The Criminal Code makes a presumption that a complainant’s past sexual activity (excluding the sexual activity that is related to the charge) cannot be brought as evidence in a sexual assault case. Specifically, section 276(1) of the Code states that, in sexual assault cases, evidence that the complainant was involved in sexual activity with anyone, including the accused, is not admissible when the evidence is used to infer that, due to the sexual nature of the activity: (a) the complainant 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. Further, no evidence of sexual activity other than the sexual activity that is the subject-matter of the specific case can be introduced by the accused, unless the judge decides that the specific instances of sexual activity are relevant to the issue being decided and “have significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice”.
In deciding whether sexual activity evidence is admissible, a judge will also consider other issues, such as whether the evidence can reasonably be expected to help in a just determination of the case; the risk that the evidence may arouse feelings of prejudice, hostility or sympathy in the jury; and possible prejudice to the complainant’s dignity and personal right to privacy.
R. v. W.W. (2018)
Admissibility of the complainant’s sexual activity was the central issue in a recent sexual assault case, R. v. W.W. (2018). The case involves a man who was charged with three counts of sexual assault against his ex-wife, allegedly occurring in December 2014, March 2016 and April 2016. The accused brought a pre-trial application to determine whether he could include evidence to show that he and the complainant (his ex-wife) participated in consensual sexual relations prior to occasions on which he was alleged to have committed sexual assault.
The defendant and his wife separated in November 2012 and were divorced in January 2015. They had two children and shared parenting responsibilities. After their legal separation, the complainant moved back into the defendant’s home for a period during 2013 and 2014, and during that time, the couple allegedly sometimes engaged in sexual relations.
In his affidavit, the defendant stated that he remembered three specific incidents involving consensual sexual activity, during January, February and March of 2016, following joint visits with their children, and he sought to introduce these incidents as evidence. This statement disagreed with the complainant’s evidence, when she told York Regional Police that prior to March 2016, she last had sexual intercourse with the defendant in December 2014 and the sexual activity was not consensual.
The defendant’s first argument was that he wanted to bring evidence of the previous sexual encounters “to justify his honest belief that [the complainant] was consenting to his sexual advances”. His affidavit stated that the complainant did not appear reluctant or ask him to stop, and she participated actively in the sexual activity. He further alleged that the complainant did not behave any differently on the alleged offence dates than during any other sexual activity in which the couple was engaged.
The defendant’s second argument was that the prior incidents of consensual sexual activity are relevant to the complainant’s credibility, particularly with regards to statements she made to police which he alleges are inconsistent.
The Crown disagreed with the defendant’s arguments and stated that the defendant’s thinking subscribed to myths that s.276(1) was enacted to eliminated – particularly that, because she had consented in the past, the complainant was later consenting to similar sexual activities. The complainant told police that she vigorously and repeatedly said ‘no’ to the defendant and attempted to push him away. Therefore, the Crown argued that the key issue is consent, rather than an honest but mistaken belief in consent. The Crown also asserted that the complainant never made any inconsistent statements to York Regional Police, in terms of changing her narrative to them.
Justice Charney stated that the defendant’s claim of “honest but mistaken belief must be based on more than a belief that past consent infers present consent”. The judge considered the complainant’s and defendant’s statements and concluded that the current evidence does not support this defence and therefore, evidence of previous consensual sexual activities is irrelevant to the current case.
Justice Charney also rejected the defence’s second argument, which is that the evidence of prior sexual activity can be used to challenge the complainant’s credibility, since the Crown had not presented such evidence or indicated they intend to do so. However, if the Crown introduces such evidence at trial, this issue may be reconsidered in context.
Justice Charney dismissed the defendant’s application to introduce evidence of the complainant’s sexual activity at trial. However, he noted that such rulings prior to a trial should be tentative, rather than final, since issues may change as evidence unfolds and it may transpire that the proposed evidence will become relevant and may have a significant effect on the outcome of the case.