R. v. W.H.D.

Parties

Procedural Posture

Criminal Sexual Assault (s.271) / Pre Trial S.276 Voir Dire (application to Admit Prior Sexual Activity Evidence)

Legal Issues

1. 1 Whether the proposed evidence constitutes specific instances of sexual activity under s.276(2)(a)
2. 2 Whether the proposed evidence is relevant to issues at trial (consent, honest but mistaken belief, credibility)
3. 3 Whether the probative value of the evidence significantly outweighs the danger of prejudice under s.276(2)(c) and factors in s.276(3)

Ratio Decidendi

Application granted in part: the court found the proposed prior sexual activity evidence met specificity and relevance thresholds insofar as it established prior intimate contact on Feb 4 and 11, 2012 and the specific utterance on Feb 4 ('slap my ass'); the evidence is admissible in limited, general terms to the extent necessary to support the accused's honest but mistaken belief in consent and for credibility assessment, but detailed questioning about the nature of the sexual acts is prohibited because the probative value does not substantially outweigh prejudice and the admission must be constrained to avoid improper inferences.

Court Disposition

Application granted in part

Orders

• Publication ban ordered pursuant to Criminal Code s.276.3 and s.486.4 limiting identification and publication of complainant and contents of the s.276 application.
• Defence may cross-examine the complainant and the accused may testify limited to the events of February 4 and 11, 2012: that the accused and complainant were together at her apartment and in the bedroom, that there was kissing and sexual intimacy, clothing was removed, intimate acts were performed upon each other,...