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.
