R. v. Comin

Parties

Procedural Posture

Criminal Sexual Assault / Pre Trial Application Under S.278.93 to Determine Admissibility of S.276 Prior Sexual Activity Evidence

Legal Issues

1. 1 Whether proposed conduct constituted 'other sexual activity' under s.276 or formed part of the same transaction
2. 2 Whether proposed evidence is admissible under s.276(2) and (3)
3. 3 Whether the evidence is relevant to consent

Ratio Decidendi

Proposed conduct constituted 'other sexual activity' captured by s.276 and required a s.278.93 application, but the Court admitted the limited prior conduct (kissing and explicit sexual comments) for the restricted purposes of supporting an air of reality to an honest but mistaken belief in communicated consent and to challenge complainant credibility on the specific point of prior contact, while ruling the evidence inadmissible to prove actual consent and excluding accused's generalized beliefs about the Bumble app.

Court Disposition

Application granted in part: prior kissing and explicit verbal advances at the bar admitted for limited purposes (air of reality to honest but mistaken belief in communicated consent and limited credibility attack) but not admissible to establish actual consent; evidence about accused's beliefs regarding Bumble...

Orders

• Application under s.278.93(4) granted to proceed to s.278.94 hearing result as set out
• Prior sexual activity evidence (kissing and explicit sexual comments between accused and complainant at the bar/nearby) admissible only to support an honest but mistaken belief in communicated consent and to challenge complainant credibility on that specific point