R. v. T.A.H.

R. v. T.A.H.

The s.276 application was dismissed because the proffered evidence invoked prohibited 'twin myth' reasoning and was not relevant to any issue at trial; absent relevance the evidence failed s.276(2)(b) and thus also failed the required probative/prejudice balancing under s.276(2)(d) and (3). The court noted...

Source-derived case information.

Citation
2019 BCSC 1614
Parties
Crown: Regina; Accused: T.A.H.; Complainant: Complainant
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
24 September 2019
Procedural Posture
Criminal Sexual Assault / S.276 Voir Dire / Admissibility Hearing Prior to Trial (in Camera)
Outcome
s.276 application dismissed; proposed prior sexual activity evidence not admitted
Legal Topics
Rape Shield (s.276), Prior Sexual Activity Evidence, Admissibility Hearing, Affidavit Requirement, Balancing Probative Value Vs Prejudice
Source Language
english
Criminal Law Evidence Sexual Assault Procedure Rape Shield (s.276) Prior Sexual Activity Evidence Admissibility Hearing Affidavit Requirement +1 more

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Parties

Regina

Crown

T.A.H.

Accused

Complainant

Complainant

Procedural Posture

Criminal Sexual Assault / S.276 Voir Dire / Admissibility Hearing Prior to Trial (in Camera)

Legal Issues

  1. 1 Whether proposed evidence of prior sexual activity (anal intercourse) is admissible under s.276(2) of the Criminal Code
  2. 2 Whether the accused was required to file an affidavit with detailed particulars in support of the s.276 application (s.278.93(2) and R. v. Darrach)
  3. 3 Whether the proposed evidence would improperly engage 'twin myth' reasoning or otherwise be irrelevant or unduly prejudicial

Ratio Decidendi

The s.276 application was dismissed because the proffered evidence invoked prohibited 'twin myth' reasoning and was not relevant to any issue at trial; absent relevance the evidence failed s.276(2)(b) and thus also failed the required probative/prejudice balancing under s.276(2)(d) and (3). The court noted discretion to proceed without an affidavit but observed that omission is perilous and hampered assessment of relevance and significance.

Court Disposition

s.276 application dismissed; proposed prior sexual activity evidence not admitted

Orders

  • s.276 application dismissed; evidence of prior consensual anal intercourse excluded as inadmissible under s.276
  • Publication ban restricting any information that could identify the complainant remains in force under Criminal Code s.486.4