Simon's Legal Resources

Criminal - Evidence of Sexual Activity [CCC 276] (7)

. R. v. B.B.

In R. v. B.B. (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, this brought against convictions for "incest and sexual interference" where the defendant was "sentenced to six years’ imprisonment and subjected to various ancillary orders, including a lifetime Sex Offender Information Registration Act, S.C. 2004, c. 10 (“SOIRA”) registration order".

The court considered CCC s.276 ['Evidence of complainant’s sexual activity'] issues, here intertwined with the 'collateral fact rule':

a. The s. 276 voir dire

[22] The proposed defence evidence was previewed during a voir dire, as part of an omnibus defence application under s. 276 of the Criminal Code.[5]

....

[28] The trial judge relied on R. v. Riley (1992), 1992 CanLII 7448 (ON CA), 11 O.R. (3d) 151 (C.A.), at p. 154, leave to appeal refused, [1993] S.C.C.A. No. 26, where in a brief oral decision this court held that cross-examination directed at establishing “a pattern of fabrication by the complainant of similar allegations of sexual assault against other men” was something that “should not be encouraged unless the defence is in a position to establish that the complainant has recanted her earlier accusations or that they are demonstrably false.” The trial judge concluded that the evidence adduced on the voir dire did not establish that S.B.’s account of the October 2018 incident was “demonstrably false”, in the sense of being “undeniably untrue”.

[29] The appellant contends that the trial judge erred by reaching this conclusion. Specifically, he argues that the requirement in Riley that the defence be “in a position” to establish the demonstrable falsity of a complainant’s other allegation can be satisfied by the defence showing that it intends to adduce evidence that could lead the trier of fact to find that the other allegation is false. He distinguishes the situation here from that in R. v. M.T., 2012 ONCA 511, 289 C.C.C. (3d) 115 on the basis that the accused in M.T. did not intend to call any witnesses who might establish the falsity of the other allegations. As the appellant argues in his factum:

[B]ecause defence counsel was in a position to establish the falsity of the October 2018 allegation through the proposed cross-examination and evidence, she should have been permitted to do so. Unlike M.T., this was not a case where the defence had no intention of demonstrating falsity. It would be a misreading of Riley and subsequent case law to hold that defence counsel had to prove that the October 2018 allegation was false at the voir dire, rather than simply that she was in a position to do so at trial. [Emphasis in original.]

[30] The appellant also emphasizes that unlike in Riley, and in most of the subsequent cases where this court has applied Riley, he was seeking to establish that S.B. had made a false allegation against him, rather than against a third party.

[31] Riley was recently considered by the Newfoundland and Labrador Court of Appeal in R. v. Regular, 2026 NLCA 1. The majority allowed the Crown’s appeal from the accused’s acquittal, finding that the evidence of the complainant’s allegations against a third party should not have been admitted. Writing for the majority, Knickle J.A. interpreted the “demonstrably false” standard in Riley as requiring the accused to positively establish the falsity of the allegations on the admissibility voir dire. She observed at para. 58:

In the absence of evidence like a recantation, it may be very difficult to prove that allegations are false. If it is only necessary to establish that allegations “may” be false because of inconsistencies to be admissible, this will result in a complainant being subjected to having the veracity of the allegations tested as if she were at trial for those allegations. Evidence that only illustrates that a complainant is incorrect on certain details, such as timing or location, is not evidence that a complainant fabricated allegations.

[32] Noel J.A. dissented, in part because he disagreed with the majority’s interpretation of the “demonstrably false” standard in Riley. Citing the Supreme Court of Canada’s decision in R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, he stated, at para. 236:

The “demonstrably false” standard must … be consistent with the Supreme Court of Canada’s statement in Arp that “an item of evidence does not have to firmly establish, on any standard, the truth or falsity of a fact in issue. The evidence must simply tend to ‘increase or diminish the probability of the existence of a fact in issue’”. [Citations omitted; emphasis in original.]

[33] However, Noel J.A. agreed with the majority that the “demonstrably false” standard sets a “high bar” and that “the indicia of falsity must be compelling and significant”: Regular, at paras. 234-35, per Noel J.A. (dissenting).

[34] The Newfoundland and Labrador Court of Appeal’s decision in Regular has been appealed as of right to the Supreme Court of Canada, and the appeal is scheduled to be heard on November 2, 2026.

[35] Until the Supreme Court provides further guidance on this issue, I continue to be bound by this court’s prior decisions that have interpreted and applied Riley. This court has explained the rule in Riley as rooted in the collateral fact rule: Riley, at pp. 152-154; R. v. B. (A.R.) (1998), 1998 CanLII 14603 (ON CA), 41 O.R. (3d) 361 (C.A.), at p. 367, aff’d 2000 SCC 30, [2000] 1 S.C.R. 781; R. v. C.F., 2017 ONCA 480, 349 C.C.C. (3d) 521, at para. 63. As Rosenberg J.A. explained in R. v. Pargelen (1996), 1996 CanLII 420 (ON CA), 31 O.R. (3d) 504 (C.A.), at p. 516:

The effect of the collateral fact rule is that, subject to certain exceptions, a party is not entitled to introduce extrinsic evidence to contradict the testimony of an adversary’s witness unless that extrinsic evidence is relevant to some issue in the case other than merely to contradict the witness.

[36] Applications of the collateral fact rule involve “the general discretion of a trial judge to exclude evidence where its probative value is outweighed by its prejudicial effect”: B. (A.R.), at p. 367. As Trotter J.A. observed in R. v. D.K., 2020 ONCA 79, 384 C.C.C. (3d) 405, at para. 72, leave to appeal refused, [2020] S.C.C.A. No. 87:

Because the collateral facts rule is intertwined with trial management considerations, trial judges exercise considerable discretion in its application, which is entitled to deference. [Citation omitted].

[37] The collateral fact rule is a rule of general application, not one limited to sexual offence prosecutions or sexual assault allegations: see e.g. R. v. Strojny, 2019 ONCA 329, at paras. 61-67. However, Riley is most often cited and relied on cases where, as here, an accused person charged with sexual offences seeks to prove that the complainant made false sexual assault allegations on other occasions. In this context, the accused’s ability to adduce evidence of other sexual activity by the complainant is regulated by s. 276 of the Criminal Code, which also requires trial judges to balance the probative value of evidence against its prejudicial effect: see s. 276(2).

[38] Riley was not decided under s. 276, and this court has previously held that “resort to s. 276 is not necessary” in situations where Riley applies: see B. (A.R.), at p. 365. However, in cases where s. 276 does apply there is no need for trial judges to conduct a separate Riley analysis, since the relevant factors under Riley must also be considered in the s. 276 analysis, along with the other factors listed in s. 276(3).