Criminal - Sexual Assault
. R. v. Choudhary
In R. v. Choudhary (Ont CA, 2023) the Court of Appeal considers the law of consent to sexual activity, here honest mistaken belief:
 In R. v. Sanclemente, 2021 ONCA 906, 408 C.C.C. (3d) 429, this court summarized the principles of the honest but mistaken belief in communicated consent (which is a form of a mistake in fact defence). Writing for the court, Watt J.A. held:. R. v. Choudhary
 The requirement for the defence that an accused have an honest but mistaken belief that the complainant actually communicated consent by words, conduct, or both means that the principal considerations in determining its availability are: Further, in R. v. Hay, 2023 SCC 15, the Supreme Court of Canada upheld the appellant’s conviction for sexual assault substantially for the reasons of the Court of Appeal of Alberta, 2022 ABCA 246, finding in part that evidence of prior sexual activity was inadmissible. The Court of Appeal of Alberta reasoned, based on the facts of that case, that consent to a prior sexual act did not inform the accused’s mistaken belief in consent to a distinct sexual act:
i. the complainant’s actual communicative behaviour; and The availability of the defence of honest but mistaken belief in communicated consent is circumscribed by the provisions of s. 273.2. Those limitations include restrictions on the source or origins of the appellant’s belief and the requirement in s. 273.2(b) that the accused take reasonable steps, in the circumstances of which the accused was aware at the time, to ascertain that the complainant was consenting to the sexual activity in which they were engaged. No reasonable steps, no defence: Barton, at para. 104.
ii. the totality of the relevant and admissible evidence explaining how the accused perceived the complainant’s behaviour to communicate consent.
 Some things are not reasonable steps. For example, any steps grounded in rape myths or stereotypical assumptions about women and consent cannot constitute reasonable steps. Reliance on a complainant’s silence, passivity, or ambiguous conduct cannot constitute a reasonable step: Barton, at paras. 107, 109.
 In some cases, the reasonable steps requirement will be elevated. Such as the invasive nature of the sexual activity in issue. Or the enhanced risk posed to health and safety of those involved. Or the lack of familiarity between the participants: Barton, at para. 108.
 Honest but mistaken belief in communicated consent is a mistake of fact defence. A mistake of fact defence operates where an accused mistakenly perceives facts that negate or raise a reasonable doubt about the fault element in an offence. It is a defence that is rarely invoked. It does not arise by necessary implication in every case in which a complainant says sexual assault and an accused says consent. The evidence, taken as a whole, must satisfy the air of reality standard to put the defence in play in light of the statutory limitations imposed on its availability. [Citations omitted. Emphasis added.]
 Despite meticulously outlining the applicable legal principles, the trial judge nevertheless admitted evidence of the complainant’s nonverbal communication from the previous encounter on August 24, finding that her moaning and body language was a specific instance of sexual activity as required by s 276(2)(c). She reasoned that this evidence was relevant to how Mr Hay came to understand consent in their relationship and its exclusion would impede Mr Hay’s ability to make full answer and defence: As indicated above, at trial, the appellant and the complainant engaged in consensual sexual activity in the kitchen area of the house. The appellant’s position was that the kitchen incident was relevant to illuminate the ways in which the complainant gave non-verbal but communicated consent to oral, vaginal, and anal sex.
In this case, if the evidence of the prior sexual activity was excluded outright, I would not know if the accused’s belief in nonverbal communication was buttressed by the strength of any prior understanding of the complainant. He would not be able to explain the basis for his belief which would impede his right to make full answer and defence. Additionally, I would be unable to fully evaluate the strength and/or weaknesses of his claims. It is my job, as the trier of fact, to evaluate the evidence; to weigh it, and determine the truth. In admitting evidence of the specific act of digital anal penetration on August 24, the trial judge held that the act, and the complainant’s reaction to it, was “capable of contributing to Mr Hay’s belief that the complainant’s moans of approval on September 13, meant he had permission to proceed with anal intercourse”.
I find therefore, that the evidence from August 24, such that it demonstrates both verbal and non-verbal expressions of consent made between the complainant and Mr Hay, are relevant to how he came to understand consent in their relationship.
