R. v. Percy

R. v. Percy

The court held that the defence cleared the Stage One procedural threshold and that the Crown had effectively opened the door by relying on the complainant's claim of contracting an STI, but refused to allow cross-examination at this time because the defence failed to adduce necessary evidence (preferably expert medical evidence and precise medical records) to define the relevant timeframe and scope for questioning; the defence may renew the application after filing appropriate evidence to permit a narrowly circumscribed inquiry consistent with s.276(2)-(3).

Citation
2021 NSSC 300
Parties
Crown: Her Majesty the Queen; Accused: Matthew James Percy; Complainant: A.B.
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
20 October 2021
Procedural Posture
Criminal Sexual Offences / Section 276 Application (stage Two)
Outcome
Stage One threshold satisfied; Stage Two application denied without prejudice for lack of necessary evidentiary material to define scope of questioning; defence may renew upon filing additional evidence
Legal Topics
S.276 Criminal Code Applications, Cross Examination of Complainant, Prior Sexual History Evidence, STI Causation, Right to Full Answer and Defence, Procedural Thresholds
Source Language
English
Criminal Law Sexual Offences Evidence Law Publication Restrictions S.276 Criminal Code Applications Cross Examination of Complainant Prior Sexual History Evidence STI Causation +2 more

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Parties

Her Majesty the Queen

Crown

Matthew James Percy

Accused

A.B.

Complainant

Procedural Posture

Criminal Sexual Offences / Section 276 Application (stage Two)

Legal Issues

  1. 1 Whether defence may cross-examine complainant on alleged contraction of an STI and vow of celibacy under s.276
  2. 2 Whether procedural requirements for a s.276(2) application were met (affidavit/particulars)
  3. 3 Whether proposed evidence is relevant and has probative value not outweighed by prejudice

Ratio Decidendi

The court held that the defence cleared the Stage One procedural threshold and that the Crown had effectively opened the door by relying on the complainant's claim of contracting an STI, but refused to allow cross-examination at this time because the defence failed to adduce necessary evidence (preferably expert medical evidence and precise medical records) to define the relevant timeframe and scope for questioning; the defence may renew the application after filing appropriate evidence to permit a narrowly circumscribed inquiry consistent with s.276(2)-(3).

Court Disposition

Stage One threshold satisfied; Stage Two application denied without prejudice for lack of necessary evidentiary material to define scope of questioning; defence may renew upon filing additional evidence

Orders

  • Cross-examination into complainant's prior sexual history on the STI and vow of celibacy not permitted at this time
  • Defence must file additional evidence (including preferably expert medical evidence on STI transmission and incubation and relevant medical/testing records) to enable the court to delimit appropriate timeframe and scope before cross-examination will be authorized