The Applicant, F.W., facing a sexual assault charge, brought a s. 276 application to introduce "other sexual activity" (OSA) evidence of the complainant, M.M., related to DNA evidence, capacity to consent, and inconsistencies in her statement.
The court, applying the s. 276 regime, balanced the probative value against the prejudice.
The court allowed limited cross-examination of the complainant regarding sexual activity at the nightclub/vicinity on the night of the incident and permitted examination of Crown witness S.R. and the Applicant regarding their sexual activity with the complainant, finding significant probative value for the defence's issues of consent and DNA explanation, which outweighed the prejudice.