 The trial judge erred in law in admitting this evidence. While she cautioned herself against twin-myth reasoning, the admitted evidence unfortunately followed the path of prohibited propensity reasoning. It served no other purpose than to support an inference that because the complainant had consented to digital anal penetration on August 24, she consented to this same sexual activity on September 13; or worse, that because she had twice consented to digital anal penetration, she must have consented to anal intercourse. There was no link between a prior incident of digital anal penetration and the sexual act for which Mr Hay was charged - anal intercourse.
 As the trial judge recognized, communicated consent must be given to every sexual act in a particular encounter. To make out the defence, Mr Hay must show “he believed that the complainant communicated consent to engage in the sexual activity in question”. The trial judge conflated anal digital penetration with anal intercourse, an error that permeated the trial decision. These are distinct sexual acts. “[A]greement to one form of penetration is not agreement to any or all forms of penetration and agreement to sexual touching on one part of the body is not agreement to all sexual touching”. [Emphasis and citations omitted.]
 The trial judge disagreed with these submissions:
Consent to sexual activity must be communicated, by words or conduct, for each act of the sexual activity at the time it occurred. Also, silence, passivity, broad advance, assumed or implied consent are no consent. (see R. v. Barton, 2019 SCC 33, at paras. 91-96). The trial judge was correct to exclude this evidence at the first stage. On this record, the appellant faced an uphill climb and could not succeed on the application. It was his onus to identify a specific, explicit link between the evidence or specific facts that was not merely helpful to the defence, but fundamental to his honest but mistaken belief in consent defence. I see no error in the trial judge’s rejection of the appellant's submission that the proposed evidence was relevant to such defence. She observed that simply because there was non-verbal consent to certain sexual activity in the kitchen, this could not inform the appellant’s belief that the complainant was consenting to a more invasive sexual activity in the bedroom which consisted of oral, vaginal, and anal sex. I agree with the trial judge’s conclusion. The kitchen incident could not inform his belief that she was consenting to a very different type of sexual activity.
This legal background also applies to the kitchen interaction evidence... This is not a case where legitimate expectations about how consent is communicated between the parties can be said to have shaped the applicant's perception of communicated consent to the sexual activity in the bedroom (see Barton, supra, para. 93). They had just met the day before; the nature and surroundings of the sexual contact in the kitchen and in the bedroom are different, even if closer in time. This interaction was in the kitchen, not in the bedroom; in the presence of others, not behind a closed or locked bedroom door; and consisting of touching and kissing, not oral, vaginal and anal penetration. It is difficult to imagine how the kitchen interaction could have shaped the applicant's belief in consent to sexual activity alleged in the bedroom under these circumstances without reverting to impermissible inferences of the twin-myth or to the unavailable defence of mistake of law as to what constitutes ‘consent’. [Emphasis added.]
In R. v. Choudhary (Ont CA, 2023) the Court of Appeal considers the CCC 276 'evidence of complainant’s sexual activity' provision:
ISSUE 1: Did the trial judge properly exclude the sexual activity in the kitchen pursuant to s. 276 of the Criminal Code?. R. v. T.K.N.
 I begin with the standard of review. Section 276 screens “sexual activity other than the sexual activity that forms the subject-matter of the charge” (see s. 276(2)). The determination of whether sexual activity evidence is admissible under s. 276 raises a question of law (see s. 276.5). In this appeal, the appellant’s core complaint on this ground of appeal is that the trial judge erred in her interpretation of s. 276 by concluding that the sexual activity that forms the subject-matter of the charge did not include the kitchen incident. This is a matter of statutory interpretation, and the trial judge’s ruling on this matter is reviewable on a correctness standard: R. v. McKnight, 2022 ABCA 251, 416 C.C.C. (3d) 248, leave to appeal to S.C.C. refused,  S.C.C.A. No. 341, at para. 120.
 It is helpful to contextualize the appellant’s arguments by reviewing the screening regime in place to determine the admissibility of a complainant’s sexual activity other than the sexual activity that forms the subject-matter of the offence (“other sexual activity”). Where an accused applies to have this type of evidence admitted, they must follow the two-stage procedure established by ss. 278.93 and 273.94.
