R. v. Garnier

R. v. Garnier

Section 276 did not apply because the charges (second‑degree murder and interference with remains) are not enumerated sexual offences and sexual activity is not the subject matter; exclusion of the public was justified under s.486 to protect the deceased's dignity and the proper administration of justice; [A.]'s evidence was inadmissible under common law because it lacked probative value, invoked impermissible stereotypical inferences about consent, and bore no meaningful nexus to the accused's account of erotic asphyxiation — defence application dismissed.

Citation
2016 NSPC 86
Parties
Crown: Her Majesty the Queen; Accused: Christopher Garnier
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
12 July 2016
Procedural Posture
Criminal (homicide) / Preliminary Inquiry — Section 276/common Law Admissibility Application
Outcome
Defence application dismissed; proposed sexual history evidence inadmissible
Legal Topics
Section 276 Sexual History Applications, Common Law Admissibility at Preliminary Inquiry, Section 486 Public Exclusion Orders, Section 276.1(3) In‑camera Procedure, Defence Theory of Erotic Asphyxiation
Source Language
English
Criminal Law Evidence Sexual History Evidence Publication Bans & Open Court Principle Victim Privacy/dignity Section 276 Sexual History Applications Common Law Admissibility at Preliminary Inquiry Section 486 Public Exclusion Orders +2 more

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Parties

Her Majesty the Queen

Crown

Christopher Garnier

Accused

Procedural Posture

Criminal (homicide) / Preliminary Inquiry — Section 276/common Law Admissibility Application

Legal Issues

  1. 1 Whether the defence application must be heard with the public excluded
  2. 2 Whether s.276 of the Criminal Code applies to permit admission of the victim's prior sexual history
  3. 3 Whether the proposed witness's evidence is admissible under common law rules of evidence at a preliminary inquiry

Ratio Decidendi

Section 276 did not apply because the charges (second‑degree murder and interference with remains) are not enumerated sexual offences and sexual activity is not the subject matter; exclusion of the public was justified under s.486 to protect the deceased's dignity and the proper administration of justice; [A.]'s evidence was inadmissible under common law because it lacked probative value, invoked impermissible stereotypical inferences about consent, and bore no meaningful nexus to the accused's account of erotic asphyxiation — defence application dismissed.

Court Disposition

Defence application dismissed; proposed sexual history evidence inadmissible

Orders

  • Public excluded from hearing and decision under section 486 of the Criminal Code
  • Section 539 publication ban imposed on evidence taken at the inquiry