E. Evans

The accused, charged with sexual assault, brought an application under s. 276(2) of the Criminal Code to adduce text messages exchanged with the complainant before and after the alleged offence.

The accused argued the sexualized messages formed part of the subject matter of the charge or were otherwise admissible to show the complainant's state of mind and to challenge her credibility.

The court held that the messages did not form part of the subject matter of the charge and were subject to the s. 276 screening regime.

The court ruled the messages were inadmissible to show the complainant's state of mind regarding consent, as this relied on myth-based reasoning.

However, certain messages were admitted for the limited purpose of exploring material inconsistencies in the complainant's preliminary hearing evidence.

The accused, facing a retrial for sexual assault and extortion, brought an application under s. 276 of the Criminal Code to adduce three categories of evidence regarding the complainant's sexual activity.

The court held that evidence of non-consensual activity during the making of a video was inadmissible due to issue estoppel from a prior acquittal and as discreditable conduct.

Evidence of prior consensual sexual encounters was also excluded as it lacked sufficient probative value for the defence of honest but mistaken belief in communicated consent.

However, the court permitted cross-examination on the complainant's allegation that she was coerced into having sex with the accused's friends, finding it relevant to her credibility.