The accused brought two applications under sections 276 and 278.92 of the Criminal Code seeking to admit evidence of the prior sexual activity of two young complainants (sisters).
Under section 278.92, the accused sought to admit text messages exchanged between the accused and one complainant, and text messages between that complainant and her friend.
Under section 276, the accused sought to admit evidence that the younger complainant had viewed pornography and attempted to observe the accused and her mother engaging in sexual activity.
The court found that the text messages constituted records under section 278.1 and were capable of being admitted.
At stage two, both the complainant's counsel and the Crown conceded that the text messages had significant probative value not substantially outweighed by prejudice, and the court admitted them.
For the section 276 application, the court found that viewing pornography and observing sexual activity constitute sexual activity within the meaning of section 276, and that the evidence was sufficiently specific.
At stage two, the court balanced the factors under section 276(3) and found that the evidence had significant probative value relevant to the accused's ability to make full answer and defence, and admitted the evidence subject to parameters to be determined by the trial judge.
