Crystal Tomusiak

In a sexual assault appeal, the Court addressed whether evidence of a complainant’s sexual inactivity, including references to virginity and prior sexual disinterest, is presumptively inadmissible under s. 276 and the analogous common law regime governing Crown-led sexual history evidence.

The Court held that sexual inactivity evidence forms part of sexual history and can trigger inverse twin-myth reasoning, so it is presumptively inadmissible and must be screened through a voir dire.

The Court further held that, subject to limited modifications, the common law process for Crown-led sexual history evidence should mirror the two-stage statutory framework in ss. 278.93 and 278.94, including gatekeeping and publication-protection principles.

Because the trial judge admitted and relied materially on presumptively inadmissible communications without a voir dire, the evidentiary error was not harmless and the curative proviso could not apply.

The conviction was quashed and a new trial ordered.

The Crown brought a dangerous offender application following the offender's convictions for sexual assault, assault with a weapon, and assault causing bodily harm.

The offender had an extensive criminal record, including two prior convictions for sexual assault.

The court heard competing expert evidence on the offender's risk of re-offending.

The court found that while the offender had a pattern of repetitive behaviour, the Crown failed to prove beyond a balance of probabilities that there was a likelihood of the offender causing death, injury, or severe psychological damage in the future.

The court also declined to designate the offender as a long-term offender.

The court imposed a global sentence of 10.5 years, reduced to 2 years less a day after credit for pre-sentence custody, followed by 3 years of probation with strict conditions.

The appellant appealed his conviction for sexual assault and his sentence of five months' imprisonment.

He argued the trial judge erred in applying the standard of proof to a credibility contest, failed to give sufficient reasons, and made errors in principle during sentencing, including failing to give sufficient weight to the likelihood of his deportation.

The Superior Court of Justice dismissed the appeal, finding that the trial judge properly applied the principles underlying the W.(D.) instruction, provided sufficient reasons, and correctly concluded that a discharge was contrary to the public interest despite the immigration consequences.