R v LRB - M Ritchie
In R v LRB (“LRB”), LRB was charged with sexual assault against the complainant. The assault took place in the complainant’s home, which she lived in with her children. The complainant and the accused had been dating for about a month, and he had been living at her house at the time. On the night of the assault, the complainant was asleep in the living room with her children when she was woken up by the accused. The accused then told the complainant that he wanted to go upstairs to have sex. When she said no, he bit her on the arm, picked her up by the shirt, and threw her on the floor. The accused tried apologizing to her and asked again to go upstairs, and she still said no. The complainant eventually agreed to go upstairs with him, and she brought him to a bedroom where she laid on her back on a bed. The accused then removed both of their pants and had intercourse with her. The complainant said while this was happening, she felt scared and was crying. They eventually both fell asleep, and when the complainant woke up she called the police.
The accused in LRB was applying to allow his counsel to cross examine the complainant over their previous sexual history because he believed it was imperative to his defence of honest but mistaken belief in consent. The accused said that previously he and the complainant engaged in consensual sexual intercourse in similar situations as the night in question. By “similar situations”, he meant that they had consensual intercourse after arguing. The accused said that, because the complainant had acted in a similar manner on prior occasions, this caused him to interpret that there had been consent that night. The accused was seeking to allow his lawyer to be able to question the complainant about their previous instances of consensual intercourse.
The judge said that this application is a two-step process. The first thing to be addressed was whether the proposed evidence was going to be used for the purpose of trying to show that, because the two had prior sexual intercourse, the complainant was more likely to have consented in this circumstance or that the complainant was less worthy of belief. This would fall under the twin-myth inferences in section 276(1) of the Criminal Code (“the Code”) and would not be admissible. If it was clear that the accused sought to introduce evidence for another purpose, then the court would need to determine if the evidence is admissible under section 276(2) of the Code. This section points out that the proposed evidence needs to be of specific instances of sexual activity that is relevant to an issue at trial, and the evidence needs to have specific probative value that is not outweighed by the danger of prejudice to the administration of justice. Then section 276(3) of the Code elaborates on what a judge must consider when determining if the evidence is admissible under section 276(2).
Recently, in the case of R v Goldfinch (“Goldfinch”), the Supreme Court of Canada (“the Court”) established that evidence of prior sexual activity will very rarely be relevant to support a denial that sexual activity took place or to establish consent but that it could be relevant to a defence of honest but mistaken belief in communicated consent.
In LRB, the accused was not in disagreement over the facts of the situation. He had admitted to biting the complainant and throwing her on the floor and that she had initially said no to sex. The accused was hoping to use the proposed evidence to show that he believed she had changed her mind because she had consented to sex after arguments on previous occasions. The judge here said that this does not seem to suggest an argument that could fall under either of the twin myth inferences, so he continued on with the analysis
The judge pointed out that evidence does not need to be determinative in order to be relevant. Evidence of prior sexual activity could be relevant when assessing the accused’s state of mind at the time of the sexual act in question. The onus here though is on the accused to be able to show how there is a connection between the proposed evidence and his state of mind.
Counsel for the accused was trying to use two forms of evidence for the argument of mistaken belief. The first was that previously the complainant and the accused had engaged in consensual intercourse after a verbal argument. The judge in LRB did not see how consenting to sex after a verbal argument was the same as consenting to sex after being assaulted by the accused. This type of reasoning he believed was very similar to the forbidden inference that if she consented previously then she also likely consented this time. The second type of evidence that the accused was seeking to use was that the complainant had previously expressed consent to intercourse in a similar manner to the night in question. The accused argued she had done this by having sex with him in the same bedroom while the children were asleep and that she had previously led the accused upstairs and lay down on the bed first. In regards to these claims, the judge did not think that they were particularly relevant, or that they would have a probative value that would outweigh the prejudice of the evidence to the administration of justice.
The judge here also stated that the proposed evidence was not required for the defence of the accused. Evidence that the complainant had previously led the accused upstairs was not necessary to argue that there was consent on the night in question. The defence was able to ask the complainant about her actions that night that could have demonstrated to the accused that she had consented. From Goldfinch, it is clear that evidence pertaining to prior sexual history will be significantly less relevant if the accused can propose a theory without referencing that prior history.
It was ultimately decided that the proposed evidence by the accused was not relevant enough to grant the application. The potential prejudice to the complainant under the countervailing factors from section 276(3) of the Code was particularly an issue in LRB. The judge dismissed the application for these reasons
In LRB, evidence from the prior occasions that the accused was seeking to rely on did not seem particularly relevant. The complainant previously consenting to sex after a verbal argument and trying to infer that this meant that she consented to sex after being assaulted in an entirely different situation was too much of a stretch. I feel like this was essentially a last ditch effort by the defence. The fact that, in previous instances, the two of them would have consensual intercourse while the children were asleep was also not relevant at all. Having consensual sex under normal circumstances and having sex while crying and scared after being assaulted are absolutely not the same. I thought the judge here reached a reasonable and just conclusion based on his analysis under section 276 of the Code. To allow the proposed evidence would not have been fair to the complainant at all in the given circumstances.