Evidence of sexual activity before and after alleged sexual assault inadmissible: BC Court of Appeal

Accused should have permission to cross-examine complainant, dissenting judge says

Evidence of sexual activity before and after alleged sexual assault inadmissible: BC Court of Appeal

A man accused of sexual assault failed to show that the evidence of the complainant’s recent sexual history was relevant to his defence that the alleged incident never happened, a majority of the BC Court of Appeal has ruled

The appellant in R. v. T.W.W., 2022 BCCA 312 was charged with assaulting his spouse. The complainant testified that they had separated around five weeks before the alleged incident, he had moved into a downstairs bedroom in their house, and he came upstairs and sexually assaulted her one morning.

The appellant denied that the assault ever occurred. He claimed that he and the complainant engaged in consensual sexual activity the night before the alleged incident and also later that day.

The BC Supreme Court applied the principles set out by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742and convicted the appellant of sexual assault under s. 271 of the Criminal Code.

The trial judge found that the appellant’s evidence failed to raise a reasonable doubt. He made pre- and mid-trial rulings preventing the appellant from adducing evidence, including through cross-examining the complainant about their sexual activity before and after the alleged incident based on the regime under s. 276 of the Code.

The appellant filed a conviction appeal challenging the judge’s pre- and mid-trial rulings. He argued that the judge gave insufficient reasons for his pre-trial ruling and improperly applied s. 276.

Sexual history presumptively inadmissable

Justice Gregory Fitch wrote the reasons on behalf of the appellate court’s majority, which refused to interfere with the trial judge’s admissibility rulings. The majority noted that the evidence of the complainant’s sexual history was presumptively inadmissible and that the s. 276 regime applied to both the pre- and mid-trial applications.

The majority ruled that s. 276(1) of the Code barred the sexual activity evidence that the appellant wanted to adduce. The evidence posed a risk because it could be used to support impermissible twin-myth reasoning, the majority said.

According to the majority of the court, the appellant failed to show how the sexual activity evidence:

  • satisfied the pre-conditions for admissibility in s. 276(2)
  • was relevant or integral to his denial that the alleged assault ever occurred
  • could have a legitimate use to sufficiently justify its admission
  • could challenge the complainant’s credibility on when the relationship between them ended.

If the evidence had any probative value, it was insignificant, the appellate court found. The danger of prejudice to the proper administration of justice that would flow from admitting the evidence would substantially outweigh whatever minimal probative value the evidence had, the court said.

The majority of the court found it unnecessary to tackle the appellant’s second ground of appeal, which challenged the sufficiency of the trial judge’s reasons supporting his pre-trial ruling. The reasons given sufficiently explained why the application was dismissed and enabled meaningful appellate review, the court said.

Justice S. David Frankel, who dissented, wrote that the appellant should have permission to cross-examine the complainant on whether they had engaged in consensual sexual activity before the alleged assault.

Justice Frankel found that the appellant was seeking to adduce the sexual activity evidence for a proper purpose – namely to challenge the credibility of the complainant’s claim that their marriage completely broke down after they returned from their trip abroad.

The dissenting judge saw the sexual activity evidence as critical to the appellant’s ability to challenge the Crown’s theory, which was that a sexual assault had occurred in the context of a marriage that had ended weeks beforehand.

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