R. v. Edgar

Parties

Procedural Posture

Criminal Sexual Assault / Pre Trial Section 276 Application Hearing

Legal Issues

1. 1 Whether DNA reports showing complainant's husband's DNA and absence of accused's DNA are admissible under s.276
2. 2 Whether questioning complainant about husband's recent intercourse, condom use and ejaculation is admissible under s.276
3. 3 How to balance probative value against prejudice/privacy under s.276(2)-(3)

Ratio Decidendi

The s.276 threshold for admissibility is met: the husband's semen-derived DNA found in the sexual assault examination significantly increases the probative value of the absence of the accused's DNA by demonstrating that material capable of recovery existed; questions about condom use and ejaculation are essential to link the DNA to the husband's intercourse and to contradict the complainant's account; privacy intrusion is outweighed by the evidence' critical role in the accused's ability to raise a reasonable doubt; therefore defence evidence admitted and Crown permitted to call forensic specialist to explain alternative reasons for absence of accused's DNA.

Court Disposition

Section 276 application granted; defence evidence admitted and Crown permitted to call forensic expert evidence

Orders

• Admit into evidence the RCMP National Forensic Laboratory reports identifying the complainant's husband's DNA and the absence of the accused's DNA from the sexual assault samples
• Permit questioning of the complainant regarding the husband's recent consensual intercourse, including whether a condom was used and whether he ejaculated