R. v. J.W.S.

R. v. J.W.S.

The s.276 application is granted: the prior specific sexual activity between the accused and complainant is admissible because it is specific, relevant to consent and honest but mistaken belief in consent, and its probative value is not substantially outweighed by prejudice; admissibility is subject to judicial control to prevent misuse and the Jobidon consent-to-harm issue is reserved for trial.

Citation
2012 NSPC 101
Parties
Crown: Her Majesty The Queen; Accused/applicant: J. W. S.
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
22 May 2012
Procedural Posture
Criminal Sexual Offences / Pre Trial S.276 Admissibility Hearing (decision)
Outcome
Application granted; prior sexual activity evidence admitted for trial subject to limits and judicial control
Legal Topics
Section 276 Application, Admissibility of Sexual Activity Evidence, Consent, Honest But Mistaken Belief in Consent, Assault Causing Bodily Harm, Consent to Bodily Harm (jobidon)
Source Language
English
Criminal Law Evidence Sexual Assault Law Section 276 Application Admissibility of Sexual Activity Evidence Consent Honest But Mistaken Belief in Consent Assault Causing Bodily Harm +1 more

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Parties

Her Majesty The Queen

Crown

J. W. S.

Accused/applicant

Procedural Posture

Criminal Sexual Offences / Pre Trial S.276 Admissibility Hearing (decision)

Legal Issues

  1. 1 Whether prior specific instances of sexual activity are admissible under s.276(2)
  2. 2 Relevance of prior sexual activity to consent and honest but mistaken belief in consent
  3. 3 Balancing probative value against prejudice under s.276(2)(c) and s.276(3) factors

Ratio Decidendi

The s.276 application is granted: the prior specific sexual activity between the accused and complainant is admissible because it is specific, relevant to consent and honest but mistaken belief in consent, and its probative value is not substantially outweighed by prejudice; admissibility is subject to judicial control to prevent misuse and the Jobidon consent-to-harm issue is reserved for trial.

Court Disposition

Application granted; prior sexual activity evidence admitted for trial subject to limits and judicial control

Orders

  • Section 276 application granted; evidence of prior sexual activity between the accused and the complainant is admissible at trial.
  • Use of admitted sexual activity evidence is restricted to relevant, non-misleading purposes; evidence cannot be used to invoke the 'twin myths'.