I’m here today to share with you an application which is called a “Seaboyer Application”. This is an application under the criminal code where you’re trying to introduce prior sexual history and conduct of the victim.
Now, it’s not an easy thing to include, because generally the criminal code say that this is not relevant, and quite rightly so. There’s been a rule of law brought down in Canada over the years that you can’t just start willy-nilly including someone’s sexual history. That doesn’t make them any less worthy of belief. For example, if they’re a prostitute that doesn’t make them any less worthy of beleif, or more likely to have consented.
But there are exceptions. There’s exceptions to every rule, and sometimes the prior history of a person is very relevant, and in that context – if your client tells you for example “look, we used to be in a relationship, where we had this same pattern of sex as on the night in question.” Or if they say “I was very sore in the genital area”, if we know that they had sex earlier in the day, for example, with another man – well that could show that type of physical condition. I could give you many examples, but in the proper context, it still is admitted into Canadian law. It’s vigorously argued in court. Now this type of application is argued several months before your trial and the judge is going to make a ruling. And the judge is going to say “Yeah” or “Nay”: yes you can mention that she had sex with a man earlier in the day to explain her physical condition, or you can’t.
There are more examples that I won’t go through, but I’ve been very successful with these applications over the years, and it’s been very fruitful and it’s served to win many cases – including cases of honest but mistaken belief in conest. For example, between a husband and wife who’ve had this pattern of sex throughout their whole relationship. Now, that’s brought about three months before the trial, and the other great benefit is that you find out who the trial judge is, so you can stick with that judge or stick with a judge and jury, depending on whether you like that judge or not. \
So it’s very important – the lawyer that you hire, canvass with them whether there’s prior sexual contact that you know the complainant has that may assist your case. And your lawyer may want to bring that application and hopefully be successful in your case, trying to create reasonable doubt.