Valérie Geneviève Bourbonnière

The court considered the Crown’s application to admit evidence of the accused’s alleged prior discreditable conduct—specifically, statements about sexual interest in the complainant’s cousin—in a sexual assault prosecution.

The court found that while the evidence was probative of the accused’s state of mind and could explain gaps in the alleged abuse, its prejudicial effect outweighed its probative value, particularly in a judge-alone trial.

The evidence was excluded.

This ruling addresses the admissibility of Crown-led sexual history evidence in a sexual assault prosecution.

The court applies the two-stage procedure set out in sections 278.93 and 278.94 of the Criminal Code, as clarified by the Supreme Court in R. v. Kinamore, to determine whether evidence of the complainant’s online sexual activity is admissible.

The court finds the evidence relevant to the Crown’s theory of mens rea and the genesis of the alleged abuse, and concludes that its probative value outweighs any prejudicial effect, subject to limitations on the degree of detail permitted at trial.