 Section 276(1) declares other sexual activity that is sought to be introduced by the accused, as presumptively inadmissible. As Doherty J.A. put it in this court’s decision in R. v. L.S., 2017 ONCA 685, 40 C.R. (7th) 351:
Section 276(1) does not create a new rule of evidence. Rather, it is an expression of the fundamental rule that to be admissible, evidence must be relevant to a fact in issue. Section 276 identifies two illegitimate inferences from a complainant’s sexual activity that have historically infected the criminal trial process. The section declares that neither inference provides a road to admissibility of evidence of other sexual activity: see R. v. Darrach,  S.C.R. 443, at paras. 32-34. There are two stages involved in an application to introduce other sexual activity. Section 278.93 provides for an initial screening of the application. If the judge is satisfied that the accused has complied with the notice requirements and that the evidence sought to be adduced is capable of being admissible under s. 276(2), the judge shall grant the application and hold a hearing under s. 278.94 to determine whether the evidence is admissible under s. 276(2). If the s. 278.93 threshold is not met, then the application is terminated. If the evidence overcomes the threshold, the application proceeds to the second stage where it must be determined whether the proposed evidence meets the statutory criteria set out in s. 276(2).
 Section 276(2) provides that evidence of other sexual activity is inadmissible at the instance of the accused, regardless of the purpose for which it is tendered, unless the accused meets the four criteria set down in s. 276(2). The evidence of other sexual activity must:
. not be adduced for the purpose of supporting twin-myth reasoning – that the complainant, by reason of sexual activity, is more likely to have consented to the sexual activity forming the subject matter of the charge, or is less worthy of belief (s. 276(2)(a)); I now turn to the appellant’s submissions.
. be relevant to an issue at trial (s. 276(2)(b));
. be evidence of specific instances of sexual activity (s. 276(2)(c)); and
. have “significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice” (s. 276(2)(d); see also L.S., at para. 46).
(1) Was the kitchen evidence other sexual activity that did not form the subject-matter of the charge?
 The appellant argues that a s. 276 application is only required when the accused seeks to introduce other sexual activity which does not form the subject-matter of the charge. According to the appellant, realistically viewed, the kitchen incident was part of a chain of events that formed the subject-matter of the charge and was, therefore, beyond the reach of s. 276. He argues separating what occurred in the kitchen from the bedroom was an artificial exercise that defied common sense and the trial judge committed a legal error in separating the two and subjecting the kitchen incident to the s. 276 screening regime.
 The question of whether other sexual activity forms the subject-matter of the charge beyond the reach of a s. 276 application is often difficult to resolve.
 In McKnight, a decision rendered after the decision in this case, the Court of Appeal of Alberta determined that to form the subject-matter of the charge, the sexual activity must, at the very least, “be part of the specific factual events of which the offence is a component”: at para. 254. The court clarified that “‘proximate sexual activity” (as that term was used by the trial judge in that case) is not a category of evidence and the determination of whether a particular sexual activity forms part of the subject-matter of the charge necessarily turns on the facts and merits of each case: at paras. 257-8. The court saw no conflict between the cases which exempted certain proximate sexual activity from s. 276 and those which did not because ultimately this was a factual determination.
 The court expressly qualified that to the extent the trial judge’s reasons in that case might be understood as categorically foreclosing the possibility that proximate sexual activity could form the subject-matter of the charge, that interpretation was “overly broad and an error of law”: McKnight, at para. 259. For example, certain consensual acts, such as kissing outside a bedroom, which is inextricably tied to subsequent alleged non-consensual sexual intercourse taking place inside that bedroom, may form the subject-matter of the charge. The court also approvingly reviewed the decision in R. v. X.C., 2020 ONSC 410, where Dawe J. gave an example of a complainant alleging that what began as a consensual sexual encounter became non-consensual when the complainant withdrew consent or when the defendant performed some specific sexual act (presumably, during an otherwise consensual activity) to which the complainant did not consent. In such situations, he was of the view that the specific consensual activity that immediately preceded or followed the allegedly non-consensual activity should not be subject to a s. 276 application: see X.C. at para. 38; McKnight, at para. 241.
