R. v. Fardy

R. v. Fardy

The court found on a balance of probabilities that the proposed text-message evidence meets s.276(2) requirements, is not adduced to support a prohibited inference, is relevant to the complainant's credibility as to her explanation for inconsistent disclosures, and its probative value is not substantially outweighed by prejudice; therefore the evidence is admissible for a limited purpose and limited cross-examination on that evidence is permitted.

Citation
2022 NSSC 331
Parties
Crown: His Majesty the King; Accused: Jakob M. Fardy
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
15 November 2022
Procedural Posture
Criminal Sexual Offences / S.276 Application at Stage Two During Judge Alone Trial
Outcome
Application allowed: proposed text messages admissible for a limited purpose and cross-examination on them permitted with limitations.
Legal Topics
S.276 Criminal Code, S.278.92 Factors, Admissibility of Sexual History Evidence, Credibility Assessment, Publication Restriction S.486.4
Source Language
English
Criminal Law Evidence Sexual Offences S.276 Criminal Code S.278.92 Factors Admissibility of Sexual History Evidence Credibility Assessment Publication Restriction S.486.4

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Parties

His Majesty the King

Crown

Jakob M. Fardy

Accused

Procedural Posture

Criminal Sexual Offences / S.276 Application at Stage Two During Judge Alone Trial

Legal Issues

  1. 1 Whether proposed evidence of specific prior sexual activity in text messages is admissible under s.276(2)
  2. 2 Whether the evidence is being adduced for a prohibited inference or the 'twin myths' in s.276(1)
  3. 3 Whether the probative value of the evidence is substantially outweighed by prejudicial effect

Ratio Decidendi

The court found on a balance of probabilities that the proposed text-message evidence meets s.276(2) requirements, is not adduced to support a prohibited inference, is relevant to the complainant's credibility as to her explanation for inconsistent disclosures, and its probative value is not substantially outweighed by prejudice; therefore the evidence is admissible for a limited purpose and limited cross-examination on that evidence is permitted.

Court Disposition

Application allowed: proposed text messages admissible for a limited purpose and cross-examination on them permitted with limitations.

Orders

  • Text messages identified from complainant E.L. are admissible for the limited purpose described in the decision and the accused is permitted to cross-examine E.L. on those messages with the limitations set by the court.
  • Restriction on publication under Criminal Code s.486.4: information that may identify the complainant is prohibited from publication, broadcast or transmission.