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The Supreme Court upheld the exclusion of prior sexual activity evidence and clarified appellate publication bans.
The appellant was convicted of sexual assault and sought to adduce evidence of consensual sexual activity with the complainant the evening prior to the alleged assault under s. 276 of the Criminal Code.
The trial judge dismissed the application on the basis that the evidence would invoke twin-myth reasoning and was not relevant to consent on the day of the alleged assault.
The majority of the Supreme Court dismissed the appeal, holding that the appellant failed to identify a permissible specific use for the evidence and that the trial judge made no reviewable error.
The majority also held that s. 278.95 of the Criminal Code does not extend to appellate proceedings, but that the Court's implied jurisdiction to control its own processes permits it to make publication-limiting orders.
Côté and Moreau JJ. dissented, finding that the complainant's trial testimony — in which she linked her lack of consent to the parties' separation — constituted a material change in circumstances that obligated the trial judge to revisit the pre-trial ruling and permit limited cross-examination on the prior consensual activity.
Failure to wear a condom when consent is expressly conditional on its use constitutes a lack of consent to the sexual activity in question.
The appellant was charged with sexual assault after engaging in vaginal intercourse without a condom, having been expressly told by the complainant that her consent was conditional on condom use.
The trial judge granted a no-evidence motion and dismissed the charge on the basis that the complainant had consented to all the physical acts involved, leaving only a fraud analysis under s. 265(3)(c) of the Criminal Code.
The majority of the Supreme Court held that when condom use is a condition of consent, it forms part of the 'sexual activity in question' under s. 273.1(1), and intercourse without a condom is a fundamentally different physical act than intercourse with one, such that there was evidence of a lack of subjective consent.
The concurring minority agreed the appeal should be dismissed but held that Hutchinson applies and all condom-related consent must be analyzed under the fraud provision, articulating a detailed framework for horizontal stare decisis.
The appeal was dismissed and a new trial ordered.
