The Defence Toolkit – March 5, 2022

This week’s top three summaries: R v Carstairs, 2022 BCCA 69: nighttime #warrant, R v Skye View Farms Ltd., 2022 PECA 1: #warrant needed desp inspection pwr, and R v Harnett, 2022 ABQB 150: #276 #texts after incident.

This week's top case deals with the authorization of a nighttime execution of a warrant. If you want to dig deeper into the topic, I recommend the Emond title below which features a chapter on Manner of Execution. It is available for purchase now for our readership with a 10% discount code provided below. To purchase, simply click on image below.

R v Carstairs, 2022 BCCA 69

[February 23, 2022] s.8 Charter - Nighttime Execution of a Warrant [Reasons by Willcock J.A. with Bauman and Voith JJ.A. concurring]

AUTHOR’S NOTE: Nighttime execution of a warrant has to be specifically authorized through the warrant application. Few cases focus on the principles attaching to nighttime executions and fewer still provide a precedent of a breach. Herein, the BCCA does just that. Although the 24(2) analysis results in an inclusion of the evidence, the analysis provides a route to follow for defence counsel seeking to establish a Charter violation for an improper nighttime authorization. Importantly, the case neutralizes the idea that "item movability" can tip the scales in favour of the Crown. Virtually all items the police will seek to search for will be moveable. This cannot tip the balance in favour of a nighttime entry. 

Facts

[1] The appellant was convicted of two counts of possession of controlled substances for the purposes of trafficking, one count possession of a controlled substance and one count of possession of stolen property....

[2] The appellant’s trial commenced with a voir dire into the validity of the warrant. An agreed statement of facts was entered into evidence on the voir dire. It included the following admissions:

4. On December 10, 2018, Cst. Lapierre faxed a Criminal Code search warrant application for Room 120, 1773 East Trans Canada Highway ("the motel room") to the Justice Centre at 1:48 am. A signed search warrant was received at 2:28 am, authorizing entry between 2:30 am and 6 am that day.

5. At 3:15 a.m., officers attended to the motel room to execute the search warrant. The accused answered the door and was wearing a gold necklace/chain that had been reported stolen from Fifth Avenue Jewellers in Kamloops on September 17, 2018. The list price for the necklace was $4,069.65. ...

7. The accused was arrested for possession of stolen property and the motel room was searched. ...

10. Also in the room was a small silver safe. The safe was searched and found inside was a baggy containing 5.7 grams of fentanyl, a baggy containing .70 grams of fentanyl, a baggy containing .60 grams of fentanyl, a baggy containing 14 grams of methamphetamine and a baggy containing 5.3 grams of cocaine.

11. On a small table was a digital scale, a small white bucket that contained colouring dye and a baggie with .30 grams of fentanyl, four bottles of food colouring, a clear bowl containing 14.70 grams of caffeine, a propane torch and a small measuring cup. ...

13. In total, officers seized 7.3 grams of fentanyl, 14 grams of methamphetamine and 5.3 grams of cocaine from the motel room. ...

[5] The ITO set out the following basis for seeking a warrant authorizing a search at night:

33. ... I know that the undercover operation was not successful at this point and the execution of a search warrant remains the only investigational avenue possible for Kamloops RCMP to retrieve the necklace and arrest CARSTAIRS for the crime committed;
34. Further I am requesting that a Search Warrant be granted for an evening search based on the following rational [sic]:
    1. This investigation is time sensitive in nature. The fact that the necklace is being sold on 2 separate sites presents a risk that the necklace could be sold at any time. The further this Search Warrant is delayed, the more chance that the necklace and any other evidence may be lost, preventing Kamloops RCMP from investigating this crime;
    2. In addition, a night search will be timed with CARSTAIRS’ curfew check, which will guarantee his presence inside the unit;
    3. When members conducted a curfew check in the morning at 04:00 hours, on December 9th, 2018, CARSTAIRS was fully dressed and appeared to be awake and fully functional.

[6] Constable Lapierre was called for cross-examination on the ITO. He testified that no one was continuously watching the motel room overnight, and that
Mr. Carstairs’ recognizance required him to remain in the motel room overnight (until 6:00 am) and to wear an electronic monitoring device. Constable Lapierre was aware of the particulars of only one prior curfew check, which he performed on December 9, 2018.

[7] The appellant testified in the voir dire. His evidence was that he was awake and had been speaking with a visiting friend when the police arrived. He was arrested at the door of the motel unit. His girlfriend was laying in bed. He was taken to a police car while the unit was searched.

Ruling on the Voir Dire and Trial

[8] The trial judge held, on the conclusion of the voir dire:

[28] I am satisfied that the Judicial Justice was entitled to find, as she did, that there were reasonable grounds for nighttime execution of the s. 487.1 Search Warrant. The necklace had in recent days been put up for sale on two websites and was apparently still listed for sale. It was an easily moveable piece and indeed had been worn by the accused during the early morning curfew check on December 9.

Argument

[16]  The relevant provision of the Criminal Code reads as follows:

488 A warrant issued under section 487 or 487.1 shall be executed by day,

unless

(a) the justice is satisfied that there are reasonable grounds for it to be executed by night;

(b) the reasonable grounds are included in the information; and (c) the warrant authorizes that it be executed by night.

