The defendant, C.C., charged with sexual assault, brought an application under section 276 of the Criminal Code to cross-examine the complainant about other sexual activity between them.
The defence sought to adduce evidence regarding the nature of their sexual relationship, shared use of the washroom, and the complainant's disclosures about past sexual assaults impacting her communication of consent.
The court applied the two-stage test under s. 276(2) and (3), considering the relevance to an honest but mistaken belief in consent and the probative value versus prejudice.
The court permitted cross-examination on the existence of a sexual relationship, shared washroom history, and the complainant's communication about how past experiences affected her consent communication, finding these relevant to the defendant's understanding of consent and not unduly prejudicial.
