The accused, charged with aggravated sexual assault for failing to disclose his HIV-positive status to the complainant, brought an application under s. 276 of the Criminal Code to introduce evidence of the complainant's prior sexual activity.
The accused sought to cross-examine the complainant on prior inconsistent statements regarding his sexual practices and to introduce evidence of a pattern of risky sexual behaviour to argue the complainant would have consented even if he knew of the accused's HIV status.
The court allowed the cross-examination on the prior inconsistent statements, finding them highly relevant to credibility.
However, the court dismissed the application to introduce evidence of the complainant's pattern of risky sexual behaviour, finding its probative value did not outweigh the prejudicial effect and risk of discriminatory bias.