[17] The appellant relies on R. v. Sutherland (2000), 2000 CanLII 17034 (ON CA), 150 C.C.C. (3d) 231 (Ont. C.A.) at para. 20, as authority for the proposition that a warrant must be executed by day unless there is, in addition to the grounds for the issuance of a warrant generally, an “additional justification” for the search to be conducted at night. He says there must be “exceptional circumstances” [emphasis added].

[19] The appellant says Sutherland was followed by this Court in R. v. L.V.R., 2014 BCCA 349, leave to appeal to the Supreme Court of Canada refused [2014] S.C.C.A. No. 485, where Saunders J.A., writing for the Court, identified factors that may be considered in weighing whether it is reasonable to authorize a nighttime search: at para. 25. These include:

a.   the gravity of the substance of the investigation;

b.   the likely occupancy of the residence and degree of disruption to privacy the search may cause;

c.   the nature of the items that may be found in a search; and

d.   the needs of the investigation.

[22] In response, the Crown says there need not be exceptional grounds to authorise a search warrant for execution at night. There need only be reasonable grounds, and imposition of any other burden is inappropriate. ...

Analysis

[29] In support of his argument, the appellant relies heavily upon Sutherland. In my view, the judgment in that case may not be distinguished as easily as the Crown suggests. ...

[20] Even before it was amended, this section called for "execution by day" and therefore clearly implied that there be a reason for authorizing entry of a home at night. Thus, both before and after the amendment, additional justification for a night search was required and is wanting in the instant case.

[Emphasis added.]

[30] The requirement that exceptional circumstances be established has continued to be imposed by the Ontario Court of Appeal in cases subsequent to the enactment of the current provisions (see R. v. Lowe, 2018 ONCA 110).

[31] The view expressed in Sutherlandthat reasonable grounds to execute a warrant at night will exist in “exceptional” circumstances was not a phrase used lightly by the Ontario Court of Appeal. The term was not merely used in contrast to the “casual” approach taken by the police. The expression was repeated in the following passage, which appears in the s. 24(2) balancing exercise but is nevertheless helpful in describing the circumstances in which a warrant may authorize a search at night:

[33] To some extent, whenever a guilty person evades conviction because of a Charter breach, the administration of justice suffers. However, a balance must be found when Charter breaches are exposed in court to assure that innocent persons do not suffer by repetition of the breach. When the conduct of the police, who form an integral part of the administration of justice, falls below the expected standard, the protection of the public by the justice system suffers. The mere presence of police officers at one's home in the middle of the night, for whatever reason, is a frightening event. Parliament has recognized that only in exceptional circumstances can the police exercise this unusually intrusive procedure. …

[Emphasis added.]

[32] In L.V.R., as noted above, this Court described a common‑sense approach to s. 488 but did not take issue with the Ontario Court of Appeal’s characterization of the circumstances justifying a nighttime search as “exceptional” ...

[33] Assessing the reasonableness of a request for authorization of a search at night requires the issuing justice to engage in a balancing process, including consideration of factors such as those identified in L.V.R. Section 488 of the Criminal Code establishes that search warrants will ordinarily be executed by day and only exceptionally by night. While this Court in L.V.R. accepted the description of the circumstances in which a night time search may be authorized as “exceptional”, it clarified that common sense must be used in assessing what objective foundation must exist for authorizing such a search, consistent with Parliament’s adoption of the “reasonable grounds” test.

[34] The factors expressly considered in this case included (a) the evidence sought was for sale online, (b) the appellant would be home at the time the warrant was to be executed, and (c) the evidence sought was very portable. There was no express consideration of whether the nature of the offence being investigated was such as to justify an urgent search.

Nature of the Offence

[36] A nighttime search is more likely to be considered reasonable where there is a heightened concern for public safety, even where there is a relatively small risk the evidence sought will be lost or disposed of. ...

[37] his approach is exemplified in R. v. Browne, 2013 ONSC 5874, and in R. v. Boussoulas, 2014 ONSC 5542, where concern with respect to the presence of firearms in residences was found to afford reasonable grounds for a nighttime search.

Presence of the Appellant

[38] The fact no one is expected to be present in a residence is a significant factor weighing in favour of the execution of a warrant at night. ...

Portability of Evidence

[40] The fact the object of the search is easily transported is not generally considered to be material. The appellant’s submission in this respect appears to be borne out in judicial analysis. In that regard, I agree with the view expressed by Gordon J. in R. v. Phillips, 2011 ONSC 1881:

[33]  … [T]he evidence in the ITO cannot support the authorization of a night time entry. The grounds alleged amount to an indication that some of the items to be searched for are portable and can easily be moved or destroyed and that other of the items may be sold or rented to other members of the public. I would venture to say that the vast majority of search warrants issued in this country relate to items that are portable and are easily moved or destroyed. Surely, this trait alone is not sufficient to justify night time entry of a dwelling. Surely, what is contemplated is evidence of some additional reasonable grounds to believe that if the search warrant is not executed quickly the items to be searched for may disappear. For example, if observation of the premises revealed that boxes of items were being taken from the premises, such reasonable grounds might be found to exist. Or if an informant had provided evidence that the occupants were aware of the police investigation and had started to destroy evidence, such grounds might be found to exist. The simple statement that some of the items to be searched for may be easily moved or destroyed, without more, does not suffice.

