R. v. A.R.

R. v. A.R.

On the stage one s.278.93 screening the judge found the application met procedural requirements and the evidence as particularized is capable of being admissible: evidence of prior sexual activity is capable of explaining DNA on the inside of the complainant's underwear and therefore proceeds to a s.278.94 hearing; evidence regarding the complainant's relationship with D.H. is permitted to proceed; marginal issues (jealousy/flirtatiousness and omission in police interview) are not clearly incapable of being admissible and therefore also proceed to stage two where probative/prejudicial balancing will be conducted.

Citation
2024 BCSC 2644
Parties
Crown/prosecution: Rex; Accused/applicant: A.R.; Complainant: Complainant; Third Party Referenced: D.H.
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
26 August 2024
Procedural Posture
Criminal Sexual Assault / Stage One S.278.93 Admissibility Application (screening)
Outcome
Stage one application granted to proceed to stage two; evidence is capable of being admissible and will be heard under s.278.94
Legal Topics
Sexual History Evidence, Admissibility Under S.276/s.278, DNA Evidence, Twin Myths/prohibited Reasoning, Right to Full Answer and Defence
Source Language
English
Criminal Law Evidence Law Sexual Offences Sexual History Evidence Admissibility Under S.276/s.278 DNA Evidence Twin Myths/prohibited Reasoning Right to Full Answer and Defence

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Parties

Rex

Crown/prosecution

A.R.

Accused/applicant

Complainant

Complainant

D.H.

Third Party Referenced

Procedural Posture

Criminal Sexual Assault / Stage One S.278.93 Admissibility Application (screening)

Legal Issues

  1. 1 Whether evidence of prior sexual activity between the applicant and complainant and between the complainant and a third party (D.H.) is capable of being admissible under s.276(2) and proceeds to a s.278.94 hearing
  2. 2 Whether prior sexual activity is relevant to explain DNA found in complainant's underwear
  3. 3 Whether omission by complainant in police interview regarding prior sexual activity impacts her credibility and permits cross-examination

Ratio Decidendi

On the stage one s.278.93 screening the judge found the application met procedural requirements and the evidence as particularized is capable of being admissible: evidence of prior sexual activity is capable of explaining DNA on the inside of the complainant's underwear and therefore proceeds to a s.278.94 hearing; evidence regarding the complainant's relationship with D.H. is permitted to proceed; marginal issues (jealousy/flirtatiousness and omission in police interview) are not clearly incapable of being admissible and therefore also proceed to stage two where probative/prejudicial balancing will be conducted.

Court Disposition

Stage one application granted to proceed to stage two; evidence is capable of being admissible and will be heard under s.278.94

Orders

  • Application to adduce prior sexual activity evidence is to proceed to a s.278.94 hearing
  • Complainant's counsel to be afforded participation and notice for the s.278.94 hearing