On a pre-trial application in a sexual assault prosecution, the court considered whether sexually explicit text messaging exchanged within the hour before the alleged assault constituted prior sexual activity evidence requiring screening under s. 276 of the Criminal Code.
The court held that, given the immediate temporal proximity and narrative connection, the texts formed part of the sexual activity that was the subject-matter of the charge and therefore did not engage s. 276.
In the alternative, the court held the evidence met the admissibility requirements in ss. 276(2) and (3) because it was relevant to the accused's asserted defence of honest but mistaken belief in communicated consent, was not tendered for twin-myth reasoning, and had significant probative value not substantially outweighed by prejudice.
The application was granted.
