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| John L. Hill |
That Alberta man is referred to as B.J. He was charged with five counts of sexual assault by his former partner. His defence at trial was that he had an honest but mistaken belief that the partner had consented to the sexual advances.
He proposed to show a 53-second video recording in which the partner and B.J. agreed that before engaging in mock rape play, the partner agreed that when she would say “no,” it meant “yes.” However, when B.J.’s counsel intended to enter the video into evidence, the trial judge refused to enter the tape as an exhibit. The jury convicted B.J. He appealed the conviction to the Alberta Court of Appeal, where the sole ground was that the trial judge had erred in her refusal to allow pertinent evidence of the complainant’s consent to be placed before the jury.
It was not disputed that to allow the introduction of the video, the onus was on the accused to ensure that the conditions enumerated in s. 276(2) were met before the evidence would be deemed admissible. Two of those
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The Alberta Court of Appeal decided on Feb. 19, 2025 (R. v. B.J., 2025 ABCA 57). The Court of Appeal understood that in determining if the trial judge had properly excluded the evidence, a two-step procedure must be followed as set out in ss. 278.92 and 278.94 of the Criminal Code. The Court of Appeal must also show deference to a trial judge’s assessment in weighing prejudicial effect with probative value (R. v. T.W.W., 2024 SCC 19).
On appeal, B.J. filed affidavits including the videotape showing that he and the complainant had engaged in “dirty talk” during sex. Yet, the Appeal Court found that nothing in the affidavits refers to engaging in “mock rape play” during any instance. The court’s reason for rejecting the video (Exhibit 5) is contained most concisely one paragraph of the judgment:
Exhibit 5 shows nothing about how consent was communicated on that occasion or ever, what led to and who initiated the “dirty talk” in the video, or at whose instigation the recording was made. It does not substantiate the appellant’s claims regarding specific safe words or vocabulary chosen by the parties nor of any agreement regarding any particular language used by the parties. It is not probative of the assertion that “mock rape activity took place.” The complainant in Exhibit 5 vaguely expresses sexual preferences in the context of what the appellant deposed was an example of “dirty talk.” It is not an example of mock rape activity, nor is there reference to any particular instance or instances of such sexual activity. It is not evidence of prior negotiations between the complainant and the appellant regarding specific acts at issue or customs and practices about those acts. Further, there is no temporal connection between Exhibit 5 or the topics discussed and the instances of alleged sexual assault in this case. In sum, it had little probative value.
The Court of Appeal concluded that the trial judge made no reviewable error in declining to admit the videotape nor in not revisiting the issue on her own motion.
One may conclude that the Alberta Court of Appeal was expecting the parties to enter into a binding legal contract, possibly drafted by trained legal professionals, before it was satisfied that B.J. did everything he could have done to protect himself when engaging in what could be considered questionable though legal activity. Yet this criticism is countered when the Appeal Court notes that the defence argument was clearly put before the jury, including the s. 276 evidence that was ruled inadmissible. The complainant had been exposed to a rigorous and lengthy cross-examination. No miscarriage of justice took place.
The trial judgment was upheld, and B.J. was ordered to surrender to the prison nearest his residence.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the [True Crime] Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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