R. v. Robb

Parties

Procedural Posture

Criminal (sexual Assault) / Pre Trial Admissibility Hearing (voir Dire)

Legal Issues

1. 1 Whether Crown-led evidence of prior intimate relationship and non-consensual distribution of an intimate image is admissible under s.276 and common law
2. 2 Whether admission would invite prohibited 'twin myths' or other discriminatory reasoning
3. 3 Whether probative value of the evidence outweighs its prejudicial effect given s.276(3) factors

Ratio Decidendi

The judge found the challenged Crown-led evidence relevant to the Complainant's state of mind and contextual to the alleged touching, that the Crown did not intend to rely on 'twin myths', and that, on balance of s.276(3) factors (including complainant consent to hearing, narrow scope, non-production of the image, and judge-alone trial), the probative value of admitting limited evidence of the prior intimate relationship and distribution of the image outweighs its prejudicial effect; accordingly the Crown may adduce that limited evidence solely for context/state of mind and not to bolster credibility or support twin-myth inferences.

Court Disposition

Application granted in part

Orders

• Crown permitted to adduce evidence that between 2018 and 2019 the Complainant and the Accused were in an intimate partner relationship
• Crown permitted to adduce evidence that following the relationship the Accused was in possession of an intimate image of the Complainant and threatened to distribute it