Evidence of an Accused’s Prior Sexual History
Historically,
evidence of an accused’s prior sexual history was much more restricted than
comparable evidence relative to a complainant.
That is no longer the case, however.
Section
276 the Criminal Code specifically restricts the admissibility of
evidence of a complainant’s sexual history in a prosecution for sexual assault.
The Criminal Code does not contain a similar provision prohibiting
evidence of the sexual history of an accused.
Any such
restriction, therefore, must depend on general principles of the law of
evidence or on concerns of trial fairness.
Evidence
of an accused’s sexual history must be treated cautiously, and not routinely
admitted. The law of evidence restricts the admissibility of evidence of
character, and there is a particular danger that evidence of sexual history
will be misused. Where such evidence is admissible for some purpose,
precautions should be taken to ensure that it is not misused to simply label
the accused as a person unworthy of credit or respect.
R.
v. Grant, 2019
BCCA 369 (CanLII), at para. 30.
Courts cannot
countenance an asymmetry in which tenuously relevant evidence of the
complainant’s sexual history is excluded, but equally dubious evidence of the
accused’s sexual history is used to draw questionable inferences.
R.
v. Grant, at para.
31.
Stuart
O’Connell, O’Connell Law Group (All rights reserved to author).
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