the evidence.
[32] Justice L’Heureux-Dubé’s comments were cited two years later in R. v. Harris (1997), 1997 CanLII 6317 (ON CA), 118 C.C.C. (3d) 498 (Ont. C.A.). The accused and the complainant met at a bar several days before the alleged assault. The complainant testified in chief that her relationship with the appellant was platonic, that they had not engaged in any sexual activity, and that she told him she did not want a sexual relationship. The accused sought to adduce evidence of an alleged consensual sexual encounter several days before the sexual assault.
[33] Justice Moldaver held that the prior sexual activity evidence was necessary to the appellant’s ability to make full answer and defence because it could rebut the complainant’s claim that their relationship was strictly platonic. Justice Moldaver succinctly summarized the implications of the exclusion of this evidence:By failing to permit the appellant to lead evidence of the Tuesday night incident, the jury was deprived of the tools needed to fully and fairly assess the conduct of the parties and the believability of their respective positions. Left unchallenged, the complainant’s testimony concerning her relationship with the appellant was potentially devastating to his position. [para. 49] [34] R. v. Temertzoglou (2002), 2002 CanLII 2852 (ON SC), 11 C.R. (6th) 179 (Ont. S.C.J.), is another case where prior sexual activity evidence was admitted for credibility and context. The complainant had made inconsistent statements about whether her relationship with the accused was sexual, and the evidence was essential to the defence’s ability to make full answer and defence by challenging the complainant’s credibility.
[35] Read in light of the current statutory regime and the jurisprudence since these cases were decided, these decisions serve as examples of when evidence of other sexual activity evidence may be relevant to credibility where the complainant makes inconsistent statements about the very existence of a sexual relationship, or where the evidence goes to the fundamental coherence of the defence narrative (Goldfinch, at paras. 63 and 65-66). The admission of the evidence in each of these cases was held to be necessary to the ability of the accused to make full answer and defence.
[36] It bears repeating that the applicant is tasked with establishing with clarity and precision the use to be made of the other sexual activity evidence sought to be adduced. Before a trial judge may grant an application for an admissibility hearing, they must be satisfied that the application “set[s] out detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial” (Criminal Code, s. 278.93(2)). As the majority noted on appeal below, “[s]pecificity is required so judges can apply the scheme in a way that protects the rights of the complainant and ensures trial fairness” (para. 97, quoting Goldfinch, at para. 53). The applicant need not include so many details that the witness’s privacy is unnecessarily intruded upon, but there must be a sufficient factual and evidentiary basis for the trial judge to properly consider and weigh the factors set out in s. 276. . R. v. T.W.W.
In R. v. T.W.W. (SCC, 2024) the Supreme Court of Canada considers the criminal code 'Evidence of complainant’s sexual activity' provisions [CCC 276], previously used commonly in sex offence charges. The case also involves related 'open court' issues where such evidence may be publically-disclosed.
Here the court considers the SOR for CCC 276 evidentiary issues:A. The Standard of Review of Section 276 Decisions
[19] Section 278.97 of the Criminal Code states that an appeal from a trial judge’s determination to admit or refuse evidence of other sexual activity is a question of law. However, this provision only delimits the nature of the issues that can be raised on appeal; it does not prescribe a standard of review.
[20] Some courts have suggested that appellate review of s. 278.94 admissibility decisions attracts deference to the trial judge’s determination. Both the majority and dissent in the court below agreed with Fisher J.A.’s conclusion, in R. v. Ravelo-Corvo, 2022 BCCA 19, 79 C.R. (7th) 128, that “such a determination is a discretionary exercise that involves a fact-sensitive analysis guided by the factors enumerated in s. 276(3), and is entitled to substantial deference on appeal” (para. 29). The Court of Appeal for Ontario made a similar observation in R. v. I. (C.), 2023 ONCA 576, 168 O.R. (3d) 575, at para. 102, speaking of determinations to admit an accused’s records about a complainant (which are subject to the same standard of review):The admissibility of evidence under s. 278.92 is deemed to be a question of law for the purposes of determining appeal rights. Despite this characterization, the admissibility of evidence offered under s. 278.92 lies very much in the exercise of the trial judge’s discretion. Assuming the trial judge correctly applies the applicable legal principles, does not misapprehend material evidence, does not fail to consider relevant evidence, and does not arrive at an unreasonable result, this court will defer to the trial judge’s ruling. [Citations omitted.] See also R. v. Graham, 2019 SKCA 63, [2019] 12 W.W.R. 207, at para. 69; R. v. T. (M.), 2012 ONCA 511, 289 C.C.C. (3d) 115, at para. 54.
[21] There is no dispute that the question of relevance is reviewable on a standard of correctness (R. v. Schneider, 2022 SCC 34, at para. 39). However, in making a determination of whether to admit evidence of other sexual activity, the trial judge balances a number of considerations, both those enumerated in s. 276(3) and others that may arise in the specific circumstances of a case. The admissibility of prior sexual activity evidence is highly fact-specific and contextual, and the trial judge is best placed to assess probative value versus prejudice (R. v. Araya, 2015 SCC 11, [2015] 1 S.C.R. 581, at para. 31; S. N. Lederman, M. K. Fuerst and H. C. Stewart, Sopinka, Lederman & Bryant: The Law of Evidence in Canada (6th ed. 2022), at ¶2.93). The appellate court’s approach on appeal must respect this reality while giving effect to Parliament’s decision to deem s. 278.94 determinations questions of law. Justice MacKenzie in R. v. Clayton, 2021 BCCA 24, 399 C.C.C. (3d) 283, at paras. 50-51, astutely articulated how an appellate court should approach a trial judge’s admissibility determination:The parties disagree on the standard of review. The appellant says the standard is correctness as it is a question of law whether the judge erred in taking an overly restrictive view of relevance in the context of cross-examination. The Crown’s position is that the judge’s assessment of the probative value and prejudicial effects of the evidence, and his management of cross-examination, is owed deference on appeal. In my view, both parties are correct.
Whether the threshold requirement of relevance is met is a question of law reviewable on a correctness standard; it would be a legal error to admit irrelevant evidence. However, not all relevant evidence is necessarily admissible. A judge’s decision to exclude relevant evidence where its probative value is outweighed (or, for defence-led evidence, substantially outweighed) by its prejudicial effect involves the exercise of discretion. Absent reliance on improper legal principles, the judge’s conclusion in this regard is owed deference. [Citations omitted.] [22] I agree. An appellate court must ensure that the trial judge applied the correct legal principles, considered all the evidence they should have, did not admit irrelevant evidence, and did not otherwise err in law; no deference is owed in this regard. However, as to the trial judge’s determination that the evidence’s prejudicial effect substantially outweighed its probative value, appellate courts should defer.
[23] Finally, in reviewing a trial judge’s initial s. 276 ruling, the appellate court must only consider the evidence that was before the trial judge at the time of their determination on admissibility (R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at paras. 63 and 101).
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