This week’s top three summaries: R v PE, 2025 ABCA 272: prior #victimization, R v Thomson, 2025 ONCA 500: s.10(b) strip #search, R v Harding, 2025 ABCA 266: preventing #cross
[August 8, 2025] Crown-led Sexual History Evidence: Prior Sexual Victimization as Reason for Non-Consent [Strekaf, Antonio and Feth JJ.A.]
AUTHOR’S NOTE: In Kinamore, the SCC confirmed that when the Crown seeks to introduce sexual history evidence in a sexual offence trial, it must follow the same admissibility process as the defence under s. 276 of the Criminal Code. In this case, the Crown wanted to lead evidence that the complainant had refused sex because they had previously been sexually assaulted. The trial judge excluded the evidence, and the Court of Appeal upheld that ruling. The key concern was avoiding “inverse twin-myth” reasoning — using evidence of past sexual inactivity to suggest the complainant had a general tendency to withhold consent. The Court found that such reasoning risks perpetuating the same harmful sexual stereotypes s. 276 was designed to keep out of the courtroom.
I. Introduction
[2] During the respondent’s first trial, the complainant testified that on the evening in question, prior to any sexual activity, the complainant told the respondent they had been sexually assaulted by a friend just before their eighteenth birthday and that sex was “just not something [they were] comfortable with”. As a result of this evidence, the respondent applied for a mistrial, which was granted.
[3] Prior to the re-trial, the Crown applied for permission to adduce the foregoing evidence at trial. The pre-trial judge ruled evidence of the prior sexual assault was not admissible but left open whether evidence of the communication of discomfort might be.
[4] The respondent was tried by judge and jury. After the Crown had conducted most of its direct examination of the complainant, it applied to elicit evidence that the complainant told the respondent they were not comfortable with sex, without eliciting the reason for that discomfort. The trial judge denied the application, ruling that evidence was also inadmissible.
[5] The respondent was acquitted. The Crown appeals…
II. Pre-trial ruling
A. Background
[6] Prior to trial, the Crown gave notice of its intention to adduce evidence of the conversation between the complainant and respondent. Pursuant to the Supreme Court’s guidance in R v Barton, 2019 SCC 33 at para 80 [Barton] and R v Seaboyer, [1991] 2 SCR 577 at 633-636 [Seaboyer], the Crown applied for a pre-trial determination that this evidence of the complainant’s past sexual experience was admissible.
[7] The Crown argued the evidence was probative of whether the respondent took reasonable steps to ascertain consent “in the context of that conversation having happened in the bedroom, within… the timeframe of an hour or so”. When the pre-trial judge suggested the defence of honest but mistaken belief in communicated consent might not arise on the evidence, the Crown asserted the conversation was also relevant because it provided a “larger context” that “lends credibility” to the complainant’s assertion they did not consent. In any event, the Crown argued, admission of the evidence would not engage either of the twin myths.
[9]….Defence counsel conceded, before the pre-trial judge, it would not be objectionable to allow the complainant to testify that they told the respondent they were uncomfortable with sex, so long as the reason for that discomfort was not stated.
[10] The pre-trial judge decided evidence of the prior sexual assault was not admissible. He did not rule evidence of the communication of discomfort was inadmissible but was satisfied the reason for the discomfort was irrelevant. He stated the Crown’s submissions arguably meant that “if the Complainant has a ‘good’ reason for their lack of comfort the trier of fact should place a higher onus on the Accused to make inquiries about consent than if they had a ‘poor’ or ‘questionable’ reason”. He rejected that argument as “precisely the type of reasoning that must be avoided”. Whether the complainant had a “good” reason to feel uncomfortable was irrelevant and would risk engaging in stereotypical reasoning. He noted, “a person does not need to give reasons why they do not want to engage in sexual relations with another person, let alone have to qualify those reasons to any degree”. He also held the evidence might lead a jury to express undue ympathy toward the complainant, or unfairly label them a malcontent, either of which would pose a threat to the integrity of the trial process. He concluded the value of the evidence was low, it invited stereotypical and myth-based reasoning, and any probative value was out-weighed by its prejudicial effect.[Emphasis by PJM]
B. Analysis
Did the pre-trial judge misapprehend applicable legal principles or consider irrelevant factors?
[18] First, the Crown alleges the pre-trial judge erred by finding the complainant’s reasons for feeling uncomfortable with sexual activity were irrelevant, and that this error tainted his weighing of the evidence’s probative value as compared with its prejudicial effect. A determination of relevance is a legal one, reviewable on a standard of correctness: TWW at para 21, citing R v Schneider, 2022 SCC 34 at para 39 [Schneider].
[20]…. Read closely, it is apparent the pre-trial judge was making the obverse point: that is, questions exploring whether a complainant’s other sexual activity would make them comfortable with sex, or would not give them a good reason to be uncomfortable, would be irrelevant. It is indisputable that individuals can grant or withhold consent for their own reasons and need not explain those reasons: R v Kirkpatrick, 2022 SCC 33 at para 51; R v GF, 2021 SCC 20 at para 33.
[21] The majority of the pre-trial judge’s reasoning was directed at balancing prejudicial effect against probative value. He would not have needed to engage in this analysis if he had found the evidence inadmissible on the basis of irrelevance. In short, the pre-trial judge’s single use of the word “irrelevant” did not determine the admissibility of the Crown’s proposed evidence.
[22] Next, the Crown appellant argues the proposed evidence could have supported the complainant’s credibility with respect to consent, and the trial judge overlooked this potential use….
