The records, while relevant, would be highly prejudicial as they linked to twin myths. In addition, her previous sexual history had little probative value. Therefore, the application was dismissed.
Ontario Superior Court of Justice
Heard: May 19, 2021.
Judgment: May 26, 2021.
Court File No.: CR-20-10000124-0000
 O.J. No. 3044 | 2021 ONSC 3757
[REDACTED], for the Crown.
[REDACTED], for Defence.
RESTRICTION ON PUBLICATION: Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4(1) of the Criminal Code of Canada. This ban does not apply to publication of these reasons in law reports nor to a discussion of the underlying legal principles in other publications.
REASONS FOR JUDGMENT ON APPLICATION
UNDER S. 278.93(1) OF THE CRIMINAL
R.F. GOLDSTEIN J.
1 [REDACTED] is charged with sexual assault. The Crown theory is that the complainant, [REDACTED] did not consent or was incapable of consenting due to intoxication. Before the assault she had drinks at a bar called One and then got into a cab driven by [REDACTED]. [REDACTED] later dropped her off at the Ritz Carlton hotel. [REDACTED] told the police that [REDACTED] sexually assaulted her in the cab. She told the police that she had no memory of leaving the bar, and regained consciousness as [REDACTED]sexually assaulted her. [REDACTED]'s position is that they had consensual sex. There is video of [REDACTED]. at the bar prior to getting into the taxi. There is also video of [REDACTED]. getting out of the taxi at the Ritz Carlton Hotel.
2 [REDACTED] the accusedâ€™s counsel, argues that there may be an alternative explanation for the behavior of [REDACTED] on the night of the alleged assault. The defence position is that it is unlikely [REDACTED] was that drunk. The defence argues, instead, that [REDACTED] may have suffered from a mental health crisis that would explain her behavior as seen on the videos and rebut the evidence that [REDACTED] was incapacitated due to drunkenness. It is common ground between the Crown and the defence that the issues at trial will be consent and honest but mistaken belief in consent.
3 [R EDACTED]therefore wishes to obtain the psychiatric records of the complainant, [REDACTED]. He says that he needs the records in order to determine whether [REDACTED] suffers from a mental health issue that would provide an alternate explanation to drunkenness.
4 The psychiatric records that [REDACTED] seeks are third-party records. The records must be obtained pursuant to the third-party records regime in s. 278.3 of the Criminal Code. In order to make his case that the records are relevant he seeks to adduce the evidence of a forensic psychiatrist, [REDACTED]. [REDACTED] (as I shall relate below) is of the tentative opinion that [REDACTED] suffers from significant mental health issues. He says in his report that he needs [REDACTED]'s psychiatric records in order to come to a more thorough opinion. The material that [REDACTED] reviewed includes evidence of other sexual activity. Section 276(2) is, therefore, undoubtedly engaged. Section 276(2) applies to any proceeding - which, arguably, includes a third-party records application under s. 278.3. Thus, [REDACTED] applies under s. 278.93(1) for a hearing under s. 278.94(4) to determine whether the evidence of other sexual activity is admissible under s. 276(2) so that it can be used at a third-party records hearing.
5 For the reasons that follow, the application is dismissed.
6 In April 2018 [REDACTED] moved from Vancouver to Toronto. She contacted [REDACTED]when she arrived. She asked him if she could stay with him for a few days. She and [REDACTED] were only acquaintances, but their mothers were friends. During the short time that she stayed with [REDACTED] they began an intimate relationship.
7 On April 26, 2018, one or two days after she arrived in Toronto, [REDACTED] and [REDACTED] went to One. One is a bar in Yorkville in downtown Toronto. [REDACTED] worked at One. He introduced her to the manager so that she could apply for a job. They also had drinks at the bar. [REDACTED] apparently had 1 to 3 drinks. Surveillance video of the bar showed [REDACTED] and [REDACTED] kissing at the bar, as well as talking to other people. The bar later created an incident report. The report stated:
[REDACTED] came into the bar with a girl looking for a job. She was a hell no, but told her to bring in a resume to be nice. She then got intoxicated & was trying to show people acting like a hostess. She was asked to leave. She left her phone, it's in the office.
8 During the evening [REDACTED] went into the women's bathroom. She had a conversation with a woman named [REDACTED]. They had never met. Ms. Svechnikova gave a statement to the police. She said that [REDACTED] told her that she wished she had to courage to behave like a Russian woman and date guys for money. She also said that [REDACTED]. appeared very drunk. In contrast, [REDACTED] told the police that they were not that drunk.
