R. v. D.E.W.

Parties

Procedural Posture

Criminal Sexual Assault / Voir Dire S.276.1 Application (pre Trial)

Legal Issues

1. 1 Whether evidence of prior sexual activity between accused and complainant (digital anal penetration; insertion of hand into vagina) is admissible under s.276.1/276.2 and s.276.3 of the Criminal Code
2. 2 Whether the accused has linked the proposed evidence to a specific defence (honest and mistaken belief in consent) satisfying conditions precedent
3. 3 Whether probative value of the evidence is substantially outweighed by prejudice to the complainant and the proper administration of justice

Ratio Decidendi

The application was allowed because the court found the accused satisfied the statutory conditions precedent and linked the specific prior sexual acts to the defence of honest and mistaken belief in consent; the evidence was relevant and had significant probative value that was not substantially outweighed by the risk of prejudice to the proper administration of justice, particularly in a judge-alone trial and where the evidence concerns sexual activity between the parties rather than with third parties.

Court Disposition

Section 276.1 application granted; evidence admitted for limited purpose

Orders

• Application under s.276.1/s.276.2 allowed
• Defence may adduce evidence of specific prior sexual activity between the accused and complainant (digital anal penetration on multiple occasions and insertion of the accused's hand into the complainant's vagina) for the limited purpose of supporting an honest and mistaken belief in consent defence