 In McKnight, the court ultimately upheld the trial judge’s decision to subject all sexual activity occurring on the night of the alleged sexual assault to the s. 276 regime considering, in part, that she did not have the detailed evidence of the proximate sexual activity when she rendered the pre-trial ruling. On appeal, the parties adduced specific instances of sexual activity prior to the alleged sexual offence, including kissing, touching, flirting, and dancing, which took place mostly at one or more bars earlier on the night in question and in some instances, at the appellant’s apartment. When examining these specific instances, the court distinguished between the sexual activity taking place at the bars and in the apartment:
It may well be that some of the proposed evidence as later detailed in [the appellant’s] affidavit should have been exempt from the s 276 regime, particularly that occurring in his apartment just prior to the sexual intercourse. However, this was a comparatively small portion of the proposed “proximate sexual activity”, the majority of which having been said to occur in bars hours prior to the activity alleged by the Crown to constitute sexual assault. There would have been little basis for refusing to apply s. 276 to this evidence in most if not all cases. In sum, the court held that certain instances of “proximate sexual activity” could, depending on the facts, not require screening pursuant to s. 276: at para. 257. The court explained that “proximate sexual activity” was not a category of evidence, rather the focus ought to be on sexual activity which is “integrally connected” to the alleged offence: at para. 258. The assessment of whether the sexual activity in question is “integrally connected”, the court said, is a fact-driven exercise: at para. 259.
 I would adopt the language of McKnight to say that other sexual activity that is integrally connected, intertwined or directly linked to the sexual activity that forms the subject-matter of the charge should not be screened under s. 276. Again, as highlighted in McKnight, the determination of whether other sexual activity should be screened pursuant to s. 276 is necessarily a fact-driven, contextual exercise.
 In engaging in that exercise, trial judges may want to keep the following in mind.
 First, while there are no bright line rules, trial judges should use their common sense and not artificially parse a sequence of events that may be integrally connected. For example, other sexual activity may include sexual words and gestures that are anchored to the sexual activity that forms the subject-matter of an alleged sexual assault because they were made immediately before, during or immediately after the sexual activity at issue.
 Second, it is important to keep in mind that one of the underlying purposes of the regime is to prevent trials from becoming infected with twin-myth and stereotypical reasoning based on the complainant’s sexual history. Section 276(2)(a) expressly prohibits the admissibility of evidence of other sexual activity for twin-myth reasoning. Keeping this underlying purpose in mind may help guide the analysis of what this provision was meant to exclude and whether this other sexual activity should be screened.
 Third, if a trial judge is uncertain about whether the other sexual activity is integrally connected to the sexual activity that forms the subject-matter of the charge, the trial judge should proceed with screening the evidence. This is consistent with the approach of the majority decision in R. v. J.J., 2022 SCC 28, 471 D.L.R. (4th) 577. In that case, the majority upheld the constitutionality of ss. 278.92 to 278.94 of the Criminal Code and the procedure to determine if a “record” relating to the complainant and in the possession of the accused is admissible. Such evidence is inadmissible unless a judge determines that the conditions for admissibility in those provisions have been met. The majority noted that if it was unclear whether the evidence is a “record” as defined under s. 278.1, counsel should err on the side of caution and initiate the screening process as reviewed above. The majority also had the following guidance for trial judges, at para. 104:
The test we have articulated for interpreting s. 278.1 is designed to assist counsel and judges in reducing the need for motions for directions. However, in cases where the accused does bring a motion for directions, the presiding judge must decide whether the proposed evidence is a “record”. Where, in the opinion of the judge, the evidence is clearly a “record”, the judge should deal with the matter summarily and order the accused to proceed with a private record application. Equally, where the judge is uncertain whether the proposed evidence is a “record”, they should instruct the accused to proceed with an application. Only if the judge is clearly satisfied that the proposed evidence does not constitute a “record” should they direct that the accused need not bring an application. [Emphasis added.] Although this appeal does not involve a motion for directions to determine if something is a “record”, the same approach would be warranted considering the shared purpose of the legislation. I note that the determination as to whether other sexual activity is within the ambit of s. 276 does not determine admissibility. In short, if a judge harbours some reservations that the other sexual activity does not form the subject-matter of the charge, they should act with caution and proceed with a s. 276 analysis. Ultimately, the evidence may be ruled admissible.