9 During the evening [REDACTED] went outside to have a cigarette. He texted [REDACTED] to join him. As he put it, however, she "bolted" and simply left without warning. She got into a taxi. The taxi was driven by [REDACTED]. [REDACTED] and [REDACTED] had never met. According to [REDACTED] she did not remember leaving the bar and had blacked out. She did not remember getting into the taxi. She regained consciousness as [REDACTED] was having sex with her in the taxi. He later dropped [REDACTED] off at the Ritz Carlton hotel (also in downtown Toronto) and gave her his business card. At some point she went to [REDACTED]â€™s place and then left. She called 911 from the Ramada Hotel on Jarvis Street. An ambulance took her to the hospital. [REDACTED]'s DNA was found on her body.
10 [REDACTED] apparently suffers from mental health issues. She had been hospitalized in Vancouver. She was hospitalized again in Toronto. Disclosed police notes reference an involuntary hospital admission in Toronto. The notes also reference assaults on hospital staff. According to [REDACTED], [REDACTED] told him that she left Vancouver because her mother threatened to call the police if she did not see the doctors again. [REDACTED] also stated that S.S. had mentioned suicide.
11 [REDACTED], a forensic psychiatrist, prepared a report regarding [REDACTED]. Defence counsel provided the preliminary hearing transcripts, police notes, the police synopsis, and the "One" report. Counsel also provided the preliminary inquiry transcript, audio, video, and transcripted statements of [REDACTED], [REDACTED], and [REDACTED]. Finally, counsel provided S.S.'s 911 call, and video from the Ritz Carlton Hotel and One.
12 [REDACTED] stated:
It is likely that she may be suffering from Bi-polar Affective Disorder. Although it may be difficult to comment, there may be some dysfunctional personality traits, such as unstable and intense interpersonal relationships characterized by alternating between extremes of idealization and devaluation, impulsivity, affective instability due to marked reactivity of mood, such as intense episodic dysphoria, irritability or anxiety usually lasting for short period of time and transient and stress related paranoid ideation.
ISSUES AND ANALYSIS
13 Four pieces of evidence that were part of the material reviewed by [REDACTED] engage s. 276(2):
* In her police statement, [REDACTED] indicated that the sex with [REDACTED] was "probably quick because to be honest guys come really fast with me" ([REDACTED] conceded that this statement did not meet the tests of relevance or specificity);
* In his statement to the police, [REDACTED]indicated that he and [REDACTED] had been intimate;
* Video at One shows [REDACTED] and [REDACTED] kissing; and,
* [REDACTED] indicated in her statement to the police that [REDACTED] had told her "I wish I could be like Russian women and date men for money".
14 The defence only seeks to adduce this evidence of other sexual activity as an aid to obtain the third-party records, rather than at trial (at least at this point). [REDACTED] argues that the evidence is capable of admission at a s. 276(2) stage-2 hearing.
15 I respectfully disagree. The evidence is not capable of admission.
16 I am required to hold a hearing where I am satisfied that:
* technical procedural requirements set out in s. 278.93(4) of the Criminal Code have been met (the Crown does not contest this point); and,
* the proposed evidence is capable of being admissible under s. 276(2) of the Criminal Code.
17 Section 276(1) of the Criminal Code states that evidence that the complainant engaged in sexual activity (other than sexual activity that is the subject-matter of the indictment), either with the accused or another person, may not be admitted into evidence where the purpose is to support one of the "twin myths": that the complainant was more likely to have consented to the sexual activity that forms the subject matter of the charge; or, that the complainant is less worthy of belief.
18 Evidence of other sexual activity by the complainant is not admissible unless the judge determines that the evidence meets the requirements of s. 276(2) of the Criminal Code. Those requirements are that the evidence:
* Is not being introduced for the purpose of one of the "twin myths";
* Is relevant to an issue at trial;
* Is of specific instances of sexual activity; and,
* Has significant probative value that is not outweighed by the danger of prejudice to the proper administration of justice.
19 Prior to 1982, any evidence of a complainant's prior sexual activity was admissible. The complainant was put on trial for her prior sexual history, on the discredited notion that other sexual activity was linked to character and truthfulness: R. v. Goldfinch, 2019 SCC 38 at para. 33. Questions about sexual history often fail the basic test of relevance and may seriously distort the trial process: R. v. R.V., 2019 SCC 41 at para. 33. As Doherty J.A. put it in R. v. L.S., 2017 ONCA 685 at para. 66, "evidence of other sexual activity runs the real risk of derailing a trial by turning it into an inquiry about the complainant's sexual character rather than the accused's guilt."
