The criminal justice system can be daunting, but you don’t need to go through it alone. Our Criminal lawyers are here to guide you every step of the way.
Contact Our Firm
In the recent decision of R. v. Avila, 2025 BCCA 5 the BC Court of Appeal agreed that the Crown should have applied for a Seaboyer based voir dire before cross-examining the accused on other sexual activity evidence.
The Supreme Court rulings in R. v. Barton, 2019 SCC 33, R. v. Goldfinch, 2019 SCC 38 and R. v. R.V., 2019 SCC 41 all stated that, regardless of who leads the evidence, the judge is the “gatekeeper” of other sexual history evidence by either party and that the Crown must engage in a Seaboyer application before adducing such evidence. Nevertheless, the Crown has quite often been permitted to lead other sexual history evidence on the premise that they are presumed not to be arguing twin myths about the complainant; R. v. Langan, 2019 BCCA 467 at para 111.
In the case of Avila, which the Court granted a retrial, the accused had been denied his s. 276 Application on the grounds that it was too general, lacking “specific details” and carried too much risk of twin myth reasoning.
The core of the defence Application was that the accused did not have to force sexual activity on the complainant as she was the primary sexual aggressor and they had a “safe word” for ending sexual activity. Upon reopening the 276 application mid-trial the judge allowed for the complainant only to be cross-examined about a safe word. The Court of Appeal agreed that the Application appeared to only be suggesting that because she consented in the past she was more likely to have consented during the subject matter of the charge but that the Crown then sought the same sexual history evidence in cross-examination of the accused.
Suffice it to say that there were a number of times the Crown raised other sexual activity with the appellant, including sexual activity that it characterized as “exotic”, “rough”, and “risky”. The Crown’s cross-examination also canvassed the contents of a voluntary pre-trial statement that the appellant provided to the police in which he discussed the sexual relationship, generally. Earlier in the trial the Crown told the judge that cross-examination on this statement might elicit evidence of other sexual activity and a voir dire may be necessary to address that issue. However, the Crown did not seek a voir dire before or during its cross-examination of the appellant.
The defence was denied a mistrial motion after the Crown had been permitted to ask about other sexual history and, in this case, the Crown then proceeded to argue a pattern of recklessness by the accused towards sexual consent while having successfully blocked the accused from cross-examining about a pattern of actions and discussions about consent.
The Crown opposed the appeal on the grounds that they were not using other sexual activity for a prohibited purpose. The Court of Appeal responded to that argument at para 62:
I pause to note, here, that it is not altogether correct to say that the Crown’s “intended use” of the evidence of other sexual activity was to “expose inconsistencies” relevant to the jury’s assessment of testimonial trustworthiness. That may have been one purpose of leading this evidence. However, another and arguably more dominant purpose, as it emerges from the record, was to use the evidence of other sexual activity to bolster the Crown’s theory that the appellant was someone who generally pushed the boundaries with the complainant in their sexual relationship and paid little, if any, attention to her consent. [emphasis in original]
In essence, this decision reconfirms the 2019 Supreme Court decisions governing Crown use of other sexual activity evidence and that double standards should not be applied to defence and Crown over their use of the same evidence.
After opposing the s. 276 applications, Crown counsel should not have elicited the evidence of other sexual activity that it did and, importantly, seek to use that evidence in support of an inference of guilt without first seeking a Seaboyer voir dire. Furthermore, as the gatekeeper of the trial and having twice rejected a s. 276 application brought by the defence, the judge should have more closely monitored this aspect of the Crown’s cross-examination, stopped it when it began to move into other sexual activity, and canvassed the necessity of a Seaboyer inquiry.
Whether or not the Crown would have been permitted to engage in those areas of questioning, the accused was curtailed from exploring those same issues in his cross-examination of the complainant.
The Court of Appeal found that there were a number of detailed aspects about the historical sexual habits between the complainant and accused that he was unable to explore, leaving it open for the Crown to paint a skewed picture of recklessness regarding consent while denying the accused from defending against that characterization at the end of the trial evidence.
