B. Petrouchinova

The applicant, charged with sexual assault with a weapon, forcible confinement, and break and enter, applied under s. 276(2) of the Criminal Code to adduce evidence of prior sexual activity with the complainant.

The applicant sought to introduce evidence of consensual sexual activity in exchange for drugs two days prior to the alleged offence, to rebut anticipated Crown evidence of unwanted sexual advances on that date.

After the Crown confirmed it would not lead evidence of the unwanted advances, the applicant conceded the application.

The court dismissed the application, noting it could be renewed if the Crown's position changed at trial.

During a criminal trial, the Crown sought to admit the accused’s police statement and initiated a voir dire to establish voluntariness.

The issue was whether the Crown could meet its burden where it failed to call one of the arresting officers who had contact with the accused prior to the statement.

The court held that the Crown must call all persons in authority who had legally meaningful investigative or custodial contact with the accused or who were in a position to influence the giving of the statement, unless their absence is satisfactorily explained.

Because an officer present during the arrest spoke with the accused’s distraught mother within the accused’s earshot and was not called to testify, a material evidentiary gap existed.

The Crown therefore failed to prove voluntariness beyond a reasonable doubt and the statement was excluded.