Application of the Law

[41] In my view, the appellant is correct to say there were insufficient grounds to authorize a nighttime search of the appellant’s residence, and the judicial justice cannot have engaged in the balancing process required to assess the reasonableness of a nighttime search. Here, as in Sutherland, urgency was not dictated by any apparent threat to the public. The nature of the offence under investigation, possession of stolen goods, did not weigh significantly in favour of an urgent search. The fact the necklace was easily moveable cannot have tipped the scale in favour of a very intrusive search.

[42] The fact this residence was known to be occupied was not a factor favouring a nighttime search. No weight could be placed upon the fact Mr. Carstairs had previously been awake in the middle of the night. Constable Lapierre did not claim to be familiar enough with Mr. Carstairs’ circumstances to say whether he would be awake or alone at the time of the execution of the warrant. ...

[43] The only apparently relevant factor in the ITO was the fact there was an ongoing attempt to sell the necklace. However, the evidence was that the necklace had been listed for sale online for days. The warrant was not sought during the day on December 9, 2018, after Mr. Carstairs was seen wearing the necklace at 4:00 a.m. There is no evidence of a significant risk it would be sold in the interval between the execution of the search at 4:00 am and the end of Mr. Carstairs’ curfew at 6:00 am on the morning of December 10, 2018, which is also the time that marks the beginning of the “day” under s. 2 of the Code.

[44] In short, the evidence contained in the amplified record is not a sufficient basis upon which the warrant could have issued. On that basis the warrant may be invalidated. ...

[45] This case is not a matter of preferring one inference over another or determining whether this Court would authorize the nighttime search. In my view the factors this Court identified in L.V.R. weighed against authorizing the execution of this warrant by night:

a)   the gravity of the substance of the investigation did not call for an urgent search;

b)   it was known that the residence was likely to be occupied;

c)   the item sought was unlikely to pose a danger to the public;

d)   the necklace (unlike the computer data sought in L.V.R.) was unlikely to be disposed of except by sale, and Mr. Carstairs was being monitored and was barred from leaving the motel at night; and

e)   the needs of the investigation could be served by a search in the morning.

[46] Here, as in Sutherland, the “obvious and only reasonable approach was for the officer to obtain the warrant and greet the appellant at his [motel] door in the morning”: at para. 18.  ...

24(2) Analysis

[56] Further, while it is correct to say that an unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy is more serious than one that does not (Grant, at para. 78; R. v. Pawar, 2020 BCCA 251 at para. 79), a search pursuant to a warrant by officers who believed they were acting on legal authority favours admission of the evidence: R. v. Morelli, 2010 SCC 8 at para. 99; R. v. Bacon, 2012 BCCA 323 at paras. 27, 29.

[61] In my opinion, the Crown is correct to say that the seriousness of the Charter breach flows solely from the unjustified execution of a warrant at night. The seriousness of the breach was not aggravated in any way by police conduct.

[66] The appellant argues that where the first two Grant factors favour excluding the evidence, the third factor will rarely tip the balance in favour of admitting it (R. v. McGuffie, 2016 ONCA 365 at para. 63), and it should not do so here. As I have noted, I do not accept the appellant’s characterization of the seriousness of the Charter breach. The first two factors do not strongly favour the exclusion of the evidence. Balancing the seriousness of the state conduct, the seriousness of the infringement of Charter rights, and the impact upon society’s interest in adjudication, it is my opinion that the exclusion of the evidence in this case, rather than its admission, would bring the administration of justice into disrepute.

R v Skye View Farms Ltd, 2022 PECA 1

[February 22, 2022] S.8 Charter: Warrant Needed Despite Statutory Inspection Power [Reasons by Acting Chief Justice Michele M. Murphy, with Terri A. MacPherson J.A. concurring and John K Mitchell JJ.A. dissenting]

AUTHOR’S NOTE: The context of regulatory investigation powers can get complicated when it interactions with the Charter. However, where a power to inspect co-exists with a power to search by warrant in the same legislation, the question for s.8 purposes is whether there is a reasonable expectation of privacy that was breached by the search. Where the answer is yes, and the state agents have grounds to obtain the warrant, the answer seems to be that a s.8 violation results. Yes, the PECA found that there does appear to be a reasonable expectations of privacy in a potato field. Per the Majority, it was not even a close call. 

The Majority

[100] I have read the reasons of my colleague Mitchell J.A. I agree with his analysis of the law relating to a s. 8 Charter breach and his conclusion that there was a Charter breach in this case. However, I do not agree with his characterization that it was a “close call.” In Charter parlance the terminology “close call” generally is reserved when determining whether evidence should be excluded pursuant to s. 24(2) of the Charter. Nonetheless, I do not view either the s. 8 Charter breach or the decision to exclude the evidence to be a “close call.”

S. 8 Charter breach

[101] I also agree that the trial judge and the SCAC judge did not conduct the test appropriately in assessing whether there has been a breach of the Charter. As the Crown submits, they turned the applicable two-step inquiry “on its head.” Theydecided first that there had been an unreasonable search and then turned to examining whether the respondents had a reasonable expectation of privacy in their property, the potato field. Jurisprudence directs that the inquiry be conducted in the opposite manner.

