Supreme Court upholds invalidity of proof of “prior sexual activity”

The Supreme Court of Canada has confirmed that a man convicted of sexually assaulting his longtime wife was not entitled to present evidence about the sexual activity they engaged in shortly before the crime.

The couple, together for more than 20 years, went on a trip in February 2018 and separated when they returned. The man then moved into a room in the basement of their house.

The woman told police that she and the accused had consensual sex on the evening of 1^er April and that he sexually assaulted her the next morning.

The man, identified only as TWW, sought to present evidence at trial regarding sexual activity the previous evening.

Evidence of a complainant’s sexual history is presumed inadmissible. The principle aims to avoid what is known as “double myth” reasoning — whereby prior behavior means that the complainant is more likely to have consented to the alleged sexual activity, or that the complainant is less worthy of trust.

The trial judge denied TWW’s request to introduce evidence, ruling that the events of 1^er April were not relevant to the question of consent the following day.

The man’s defense evolved during the proceedings and he eventually argued that the attack did not take place.

TWW was convicted of sexual assault and he later appealed the verdict.

The British Columbia Court of Appeal rejected the challenge by a majority. She said the man failed to establish how evidence of sexual activity on 1^er April was critical to his defense that the sexual assault did not occur the next day.

In its ruling on Friday, the Supreme Court of Canada upheld the conviction while upholding the trial judge’s decision to refuse to admit the evidence.

Writing for the majority of the court, Justice Michelle O’Bonsawin said “the evidence of prior sexual activity served no admissible purpose, either in terms of context or credibility.”

She noted that the law requires trial judges to first consider whether the evidence is inadmissible because it supports an inference based on the dual myth. “It is an error of law to admit evidence that supports reasoning based on the double myth. »

The fact that the couple ever had a sexual relationship is undisputed, she wrote. “For this reason, the evidence of the 1^er April could not be of any use beyond reasoning based on the double myth. »

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