R. v. W.H.A.

R. v. W.H.A.

The application to admit evidence of the complainant's sexual intercourse with a third party was denied at this time because, although the threshold for admissibility under s.276(2) was met, the absence of expert evidence on causation and the timing of the 2.5 cm vaginal tear and the risk of substantial prejudice to the complainant and unfairness to the accused (given the timing of witness testimony) meant the probative value did not justify admission; the decision is conditional and may be revisited if nurses testify about the tear and circumstances warrant recall of the complainant.

Citation
2011 NSSC 168
Parties
Prosecution: Her Majesty the Queen; Accused: W. H. A.
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
29 April 2011
Procedural Posture
Criminal Sexual Assault / Pre Trial Admissibility Hearing (voir Dire) Under S.276.2 Criminal Code
Outcome
Application to admit evidence of other sexual activity denied at this time (conditional exclusion); court reserves right to reconsider during trial
Legal Topics
S.276.1/276.2/276.3 Criminal Code, Admissibility of Complainant's Sexual History, Rape Shield Provisions, Credibility, Probative Vs Prejudicial Balancing
Source Language
English
Criminal Law Evidence Sexual Assault Procedural Law S.276.1/276.2/276.3 Criminal Code Admissibility of Complainant's Sexual History Rape Shield Provisions Credibility +1 more

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Parties

Her Majesty the Queen

Prosecution

W. H. A.

Accused

Procedural Posture

Criminal Sexual Assault / Pre Trial Admissibility Hearing (voir Dire) Under S.276.2 Criminal Code

Legal Issues

  1. 1 Whether evidence of complainant's sexual intercourse with a third party (JK) is admissible under s.276(2) Criminal Code
  2. 2 Whether that evidence is relevant to credibility or to causation of the 2.5 cm vaginal tear
  3. 3 Whether the probative value of the evidence is substantially outweighed by the danger of prejudice to the administration of justice and the accused's right to full answer and defence

Ratio Decidendi

The application to admit evidence of the complainant's sexual intercourse with a third party was denied at this time because, although the threshold for admissibility under s.276(2) was met, the absence of expert evidence on causation and the timing of the 2.5 cm vaginal tear and the risk of substantial prejudice to the complainant and unfairness to the accused (given the timing of witness testimony) meant the probative value did not justify admission; the decision is conditional and may be revisited if nurses testify about the tear and circumstances warrant recall of the complainant.

Court Disposition

Application to admit evidence of other sexual activity denied at this time (conditional exclusion); court reserves right to reconsider during trial

Orders

  • Evidence that the complainant had sexual intercourse with JK is inadmissible at this time
  • Issue may be revisited if nurses testify about the 2.5 cm vaginal tear and parties may apply to recall the complainant or reopen the matter