[102] The trial judge concluded there was a Charter breach for a number of reasons, including: from the very beginning the fishery officers entered the property they were gathering evidence and as such, were conducting an investigation and not an inspection; they had reasonable grounds to obtain a warrant; the respondents had a reasonable expectation of privacy in the potato field; and, as a result, the fishery officers were required to obtain a warrant prior to entering the field to obtain the foliage and water samples, photos, videos and measurements of the potato field. The warrantless search and seizure, not being justified, violated the rights of the respondents under s. 8 of the Charter.

Having considered both sides of the argument, I am of the view that the open fields doctrine cannot survive s. 8 Charter scrutiny.  To be specific, I am unprepared to interpret s. 8 of the Charter in a manner which would, without exception, foreclose property holders from asserting an expectation of privacy in unoccupied lands on the basis that society does not recognize the expectation as reasonable.

In this respect, I am in essential agreement with the analysis undertaken by Marshall J. in Oliver.  In assessing whether an asserted expectation of privacy is one which society is prepared to recognize as reasonable, Marshall J. was of the view that a variety of factors must be considered.

… and as a society, we adhere to the belief that people should be free to enjoy their privacy without fear of intrusion by members of the public or government officials.

… Rather, the starting point for purposes of the s. 8 analysis should be that law-abiding citizens have a strong interest in privacy that the Charter is meant to protect.

… I am satisfied that an expectation of privacy which society is prepared to recognize as reasonable can exist in respect of unoccupied lands.

[Emphasis mine]

[117] The trial judge’s decision to exclude the evidence and the SCAC judge’s endorsement of her view is entitled to deference from this Court. ...

[136] The trial judge’s reference to “the many fishery officers who chose not to enter upon the lands” is telling. It was her belief that the officers appreciated there was a privacy issue at play. Officer MacKinnon was careful to note, at least five times, in his testimony, that he never did enter the property. In my view, it was not, as my colleague suggests, that the officers did not enter the lands as they had concern about contaminating the property. When viewed objectively the officers had a real concern that in entering upon the lands a privacy right was being violated.

[137] Whether the officers acted out of urgency or necessity to prevent the loss or destruction of evidence needs to be considered in analyzing the seriousness of the breach. The evidence here did not point to any sense of urgency or necessity to preserve evidence.

[138] Another factor that could impact the seriousness of the breach is the difficulty in obtaining a warrant. The trial judge indicated she had experience with issuing warrants and in her view, it would have been very easy to obtain a warrant. An application could have been made ex parte and counsel for the respondents suggested a warrant could be obtained by tele-warrant. All that was required was for the officer to provide, on reasonable grounds, that a deleterious substance had been discharged from the parcel of land and entered the waters frequented by fish. To obtain a warrant Officer Comeau would not have to know the specific substance or its chemical composition that was applied to the potato crop. When viewed objectively by a reasonable person it would not have been a difficult task to obtain a warrant given the circumstances.

[140] The duration of the search is also a consideration in analyzing the seriousness of the breach. Over a two-day period many officers were on-site collecting samples, taking video, pictures, and measurements. It could not, as suggested by the Crown, be considered to be a brief period of time. The record also reveals that the investigation continued with a fly-over conducted on July 27, 2016, by Officers Comeau and MacKinnon and listed the reason for the flight as a “fish kill investigation, Clyde River.” [Emphasis mine.] [145] I summarize Officer Comeau’s evidence as being that he never turned his mind to obtaining a warrant, he was aware of the section dealing with warrants (s. 49.1) but did not think he had reasonable grounds to obtain one. To allow fishery officers to rely on their inspection powers to bypass the requirement of obtaining a warrant would make them immune from the judicial oversight intended by Parliament in s.49.1 of the Fisheries Act.

[146] To sum up on the seriousness of the breach, when one looks at the conduct of the fishery officers, including the reasonableness in the belief that probable grounds did not exist for a warrant, and the casual attitude of the officers in conducting the search; lack of extenuating circumstances to conduct a search and seizure; easy access to obtaining a warrant; and pattern of conduct - a prior precedent in R. v. Warren Ellis et. al where a warrant was sought; it could easily be concluded that the Charter- infringing state conduct was serious.

[148] To determine the seriousness of the infringement we are to look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests.  The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute (Grant, para. 77).

[153] I agree with the trial judge’s characterization that the respondents’ reasonable expectation of privacy was diminished from what one might have, such as in your home or in situations where human dignity is involved and, as such, reduced the impact of the breach on the privacy interests of the respondents. However, even a reduced reasonable expectation of privacy attracts the benefits of Charter protection. Many other facts elevated the impact on the Charter-protected interests of the respondents - - the level of intrusiveness in this case was intensified by the number of officers on the property and the perimeter of the property, the length of time of the search, delay in laying charges, and, the home of the respondents in close proximity. It requires mention that Alex Docherty went to the field at 9:15 on the night of July 25, 2016 and inquired why the fishery officers were in the field. A reasonable person would have to infer that he must have been concerned as to why fishery officers were on his land. Viewed objectively, it must have been some affront to his privacy interest. He was told an inspection was being carried out. All things considered, it could not be said that the s. 8 Charter breach is either trivial or of short duration in its impact.

