R. v.  T.W.W., 2022 BCCA 312, SEPTEMBER 16, 2022.

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 circumstances involved were described in the following manner (at paragraphs 2 and 3):

X testified that she and W had separated approximately five weeks before the incident in question when he moved into a downstairs bedroom in their house.  According to X, W came upstairs one morning and sexually assaulted her.  The version of events W ultimately sought to advance was different.  According to W, shortly before the alleged assault they engaged in consensual sexual activity, the alleged assault never occurred, and they engaged in consensual sexual activity again later that day.  In a statement to the police, X referred to them having engaged in consensual sexual activity the night before the morning incident.

W’s grounds of appeal concern the trial judge’s pre- and mid-trial rulings precluding him from adducing evidence of their having engaged in sexual activity both prior to and after the alleged incident, including through cross-examination.

HELD: The appeal was dismissed.  A majority of the Court of Appeal noted that an accused “advancing a s. 276 application must clearly identify the evidence sought to be tendered and articulate with precision the relevance of the proposed evidence to the defence in a way that does not rely on twin-myth reasoning. Regrettably, neither of these foundational pillars were in place before the commencement of the voir dire in this case. This explains the chaotic and, in my view, inappropriate way in which this issue unfolded during the trial” (at paragraph 94).