20 The Supreme Court of Canada has also repeatedly instructed that sexual assault trials engage unique issues. These cases often involve details about the most intimate human activity. Questioning has the potential to be highly intrusive. Very personal information may be revealed. Privacy may be unduly and unfairly invaded. There is significant potential for trauma and harm to a complainant: R. v. R.V. at para. 33.
21 Thus, a trial court must "carefully scrutinize the potential evidence." Even where the evidence may be relevant for a purpose unrelated to the "twin myths" the evidence may still be excluded if admission "would endanger the proper administration of justice": R. v. R.V. at para. 36.
22 The factors that a judge must take into account when assessing admissibility under s. 276(2) of the Criminal Code are set out in s. 276(3):
(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.
23 [REDACTED] asserts that he does not intend to use the evidence to ask the trier of fact to draw an inference that would support one of the "twin myths". In my view, however, evidence showing that [REDACTED] had a tendency to engage in high risk-behavior certainly runs the risk of engaging at least one of the "twin myths": that [REDACTED] was more likely to have consented to sexual activity with a cab driver she had just met. Mr. Bugo asserts that this danger could be alleviated with a jury instruction, but the practical reality is that a trier of fact may well draw that inference. I need not resolve the question at this point, however, because the evidence does not comply with the other three requirements s. 276(2).
24 I will deal with each requirement in turn:
25 Relevance to an issue at trial: The basic problem with the evidence of other sexual activity is that the relevance is not apparent. Relevance is the key that "unlocks" the evidentiary bar; bare assertions will not do. The accused must set out detailed particulars: R. v. Goldfinch at paras. 5 and 51. [REDACTED] did not identify how each piece of s. 276(2) evidence impacted his tentative opinion.
26 I do not see how the statement by [REDACTED] that he and [REDACTED] had been intimate tells us anything about a diagnosis of bi-polar affective disorder. I also do not see how the videos of [REDACTED] and [REDACTED] kissing at the bar tells us anything about such a diagnosis. [REDACTED] argues that S.S. seemed to be enjoying herself, and then suddenly left. He argues that bi-polar affective disorder could explain this sudden, impulsive act. Perhaps, but [REDACTED] did note that the trigger was not identified. He certainly did not mention any intimate activity between [REDACTED] and [REDACTED]. It is speculative to suggest that the intimate activity triggered [REDACTED] to leave suddenly. It is just as likely that she left in anger because, as the One report suggests, the staff asked her to leave.
27 I also do not see the relevance of the snippet of conversation with [REDACTED] about dating men for money. Defence counsel also mentioned it as a possible trigger for [REDACTED]'s flight because it occurred shortly before she "bolted" from the bar. [REDACTED] identified the conversation as a whole as a possible example of over-familiarity and therefore a possible sign of bi-polar affective disorder. He did not, however, specifically mention that particular aspect of the conversation as indicative of anything. Certainly, it is not clear how that very casual reference could be a sign of bi-polar affective disorder. In the absence of specifics from [REDACTED], I find that it does not meet the test of relevance.
28 Specific instances of sexual activity: The statement of [REDACTED] that he and [REDACTED] had been intimate is sufficiently specific that it meets the test of s. 276(2). So are the videos of [REDACTED] and [REDACTED] at the bar.
29 The reference to dating men with money, however, is clearly not a specific instance of sexual activity. Specificity depends on the nature of the sexual activity that the accused wishes to adduce: R. v. L.S. at para. 83. In this case, it is a general comment and nothing more.
30 Probative value and prejudicial effect: In my view, the evidence of other sexual activity has little probative value. [REDACTED]â€™s report did not indicate that any of the s. 276(2) evidence was important for his tentative opinion that [REDACTED] suffers from bi-polar affective disorder. On the other hand, the evidence could be prejudicial - the reference to high-risk behavior risks linkage to one of the twin-myths, as I have stated.
31 The defence relies on R. v. Kersten,  O.J. No. 2666. In 2008 the complainant alleged that the accused, who was his grade four teacher, had sexually assaulted him in 1978-79. The complainant had a long history of mental illness. Disclosure material was provided to a forensic psychiatrist. The forensic psychiatrist tentatively found, based on the disclosure, that there was an inference that the complainant suffered from delusions that reduced the reliability of his account of childhood events. Lemon J. stated at para. 26:
The tentative opinion put forward by Dr. Glancy requires the objective notes and records of the Credit Valley Hospital to either confirm or reject his tentative diagnoses. I find that it is necessary for the accused to have that information to make full answer and defence. The tentative opinion of Dr. Glancy also makes clear the probative value of the requested information from the hospital. If Mr Bell does suffer from delusions related to these charges, that evidence will relate directly to his credibility.
