Justice T.E. Breen

The accused was charged with sexual assault and sexual interference relating to alleged inappropriate touching of his niece between 2005 and 2008.

The accused sought to admit evidence of extrinsic sexual abuse of the complainant under the Criminal Code provisions governing admissibility of such evidence.

The complainant challenged the constitutional validity of the statutory provisions granting her standing and the right to counsel at the admissibility voir dire.

The court dismissed the constitutional challenge and addressed the question of the complainant's access to the defence application record, determining that while service is not statutorily mandated, judicial discretion permits controlled access through appointed counsel to preserve trial integrity.

The applicant, charged with sexual assault and sexual interference, sought an order permitting the admission of evidence of extrinsic sexual abuse of the complainant.

The applicant challenged the constitutional validity of sections 278.93 and 278.94 of the Criminal Code, arguing that the statutory procedure for determining admissibility of extrinsic sexual history and private records compels disclosure of defence evidence and strategy in advance of trial, breaching sections 7 and 11(d) of the Charter.

The applicant also contended that granting the complainant standing on the admissibility voir dire creates an appearance of unfairness.

The court dismissed the application, finding that the statutory provisions can be applied in a manner consistent with the principle against self-incrimination, the right to a fair trial, and the complainant's rights to privacy and equality, provided that applications under section 278.93 are brought during cross-examination of the complainant rather than as pre-trial motions.