The accused were charged with sexual assault following an incident involving alleged non-consensual sexual activity after a night of drinking.
During the jury trial, the defence brought a mid‑trial application under s. 276 of the Criminal Code seeking to cross‑examine the complainant about a prior incident involving discussion of “threesomes” and a kiss with one accused months earlier.
The court held the prior incident constituted “sexual activity” within the meaning of s. 276.
Although the evidence was a specific instance of sexual activity and had some relevance to credibility after questioning in the Crown’s examination‑in‑chief, the court concluded its probative value was minimal and substantially outweighed by prejudice to the proper administration of justice.
The proposed evidence risked inviting stereotypical reasoning about sexual history and did not meaningfully assist in determining the central issue of consent.
