R. v. J.S.S.

Parties

Procedural Posture

Criminal Sexual Offences / Pre Trial S.276 Application Hearing (threshold Met Under S.276.1(4))

Legal Issues

1. 1 Whether evidence of the complainant's prior sexual activity is admissible under s.276(2)
2. 2 Whether prior consensual sexual activity is relevant when the defence is consent (not honest but mistaken belief)
3. 3 Which specific aspects of the proffered sexual history are probative versus unduly prejudicial

Ratio Decidendi

The court held that evidence of prior consensual anal intercourse between the parties (four to five prior occasions) was admissible in limited form because it provides necessary contextual relevance to assess the credibility of competing accounts on consent; however highly inflammatory or remote details (references to intercourse during menstruation, use of sex toys during anal intercourse, an ambiguously described semen photo, and certain remote or explicit electronic communications) were excluded because their prejudicial effect substantially outweighed any probative value. The admissible evidence must be confined and accompanied by appropriate jury directions.

Court Disposition

Application partially granted: limited evidence of prior consensual anal intercourse admitted; other proffered sexual-history material excluded.

Orders

• Defence permitted to elicit evidence and ask questions about prior consensual anal intercourse as described in paragraphs 28, 31 and 32 of the notice of application (four to five prior acts)
• Prohibition on references to anal intercourse during menstruation (second sentence of paragraph 28)