Application judge erred in adopting overly restrictive approach to s. 276 of Code

Complainant testified that accused, who was her cousin, lured her into campground washroom and sexually assaulted her. Complainant had ultrasound which revealed that she was pregnant and that gestational age of foetus was 13 weeks and five days, but terminated pregnancy without obtaining paternity test. In pre-trial motion, accused brought unsuccessful application under s. 276 of Criminal Code to cross-examine complainant on other sexual experiences that could have led to impregnation. Application judge found that accused failed to identify evidence of specific instances of sexual activity, but that he was permitted to question complainant on her understanding of term “virgin” and truthfulness of her statement that she was virgin at time of alleged offence. Trial judge did not reconsider application judge’s decision on basis that ruling was binding and there was no material change in circumstances, and accused was convicted of sexual assault and sexual interference. Accused successfully appealed conviction, with result that conviction was set aside and new trial was ordered. Appeal judge found that application judge erred in concluding that s. 276(2)(a) of Code always required particularization of identifiable instances of sexual activity . Appeal judge found that trial judge erred in law by concluding that application judge’s decision was binding, which resulted in substantial wrong or miscarriage of justice by foreclosing requests for reconsideration where reconsideration was due. Crown appealed. Appeal allowed and conviction restored. Application judge erred in adopting overly restrictive approach to s. 276 of Code, and trial judge erred in concluding at outset of trial that he did not have discretion to re-hear s. 276 application. Despite errors, accused was permitted to ask questions at trial that allowed him to adequately challenge inference that he committed offence, and suffered no substantial wrong or miscarriage of justice.

R. v. R.V. (2019), 2019 CarswellOnt 12413, 2019 CarswellOnt 12414, 2019 SCC 41, 2019 CSC 41, Wagner C.J.C., Abella J., Moldaver J., Karakatsanis J., Brown J., Rowe J., and Martin J. (S.C.C.); reversed (2018), 2018 CarswellOnt 9555, 2018 ONCA 547, J. MacFarland J.A., David Watt J.A., and David M. Paciocco J.A. (Ont. C.A.).

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