[23] Though the pre-trial judge did not have the benefit of the Supreme Court’s decision in TWW, released approximately three months after his decision, his approach is consistent with its expression of caution against allowing “credibility and context” to too readily perforate barriers to the admissibility of other sexual activity evidence (TWW at para 28):
Trial judges must guard against improperly widening the scope of when other sexual activity evidence should be admitted given that, as Karakatsanis J. noted in Goldfinch, “[c]redibility is an issue that pervades most trials” (para. 56); the same is true of the significance of context. Too broad an approach to credibility and context would cast open the doors of admissibility, overturning Parliament’s specific intention and this Court’s longstanding jurisprudence that evidence of other sexual activity will be admitted only in cases where it is sufficiently specific and essential to the interests of justice.
[25]….The Supreme Court observed that Crown-led evidence of other sexual activity is less likely to evoke twin-myth reasoning than defence-led evidence, but nevertheless there remains an inherent risk that impermissible reasoning and discriminatory stereotypes may arise from evidence of this kind: Kinamore at paras 36-37. Among other things, the Court considered the regime that should govern what it called “inverse twin-myth reasoning”, which it defined as the use of sexual inactivity evidence to support inferences that the complaint had a propensity not to consent and therefore was less likely to have consented and was more worthy of belief: Kinamore at para 71; see also para 64. The Court wrote at para 73:
he fact that inverse twin-myth reasoning serves to bolster a complainant’s testimony and undermine the accused does not affect its permissibility. This reasoning is legally impermissible because it remains grounded in false assumptions about sexual assault complainants. As stated in Kruk, “reliance on stereotypes, being rooted in inequality of treatment, is certainly not just a problem for sexual assault complainants alone. Stereotypical reasoning based in the sort of inequality of treatment at the heart of myths and stereotypes against sexual assault complainants has the potential to affect the testimony of all witnesses in all trials” (para. 54 (emphasis added [by the Supreme Court])).[Emphasis by PJM]
[26] In particular, the Supreme Court observed that stereotypes about ideal victims may reinforce the harmful myth that non-ideal victims do not merit the law’s protection. Permitting any party to evoke stereotypes about sexual assault complainants “would further entrench these discriminatory beliefs in our criminal justice system and, by extension, distort the truth-seeking t para 74; see also paras 29, 35, 40, 52. The pre-trial judge’s identification of the same concerns does not reveal legal error.
[27] Insofar as the Crown appellant suggests that the only prejudice relevant on a Crown application to adduce other sexual activity evidence is prejudice to the accused, we disagree. On a Seaboyer application, judges “must assess whether the evidence demonstrates a degree of relevance which outweighs any damage or disadvantage presented by admission of the evidence” [emphasis added]:R v HPM, 2023 ABCA 292 at para 37. It is now evident that the factors listed in section 276(3) of the Criminal Code as applicable on defence applications under section 276(2) also apply on Crown applications. The pre-trial judge did not err in law by considering potential prejudice to the complainant and to broader social interests.[Emphasis by PJM]
[28] The Crown appellant has not established the pre-trial judge made any extricable legal errors. We will next address his weighing of probative value against prejudicial effect.
c) Did the pre-trial judge err in weighing probative value against prejudicial effect?
[29] The Crown argues the pre-trial judge erred in assigning weight to the probative value of the proposed evidence and in balancing it against its prejudicial effect. As noted, in the absence of extricable legal error, our review must remain deferential: TWW at para 21.
[31]….it does not fall to us to assign a notional probative value to the evidence. Rather, we are tasked with determining whether the conclusion that the probative value was outweighed by the prejudicial effect was reviewably wrong.
[32] That inquiry is fact-sensitive and depends on the entire factual context. As noted in Seaboyer at 609:
arises is that a trial is a complex affair, raising many different issues. Relevance must be determined not in a vacuum, but in relation to some issue in the trial. Evidence which may be relevant to one issue may be irrelevant to another issue. What is worse, it may actually mislead the trier of fact on the second issue. Thus the same piece of evidence may have value to the trial process but bring with it the danger that it may prejudice the fact-finding process on another issue.
[33] Based on the material and submissions before him at the time, the pre-trial judge found the probative value of the proposed evidence was “not strong”. He found evidence of the reason for the complainant’s discomfort was “unnecessary for the purpose of giving the Jury a clear picture of the sexual encounter in question”. These findings reflect an appropriate use of the pre-trial judge’s discretion. We have found the pre-trial judge did not err in considering potential prejudice to the administration of justice, which includes a societal interest in encouraging reporting, the likelihood of assisting in truth-seeking and just outcomes, and complainants’ rights to dignity and privacy and the full protection of the law. The standard of review prevents us from second-guessing the pre-trial judge’s sense of the relative value and danger of the proposed evidence to the trial and the administration of justice as a whole.
III. Trial ruling
A. Background
[34] At the beginning of the trial, the Crown noted that although the pre-trial judge had ruled evidence of the complainant’s communication to the respondent about being previously sexually assaulted was inadmissible, he did not address whether the evidence that the complainant communicated they were uncomfortable with sex was admissible. The Crown requested a ruling on that issue….
[36]… The respondent started to get on top of them, asking “some sort of e respondent wasn’t sure exactly what he was asking for, and replied, “okay, but only until I say stop”….
[37] The respondent resumed similar touching. Again, the complainant said stop and the respondent stopped. He resumed again, this time pulling down their pants and underwear and placing his penis on their vagina. The complainant gasped loudly and said, “No, I’m not ready for anything like that”. The respondent then grabbed the complainant by the face and said, “I can’t get enough of you”, and started kissing and touching the complainant again. The complainant asked him to stop. He stopped but then pulled the complainant on top of him and started bouncing them on his lap. The complainant said, “Stop, let’s stop… I want to go home”. The respondent lifted the complainant off him. They began straightening their clothes.
