In a sexual assault appeal, the Court addressed whether evidence of a complainant’s sexual inactivity, including references to virginity and prior sexual disinterest, is presumptively inadmissible under s. 276 and the analogous common law regime governing Crown-led sexual history evidence.
The Court held that sexual inactivity evidence forms part of sexual history and can trigger inverse twin-myth reasoning, so it is presumptively inadmissible and must be screened through a voir dire.
The Court further held that, subject to limited modifications, the common law process for Crown-led sexual history evidence should mirror the two-stage statutory framework in ss. 278.93 and 278.94, including gatekeeping and publication-protection principles.
Because the trial judge admitted and relied materially on presumptively inadmissible communications without a voir dire, the evidentiary error was not harmless and the curative proviso could not apply.
The conviction was quashed and a new trial ordered.
