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ADMISSIBILITY OF PRIOR SEXUAL ACTIVITY-SECTION 276 CRIMINAL CODE

In R. v. Ravelo-Corvo, 2022 BCCA 19, January 26, 2022, the accused was charged with the offence of sexual assault. He applied to introduce prior sexual activity in support of a defence of mistaken belief in communicated consent.  The evidence consisted of what purportedly occurred between the accused and the complainant (dancing and sexual touching) at a bar prior to sexual activity occurring at the accused’s residence.

The trial judge dismissed the application.  The accused was convicted.  He appealed to the British Columbia Court of Appeal. In dismissing the application, the trial judge held that the factors in s. 276(3) need only be considered “at the balancing stage in s. 276(2)(d), and only if the accused has met each of s. 276(2)(a), (b) and (c)”.

The appeal was dismissed, though the Court of Appeal disagreed with the trial judge’s interpretation of section 276(3) of the Criminal Code.  The Court of Appeal held that Section 276(2) “expressly requires all four conditions for admissibility enumerated in paragraphs (a) to (d) to be met, and s. 276(3) expressly requires judges to take the enumerated factors into account in determining admissibility under s. 276(2)… the factors in s. 276(3) must be taken into account in assessing all of the requirements in s. 276(2). As the analysis required to assess relevance is closely connected to that required to assess probative value, the mandatory requirement in s. 276(3) to take the enumerated factors into account ensures that the legitimate purpose of any admissible evidence of prior sexual activity “is identified and weighed against countervailing considerations” (at paragraphs 34 and 40).  

The Court of Appeal held that the proposed evidence in this case was “closely related in time to the incident in the apartment that forms the subject matter of both the sexual assault and the unlawful confinement charges. It is in essence part of the narrative of events leading up to the incident. That in itself does not render the evidence admissible, but in such circumstances, an analysis under s. 276 should not usually be a complex one. Provided this part of the narrative is relevant to an issue raised at trial, the evidence should meet the relevance threshold under s. 276(2)(b)” (at paragraph 41).

However, the Court of Appeal concluded that the proposed evidence of what occurred at the bar had “scant probative value in relation to the defence of honest but mistaken belief in communicated consent”: (at paragraphs 51 and 52):

As the trial judge found, the appellant failed to explain how and why the evidence of the sexual activity at the club informed his honest but mistaken belief that she communicated consent to the sexual activity in the apartment. His evidence in the application was silent as to how the complainant’s “tug-of-war” between him and R affected his perception at the time of the incident. The suggestion in the appellant’s application and his evidence that the complainant’s alleged sexual conduct at the club led him to believe that she was interested in further, undefined sexual activity treads closely to the “forbidden territory of assumed or implied consent” and the false logic of twin-myth reasoning: Barton at paras. 92, 94.

In these circumstances, the proposed evidence had scant probative value in relation to the defence of honest but mistaken belief in communicated consent, reflected discriminatory beliefs, and there was no reasonable prospect that it would assist the trial judge in her task. Therefore, the judge’s refusal to admit it did not deprive the appellant of the right to make full answer and defence.