[38] The respondent then approached the complainant from behind and pulled their pants and underwear down again. He pushed them forward onto his bed and put his penis in their vagina. The complainant said loudly, “You’re not even wearing a condom”. After some time, the respondent turned the complainant over and continued penetrating their vagina with his penis. He asked if they liked it. Since saying “no and stop ha[d] not worked”, the complainant said yes….
[40] After eliciting the foregoing evidence, the Crown asked for an adjournment. The complainant and jury were excused. The Crown sought to elicit evidence “that while in the bedroom” the complainant told the respondent they “didn’t feel comfortable having sex”. The parties agreed this evidence, in isolation, was not evidence of prior sexual activity. Admissibility was raised and argued solely on the basis of probative value versus prejudicial effect. The Crown argued the evidence should be admitted because it would show the respondent did not take sufficient steps to ensure the complainant’s consent.
[41] The trial judge expressed concern, “I just don’t see how it adds anything”. He said, “If it would be probative of their reluctance, isn’t that already included within… the stop-and-go nature of this particular event?” The Crown responded, “I’m in the court’s hands. I just think it puts the accused on alert. That’s all.” When asked to comment on prejudice, defence counsel asserted there was a potential unfairness to the respondent in allowing the complainant to testify about an earlier conversation that is “somewhat remote in time”. Defence counsel also referenced the pre-trial ruling and stated there was a “societal prejudice” that undermines “gender equality” in suggesting “a complainant, or anybody, has to give a reason why they will or will not consent”.
[42] The trial judge ruled the evidence was inadmissible.
[43] Alluding to the pre-trial judge’s reasons, the trial judge reiterated that “everyone is entitled to be reluctant or willing about sexual activity” and expressed similar concern about the risk of stereotypical thinking. He viewed the “uncomfortable” evidence as having little relevance to the ultimate question of whether the complainant consented and whether the respondent mistakenly believed in communicated consent, should the latter issue be raised.
[44]…He concluded, “the evidence is not admissible because while it may have some relevance to matters in issue,” its probative value, “based on what I’ve heard so far is small, and the prejudicial value, while not overwhelming, in my view, in this case outweighs the potential probative value”.
B. Analysis
[47] In this case, the trial judge did not conclude the evidence was irrelevant – he found the proposed evidence may have some relevance to matters in issue. The evidence was not subject to any exclusionary rule. Therefore, in excluding the evidence, the trial judge was exercising his discretion under the third part of the admissibility test. A trial judge’s determination under this part that the probative value of evidence outweighs its prejudicial effect is discretionary and is reviewed with deference: Schneider at para 62; R v Player, 2024 ABCA 10 at para 5.
[48]…The trial judge delivered brief oral reasons. He noted ainant’s evidence that they initially gave a version of consent and then revoked it, showing “the reluctance of the witness to either provide consent or to continue with the activity”. He concluded the proposed evidence added little to the complainant’s testimony that they said no repeatedly. This was a contextual weighing of the evidence. It does not give rise to any error of law and is not susceptible to a Crown appeal.
IV. Could a remedy be granted in any event?
[50] Even if the Crown had identified a reviewable error, appellate intervention would not be justified as the Crown has not established that excluding the evidence might reasonably be thought, “in the concrete reality of the case at hand, to have had a material bearing on the acquittal”: R v Graveline, 2006 SCC 16 at para 14 [Graveline].
[July 11, 2025] Charter s.10(b): Right to Reconsult with Counsel before a Strip Search [Reasons by Pomerance J.A. with I.V.B. Nordheimer and L. Madsen JJ.A. concurring]
AUTHOR’S NOTE: Strip Searches & Right to Counsel (ONCA, 2025) – The Ontario Court of Appeal has held that, under R v Sinclair, an accused has a categorical right to re-consult with counsel before a strip search. Because strip searches are highly invasive and non-routine, police must both inform the accused of this renewed right and give them the opportunity to exercise it before proceeding. This categorical ruling makes the case a must-have reference for any defence lawyer’s library.
[1] This case raises various issues, among them the relationship between the right to counsel and the police power to strip search incident to arrest. In R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, the Supreme Court of Canada ruled that a single consultation with counsel will usually suffice to fulfill the purpose of s. 10(b) of the Canadian Charter of Rights and Freedoms, but there are exceptions. The court identified three situations in which a detainee should be given another opportunity to speak with a lawyer, stressing that the list was non-exhaustive.
[2] The list should be augmented to include situations in which a detainee is going to be strip searched incident to arrest. Given the highly invasive nature of strip searches, the right to reconsult is, in that context, necessary to fulfill the purpose of s. 10(b) of the Charter.
[3] The appellant was strip searched following his arrest for drug offences, but not until about eight hours after police found the evidence at issue. The motion judge found that the strip search violated s. 8 of the Charter, because the police did not have sufficient grounds. He did not, however, find any violations of the appellant’s rights under s. 10(b) of the Charter arising out of his initial detention. Having found only a single breach, carried out in good faith well after the evidence was discovered, the motion judge admitted the evidence under s. 24(2) of the Charter.
[4] The motion judge ought to have found two additional violations of the Charter, both arising under s. 10(b). The first flowed from a 20-minute delay between the time of the appellant’s arrest and the time he was informed of his right to counsel. The second arose from the failure of the police to provide the appellant another opportunity to call counsel before the strip search. Having found two additional violations, it is necessary to conduct the s. 24(2) analysis afresh….
A. BACKGROUND AND EVIDENCE
[6] On December 31, 2018, Canada Border Services intercepted a package containing 331 grams of heroin destined for a residential building in Etobicoke. The RCMP decided to conduct a controlled delivery, removing all but a one-gram control sample of the heroin and placing an intrusion alarm in the package.
