Criminal Code process for admission of evidence of prior sexual history is mandatory

Offences

Criminal Code process for admission of evidence of prior sexual history is mandatory

Accused was convicted of sexual assault causing bodily harm, unlawful confinement, uttering death threat, threatening bodily harm while committing sexual assault, overcoming resistance by choking, and assault. Accused appealed convictions on basis of treatment of certain evidence under s. 276(1) of Criminal Code. Appeal dismissed. Complainant testified that she would not have consented to have sex with accused because she had decided not to resume sexual activity within three months of having given birth, but she told hospital nurse that she had been sexually active and had intercourse two weeks before incident. Trial judge did not allow defence counsel to cross-examine complainant on that conflict in her evidence under s. 276 of Code, holding that proposed cross-examination would go to credibility. During pre-trial period, accused applied under s. 276(2) for leave to cross-examine complainant on conflict in her evidence about her willingness to engage in intercourse at that particular time but adjourned it. Process prescribed by s. 276 for admission of evidence of prior sexual history is mandatory. Since defence application under s. 276 was not pursued, that ground of appeal had no merit.
R. v. Vassell (2016), 2016 CarswellOnt 16564, 2016 ONCA 786, J.C. MacPherson J.A., Gloria Epstein J.A., and P. Lauwers J.A. (Ont. C.A.).