[157] That being said, I acknowledge that potato farming is a commercial enterprise that needs to be regulated. It is necessary to have laws in place to protect the fishery, the environment, and society. However difficult a balancing act it might be, the regulation of it must take place in a Charter-compliant manner.

[164] I am of the view that the serious Charter-infringing conduct, even when coupled with a somewhat weaker impact on the Charter-protected interests of the respondents, supports a finding that admission of the tainted evidence would cause greater disrepute to the justice system than its exclusion. The court, who has the responsibility for the administration of justice, must not condone state deviation from the rule of law by disassociating it from the fruits of the unlawful conduct. The price paid by society for an acquittal in these circumstances is outweighed by the importance of maintaining Charter standards.

[166] For the reasons stated above, I would grant leave to appeal, and dismiss the appeal.

R v Harnett, 2022 ABQB 150

[February 18, 2022] Sexual Assault - Records in the Possession of Defence - s.276 Application Renewed at Trial - Relevance of Post Incidence Text Messages [Justice W. N. Renke]

AUTHOR’S NOTE: In many cases, attempts by the defence to lead communications with the complainant that suggest lack of avoidant behaviour by the complainant after an alleged incident of sexual assault fail to meet the test for admissibility. The reason is that lack of such behaviour is not probative of anything and the logic supporting it is based on dispelled myths and stereotypes that avoidant behaviour is the to be expected. However, the calculus changes once the complainant characterizes their behaviour contrary to the written communications. Here, the relevant inconsistency that led to admission was that the complainant suggested in trial testimony that she never wanted to see the accused again after the incident. This was apparently inconsistent with her text messages with him. Consequently, a renewed application at trial was successful where a pre-trial application for the same records had failed.

While the result is helpful, the process demonstrates how unwieldy these provisions remain. Despite a pre-trial application, another adjournment was necessary mid-cross-examination of the main Crown witness to argue another motion. All with the input of counsel for the complainant. 

Summary

[1] Mr. Harnett has brought a second application under ss. 278.93 and 278.94 of the Criminal Code for rulings respecting a proposed cross-examination of the Complainant.

[2] Earlier in the proceedings, I had determined that Mr. Harnett was permitted to cross- examine the Complainant respecting conversations that occurred before the events in question but not respecting text messages exchanged after the events in question.

[3] Cross-examination on the same set of text messages is at issue in this application, but the basis for the application is inconsistency between the Complainant’s testimony and the text messages.

[5] I have determined that this application should be heard despite my previous ruling, on two bases. First, this application is founded on a material change in circumstances and re-consideration is countenanced by R v RV, 2019 SCC 41 at paras 72, 74. Second, and I regard this as the stronger basis for hearing the application, while the application involves the same text messages as previously considered, the proposed cross-examination also relies on claimed inconsistencies with testimony and the text messages are proposed to be relevant in a different manner than as explored in the earlier decision.

[8] I found that, read in context, the Complainant’s testimony about “wanting nothing to do with” Mr. Harnett was inconsistent with elements of the text messages. The messages show that, contrary to the Complainant’s testimony, she did seek to have further contact with Mr. Harnett, although she did state later in the messages that she had decided that she no longer wanted to have contact with him.

[9] I also found that, read in context, the Complainant did not communicate with Mr. Harnett only so he could “explain himself.” I accept that elements of the text messages may be interpreted as (in effect) asking Mr. Harnett to explain what had occurred. Indeed, Mr. Harnett responded with an explanation. The messages go on though, to explore the continuation of the relationship of Mr. Harnett and the Complainant. The messages are about more than only giving Mr. Harnett a chance to explain himself. The Complainant’s characterization may be reasonably understood to be a mischaracterization by omission.

[10] I found that the proposed cross-examination was “material.” It has “significant probative value.” The central issue in the trial is credibility. True, the inconsistencies do not concern (e.g.) facts preceding the sexual activity in question. The inconsistencies, though, are in my opinion – again on the application record – significant or striking and so important in the assessment of credibility. The inconsistencies shall have an impact on the Complainant’s account of events at least back until the time that Mr. Harnett left her premises. The inconsistencies are relevant to shed new light on the “picture” the Complainant painted respecting her attitude toward Mr. Harnett in the early morning in question. Finally, the timing of the inconsistencies is important. The messages were written before the Complainant went to the police. The timing of the messages may permit inferences about influences on the Complainant leading to her later statements about the events at issue.

[12] In my opinion, the proposed cross-examination does not rely on twin myth reasoning. The inconsistencies are not pursued to show that the Complainant consented. The inconsistencies are pursued to show that the Complainant is less worthy of belief, but not because of the sexual nature of the messages. The basis for impeachment is the contrast between what was said at trial and the messages.

[13] In my opinion, the reasoning involved in drawing inferences against the Complainant’s credibility from the inconsistencies does not involve other myth-based assumptions. In particular, the reasoning does not turn on any assumptions about non-avoidant behaviour. The reasoning turns only on the inconsistencies between the messages and what was said at trial. The Complainant, I note, will have an opportunity to respond to the cross-examination questions.