[8] At 12:55 p.m., the package was opened and the intrusion alarm went off. Police forcibly entered the unit. Three people were inside. Police saw the appellant exiting a bathroom, entering a bedroom, and trying to escape through the bedroom window. A knife lay next to the package on the bedroom floor. Two cellphones were in the bathtub. The police applied for and obtained a search warrant for the unit and seized the package, knife, and cellphones.
[9] At approximately 1:10 p.m., Constable Sirbu arrested the appellant and took him into the hallway for a pat-down search incident to arrest. The pat-down search took about 10 minutes. Constable Sirbu testified that the appellant seemed nervous and kept trying to look around. He was concerned that the appellant might try to flee or start a confrontation.
[10] After the pat-down search, Constable Sirbu and another officer, Constable Johal, took the appellant to the ground floor and placed him in a police car at 1:28 p.m. At approximately 1:30 p.m., Constable Johal read the appellant his right to counsel and cautioned him. Police then drove the appellant to the RCMP detachment at Pearson airport, where they arrived at 1:51 p.m. The appellant spoke with duty counsel at 2:26 p.m., and gave a statement to police afterward.
[11] Later in the day, the RCMP transferred the appellant to a Toronto Police Services (“TPS”) station for lodging. At the station, the TPS sergeant in charge, Sergeant Young, decided it was necessary to strip search the appellant to ensure that he did not have contraband that he could consume or pass on to someone else. The two RCMP officers who delivered the appellant to TPS conducted the strip search in a private room. They asked the appellant to remove his clothes one item at a time and did not touch him. He was asked to bend over and spread the cheeks of his buttocks. He was also asked to lift his genitals. The search was audio- but not video-recorded. It took five minutes and did not yield any evidence.
B. ISSUE 1: THE DELAY
[15] The motion judge correctly noted that s. 10(b) requires police to inform detainees of their right to counsel “immediately”, subject only to concerns about officer or public safety. He went on, however, to find that there was a safety concern in this case that warranted a 20-minute delay before the appellant was told of his right to counsel. He reasoned as follows:
It is my view that the approximately 20-minute delay in providing the right to counsel was justified and reasonable in the circumstances. The apartment unit and the hallway were not secure areas. There were doors to other units on the floor that could be opened at any time. I find that Constable Sirbu had valid concerns that [the appellant] may try to escape or initiate a confrontation while in the hallway….
[16] The appellant argues that the motion judge erred in finding that the 20- minute delay was Charter-compliant. I agree.
[17] We are dealing here with the informational duties imposed by s.10(b); the requirement that police advise the detainee of the right to retain and instruct counsel without delay. This is usually not a complicated or time-consuming process. Most officers carry a card containing the prescribed language, and it takes but a few moments to convey this information to a detainee.
[18] Therefore, it will be rare for informational obligations to present operational challenges for police. Implementation of the s. 10(b) right by providing access to a telephone may well have to await a controlled environment, so that police can control who is being called, and ensure appropriate privacy. By way of contrast, information about the detainee’s rights can usually be conveyed in short order, at the scene of the arrest, at the same time that the reason for the arrest or detention is explained.
[19] It is no accident that the Charter language of “without delay” has been judicially interpreted to mean “immediately”. As Suberu explains, at para. 40, “the purpose of s. 10(b) is to ensure that individuals know of their right to counsel, and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy”.
[21] This is not to say that informational obligations can never be delayed. Circumstances may be sufficiently dynamic, uncertain, or chaotic to justify waiting until the detainee is in a police cruiser or another controlled location before advising them of the right to counsel. However, barriers to access or “exceptional circumstances” that justify briefly suspending the exercise of the right cannot be assumed. They must be proved: R. v. Brunelle, 2024 SCC 3, 92 C.R. (7th) 219, at para. 83. They were not proved in this case.
[23] Whatever the stated concerns, they did not prevent the officers from remaining in the hallway for 10-15 minutes. During this period, the appellant was handcuffed and under the control of an experienced RCMP officer, who was accompanied by at least two other officers. While in the hallway, the arresting officer asked the appellant various questions. According to Constable Sirbu, the appellant was cooperative and there was some level of control. When Constable Johal eventually read the appellant his rights, it took but a few minutes. It is difficult to see how taking a few moments to tell the appellant of his right to counsel would have compromised the safety or security of the officers or the public.
[24] If the hallway was indeed an awkward place for conveying the appellant’s rights, there was an alternative. The appellant had been arrested in the apartment unit, and that unit had been cleared. The apartment was more controlled than the hallway, because it had no doors leading into other units. If there was exigency, it was the result of the officers’ choice to migrate to the hallway. When it comes to the suspension of constitutional rights, police cannot rely on exigency of their own making: R. v. Silveira, [1995] 2 S.C.R. 297, at para. 53.
[29] For these reasons, I conclude that the motion judge erred in finding that the delay in advising the appellant of his right to counsel did not violate s. 10(b) of the Charter.
C. ISSUE 2: RECONSULTATION
[31] The appellant has again raised this issue on appeal. I am persuaded that given the purpose of the right to counsel, and the inherently invasive nature of strip searches, a suspect about to be strip searched incident to arrest should have an additional opportunity to speak with a lawyer. In support of this proposition, I will begin by examining the ruling in Sinclair and subsequent s. 10(b) cases. I will then turn to the purpose of s. 10(b), the nature of strip searches, and conclude by examining why the right to reconsult arises and is important within this context.
(1) The Ruling in Sinclair
[32] In Sinclair and its companion cases, the Supreme Court held that as a general rule, s. 10(b) entitles a detainee to one opportunity to consult counsel. But like most rules, this one has exceptions. The majority acknowledged that the purpose of s. 10(b) may require a right to reconsult counsel, either because new non-routine procedures are being employed by police, or because there is reason to believe that the original consultation did not achieve its intended purpose. The majority identified three categories that will normally trigger a right to reconsult:
1. New procedures involving the detainee;
2. A change in the jeopardy facing the detainee; or
3. Reason to question the detainee’s understanding of their s. 10(b) right.
[33] These circumstances will generate a right to reconsult when they are “objectively observable”: Sinclair, at para. 55.
