R. v. HPM, 2023 ABCA 292, OCTOBER 18, 2023.

FACTS: The accused was convicted of the offence of sexual assault. During the trial, the Crown presented evidence relating to the accused and the complainant having previously dated and having lived together.  A section 276 voir dire was not conducted.

The accused appealed from conviction, arguing that the evidence was improperly admitted.

HELD: The appeal was dismissed.  The Court of Appeal noted that though section 276(1) “is binding upon both the Crown and the accused” there “is no allegation nor is it apparent that the references to the complainant and the appellant having a previous relationship were in any way in support of either of [the] twin myths”.

The Court of Appeal also held that section 276(2) does not apply to the Crown (at paragraph 36):

Subsection 276(2) provides that evidence shall not be adduced that the complainant has engaged in sexual activity, other than the sexual activity that is the subject matter of the charge, unless a judge determines that the evidence is not being adduced to support an inference prohibited in subsection (1), is relevant to an issue at trial, is of specific instances of sexual activity, and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. This subsection applies only to evidence adduced “by or on behalf of the accused” and does not apply to the Crown; nor do the statutory procedures in ss 278.93 and 278.94 apply to the Crown. Therefore, s 276 is of no assistance to the appellant.

Conclusion:

The Court of Appeal concluded that a voir dire was not required because of the nature of the evidence presented (at paragraphs 41 and 45):

While “relatively benign” evidence of past sexual activity must be scrutinized and handled with care, “a relationship may provide relevant context quite apart from any sexual activity”. Although “general evidence of categories of relationships…such as marriage, dating, etc. … [was] not before the Court” in Goldfinch, Justices Moldaver and Rowe opined that “such evidence would not, without more, engage s. 276(or in this case, the Seaboyer analysis) as it does not amount to “evidence that the complainant has engaged in [specific] sexual activity” (emphasis in original). See paras 46, 57, 73, 104.

The references to the past relationship were minor and did not identify specific instances of, or any, sexual activity. There were no detailed particulars. The references provided relevant background but otherwise had no probative value. They did not engage twin-myth (or any other prohibited) reasoning and were not prejudicial to the appellant. A common law voir dire was not required in this instance. See also R v Diakite, 2023 MBCA 42, paras 23-25, 88 CR (7th) 35.