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By: Joseph A. Neuberger, LL.B, LL.M., C.S.
and Diana Davison, Legal Researcher
In the recent decision of R. v. T.W.W., 2022 BCCA 312 a number of issues arose in relation to admissibility of prior sexual history evidence in sexual assault trials. This is a split decision, which has the right of appeal to the Supreme Court of Canada. Notice of appeal has now been filed.
The primary focus was on whether or not the accused should have been granted his s. 276 application and how to classify proximate sexual activity to the subject matter of the charge.
In this case, there were three, discrete timeframes of sexual activity in the sequence of events. The accused denied that sexual activity occurred at the time of the alleged assault but wanted to advance his version of events that sex occurred at two other moments in proximity.
His application did not precisely match his evidence at trial. The BC Court of Appeal majority held that the trial judge was correct in ruling that the other sexual activity was inadmissible based on the way the application was written at the time.
Though the evidence, as it came out at court, could have changed the way the application was viewed, the trial judge was deemed to have been correct in denying reopening the application as the way it was framed in writing did not match the arguments later made on appeal.
In a lengthy dissent, Justice Frankel laid out all the evidence tendered during testimony at trial and found that the evidence was essential to the accused being able to present his version of events.
The majority disagreed. Emphasis was placed on the need for s. 276 applications to be “framed with clarity and managed with care.”
The issue of how much detail is required from an accused in pre-trial applications has been directly challenged in terms of the constitutionality of the current legislation. The Supreme Court majority in R. v. J.J., 2022 SCC 28 confirmed that an accused is not actually required to give a personal affidavit in support of the pre-trial application.
This can cause some confusion when the application is denied due to insufficient information about the nature of the accused’s anticipated evidence.
One of the criticisms, by the dissenting members of the Supreme Court in J.J., is that the majority failed to give meaningful guidance or protection to the accused while ratifying the new rules of evidence.
The case of T.W.W. will potentially offer an opportunity for the Supreme Court to clarify what has been left unclear in their J.J. decision. The level of precision and whether or not an accused must lay out their entire defence in the pre-trial application will be at the heart of any Supreme Court appeal.
One further concern remains with a comment from the majority of the BC Court of Appeal at para 98 stating that “[e]vidence of prior sexual activity will ‘rarely be relevant to support a denial that sexual activity took place or to establish consent’” [emphasis in original].
The fact that an accused may be denying the sexual activity in question should not preclude other evidence of a sexual nature. Though rare, there may be circumstances where it is an essential part of the accused’s version of events.
The concern must stay focused on whether or not a valid use of the evidence sought to be introduced is articulated properly in pre-trial motions and relevant to the particular issues in that specific case.
It is difficult for people accused of sexual assault to understand the complexity of pre-trial motions and why some of their evidence may be inadmissible at their trial. Proper preparation and awareness of the rules of evidence is essential when defending against a charge of sexual assault or other offences subject to pre-trial evidentiary applications.
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