[34] While identifying only three categories of exception, the majority stressed that the list of categories was “not closed”, thus signalling that it might be supplemented in future cases: Sinclair, at para. 49.
[35] How does one determine whether a category should be added to the list? As reflected in the following passages from the majority decision, the critical question is whether a reconsultation with counsel is necessary to fulfill the purpose of s. 10(b):
The cases thus far offer examples of situations where the right of another consultation arises. However, the categories are not closed. Where the circumstances do not fall into a situation previously recognized, the question is whether a further opportunity to consult a lawyer is necessary to fulfill s. 10(b)’s purpose of providing the detainee with advice in the new or emergent situation.
….What is required is a change in circumstances that suggests that the choice faced by the accused has been significantly altered, requiring further advice on the new situation, in order to fulfill the purpose of s. 10(b) of providing the accused with legal advice relevant to the choice of whether to cooperate with the police investigation or not…
[41] Guided by Sinclair and its progeny, I suggest that if a new category of circumstance is to be added to the non-exhaustive list, the court must entertain two questions. First, is providing an opportunity to reconsult necessary to fulfil the purposes of s. 10(b)? Second, does providing an opportunity to reconsult strike a proper balance between individual rights and societal interest?
(2) The Purpose of Section 10(b)
[43] Courts have increasingly recognized the psychological benefits that flow from a consultation with counsel. Detention is inherently coercive. It renders a person vulnerable to the exercise of state power and in a position of legal jeopardy. Consultation with an independent legal professional can assure the detainee that they are not isolated from the outside world. It can help mitigate the power imbalance inherent in police-citizen interactions by reducing the stress and uncertainty inherent in police detention.
[44] Courts have used the term “lifeline” to compendiously describe these psychological benefits of speaking to counsel. This term—coined by Doherty J.A. in R. v. Rover, 2018 ONCA 745, 366 C.C.C. (3d) 103—has been adopted in various authorities, including more recent Supreme Court decisions. For example, in R. v. Dussault, 2022 SCC 16, [2022] 1 S.C.R. 306, at para 56, the court approvingly quoted Doherty J.A.’s description of the right to counsel “as a lifeline through which detained persons obtain legal advice and the sense that they are not entirely at the mercy of the police while detained”.
[45] In R. v. Lafrance, 2022 SCC 32, [2022] 2 S.C.R. 393, the court set out a more detailed exposition of how the right to counsel can help reduce the perception of vulnerability that detainees invariably experience. The court stressed the need for detained persons to receive “legal advice regarding the particular situation they are facing, conveyed in a manner that they understand”: Lafrance, at para. 76, ….
[46] This court has continued to recognize the psychological importance of counsel as a lifeline to detainees. As Paciocco J.A. put it, “informational rights are not provided solely as a means of enjoying implementational rights”: Davis, at para. 41. Instead, they provide detained persons with “the immediate assurance that they are not entirely at the mercy of the police”, and “are entitled to a lifeline to the outside world through which they can learn whether they are lawfully detained, and of their legal rights and obligations relating both to their liberty and the investigation”: Davis, at para. 41 (internal quotations omitted)….
(3) The Nature of Strip Searches
[48] Close to 25 years ago, the Supreme Court set out a comprehensive framework for assessing the constitutional validity of strip searches conducted incident to arrest. The court defined a strip search as involving “the removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person’s private areas, namely genitals, buttocks, breasts (in the case of a female), or undergarments”: R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at para. 47. This, the court held, can be “humiliating, embarrassing and degrading”: Golden, at para. 89. Endorsing this court’s reasons in R. v. Flintoff (1998), 126 C.C.C. (3d), the court affirmed that “[s]trip-searching is one of the most intrusive manners of searching and also one of the most extreme exercises of police power”: Golden, at para. 89.
[52] So too in Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28, where the court affirmed an award of Charter damages for an unjustified strip search. McLachlin C.J. explained that “[s]trip searches are inherently humiliating and degrading regardless of the manner in which they are carried out and thus constitute significant injury to an individual’s intangible interests”: Ward, at para. 64.
[53] This court has similarly held that strip searches “are demeaning no matter the circumstances”, and that “even the most sensitively conducted strip search is a highly intrusive, humiliating, degrading and traumatic experience”: R. v. Black, 2022 ONCA 628, at para. 38, citing R. v. Pilon, 2018 ONCA 959, 144 O.R. (3d) 54, at para. 15.
[56] To summarize:
1. Strip searches must not be carried out routinely, given the level of intrusion and invasion associated with the procedure.
2. A strip search has the potential to exacerbate the power imbalance that exists between detainee and police by requiring a detainee to assume the vulnerable position of being unclothed;
3. A strip search may be perceived by some as the equivalent of a sexual assault and can cause psychological distress, particularly in those who have experienced a history of sexual violence;
4. A strip search may have an increased impact on persons with special vulnerabilities and those who are gender diverse or non-binary.
5. A strip search may be particularly intrusive for Indigenous and racialized individuals who perceive racial targeting by police; and
6. While the negative effects of a strip search can be minimized by the way in which they are carried out, “even the most sensitively conducted strip search is highly intrusive”: Golden, at para. 83.
