Lauren A. Chu

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.

The appellant was convicted of sexual assault causing bodily harm and administering a stupefying drug, and brought an application for a stay of proceedings on the basis that his s. 11(b) Charter right to be tried within a reasonable time had been infringed.

The trial judge found that the total delay exceeded the Jordan ceiling but was justified by the transitional exceptional circumstance and dismissed the application.

A majority of the Court of Appeal found that the trial judge erroneously characterized delay occasioned by the appellant's re-election of another mode of trial as a discrete exceptional circumstance, but upheld the dismissal on the basis of the transitional exceptional circumstance.

The Supreme Court dismissed the appeal, holding that the appellant's re-election was not done legitimately to respond to the charges and the resulting 13-month delay should have been characterized as defence delay.

The appellant Crown appealed a decision of the British Columbia Court of Appeal which had set aside the respondent's sexual assault conviction and ordered a new trial.

The Court of Appeal majority had found the trial judge erred by using text messages exchanged between the complainant and the accused as prior consistent statements to corroborate the complainant's evidence, by failing to hold a voir dire to determine their relevance, and in the approach to the W.(D.) analysis.

The Supreme Court, by majority, allowed the appeal and restored the conviction, adopting the reasons of the dissenting judge in the Court of Appeal.

Justices Côté and Brown dissented and would have dismissed the appeal substantially for the reasons of the Court of Appeal majority.