[14] In my view, the probative value of the proposed cross-examination is not outweighed by any risks of prejudice. In particular, because the proposed cross-examination will turn on messages exchanged by the Complainant and Mr. Harnett, I find that the effects on the Complainant’s dignity and privacy and right to equal protection and the effects on the broaderobjective of encouraging the reporting of sexual offence do not outweigh Mr. Harnett’s right to make full answer and defence. The messages were sent on a single day, about a week after the sexual activity in question. The remainder of the Complainant’s life is left alone. There are some sensitive passages in the messages. To ensure the completeness and proper contextualization of the messages, the messages shall be made an Exhibit but with the sensitive passages redacted.

II. Is the Proposed Cross-Examination Capable of Being Admissible? (s.278.93)

[37] A preliminary point is that Mr. Harnett is not seeking to introduce independent evidence of other sexual conduct but to cross-examine the Complainant respecting the texts. We tell juries that the questions asked by counsel are not evidence. Only witness’s answers to questions are evidence. In the present context, though, the issue is whether the proposed cross-examination would concern other sexual activity or would tend to elicit testimony about other sexual activity. Cross-examination that may reasonably be predicted to elicit evidence of other sexual activity falls within the ss. 276, 278.93, and 278.94 regime. See, e.g., R v Shearing, 2002 SCC 58, Binnie J at para 108-109, 119, 122; R v Crosby, 1995 CanLII 107 (SCC), [1995] 2 SCR 912, L’Heureux‑Dubé J at para 10; R v Osolin, 1993 CanLII 54 (SCC), [1993] 4 SCR 595, Cory J at 667.

[41] I recognize that, ordinarily, an opponent’s witness may be cross-examined on a prior recorded statement without leave and without first establishing (e.g.) inconsistency: R v Savion (1980), 1980 CanLII 2872 (ON CA), 52 CCC (2d) 276 (ON CA), Zuber JA at 287. However, the general yields to the specific. I have proceeded on the basis that the communications in question constitute sexual activity under s. 276(4) and those communications, having been made around a week after the sexual activity in question, were not included in the sexual activity that forms the subject-matter of the charge. Hence, the s. 276 regime was engaged. As part of the analysis, the relevance and probative value of the proposed cross-examination must be assessed, at least on a threshold basis. Hence the need for considering whether the cross-examination would expose genuine inconsistency, at least for admissibility purposes.

[42] The Crown conceded that the s. 278.93 application should be granted. The text messages were capable of being admissible under s. 278.94. In my view, this concession was warranted. Given my gatekeeper role, I shall provide my independent determination of whether the s. 276.93 application should be granted.

[47] The relevant elements of the Complainant’s testimony follow. The testimony concerns two topics – wanting nothing to do with Mr. Harnett following the sexual contact, and the Complainant’s express reasons for subsequent text message contact with Mr. Harnett.

[48] Transcript of Cross Examination ((TCE), Appendix B to the written application), 1.16- 31:

Question [Mr. McIntyre]: Fair to say, you had a lot of disdain for him; is that right? Answer [Complainant]: I still do.
Question: You still do?
Answer: Yes.

Question: And leaving there, you wanted nothing to do with him?
Answer: What?
Question: Leaving there at that point, you really wanted nothing to do with him? Answer: Yeah
Question: And you said earlier you wanted nothing to do with him?
Answer: Yes.

[49] TCE 1.35-3.10:

Question: You kind of freaked out a little bit and didn’t want anything to do with him, so you deleted his number? ...

Question: So you had this text message conversation with your friend, and that made you decide to go seek Mr. Harnett out?

Answer: No, yeah.
Question: To reinitiate a conversation with him?
Answer: To give him a chance to explain himself.
Question: That was the purpose of those texts, to give him a chance to explain himself? Answer: Yes, like – yes.

[50] The recorded messages on which Mr. Harnett seeks to cross-examine are as follows. These messages were sent on May 4, 2019 ((TM), Appendix A to the written application):

1. “It’s ok but if you can gear down a bit, I’d give it another go” (TM 4)
2. “I hope this isn’t making you uncomfortable. I find it funny...kind of” (TM 6)
3. “My boss just told me I don’t have to come in tonight so if you’re free holla!” (TM 8)

4. “I was gonna see if you wanted to grab a drink at Bodegas. It’s a tapas bar down the road from my house. I don’t think dogs are allowed though so maybe that plan won’t work” (TM 13)

5. “I was willing to maybe grab a drink and get to know you better but McFly needs you tonight (Smiling Emoji)” (TM 15).

[51] As stated in Mr. Harnett’s written application at para 6, the proposed scope of the cross- examination is as follows:

1. The Complainant’s trial evidence that she wanted nothing to do with the Applicant after the alleged sexual assault is inconsistent with the content of the text messages sent by the Complainant to the Applicant.

2. The Complainant’s trial evidence that she texted the Applicant for the purpose of giving him a chance to explain himself is inconsistent with the content of the text messages sent by the Complainant to the Applicant.

[53] The cross-examination is to go to the Complainant’s credibility only. More precisely, it is to go to the reliability of her account of not wanting further contact with Mr. Harnett after the sexual contact and to her account of her later communications with Mr. Harnett. The inferences adverse to the Complainant’s credibility are to be drawn from the inconsistencies between her testimony and the text messages.