(4) Sinclair Meets Golden
[58]….The list in Sinclair must be augmented to confer a right to reconsult before a strip search incident to arrest.[Emphasis by PJM]
[59] In Sinclair, the court recognized that some non-routine procedures will confer a right to reconsult. As the court put it when discussing “new procedures involving the detainee”, at para. 50 (internal citation omitted):
The initial advice of legal counsel will be geared to the expectation that the police will seek to question the detainee. Non-routine procedures, like participation in a line-up or submitting to a polygraph, will not generally fall within the expectation of the advising lawyer at the time of the initial consultation. It follows that to fulfill the purpose of s. 10(b) of providing the detainee with the information necessary to making a meaningful choice about whether to cooperate in these new procedures, further advice from counsel is necessary.
[60] A strip search is, or at least should be, non-routine. However, it differs from the procedures alluded to in the above passage….
[61] Consent is not the issue when it comes to strip searches. When police have proper grounds, a strip search does not technically require consent. It does not follow, however, that s. 10(b) is of no value here. Consent is only part of the equation. As long ago as 1989, the Supreme Court observed that the right to counsel is not just about deciding whether to consent. In R. v. Debot, [1989] 2 S.C.R. 1140, Wilson J. commented that counsel’s role is broader than just advising a suspect of their options. Rather, as she put it, “counsel can provide reassurance and advice to a person who may be subjected to a highly invasive procedure”: Debot, at p. 1174. A strip search clearly meets this description.
[62] In R. v. Simmons, [1988] 2 S.C.R. 495, the court addressed the role of the right to counsel in connection with a strip search at the border. The statute provided that a detainee could seek review of a decision to strip search, and that was one reason to insist on the right to counsel in this context. However, it was not the only reason. The court observed, at pp. 530-31, that counsel could have addressed the detainee’s uncertainty, and could have assured her that the police were lawfully entitled to insist that she remove her clothing:
[64] Thus, the right to reconsult is not diminished merely because consent may not be required for a strip search. There are other sound reasons to find that a strip search revives the right to consult with counsel.
[65] From a behavioural perspective, it may be important for a detainee to understand that despite the intrusiveness of a strip search, he or she continues to enjoy, and can continue to exercise, the right to silence. It may also be important for the detainee to know that refusal to comply with a strip search can result in a more intrusive procedure. A strip search does not require consent, but may well require cooperation. As the Supreme Court has explained, “if it appears during the course of a strip search that the detainee is concealing a weapon or evidence inside a body cavity, and the detainee refuses to co-operate, then in order to obtain the object in question the police officer must likely exceed the realm of the strip search and enter the realm of the body cavity search”: Golden, at para. 87.
[69] In Lafrance, at para. 79, the court commented that individual vulnerabilities, coupled with developments in the police investigation, may “render[] a detainee’s initial legal advice inadequate, impairing his or her ability to make an informed choice about whether to cooperate with the police”. In those situations, Sinclair requires an additional consultation “to even the playing field”.
[70] Of course, not every non-routine post-arrest procedure will trigger a right to reconsult counsel. What sets strip searches apart is that they are both non-routine and highly invasive….[Emphasis by PJM]
(5) The Balance of Competing Interests
[72] Having found that a right to reconsultation is necessary to achieve the purpose of s. 10(b), I will now turn to the question of whether such a right strikes an appropriate balance between competing individual and state interests. I conclude that it does. In Sinclair, the majority adopted a restrictive approach to reduce the ability of a detainee to thwart legitimate law enforcement objectives. The court was concerned that if the right to reconsult were broader, a detainee could use it as a sword, rather than a shield. The detainee could ask to re-consult with counsel to halt an interview, avoid answering pointed questions, or otherwise obstruct the questioning process. For that reason, the majority in Sinclair held that the right to reconsult would only arise in designated, objectively discernable circumstances.
[73] Recognizing a right to reconsult in advance of a strip search does no violence to the balance Sinclair struck. Offering a right to counsel before a strip search will not generally empower a detainee to derail an interview by insisting on speaking to a lawyer on a whim. The triggering event—the decision to strip search—will be objectively discernable….
[74] Thus, conferring a right to reconsult in advance of a strip search maintains the balance struck by Sinclair and its progeny. The call to counsel can serve a number of tangible and intangible benefits for the detainee, while imposing a relatively minimal burden on police investigators.
[78] Third, the principles set out above apply where a strip search is being conducted incident to arrest, to search for weapons or evidence. They may not apply as categorically when a strip search is used to prevent contraband from entering a custodial setting. In Golden, the court distinguished between strip searches incident to arrest, and strip searches aimed at maintaining the safety and security of jails. The court noted that in contrast to searches incident to arrest, there is a “greater need to ensure that [detainees entering the prison population] are not concealing weapons or illegal drugs on their persons prior to their entry into the prison environment”: Golden, at para. 96. The court went on to find that in the case of short-term detentions, “legitimate concerns” about detainees concealing weapons must be addressed on a case-by-case basis: Golden, at paras. 96-97.
(7) Application to this Case
[80] After his arrest in the apartment hallway, and upon leaving the building, the appellant was transported to the RCMP police detachment at Pearson airport, where he arrived at 1:51 p.m. He spoke with duty counsel at 2:26 p.m. and gave a statement to police at the RCMP detachment. It was not until several hours later, after 9:00 p.m., that the appellant was transferred to a TPS station for overnight lodging in a single cell. It was only then that an officer decided to strip search him.
[82] By this time, the appellant had already been subject to two searches: one incident to arrest, and another before being lodged in the cells at Pearson airport.
[83] As the motion judge concluded, the decision to strip search was without justification. The appellant had given no indication that he had drugs on his person. He was to be placed in a cell on his own, as opposed to entering a custodial population. The indicia the officer considered did not justify the intrusion inherent in a strip search.
[84] Applying the analysis above, it follows that the appellant ought to have been given another opportunity to consult counsel before the strip search. We do not know whether the appellant would have availed himself of this opportunity, but that is not the point. The circumstances of his detention had changed. He was going to be subject to a highly invasive, non-routine procedure. He was entitled to know that he could speak to a lawyer again before being required to remove his clothing.[Emphasis by PJM]
[86] In these circumstances, the failure to provide the appellant another opportunity to speak with a lawyer violated his rights under s. 10(b) of the Charter.