32 The defence also relies on R. v. Moskalyk, 2017 ONSC 6675. The complainant suffered mental health problems. A forensic psychiatrist (the same psychiatrist retained in Kersten) tentatively found that the complainant likely suffered from borderline personality disorder. He opined that those with borderline personality disorder can become delusional. Thorburn J. (as she then was) stated at para. 35:
In this case the documents requested are likely relevant. The uncontested preliminary expert opinion of Dr. Glancy, and the many symptoms exhibited by the Complainant as described by doctors at the George Hull Centre and the Hospital for Sick Children (as set out above) are consistent with borderline personality disorder and borderline personality disorder may result in a person suffering delusions, making up facts and or manipulating situations when in a state of anger.
33 These cases are helpful in one way: they show that an accused can raise the issue of the complainant's mental health in order to make full answer and defence. Of course, a court should be no less concerned to safeguard the dignity and privacy rights of those with mental illness than it is of complainants in sexual assault cases. From that point of view, [REDACTED] is not foreclosed in this case from relying on the opinion of a forensic psychiatrist that is uninfected by inadmissible evidence. In my respectful view, however, these cases do not specifically apply: there is no suggestion from [REDACTED] that S.S. was delusional or exaggerated what happened.
34 [REDACTED] argues that the materials should not be carved up. As he puts it in his factum:
The whole of the exhibits documenting the complainant's actions in Toronto should be admitted on the s. 278.3 voir dire as mental health issues, decisions made, and the narrative of events can manifest themselves or become evidence in respect of sexual activity.
35 [REDACTED] relies on the decision of Wakeling J.A. in R. v. Majid,  S.J. No. 226 (C.A.). The accused was a doctor. The complainant alleged that he had sexually assaulted her during an abdominal examination. After the complainant had alerted the Saskatchewan College of Physicians, and after the criminal investigation commenced, the complainant wrote a letter to another doctor, Dr. Glaun. The complainant had had a relationship with Dr. Glaun. That relationship ended contrary to the complainant's wishes. Dr. Glaun, aware of the charges against Dr. Majid, shared the letter with him. A forensic psychiatrist examined the letter, and came to the tentative conclusion that the complainant suffered from various mental health problems, including transference. The complainant may have transferred her feelings of rejection and anger from Dr. Glaun to Dr. Majid. The letter contained references to her relationship with Dr. Glaun and other men, including references to sexual aspects. At a s. 276(2) hearing the trial judge ruled that the letter was admissible, subject to editing of references to relationships other than Dr. Glaun and to the sexual aspects of the relationship with Dr. Glaun. The accused was convicted.
36 On appeal, Wakeling J.A. at para. 35 stated that the letter should have been admitted without the edits. He stated:
... I am unable to escape the conclusion that the letter should have been admitted without the deletions ordered by the trial judge as there was no personal or societal concerns applicable to L.J.V. which were not outweighed by Majid's reduced ability to make full answer and defence which is the balance s. 276(2) and (3) requires the trial judge to assess.
37 Cameron J.A. agreed with the result but not the reasoning of Wakeling J.A. He found that the trial judge did not err in deleting references to sexual experiences with other men. He found that the evidence was of little, if any value to the defence forensic psychiatrist. The sexual aspects of the relationship with Dr. Glaun, however, were a different matter. Cameron J.A. found that they were part of the theory of transference and therefore required for the defence to make full answer and defence.
38 [REDACTED] argues, based on the decision of Wakeling J.A., that the materials should not be artificially carved up. That includes the evidence of other sexual activity. Respectfully, I think that argument is misplaced. The Crown appealed Majid to the Supreme Court of Canada as of right based on dissent by Gerwing J.A. The Supreme Court dismissed the appeal, for the reasons of Cameron J.A. (L'Heureux-DubÃ© J. dissented. She would have allowed the appeal for the reasons of Gerwing J.A.). It may be that editing could be done on a full stage 2 hearing, but for the purposes of this stage I am unable to say what aspects of the evidence were necessary for [REDACTED] to form his opinion. Accordingly, the material that forms the foundation for his opinion is not capable of admission. As [REDACTED], Crown counsel, agreed, [REDACTED]is not precluded from relying on a report with the evidence of other sexual activity not relied on.
39 The application to hold a hearing is dismissed.