[59]  The inferences urged by the Mr. Harnett do not rely on either twin myth.

[60]  The Text Messages are not relied on to show that the Complainant consented but to impeach her credibility.

[61] Mr. Harnett was not suggesting that the Complainant was less worthy of belief because of any of the text messages, considered by themselves. Rather, the impeachment value of the cross- examination will rest on the relationship between the Complainant’s testimony and those text messages, that is, on inconsistency. The challenge to the Complainant’s credibility is not based on the sexual nature of the text messages.

[65] I find that the proposed cross-examination is capable of being admissible under s. 276(2) and therefore I must determine whether the proposed cross-examination is admissible under s. 276(2).

III. Is the Proposed Cross-Examination Admissible? (The 278.94 Application)

[70] I confirm that at this point, I am considering the admissibility of proposed cross-examination. The assessment proceeds without the Complainant’s responses to counsel’s questions. The assessment is not premised on Mr. Harnett receiving maximally beneficial responses to counsel’s questions. I note that in RV at para 62, Justice Karakatsanis agreed with Justice Paciocco that “uncertainty of result does not deprive a line of questioning of its probative value.”

[73] ... The Complainant testified that she had a lot of disdain for Mr. Harnett, and still does, as Defence Counsel pointed out. That testimony implies continuity of disposition towards Mr. Harnett. Further, in a passage immediately preceding the “wanting nothing to do with him” testimony, the Complainant had said that she was never going to forget him, repeating a phrase he had said to her earlier, but the Complainant meant that he assaulted her. She referred to him as a monster. That evidence of ongoing disposition towards Mr. Harnett colours the testimony that immediately follows. The text messages are inconsistent with the Complainant’s claimed disposition towards Mr. Harnett, in that the text messages are communications showing that the Complainant did “want something to do” with Mr. Harnett. She and he were communicating about setting up a date. The Complainant’s text communications, on a natural reading, were not founded on “disdain.”

[74] In my opinion, Mr. Harnett has established inconsistency founding the relevance of the proposed cross-examination relating to the “wanting nothing to do with Mr. Harnett” elements of the Complainant’s testimony.

[78] However, relying on the need to read communications in context, the Complainant’s comment after her “That is not a compliment” message was “It’s ok but if you can gear down a bit, I’d give it another go.” She subsequently raised the “edging” issue. Later in the conversation, she wrote that “I was gonna see if you wanted to grab a drink at Bodegas.”

[79] I find that on a plain reading of the text messages in context, the Complainant’s communications were not or were not only for the purpose of giving Mr. Harnett a chance to explain himself. The messages were for the purposes of continuing their relationship, in my view a significantly different purpose. Limiting the characterization of the messages to giving Mr. Harnett a chance to explain himself would be misleading. This would amount to mischaracterization by omission. The messages sought an explanation but also sought more. I do take into account that in the final communications the Complainant stated, in effect, that she had decided that she did not want to see Mr. Harnett again.

[83] Under s. 276(3)(c), a factor to be taken into account is “whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case.” A measure of whether a proposed cross-examination would assist in arriving at a just determination is whether the proposed cross-examination would be “material.” This issue was raised by Complainant’s Counsel and the Crown. In R v Crosby, 1995 CanLII 107 (SCC), [1995] 2 SCR 912 at para 7, Justice L’Heureux-Dubé stated that “[m]aterial inconsistencies are relevant to the complainant’s credibility.” The “materiality” condition was referred to again in para 7 and in paras 9 and 12. At para 18, Justice L’Heureux-Dubé referred to the proper exclusion of an inconsistency that was “so minor and so ancillary as to fail to be capable of undermining in any meaningful way [the complainant’s] credibility,” and at para 19 referred to the proper exclusion of another statement that (inter alia) “did not add significantly to the relevant issue sought to be advanced by the defence at trial.”

[84] In referring to the proper exclusion of a statement at para 18, Justice L’Heureux-Dubé stated that “[t]he purported inconsistency did not relate in any way to the activity which formed the subject matter of the charge.” The wrongly excluded statement concerned the complainant’s intentions in going to the accused’s house on the day of the alleged assault: at para 7, see also para 10. The inconsistency did “bear on the sexual activity which formed the subject matter of the charge:” at para 10.

[87] The cross-examination does not concern (e.g.) facts preceding the sexual contact that might be part of the sexual activity forming the subject-matter of the charge. The cross- examination does not relate to the activity forming the subject-matter of the charge. Conduct that occurred after the sexual contact could be circumstantially relevant to whether or not sexual conduct was consensual, but I found in the Prior Decision that the text messages were not properly admissible on this issue. An application for re-consideration of that determination on the basis of a new evidence has not been made.

[88] I find, however, that the inconsistencies are material for three reasons. In setting out those reasons, my purpose is not and should not be to provide an anticipatory credibility assessment of the Complainant, but only to point to reasonably available uses of the proposed cross- examination given the evidence to this point.

[89] First, on this application record, I find that the inconsistences are significant or striking. There is a very large gap between what was testified to and what is disclosed by the text messages. Inconsistencies of this magnitude are important in the assessment of credibility.

