In R. v. O.F., 2022 ONCA 679, October 13, 2022, the accused was convicted of sexually assaulting his girlfriend’s 18-year-old daughter, contrary to section 271 of the Criminal Code. At the trial, he brought an application pursuant to section 276 of the Criminal Code “seeking to admit evidence that on several occasions before the incident, and during his relationship with her mother, the complainant flirted and made physical contact that suggested she was sexually interested in him”. The trial judge ruled that this evidence was inadmissible. The accused was convicted. He appealed from conviction.
The appeal was dismissed. The Ontario Court of Appeal indicated that “[e]vidence of a complainant’s sexual history will only be admissible where the accused demonstrates that the evidence relates to a legitimate aspect of his defence and is integral to his ability to make full answer and defence…To do so, the accused must be able to identify specific evidence that is relevant to an issue at trial and has significant probative value that is not substantially outweighed by prejudice to the proper administration of justice: s. 276(2) of the Criminal Code. There must be an explicit link between the evidence sought to be tendered and specific facts or issues relating to the accused’s defence” (at paragraph 52).
In concluding that the trial judge was correct in excluding the evidence the accused sought to introduce, the Court of Appeal concluded as follows (at paragraphs 54 to 57):
On this record, the appellant faced an uphill climb and could not succeed on the application by merely suggesting that the prior sexual history was admissible because it provided “context” or “narrative” to the incident. It was his onus to identify a specific, explicit link between the evidence or specific facts that was not merely helpful to the defence, but “fundamental to the coherence of the defence narrative”: Goldfinch, at paras. 66, 119. This he did not do.
The trial judge also properly rejected the appellant’s submissions that the evidence was relevant to the issue of the complainant’s consent. Relying on Darrach, the trial judge noted that evidence of prior sexual activity would rarely be relevant to the issue of consent, as consent is determined subjectively from the complainant’s perspective at the time the sexual acts in question occurred. The prior flirting and physical contact was not relevant to consent.
Furthermore, I see no error in the trial judge’s rejection of the appellant’s submission that the proposed evidence was relevant to the defence of honest but mistaken belief in consent. She observed that simply believing that an individual would have consented because they had consented to similar acts in the past was not enough to give an air of reality to the defence of honest but mistaken belief in consent.
I do not see how the evidence was relevant to the appellant’s defence of honest but mistaken belief in consent. While evidence of a complainant’s extrinsic sexual activity may be relevant to a defence of honest but mistaken belief in communicated consent, that belief cannot simply rest upon evidence that the complainant appeared to welcome sexual activity in the past and this informed the appellant’s perception of the incident. Indeed, that would implicate twin-myth reasoning: Goldfinch, at para. 62.