[124] Therefore, while I have concluded that the motion judge should have found two additional violations of the Charter, the analysis of those additional breaches would not change the outcome of the case. I would therefore dismiss the appeal.
[July 29, 2025] No Limitation on Cross-Examination Just Because Evidence Might Cause Stereotyped Inference [Khullar C.J.A., Fagnan J.A., and Shaner J.A.]
AUTHOR’S NOTE: Cross-Examination & Twin Myths (2025) – The Court confirmed that cross-examination cannot be cut off solely because it risks inviting a twin-myth inference, so long as the questioning is aimed at eliciting relevant and material evidence. In this case, cross-examination about post-assault conduct was potentially probative of credibility and reliability—for example, exposing inconsistencies with earlier testimony, police statements, or memory gaps—without relying on stereotypes about how a complainant “should” behave. The proper safeguard was not to restrict cross-examination, but to instruct the jury on avoiding prohibited reasoning.
I. Introduction
[1] The appellant appeals his conviction by a jury of sexually assaulting the complainant, TR, in June 2020 on the ground that the trial judge impermissibly restricted his cross-examination of TR. For reasons set out below, the appeal is allowed.
[2] TR was the Crown’s main witness, and defence counsel cross-examined her extensively about the preceding day, the sexual assault, and events the following day. The trial judge intervened to stop two lines of cross-examination – whether TR went out for breakfast the following morning and whether TR saw the appellant the following day – because he believed they raised, in different ways, improper stereotypes about how victims of sexual assault would behave.
[4] For reasons set out below, we have concluded that the trial judge erred in law in limiting both lines of cross-examination. The questioning was relevant to reliability and credibility, and its relevance did not depend on prohibited stereotypical reasoning.
II. Facts
[6] The Crown alleged that the appellant sexually assaulted TR after a night out drinking on June 5 to early June 6, 2020. They had been engaging in consensual sexual activity, which became a sexual assault when the appellant inserted his penis into TR’s anus without consent.
[7] The defence position was the appellant and TR did not have anal sex, consensual or not. The appellant gave evidence denying the sexual assault although he had no memory of the events. Defence counsel argued that TR fabricated the allegation because she regretted having consensual sex with a man whom she subsequently learned was older than he had stated and was married. Defence counsel also argued that TR misremembered what happened due to alcohol consumption and the passage of time.
[9] TR testified that she spoke to her roommate the next morning, June 6, 2020, on the phone about what had happened. Afterwards, she sat in the bathtub and cried for several hours. TR also exchanged texts with the appellant and found a wallet he had left at her home. She took a picture of his driver’s licence, which revealed that he was older than he said. She also found out through Facebook that the appellant was married with children.
[10] TR testified that the next time she saw the appellant and interacted with him was on July 25, 2020, over a month later, at the golf course, and that she refused to serve him and called him a “piece of shit”.
[11] Defence counsel cross-examined TR about the night before the sexual assault, the sexual assault itself and events the following day. The trial judge intervened in questioning on two subjects, namely (1) whether TR went out for ice cream and breakfast on June 6, the day after the sexual assault and (2) when TR next saw the appellant in person. Those interventions are the subject of this appeal.
[12] The first line of cross-examination about going for breakfast and ice cream proceeded as follows:
Q Okay. What did you do the next day?
A I don’t really recall exactly what I did the next day. I know that after having a conversation with [the roommate], I took a bath.
Q Okay. Did you go out? Did you see anyone?
A Not that I recall
Q Okay. Did you have breakfast plans?
A I don’t know.
Q Did you go for ice cream with anyone?
A I don’t know.
Q You don’t recall anything you did the next day?
A I know that you are referring to the text messages.
[13] Defence counsel then handed TR a copy of text messages between her and her roommate. The cross-examination continued:
Q Okay. So at June 6th, 2020 — June 6th, 2020, 1 PM, [the roommate] is asking you, “How’s ice cream?” And you said, “Turned into breakfast but it was okay talked a long time.” That’s all I’m going to read. So here you are, going for ice cream the next day at 1 PM.
A It’s possible that I went somewhere. I don’t know — I honestly can’t tell you. I have no idea where, what. I know for a fact, though, that I called [the roommate] at some point and I sat in the bathtub.
Q Okay. And then at 1 PM you go for ice cream.
A I don’t know.
[14] At that point, the trial judge stopped the questioning and the jury was removed. He explained that the questioning “skates very, very close” to impermissible stereotypes, and defence counsel agreed not to ask any more questions on the topic.
[15] The second line of cross-examination, about when TR next saw the appellant in person after the sexual assault, proceeded as follows. Defence counsel showed TR text messages between TR and the appellant on June 6, which indicated that TR was due to work at the golf course at 11:00 am. That led to the following exchange:
Q Because you did work the next day, right, at the golf course?
A I don’t know exactly. Like, are you talk about the 7th?
Q Well, this would be the 6th.
A Yeah.
Q Okay. Because I’m going to suggest to you that you did work the next day. Mr. Harding golfed the next day. You saw Mr. Harding the very next day.
A I don’t — if that happened, I don’t really specifically recall that.
Q Well, you don’t think you’d recall seeing this person that allegedly sexually assaulted you?
[16] At that point, the Crown objected, and the jury was removed. Defence counsel explained that the questioning was relevant to TR’s credibility and memory. The trial judge ruled that any questioning of TR about seeing the appellant the next day was irrelevant to the only material issue, which was whether TR consented to the sexual activity the previous night.
