The accused, charged with sexual assault, brought a pre-trial motion under s. 276.2 of the Criminal Code to introduce evidence of prior consensual sexual activity with the complainant, M.M., at a strip club.
The accused argued this evidence was necessary to explain the presence of his DNA on a vaginal swab taken from M.M. hours after the alleged assault and to challenge M.M.'s credibility regarding her earnings that night.
The court applied the two-step Darrach procedure, finding the accused's affidavit sufficiently detailed and his evidence credible enough to raise a reasonable doubt.
The court determined the evidence was admissible as it was a specific instance of sexual activity, relevant to an issue at trial (explaining DNA), and had significant probative value not outweighed by prejudice, upholding the accused's right to make full answer and defence.