Joanne B. Dartana

The accused sought to introduce evidence of a prior ongoing sexual relationship with the complainant — a 'friends with benefits' arrangement — in a sexual assault trial under s. 276 of the Criminal Code.

The majority held that the evidence failed to satisfy s. 276(2) because the accused did not identify any specific, legitimate purpose for the evidence beyond a bare invocation of 'context', meaning its only operative relevance was to support the prohibited twin-myth inferences.

The improper admission of the evidence, and the subsequent broadening of sexual activity evidence at trial, might reasonably have had a material bearing on the acquittal.

Brown J. dissented, finding the trial judge applied the correct legal principles, that the relationship evidence did not solely derive its relevance from twin-myth reasoning, and that a new trial was procedurally unfair given that the Crown itself relied on the sexual nature of the relationship to advance its theory of the case.

The accused was charged with first degree murder in the death of an Indigenous woman and sex worker found dead in his hotel room with an 11 cm wound in her vaginal wall.

At trial, the accused testified at length about prior sexual activity with the deceased without having made an application under the s. 276 regime of the Criminal Code, and the jury was not given any limiting instruction on the permissible uses of that evidence.

The jury acquitted the accused of both first degree murder and the included offence of unlawful act manslaughter.

The Alberta Court of Appeal allowed the Crown's appeal and ordered a new trial on first degree murder.

The majority of the Supreme Court held that the trial judge erred by failing to comply with the mandatory s. 276 regime, and that the resulting failure to inoculate the jury against mistakes of law related to the defence of honest but mistaken belief in communicated consent warranted a new trial on unlawful act manslaughter.

However, a new trial on first degree murder was not warranted as the errors did not materially bear on the murder acquittal, which turned on a battle of expert evidence on whether a sharp object was used.

The dissent would have upheld the Court of Appeal's order of a new trial on both murder and manslaughter.