Accused was convicted of sexually assaulting and uttering death threats to his former partner over period of 26 months. Complainant claimed accused forced himself on her three times but he insisted sex was consensual. To bolster his defence, accused raised issue of Facebook message sent in February 2009 by complainant to his new partner and current wife. At trial in 2011, complainant maintained she had no memory of sending message and testified she did not think she did so. Following Crown objecting on procedural grounds, trial judge ruled against further cross-examination and directed jurors to set aside evidence they had heard about post. Accused appealed and requested permission to introduce fresh evidence, with Crown not objecting. Appeal allowed; Conviction quashed and new trial ordered. Submissions of expert forensic analyst of computer belonging to accused’s current wife turned up relevant message on her Facebook account with no manipulation of date and content. Message was sent around midpoint in time period of sexual assault allegations and court held it would not be unfair to say message recounted several incidents of sexual activity between accused and complainant and made it clear that sexual activity was consensual on complainant’s part. Further, message was found to have come from computer address associated with complainant’s brother and when complainant was interviewed about results of investigation, she acknowledged sending message. Had message been allowed at trial, it could have affected accused’s conviction. Fresh evidence was relevant to complainant’s credibility on issue of consent, which was only controversial element at trial. At request of Crown and defence, court stayed new trial order.
R. v. B. (A.) (2016), 2016 CarswellOnt 17301, 2016 ONCA 830, J.C. MacPherson J.A., E.A. Cronk J.A., and David Watt J.A. (Ont. C.A.).