The accused applied under section 278.93 of the Criminal Code to adduce evidence of prior sexual activity with the complainant and to use records of communications between them.
The application concerned two counts of sexual assault.
The court dismissed the application, finding that the proposed evidence of prior sexual activity constituted impermissible twin-myth reasoning and was not capable of being admissible.
The court held that the evidence did not address how consent was communicated and therefore could not support a defence of honest but mistaken belief in communicated consent.
Additionally, regarding the allegation involving digital penetration while the complainant was asleep, the court found the evidence irrelevant to consent as an unconscious person cannot provide the required affirmative consent.