[18] Restriction of cross-examination based on the law of evidence is reviewed for correctness, although trial management decisions to ensure that trials proceed efficiently and fairly are owed deference: R v Samaniego, 2022 SCC 9 at paras 22, 24-26.
IV. Analysis
A. Cross-examination and the law of evidence
[19] Because cross-examination of a witness aims to elicit admissible evidence, it is restricted by the requirements of materiality and relevancy that govern the admission of evidence: R v Lyttle, 2004 SCC 5 at paras 44-46; R v Pires; R v Lising, 2005 SCC 66 at para 31.
[20] To be admissible, evidence must be relevant to a material issue in the sense that it tends to increase or diminish the probability of a material fact: R v Schneider, 2022 SCC 34 at para 39. Information sought to be elicited in cross-examination must be relevant in the same way.
[21] Evidence may be relevant to issues of primary or secondary materiality. Primary material issues are facts the court must decide to resolve a case: R v Clayton, 2021 BCCA 24 at para 57. Here, the primary material issues in dispute were whether the appellant anally penetrated TR and whether she consented. Secondary material information helps the court assess the quality of the other evidence. Information which would help the jury determine TR’s credibility and reliability was of secondary materiality.[Emphasis by PJM]
[22] A complainant’s behaviour after an alleged assault can be relevant circumstantial evidence of the complainant’s consent or credibility: R v Rose, 2021 ONCA 408 at para 22; R v Greif, 2021 BCCA 187 at para 66. It follows that cross-examination of a complainant about conduct after an alleged assault can be relevant to those issues.
[23] However, cross-examination on the complainant’s post-assault conduct is not relevant to consent or credibility if its putative “relevance” depends on stereotypes about how sexual assault complainants react to sexual assaults. Whether the complainant made a prompt report to the police is irrelevant when its only connection to credibility or consent is an assumption that “real victims” promptly report sexual assaults: R v DD, 2000 SCC 43 at para 63. The same is true of whether the complainant avoided the perpetrator after the alleged assault: R v ARD, 2017 ABCA 237 at paras 39, 58; R v ABA, 2019 ONCA 124 at paras 6-12.[Emphasis by PJM]
[24] Nevertheless, cross-examination of a complainant about post-assault conduct might “align with” a stereotypical expectation and yet be relevant to credibility or consent if the circumstances and evidence in the particular case support inferences on those issues: R v Kruk, 2024 SCC 7 at para 65; R v Sandhu, 2024 BCCA 34 at para 24.
[25] Cross-examination of a complainant about conduct after the alleged assault may be relevant to credibility and reliability by eliciting inconsistencies with earlier testimony, police statements or evidence or revealing a lack of memory. Such questioning can be relevant without making assumptions about the expected behaviour of sexual assault complainants. [Emphasis by PJM]
B. Application of legal principles
[27] In our view, the trial judge erred in law by curtailing this line of questioning. Relevant evidence should rarely be excluded, and relevant questioning should rarely be curtailed, because the jury might use it for an improper purpose such as making inferences based on stereotypes: R v LAO, 2023 ABCA 347 at para 34; R v Roth, 2020 BCCA 240 at paras 131-132. The default position is to give all relevant evidence to the jury subject to a limiting instruction about improper use: R v Corbett, [1988] 1 SCR 670 at paras 35-36. Excluding relevant evidence is “a last resort”: Corbett at para 36. In this case, the trial judge instructed the jury not to use evidence about when TR reported the sexual assault to infer that she consented (or that the sexual assault did not happen). A similar instruction would have addressed the risk of improper use of TR’s evidence about going for breakfast or ice cream on June 6.
[28] We acknowledge that trial judges have a discretion to stop relevant defence questioning when its prejudicial effect substantially outweighs its probative value: R v Seaboyer, [1991] 2 SCR 577 at 610-611. However, on this record, it was unnecessary to do so. An instruction to the jury not to infer that TR consented (or was not sexually assaulted) because she might have gone out for breakfast or ice cream the next day would have sufficed.[Emphasis by PJM]
[29] This line of cross-examination was initially relevant to TR’s reliability because it revealed that she did not remember aspects of June 6. Curtailing it also closed off other ways of challenging TR’s reliability. TR had testified on direct that she sat in the bathtub crying for “several hours” on June 6 and questioning her about going for ice cream or breakfast that morning had the potential to undermine the “several hours” timeline. Defence counsel was unable to pursue that topic. The inability to do so became more prejudicial when the Crown argued in closing that TR’s testimony that she “cried in the bathtub for 2 hours” enhanced the reliability of her evidence overall.
[30] The trial judge’s intervention in the second line of cross-examination about TR seeing the appellant at the golf course on June 6 also discloses an error of law.
[32] However, the trial judge erred in concluding that the only material issue was consent. TR’s credibility and reliability were also in issue, and the questioning was relevant to both. Its relevance was rooted in TR’s own evidence, not assumptions about how complainants typically react to sexual assault.
[33] TR had testified on direct that the next time she saw the appellant after the sexual assault was July 25, 2020. The appellant was entitled to challenge that by putting to TR that she worked at the golf course on June 6 and saw the appellant there; indeed that was his own account. TR’s answer – she did not remember but it was possible – raised further questions about the reliability of her recollection of June 6 overall. It showed that TR’s memory of the events that day was uneven and potentially undermined the timeline of the events she did remember. Defence counsel should have been allowed to pursue these and other relevant questions but was prevented from doing so.
[35] A failure to allow relevant cross-examination will “almost always be grounds for a new trial” because it is difficult to predict what questions counsel might have asked and what evidence might have emerged if cross-examination had been permitted: RV at para 86. That is the case here. All that can be said with confidence is that there were relevant lines of questioning to pursue.
V. Conclusion
[37] We allow the appeal and order a new trial.