In R. v. T.K.N. (Ont CA, 2023) the Court of Appeal noted a general prohibition on a type of cross-examination in sex offences:
 We do not accept these submissions. While we accept that, in general, questioning an accused person about whether they consider a complainant “attractive”, or whether they were “attracted to” the complainant at the time of the events, is impermissible, we are not satisfied that the questions posed to the appellant were improper in the particular circumstances of this case.. R. v. S.M.
 The general prohibition against such questioning arises from the fact that such questions are often ambiguous and unfair, i.e., it may be unclear whether the suggestion is that the complainant is pretty – or that she is sexually attractive – leaving an accused person unsure how to answer and vulnerable to being described as evasive if clarification is requested. Further, and in any event, in many instances, there can be no right answer to such a question for an accused: R. v. F. (M.), 2009 ONCA 617, at paras. 20 to 23. More importantly, because the questions are often rooted in stereotypical assumptions, they often seek answers that are irrelevant, or which may be rooted in impermissible propensity reasoning. For example, such stereotypical assumptions may include: only “attractive” females are sexually assaulted, or finding another person sexually attractive makes sexual assault more likely: F.E.E. at para. 68; F. (M.), at paras. 24-25. It also has a tendency to confuse the fact that sexual assault is a crime of violence, not a crime of passion. Nonetheless, there can be exceptions to the general prohibition: F.E.E., at para. 69; R. v. M. (G.), 2011 ONCA 503 at paras. 62 to 64.
In R. v. S.M. (Ont CA, 2023) the Court of Appeal considered whether the CCC s.276 ['Evidence of complainant’s sexual activity'] screening (evidentiary limitations) procedures applied to the 'human trafficking for sex work' offence:
 We acknowledge that there is a split in decisions of the trial courts on the statutory interpretation of s. 276, specifically in its application to human trafficking offences involving sex work. The cases are divided about whether all trials for sex trafficking offences are “proceedings in respect of” one of the offences listed in s. 276 (whether or not a listed offence is among the counts charged), or whether, where a listed offence is not among the counts charged, a case-specific showing of some connection to one of the listed offences is required to engage s. 276: R. v. Williams (Williams #1), 2020 ONSC 206, 64 C.R. (7th) 226, at paras. 3-37; R. v. M.D., 2020 ONSC 951, at paras. 17-46; R. v. Langford, 2021 ONSC 4307, 74 C.R. (7th) 147, at paras. 2, 6-25; R. v. Lees, 2023 ONSC 124, at paras. 5-18; R. v. N.G., 2023 ONSC 792, at paras. 3-28; R. v. Ryckman, 2022 ONSC 20, at paras. 4-15; R. v. Maldonado Vallejos, 2022 ONSC 2753, at paras. 3-24; R. v. T.A., 2020 ONSC 6714, at paras. 2-26. There is also a split on the related issue of whether, in the event that s. 276 does not apply to all trials for sex trafficking offences, the common law requires, or should be developed to require, a screening procedure for admissibility of evidence of a complainant’s prior sexual activity (and in particular, evidence of prior sex work) beyond the ordinary rules of evidence: M.D., at paras. 47-76; R. v. Williams (Williams #2), 2020 ONSC 6347, 396 C.C.C. (3d) 267, at paras. 8-65; Langford, at paras. 40-52. These are important issues. However, given our conclusion that the trial judge made no error, and that the appellant was not precluded from raising an issue central to his defence, it would be best to leave these issues to be decided on a more fully-developed trial record.. R. v. S.M.
