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Twin Myths About Sexual Assault Trials

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Applications under section 276 and 278 of the Criminal Code of Canada to admit records and prior sexual history


Joseph Neuberger & Diana Davison

Neuberger & Partners LLP

Criminal Defence Lawyers Toronto


People who find themselves charged with sexual assault often enter the process with myths about how their trial will be conducted.  There are not only myths about what evidence will establish their innocence but also about how evidence can or cannot be used in court.

Due to an increased protection for the privacy rights of complainants, most sexual assault trials require pre-trial applications. Not only to establish what evidence an accused can use in court but also to determine whether or not certain areas of questioning will be permitted in cross-examination.

There is an art to winning these pre-trial applications. Arguments must be articulated carefully and precisely to explain the probative value versus the prejudicial effect. A failure to handle these applications can compromise the integrity and fairness of the trial.

The Supreme Court of Canada has commented that sexual history evidence will rarely be admissible but at Neuberger & Partners we have been successful in every application brought since the new legislation was passed.  From R. v. Goldfinch, 2019 SCC 38 at para 56:

  • [56]   It goes without saying that the “relevant issue” cannot be one of the twin myths prohibited by s. 276(1).[7] Neither will generic references to the credibility of the accused or the complainant suffice. Credibility is an issue that pervades most trials, and “[e]vidence of prior sexual activity will rarely be relevant to support a denial that sexual activity took place or to establish consent” (Darrach, at para. 58; see also Handy, at paras. 115-16). Arguments for relevance must be scrutinized to ensure “context” is not simply a disguised myth.

In the case of Regina v. Y.Z. we successfully argued the relevance of the complainant’s suspicions about the client cheating on her and their use of a dating app. Additionally, we were able to prove that the couple’s history of birth control methods was relevant to undermine the alleged aggravating factor of not using a condom. After winning the application the charges were withdrawn without the need for a trial.

In the case of Regina v. K.Y., hundreds of pages of WhatsApp messages were reviewed and all 58 segments of the chat history the defence sought to access were deemed to be admissible at trial. The entire nature of the relationship was in question and this was a case with 10 charges, including three alleged sexual assaults spanning the course of the one year relationship. With access to these messages we were able to obtain acquittals on all of the assault and sexual assault charges.

In the case of Regina v. A.H., we were able to show that WhatsApp messages over the course of the relationship were relevant to the true dynamic of the relationship. After winning the pre-trial application the client was able to prove that the complainant was lying about abuse and sexual assaults to the point that she was begging the client not to self-isolate during the pandemic and wanted them and her children to all “catch Covid together.” All 18 charges were withdrawn after winning the application and conducting a preliminary hearing.

In the case of Regina v. K.Q., the complicated defence of “honest but mistaken belief in consent” was the only defence being advanced. This is a very difficult defence  to articulate properly as there is agreement and clear evidence that the complainant did not consent to the touching. The history of the couple’s previous activity was essential to show why the accused had a reasonable belief that she would consent and that he was not being reckless or wilfully blind as to her consent. Without the evidence deemed admissible after the application the client would not have been able to prove he had taken reasonable steps.

In the case of Regina v. A.M. the complainant unsuccessfully argued that none of their numerous text messages were relevant or probative because she could explain them all in a way that did not impeach her statement to police. We were successful in showing that the messages were highly relevant and that the complainant’s credibility on all the issues related to the dynamic of their relationship was a serious issue to be determined in trial.

In the trial of Regina v. N.B., the Crown and complainant’s lawyer both conceded that our application should be granted as the messages were highly probative for the reasons that we articulated. After being confronted with her messaging history with our client the complainant tried to claim she didn’t write the messages herself and the judge did not believe her. The relevance of the messages had to be detailed properly to show that we were not arguing “advance consent.”

In the case of Regina v. D.S., our client faced 6 charges including sexual assault causing bodily harm, domestic assault, threatening, criminal harassment, sexual assault with a weapon (to wit, a dildo). After winning our application to admit numerous emails, text messages and videos the charges were withdrawn as it was clear none of the accusations had a prospect of conviction. The client was spared a trial and was able to move on with his life.

Despite the Supreme Court’s suggestion that sexual history evidence will rarely be admissible, Neuberger & Partners, Criminal Defence Lawyers Toronto,  has been successful in every pre-trial evidentiary application brought since the new, strict legislation was enacted. These applications need to be focused and heavily supported with the most recent case law to ensure our clients receive a fair trial. Although onerous, when done properly a successful application can often result in the Crown reconsidering their prospect of conviction.

It is vital for people faced with sex assault charges, that these application be drafted in a very detailed fashion grounded in the evidence supported by the client’s version of events.  These are NOT simple applications and because of the new legislation, defending sexual assualt charge is a complex nuanced matter.

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