R. v. DIAKITE, 2023 MBCA 42, MAY 11, 2023.

FACTS: The accused was convicted of the offence of sexual assault. He appealed, arguing that the trial judge erred in applying section 276 of the Criminal Code. The accused argued that the trial judge should have held a voir dire to determine the admissibility of the complainant’s evidence of virginity before admitting it as evidence in the trial.

The Manitoba Court of Appeal indicated that the appeal raised the following question:

Did the trial judge err by admitting Crown evidence that the complainant was a virgin (i.e., evidence of her prior sexual inactivity) at the time of the incident without first holding a voir dire to determine its admissibility?

HELD: The appeal was dismissed. The Court of Appeal indicated that it was not “necessary to resolve that issue in this case.” The Court held that “the evidence of the complainant’s virginity was admissible for several purposes unrelated to the prohibited inferences in Seaboyer and section 276(1):  to provide the complainant’s explanation for not wanting to have sex with the accused (see R v Kontzamanis, 2011 BCCA 184 at paras 27-31; and R v Garciacruz, 2015 ONCA 27 at para 69); and to explain the bloodstains on the bed, on the pillow and on her dress, and her pain and difficulty urinating following the incident” (at paragraph 19).

The Court of Appeal held that “even if the trial judge erred in failing to hold a voir dire before admitting the Crown’s evidence of virginity, the evidence was admissible for several reasons apart from consent, and it was not tendered for a purpose that engaged the twin myths in Seaboyer and section 276(1). Therefore, even if there had been a voir dire, the evidence would, in all probability, have been admitted” (at paragraph 23).