In R. v. S.M. (Ont CA, 2023) the Court of Appeal considered whether the CCC s.276 ['Evidence of complainant’s sexual activity'] screening (evidentiary limitations) procedures applied to the 'human trafficking for sex work' offence:
 We acknowledge that there is a split in decisions of the trial courts on the statutory interpretation of s. 276, specifically in its application to human trafficking offences involving sex work. The cases are divided about whether all trials for sex trafficking offences are “proceedings in respect of” one of the offences listed in s. 276 (whether or not a listed offence is among the counts charged), or whether, where a listed offence is not among the counts charged, a case-specific showing of some connection to one of the listed offences is required to engage s. 276: R. v. Williams (Williams #1), 2020 ONSC 206, 64 C.R. (7th) 226, at paras. 3-37; R. v. M.D., 2020 ONSC 951, at paras. 17-46; R. v. Langford, 2021 ONSC 4307, 74 C.R. (7th) 147, at paras. 2, 6-25; R. v. Lees, 2023 ONSC 124, at paras. 5-18; R. v. N.G., 2023 ONSC 792, at paras. 3-28; R. v. Ryckman, 2022 ONSC 20, at paras. 4-15; R. v. Maldonado Vallejos, 2022 ONSC 2753, at paras. 3-24; R. v. T.A., 2020 ONSC 6714, at paras. 2-26. There is also a split on the related issue of whether, in the event that s. 276 does not apply to all trials for sex trafficking offences, the common law requires, or should be developed to require, a screening procedure for admissibility of evidence of a complainant’s prior sexual activity (and in particular, evidence of prior sex work) beyond the ordinary rules of evidence: M.D., at paras. 47-76; R. v. Williams (Williams #2), 2020 ONSC 6347, 396 C.C.C. (3d) 267, at paras. 8-65; Langford, at paras. 40-52. These are important issues. However, given our conclusion that the trial judge made no error, and that the appellant was not precluded from raising an issue central to his defence, it would be best to leave these issues to be decided on a more fully-developed trial record.. R. v. Evans
In R. v. Evans (Ont CA, 2023) the Court of Appeal considers the capacity to consent to sexual activity:
 As the Supreme Court has explained in R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 57, released subsequent to the trial judge’s decision, the capacity to consent to sexual activity is a precondition to subjective consent and requires the capability to understand four things:. R. v. Clement
1. the physical act;If a complainant is incapable of understanding any one of these four conditions, then she is incapable of consenting to the sexual activity.
2. that the act is sexual in nature;
3. the specific identity of the complainant’s partner or partners; and
4. that they have the choice to refuse to participate in the sexual activity.
In R. v. Clement (Ont CA, 2023) the Court of Appeal considered mistaken belief of age issues in sexual interference cases:
(2) The trial judge reasonably concluded that the appellant failed to take all reasonable steps to ascertain the complainant’s age. R. v. B.M.
 The offence of sexual interference under s. 151 of the Criminal Code requires the Crown to prove beyond a reasonable doubt that (i) the complainant was under sixteen years of age, (ii) that the accused touched the complainant, and (iii) that the touching was for a sexual purpose: R. v. W.G., 2021 ONCA 578, 405 C.C.C. (3d) 162, at para. 51, leave to appeal refused,  S.C.C.A. No. 381.
 Section 150.1(4) precludes the defence of honest but mistaken belief that the complainant was at least sixteen years old unless the accused took “all reasonable steps” to ascertain the complainant’s age: W.G., at para. 54. Once the accused raises an air of reality to this defence, the burden is on the Crown to establish that the accused did not take all reasonable steps. The determination of whether an accused took “all reasonable steps” to ascertain the complainant’s age is based on what steps a reasonable person would take in light of the circumstances known to the accused at the time: W.G., at para. 60; R. v. Morrison, 2019 SCC 15,  2 S.C.R. 3, at para. 210. There is no automatic checklist of considerations or an exhaustive list of steps that an accused must take to satisfy this requirement: R. v. Duran, 2013 ONCA 343, 3 C.R. (7th) 274, at para. 52. The inquiry is highly contextual and fact-specific: W.G., at para. 46; Morrison, at para. 113. Trial judges are instructed to adopt a practical, common-sense approach to this analysis bearing in mind the goal of protecting youth from sexual offences: W.G., at para. 62.
In R. v. B.M. (Ont CA, 2023) the Court of Appeal characterizes child sex assault:
 It is a well-established principle of this court that “[s]exual abuse is an act of violence. When committed against children, the violence is both physical and profoundly psychological. It is coercive and exploitative conduct, and represents the use of compulsion against someone who is defenceless”: R. v. Stuckless (1998), 1998 CanLII 7143 (ON CA), 41 O.R. (3d) 103 (C.A.), at p. 117, per Abella J.A. (as she then was).