In a recent sexual assault case, the judge ruled that the complainant’s prior sexual activity is relevant and admissible, and the defendant had reason to question whether the complainant was motivated to accuse him of sexual assault in order to protect her relationship with her boyfriend.

Canada’s Criminal Code s. 276(1), states that a defendant in a sexual assault case cannot introduce evidence of the complainant’s sexual activity (other than the sexual activity that is at issue in the trial) in order to imply that the complainant’s past sexual history suggests that the complainant is not believable or is more likely to have consented to sexual activity with the defendant.  Section 271(1) states:

In proceedings in respect of an offence under section … 271 … evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant

a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge or;

b) is less worthy of belief.

Nevertheless, there are certain circumstances where a complainant’s past sexual relations with the defendant or another person may be relevant in a sexual assault case and may give the Court reason to question whether the complainant may be making a false accusation against the defendant, or alternatively, it may support the defence of an ‘honest but mistaken belief’ that the complainant had consented to sex. However, since evidence of other sexual activity by the complainant is, by default, inadmissible under the law, if a defendant wishes to introduce such evidence the defence must make an application for a court hearing to determine admissibility.

Section 276(2) specifies three conditions which, if met, allow evidence of prior sexual activity to be introduced at a trial, but the onus of proof is on the defendant to show that all three conditions have been met on a balance of probabilities:

  1. the evidence refers to specific instances of sexual activity;
  2. the evidence is relevant to the issue being tried; and
  3. the evidence has substantial probative value that is not significantly outweighed by the risk that the administration of justice will be prejudiced.

Additional factors that must be considered by the Court when determining whether the evidence of other sexual activity is admissible (per s. 276(3)) are:

  1. the accused person’s right to fully answer and defend accusations against him/her
  2. the reasonable expectation that the evidence will be helpful in reaching a fair judgement in the case
  3. the possibility of prejudice to the complainant’s dignity and right to privacy.

R. v. K.G. (2018) is a sexual assault case in which the defendant applied to the Court to rule on whether he could introduce evidence of the complainant’s sexual relationship with another person since the defendant believed that this evidence is highly relevant to his defence. Specifically, the defendant sought to introduce evidence to show that the complainant was involved in prior sexual relationship with another man (‘S’) who was one of the defendant’s and complainant’s mutual group of friends and had grown up in the same neighbourhood as the defendant. The defendant believed that the complainant had a reason to fabricate the sexual assault complaint against him because she was (and still is) in a relationship with their mutual friend and did not want ‘S’ to think she was unfaithful.  The defendant also alleged that the complainant consented to sexual intercourse with him or alternatively, he had an honest but mistaken belief in her consent.

Background and Analysis: R. v. K.G.

The defendant and complainant were at a get together at the defendant’s residence, along with the complainant’s female friend and the defendant’s male cousin. All four were drinking and talking, and the complainant alleges that she eventually became very intoxicated and has a limited memory of later events.  She testified that she remembers that she pulled away when the defendant tried to kiss her, but continued drinking.  In her next memory, she was naked and someone was having intercourse with her from behind, and then she was told to perform fellatio on the defendant and his cousin.  The complainant also stated that she next remembers being woken up and put in a taxi to take her home, along with her friend.  Later in the day, the complainant went to the hospital and reported that she had been sexually assaulted.

During the complainant’s examination at the preliminary inquiry, the complainant denied that she was seeing ‘S’ and that he was her boyfriend, and she described ‘S’ as only” a mutual friend between all of us”.  However, just before the trial, the defence was informed that a DNA profile taken from semen found on the complainant’s underwear hours after the alleged sexual assault matched ‘S’’s DNA.  Also, during submissions for the application to question the complainant on her relationship with ‘S’, the Crown revealed that, five weeks after her examination, the complainant informed the officer in charge of the case that she had sexual relations with ‘S’ less than a week prior to the alleged sexual assault and he was currently her boyfriend.

In the application to bring evidence of the complainant’s relationship with ‘S’, the defendant sought to question the complainant about the inconsistencies in the DNA evidence and her statements made to the officer in charge of the case, when compared to her earlier assertion that she was not involved with ‘S’ at the time of the alleged assault.  The defendant intended to suggest to the complainant that she is lying about being sexually assaulted in order to protect her relationship with her boyfriend.

The Crown argued against allowing the defendant’s application on the basis that prior sexual activity is rarely relevant to establish consent (or an honest but mistaken belief in consent) and further, the defendant failed to show how the complainant’s prior sexual relationship with ‘S’ is relevant to whether she consented to sexual intercourse with the defendant.

However, Justice Baltman asserted that “context is everything” and the defendant’s application must be considered with respect to all the evidence, including the defendant’s affidavit, in which he portrayed his relationship with ‘S’ and the dynamics in their group of friends.  Justice Baltman also pointed out that the Crown chose not to cross-examine the defendant on his testimony and therefore, the defendant’s statements were undisputed.  Included in the defendant’s testimony is the fact that, on the night when the alleged sexual assault occurred, he and the complainant discussed her relationship with ‘S’ and wondered what the latter’s reaction would be when he found out she was with the defendant that evening.

Based on evidence of the complainant’s ongoing relationship with ‘S’ and her inconsistent and misleading evidence, Justice Baltman concluded that it was reasonable for the defence to question whether the complainant was motivated to lie about the sexual assault in order to protect her relationship with ‘S’.  The judge ruled that this evidence has both substantial probative value and is relevant to the complainant’s credibility.  Further, the judge rejected the Crown’s argument that the complainant wasn’t lying when she stated that she wasn’t ‘seeing’ ‘S’ if she was only having sex with him, as Justice Baltman pointed out that the couple were essentially ‘intimately involved’.

Justice Baltman assessed the conditions in s. 276(3) and concluded that the evidence of the complainant’s other sexual activity is relevant and has a bearing on the defendant’s right to make a full defence on the very serious charge that he forced sex on a young woman while she was intoxicated.  Further, the judge noted that the evidence has a defined focus, will assist in reaching a just determination on the case and has little risk of arousing prejudice from a jury once the judge gives the appropriate cautions.   On all these grounds, Justice Baltman ruled that all conditions had been met and the evidence of other sexual activity is admissible.

It is notable that when the sexual assault trial was underway, the complainant failed to appear in court and a material witness warrant was issued requiring her attendance.

At Kruse Law, our team has a proven track record of successfully defending clients charged with sexual assault. If you have been charged with sexual assault, domestic assault, sexual interference or another sexual assault-related offence, talk to an experienced sexual assault lawyer at Kruse Law.  We offer a no-obligation consultation to provide you with straightforward answers to your legal questions and to find out what’s involved in constructing a strong legal defence aimed at having the charges against you dismissed.

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