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EVIDENCE-PRIOR SEXUAL ACTIVITY-SECTION 276 CRIMINAL CODE

R. v. PENASHUE, 2023 NLPC 1719A000947, JULY 21, 2023.

FACTS:  The accused was charged with the offence of sexual assault.  Judge Strickland indicated that the accused “applied to adduce evidence relating to a sexual encounter with the complainant that, according to him, occurred minutes or perhaps moments before the alleged sexual assault. The first issue to be determined is whether s. 276 of the Criminal Code is triggered in these circumstances. If s. 276 does apply, I will then continue to the first stage of the admissibility hearing, as outlined in s. 278.93(4) of the Code. The focus at that point would be whether the “evidence sought to be adduced is capable of being admissible under subsection 276(2)” (at paragraph 1).

HELD: The application was dismissed. Judge Strickland held that section 276 applied and that.

Application of Section 276 of the Criminal Code:

Section 276 of the Criminal Code prohibits the admission of any “evidence that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge” except as allowed by that provision.  Thus, the procedure in section 276(2) must be followed except if the proposed evidence is evidence “forms the subject-matter of the charge”

Judge Strickland considered the words “other than the sexual activity that forms the subject-matter of the charge” and held that “phrases such as proximate in time and place or integrally connected are not terribly helpful…prior sexual conduct or communications may be considered ‘sexual activity that forms the subject matter of the charge’ if that prior activity includes direct evidence relevant to the elements of the alleged offence” (at paragraph 19).

Applying that test to this case, Judge Strickland concluded that the proposed evidence was not sexual activity that formed part of the the subject matter of the charge (at paragraphs 26 and 27):

The first encounter described by the Applicant provides no direct evidence in terms of consent or any element of the offence as alleged during the second encounter; to use the formulation preferred by the Alberta Court of Appeal, the first encounter is not “integrally connected” to the alleged offence. Accordingly, the former may not be classified as “sexual activity that forms the subject matter of the charge”.

Consequently, for the evidence of the first encounter to be admitted into evidence, the Applicant must apply under s. 276(2) of the Code.[1]

Was the proposed evidence admissible pursuant to section 276(2) of the Criminal Code?

  • Judge Strickland concluded that the proposed evidence was inadmissible (at paragraph 44):
  • The applicant has failed to identify a basis upon which this court could permit the admission of evidence relating to a sexual encounter that, according to the Applicant, occurred in the kitchen a short time before the sexual activity that is the subject matter of the charge. I cannot admit such evidence for the purposes of assessing the element of consent, nor will I admit that evidence for the purposes of cross-examining the complainant on her failure to tell anyone about it.

[1]On this issue, see Lisa Dufraimont, R. v. Choudhary and the Problem of Proximate Sexual Activity Evidence (2023), 89 CR-ART 174.