Criminal law prohibits using complainant's past sexual activity to support certain conclusions
The Supreme Court of Canada has dismissed the appeal of a man convicted of sexual assault, finding he failed to identify the usefulness of adducing evidence of the complainant’s prior sexual activity that did not invoke reasoning prohibited in the Criminal Code.
Under s. 276(1) of the Code, evidence of a complainant’s sexual activity is inadmissible if it supports an inference that the complainant is either more likely to have consented to the sexual activity at issue or is less worthy of belief. This is called “twin-myth” reasoning.
Jas Mangat, a Vancouver criminal defence lawyer at Helps Law Corporation, acted for the appellant. He says the SCC’s ruling clarifies the law on s. 276 applications dealing with complainant sexual activity that does not form the subject matter of the charge and the legal standard for their review.
“The scenarios in which evidence of sexual activity that does not form the subject matter of the charge is considered to be admissible at trial are very limited,” he says. “It is important to keep in mind that the right to a fair trial of the accused must be balanced against the factors in section 276 of the Criminal Code to ensure that the accused receives a fair trial and that there is no miscarriage of justice.”
Deepa Mattoo is a lawyer and executive director of the Barbra Schlifer Commemorative Clinic, which provides legal, counselling, and other services to women who have experienced violence and abuse. She says the SCC's decision is welcome and the court's message to sexual assault survivors is clear.
"They are ensuring that there is fairness in the legal proceeding for survivors. They are also indicating that they really want to protect their dignity and privacy," says Mattoo. "Overall, a really good decision."
In R. v. T.W.W., 2024 SCC 19, the appellant had been convicted of sexually assaulting a woman with whom he had previously been in a 20-year relationship. The complainant had reported that they had consensual sex the evening before the sexual assault. The trial judge denied the appellant’s application to adduce evidence of this initial, consensual sexual activity, rejecting his argument that it “formed a continuous event” with the alleged assault, said the SCC’s ruling.
The Court of Appeal was split but rejected his appeal. The dissenting justice was of the view that the evidence of the prior sexual activity was essential in the appellant’s challenge of the complainant’s credibility and of the Crown’s theory that the assault had occurred amid a complete breakdown in their relationship.
Justice Michelle O’Bonsawin, who wrote the reasons for the SCC’s majority, said that “other sexual activity evidence” can be admissible for credibility or context, but the s. 276 regime must permit the use of the information. To be potentially admissible, the information’s probative value and relevance must respond to a specific issue in the trial that cannot be resolved otherwise, and the burden is on the appellant to establish that its probative value outweighs its prejudicial effect. The information must do more than merely undermine the complainant’s credibility or add helpful context, she said.
At trial, the appellant’s prior sexual activity evidence served no permissible purpose related to context or credibility, according to the SCC’s majority. The fact that the appellant and complainant had a sexual relationship was uncontested, and evidence of the consensual sexual encounter did nothing to illuminate the complainant’s actions or whether she had consented to the sexual intercourse the next day. The evidence could only serve twin-myth reasoning, and O’Bonsawin said the trial judge did not err in dismissing the application to adduce it.
Mattoo says that the twin myths are counter to everything that her clinic and others advocating for survirors of sexual violence stand for.
"Excluding that evidence is definitely the right thing to do. It's the legal thing to do. By the Supreme Court saying that, they are encouraging the rest of the courts, the judges, and the lawyers to make sure that this kind of openness and transparency, as a fundamental principle of justice, remains for survivors."
Justices Suzanne Côté and Mary Moreau co-wrote dissenting reasons and would have allowed the appeal, quashed the conviction, and ordered a new trial.
The central issue in the trial was credibility, said Côté and Moreau. The complainant’s story had shifted between her statement to police and trial testimony in a manner that would have left the judge with a mistaken impression about the nature of the separation between her and the appellant. As judges have an obligation to revisit previous ruling where there is a material change in circumstances, Côté and Moreau said the trial judge should have allowed the appellant to cross-examine the complainant about the consensual sexual activity “for the limited purposes of neutralizing the suggestion that she was unlikely to consent to sexual activity after their separation and testing her credibility on this point.” The trial judge’s failure to allow this cross-examination was a reviewable error, they said.
