Brandon Harder
Regina Leader-Post
When a Regina photographer charged with sexually assaulting a model wanted to tender explicit photos of the complainant as trial evidence, a judge said no.
And when circumstances changed, but the judge refused to reconsider, it was an error, according to an Aug. 15 appeal decision from Court of King’s Bench Justice Jodi Wildeman.
As a result, Brent Nerenberg’s conviction has been set aside and a new trial has been ordered.
In July 2023, following the trial, provincial court Judge Doug Kovatch found Nerenberg guilty of sexually assaulting a model during an agreed upon nude photo shoot in October 2020. He was sentenced to nine months in a provincial jail, but he appealed the conviction and was released on conditions.
Private records and relevance
There are rules around what can be admitted as evidence. In cases involving crimes like sexual assault, the law restricts an accused person from tendering as evidence material deemed to be private “records” (which can be photos) relating to a complainant unless a judge is satisfied it meets certain requirements, including relevance.
At a hearing prior to the trial, the defence argued the complainant gave Nerenberg rights to publish the photos, made at the time of the alleged incident. The defence also argued they were relevant in contrasting the complainant’s assertion to police that Nerenberg photographed the alleged sexual assault.
A workaround was suggested by the judge, resulting in Crown and defence entering an agreed statement of fact saying the photos did not depict sexual touching. This was meant to allow Nerenberg’s lawyer to cross-examine the complainant on this point without putting the photos into evidence.
The trial judge ruled the photos were private records and, given the agreed statement of fact, that nothing was to be gained by admitting them, according to the appeal decision.
Circumstances change
However, the appeal decision states that during the trial “the complainant testified she was fine that the nude photos of her taken during the photo shoot would be exposed to the world, and she had no expectation of privacy with respect to them.”
Further it states she testified to specifics such as “where she was located and how a sex toy was used and positioned during the photoshoot.”
The defence then asked for a mistrial, suggesting the complainant’s testimony changed the circumstances regarding the trial judge’s previous ruling that the photos were private records.
Citing the specifics contained in the complainant’s testimony, Nerenberg’s lawyer, Danish Shah, effectively said his client couldn’t use the photos to challenge these.
“The Court has essentially stopped him from bringing forth a defence on the basis of the expectation of privacy,” Shah told the trial judge.
The trial judge disagreed with this and later wrote the photos were irrelevant to the issue of whether a sexual assault occurred, asserting “no possible defence was denied” to Nerenberg.
Critical cross-examination
In her appeal decision, Wildeman wrote the complainant’s testimony constituted a change in circumstances that, “at a minimum” required the trial judge to hear argument from lawyers about whether his previous ruling about the admissibility of the photos as evidence should be revisited.
“Here, the Trial Judge indicated during the mistrial application that the complainant’s evidence on her expectation of privacy ‘doesn’t effect the legal ruling.’ With respect, this is an error of law,” Wildeman wrote.
Regardless of whether the photos were found to be private records under the law, the defence would still have to establish they were relevant to an issue at trial to have them deemed admissible, Wildeman wrote.
However relevance was never “fully fleshed out” because the trial judge did not hear fulsome arguments from lawyers on the subject, according to Wildeman.
“The Trial Judge erred by not reconsidering the admissibility of the photographs mid-trial. In my view, this affected the overall fairness of the trial,” she wrote.
This was not a “harmless or minor error,” Wildeman wrote.
She noted that the complainant testified to specifics, “including where she was located throughout the photoshoot, her positioning on the bed, and what was occurring with the sex toy,” and the defence argued the photos showed something different.
It was critical for the defence to be able to cross-examine the complainant to test her credibility, according to the appeal decision.
However, Wildeman made clear her decision was not a finding about whether the photos constitute private records under the law and whether they meet the requirements to be admissible as evidence, leaving those decisions to be made by another judge in the context of a new trial.
Wildeman ordered a new trial and that Nerenberg remain subject to release conditions pending a new trial.
