Three Supreme Court of Canada decisions from the past several years have changed how sexual assault cases are defended in British Columbia. Each one affects what evidence the defence can use and when that evidence has to be raised. Anyone facing a sexual assault charge should understand these decisions, because they shape the case from the first meeting with a lawyer.
Private Records Must Be Brought Forward Before Trial
R. v. J.J., 2022 SCC 28
Before 2018, an accused person who had text messages, emails, photos or other records involving the complainant could often hold them back and use them during cross-examination. Parliament changed that with sections 278.92 to 278.94 of the Criminal Code. In R. v. J.J., the Supreme Court of Canada upheld those sections as constitutional.
If the accused has a record in which the complainant has a reasonable expectation of privacy, the defence must apply to the judge before trial to use it. The application has to identify the record and explain why it is relevant to an issue at trial. The judge then holds a hearing to decide whether the record can be used. The complainant is entitled to take part in that hearing and to have a lawyer make submissions.
This means the complainant will usually know about the records before testifying. Text messages between the accused and the complainant are often the most important evidence in these cases, so the defence has to identify them early and prepare the application carefully. Records that are not properly brought forward may not be usable at trial.
Relationship Evidence Is Treated as Sexual History
R. v. Goldfinch, 2019 SCC 38
Section 276 of the Criminal Code bars evidence of a complainant’s other sexual activity when it is used to suggest that the complainant was more likely to have consented or is less believable. These two inferences are known as the twin myths.
In Goldfinch, the accused wanted to tell the jury that he and the complainant had a “friends with benefits” relationship. The defence argued that this was background information. The Supreme Court of Canada held that describing a relationship that includes sexual activity is evidence of sexual activity, so section 276 applies to it.
The defence can still apply to introduce this kind of evidence. The judge will admit it only if it is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. Calling the evidence “context” or “narrative” will not meet that test. The defence has to show exactly which issue the evidence goes to and how it bears on that issue.
Mistaken Belief Requires Evidence That Consent Was Communicated
R. v. Barton, 2019 SCC 33
Consent in Canadian law means the complainant actually agreed, in their own mind, to the sexual activity at the time it happened. In R. v. J.A., 2011 SCC 28, the Supreme Court of Canada held that consent must exist throughout the sexual activity. A person cannot consent in advance to activity that happens while they are unconscious.
An accused person who believed the complainant was consenting may raise a defence of honest but mistaken belief. In Barton, the Supreme Court of Canada confirmed that the defence is honest but mistaken belief in communicated consent. The accused must have believed that the complainant said yes through words or conduct. A belief that the complainant wanted the sexual activity is insufficient.
Section 273.2(b) of the Criminal Code adds another requirement. The accused cannot rely on the defence without having taken reasonable steps, in the circumstances known at the time, to find out whether the complainant was consenting. Silence, passivity and ambiguous conduct do not amount to communicated consent. A lack of resistance does not amount to consent either.
The evidence about what was said and done at each stage of the encounter is therefore critical. The accused’s account has to identify the words or actions that showed agreement. A general statement that the complainant seemed fine will not support the defence.
What This Means for Someone Charged
Each of these decisions moves more of the defence work to the period before trial. Records and relationship evidence have to be identified and brought forward early, and the accused’s account of what was communicated has to be examined in detail. Anyone charged with sexual assault in British Columbia should speak to a lawyer as soon as possible, because decisions made in the first weeks of a case can limit the defence available at trial.
