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Charter Application granted
This ruling addresses a defence application under section 276 of the Criminal Code to admit evidence of prior consensual sexual activity between the accused and the complainant in a historical sexual assault case.
The accused sought to introduce the evidence to contextualize his actions and challenge the complainant's credibility regarding the nature of their prior relationship, arguing that without it, his conduct would appear unexplained.
The Crown and complainant opposed, asserting it would invite "twin myths." The court granted the application, finding the evidence admissible as it was fundamental to the coherence of the defence narrative and not being adduced for prohibited purposes, drawing parallels to R. v. Temertzoglou.
The decision emphasizes the accused's right to make full answer and defence.
The court allowed the accused to adduce evidence of subsequent consensual sex to explain physical evidence, subject to strict limitations.
The applicant, charged with sexual assault, brought a Stage 2 application under section 276 of the Criminal Code to adduce evidence of prior sexual activity, specifically a "morning after" consensual sexual encounter.
The court allowed the application, finding the evidence relevant to explain the presence of semen and to the coherence of the defence narrative, without engaging "twin myth" reasoning.
The court limited the scope of questioning to the source of the ejaculate, prohibiting its use to generally impugn the complainant's credibility based on omissions in her police statement.
