In R. v. Mathew, 2022 BCCA 288, August 24, 2022, the accused was convicted of the offence of sexual assault.  The evidence at the trial established that the accused ad the complainant had engaged in consensual sexual activity. The offence involved subsequent non-consensual sexual activity that night.

The accused appealed from conviction, arguing that the trial judge erred in “admitting evidence of prior sexual conduct without holding a voir dire.

The appeal was dismissed.  The British Columbia Court of Appeal concluded that the trial judge erred in failing to conduct a voir dire, but applied section 686(1)(b)(iii) of the Criminal Code and upheld the conviction.

Other Sexual Activity:

The Court of Appeal noted that “[s]ection 276 and the common law requirements protect trial fairness by excluding irrelevant and misleading evidence, balanced against the appellant’s right to make full answer and defence. Their object is to exclude irrelevant evidence about prior sexual conduct that could distort the trial process by allowing twin myth reasoning and stereotypical assumptions. It is that reasoning that ‘undermines [the] truth-seeking function and threatens the equality, privacy and security rights of complainants’: R. v. Goldfinch, 2019 SCC 38 at para. 1. The requirements are not aimed at excluding irrelevant evidence per se” (at paragraph 18).

‘The Court of Appeal held that the trial judge “was required to hold a voir dire to determine the admissibility of the evidence about the prior sexual activity. This Court has repeatedly affirmed that no agreement of counsel or lack of objection relieves the trial judge of their gatekeeping role”, but that “the judge’s error in failing to hold an admissibility hearing and limit evidence about the details of the consensual encounter did not prejudice the appellant, and did not amount to a miscarriage of justice. In my view, the error was a harmless one with respect to which the curative proviso should be invoked” (at paragraphs 8 and 22).