In R. v. McKnight, 2022 ABCA 251, July 18, 2022, the accused was charged with a number of sexual offences.  At his trial, he sought to introduce evidence of sexual activity he had with each complainant, some of which occurred in bars and some at his residence on the date of the alleged offences.  The nature of this evidence was described in the following manner (at paragraphs 233 and 238):

…sexual acts involving the complainants on the Indictment … which occurred very close in time and prior to the sexual activity that the Crown is alleging constitutes criminal conduct…this included sexual activity prior to the alleged offences such as kissing, touching, flirting, and dancing – mostly at one or more bars earlier on the night in question, but also in some instances at Mr McKnight’s apartment leading up to the activity (sexual intercourse) alleged by the Crown to be non-consensual.

Section 276(2) of the Criminal Code indicates that “evidence shall not be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge”.  The Alberta Court of Appeal noted that section 276 “does not apply to sexual activity of a complainant that ‘forms the subject-matter of the charge’: s 276(2). Section 276 is thus restricted in its application to so-called ‘other sexual activity’, namely a complainant’s sexual activity ‘other than the sexual activity that forms the subject-matter of the charge’” (at paragraph 231).

The Trial Judge:

The trial judge ruled that “the ‘sexual activity that forms the subject-matter of the charge’ in s 276(2) and which is thus exempted from the conditions for admissibility does not include ‘proximate sexual activity’ (at paragraph 236).  She concluded that a section 276 hearing was required.  The accused was convicted of a number of offences.

The Appeal:

On appeal, the accused argued that “the trial judge’s decision to require screening of ‘proximate sexual activity’ through the ss 278.93 and 278.94 process was a reviewable error. He maintains that ‘proximate sexual activity that … is integrally connected by time and place to the charges on the indictment is better construed as sexual activity that forms the subject matter of the charge’” (at paragraph 239).

The Court of Appeal indicated that “[a]t issue in this case is whether certain sexual activity between Mr McKnight and most of the complainants falls outside of ‘other sexual activity’ such that s 276 is not engaged and the procedures set out in ss 278.93 and 278.94 need not be followed. This requires determining the proper scope of the phrase ‘sexual activity that forms the subject-matter of the charge’ in s 276(2)” [at paragraph 232].

The Alberta Court of Appeal:

The appeal was dismissed.  The Alberta Court of Appeal held that “[t]o fall within the scope of ‘sexual activity that forms the subject-matter of the charge’ in s 276(2) for the purposes of the defences of consent or honest mistake of fact as to communicated consent, at the very least, the ‘sexual activity’ must be part of the specific factual events of which the offence is a component” (at paragraph 254).

The Court of Appeal indicated that “[i]f the so-called ‘proximate’ activity is not part of those events comprising the offence but is nonetheless allowed in evidence without review for admissibility or prejudice, then this concept of ‘proximate’ activity is simply a lamentable revival of the concept of implied consent…Applying an amorphous notion of mere ‘proximity in time and place’ as a justification for disapplying the screening provisions would not only undermine those screening provisions but would roll back Parliament’s carefully chosen use of the word ‘activity’ to put beyond question that a complainant is not deemed to mean ‘yes’ to anything, even at the time and place” (at paragraph 255).

The Court of Appeal noted “proximate sexual activity” is “not a category of evidence. Sexual activity occurring ‘at a proximate time’ is a relative term and a question of degree. Sexual activity which is ‘integrally connected’ to the alleged offence may come closer to capturing this idea, however such activity in no way needs to be synonymous with all a complainant’s sexual activity with an accused occurring on the same night as the alleged offence. Whether such sexual activity is a part of or integrally connected to the specific charge is highly case-dependent, as it is ‘necessarily a fact-driven exercise’” (at paragraph 258, the Court of Appeal’s emphasis).

Conclusion:

The Alberta Court of Appeal concluded that the trial judge “warranted in refusing to declare in the abstract that all ‘proximate sexual activity’ occurring on the night in question should be exempt from s 276.  It may well be that some of the proposed evidence as later detailed in Mr McKnight’s affidavit should have been exempt from the s 276 regime, particularly that occurring in his apartment just prior to the sexual intercourse. However, this was a comparatively small portion of the proposed ‘proximate sexual activity’, the majority of which having been said to occur in bars hours prior to the activity alleged by the Crown to constitute sexual assault. There would have been little basis for refusing to apply s 276 to this evidence in most if not all cases. And, in any event, the fact the evidence was ultimately admitted after a s 276 hearing meant that Mr McKnight ultimately suffered no prejudice to his defence” (at paragraph 267).