[90] Second, the inconsistencies’ effects stretch back until at least the time when Mr. Harnett left the Complainant’s premises and from what I interpret to be her testimonial claim that from that time, she wanted nothing to do with him. Defence Counsel argued – and for the purposes of the admissibility determination, I find that this argument has merit – that in her testimony the Complainant as “painted a picture” of Mr. Harnett and her attitude toward Mr. Harnett. He has been cast in a negative light. There is a reasonable prospect that the proposed cross-examination will put that picture in a different light. Further, Defence Counsel argued – and again for admissibility purposes I find that the argument has merit – that the Complainant has made her characterization of Mr. Harnett and her attitude toward him in the early morning in question relevant through her testimony.

[91] Third, the timing of the text messages is important to the credibility assessment. The text messages were written about a week after the sexual contact but before the Complaint went to the police, before the police interviews, and long before trial. Later testimonial statements are inconsistent with earlier communications. The earlier communications are not to be introduced as proof of the truth of their contents but the earlier communications do mark an evidential space between those communications and later inconsistent statements that could leave room for inferences about influences on the content of later statements. Without venturing further down this analytical path now, the Complainant did make several references in her testimony to post- event discussions with third parties about her interaction with Mr. Harnett.

[92] In my opinion, even though the inconsistencies do not deal with conduct directly linked to the sexual conduct itself, the inconsistencies are functionally material in assessing the credibility of the Complainant, a critical issue in this case. I find that the proposed cross- examination will assist in arriving at a just determination of the case.

[94] If the record disclosed other inconsistencies between the Complainant’s claim not to want to have anything to do with Mr. Harnett and her behaviour, the proposed cross-examination might not be necessary, in the sense that it would not add anything to inferences about credibility already available. Complainant’s Counsel fairly points out that Mr. Harnett “has already obtained contradictory evidence from the Complainant at trial that she wanted nothing to do with him, yet a week later she looked him up on Instagram and Facebook and contacted him through Instagram or text. The Applicant has already elicited evidence to support the point he is trying to make:” Complainant Counsel’s Written Brief at para 18.

[95] While Mr. Harnett would likely accept Complainant’s Counsel’s identification of inconsistency, in my opinion, the inconsistency identified may be of lesser probative value than the (anticipated) cross-examination. The contrast between the testimony and the texts is striking and detailed. The proposed cross-examination may play a more significant role in Mr. Harnett’s answer to the charge than the identified inconsistency.

[98] The proposed cross-examination, as indicated, does not engage the twin myths. The inconsistencies are not pursued to show that the Complainant consented. The fact-in-issue is the Complainant’s credibility. This is a distinct issue from consent or honest belief in communicated consent.

[102] A burden of the Prior Decision was to show that the text messages were a type of non- avoidant behaviour, and as such, on the record, could not be used to infer that the Complainant had consented at the material time – that inference was embedded in the interpretation of the text messages as showing an inconsistency with the later police interview. The inconsistencies to be pursued in the cross-examination do not rely on a myth about how an ideal victim would have reacted to sexual assault and to any inconsistency between the ideal victim’s response and the Complainant’s response. Rather, the inconsistencies arise from what the Complainant actually said in the text messages as compared with what she actually said in testimony.

[103] I disagree with Complainant’s Counsel that the proposed cross-examination turns on the myth that because the Complainant was willing to see Mr. Harnett again (assuming the truth of what is denoted and connoted by her texts), her credibility is suspect. The basis for the cross- examination is the inconsistency between two sets of statements, the conflicting relationship of the two sets of statements.

[109] ... I accept Mr. Harnett’s contention that if the cross-examination on the text messages could be suppressed in the face of the Complainant’s testimony, this would distort the truth-seeking mission of the criminal trial process (s. 276(3)(c)). Again, I disagree with the Complainant’s view that Mr. Harnett’s argument turns on myth. The challenge to the Complainant’s credibility turns on inconsistency not on her willingness or unwillingness to spend time with Mr. Harnett.

[110] In my opinion, permitting an accused to cross-examine a complainant on text messages sent to the accused inconsistent with trial testimony would not have any adverse impact on society’s interest in encouraging the reporting of sexual assault offences (s. 276(3)(b)). The proposed cross-examination does not delve into the Complainant’s life apart from her interactions with Mr. Harnett. The proposed cross-examination does not delve into her life before Mr. Harnett, her life after Mr. Harnett, or her life insofar as it did not involve Mr. Harnett. The proposed cross-examination concerns only communications she had with Mr. Harnett about a week after the sexual contact.

[111] Complainant’s Counsel raises the issue of whether the selectivity of the cross- examination is unfair. I recognize that Defence Counsel had attempted to be specific rather than selective. But to avoid a problem of under-inclusion, the solution is to introduce the text messages as an Exhibit in the proceedings, with redactions. The following portions of the text messages shall be admitted as an Exhibit: pp. 3-6 (including the reference to the term “edging” at the bottom of p. 6 – no further elaboration occurs), p. 8, pp. 13-15 (these messages were sent after 6:20 p.m.).

[112] In my opinion, particularly with the text message redaction, the proposed cross- examination has significant probative value that overweighs any danger of prejudice to the proper administration of justice.

[113] The proposed cross-examination of the Complainant on the text messages is admissible under s. 276(2).