under s. 276 — Risk of prejudice to complainant and administration of
justice not substantially outweighing significant probative value of proposed cross-examination — Criminal Code, R.S.C. 1985, c. C-46, s. 276.
Criminal law — Trial — Continuation — First trial judge unable to continue after dismissing accused’s application under s. 276 of Code to cross-examine complainant on her sexual activity — Second trial judge erring in
holding that ruling on s. 276 motion was binding on him pursuant to
s. 669.2 of Code — Criminal Code, R.S.C. 1985, c. C-46, ss. 276, 669.2.
The accused was convicted of sexual assault and sexual interference. At the time of
the alleged offences, he was 20 years old and the complainant, his cousin, was 15.
The complainant testified that the accused lured her into a campground washroom
while they were camping with family members during the 2013 Canada Day long
weekend. She testified that he held her wrists and placed his penis near her vagina
while on top of her, that she blacked out and that her next memory was of the
accused releasing her wrists. She testified that her vagina felt wet and sticky. The
complainant experienced abdominal pain and nausea throughout the rest of the
summer and in mid-September discovered that she was pregnant. She had sex with
her boyfriend for the first time 12 days before that discovery. She told her doctor, and
later the police, that she was a virgin when she had sex with her boyfriend. The complainant terminated the pregnancy and the fetal remains were destroyed before the
charges against the complainant was interviewed by the police, so it was impossible
to confirm paternity through DNA testing. The Crown intended to rely on proof of
the complainant’s pregnancy as evidence of the sexual assault. The then trial judge
(the “application judge”) dismissed the accused’s application under s. 276 of the
Criminal Code to cross-examine the complainant about whether she had sexual
experiences with others at any time between June 1 and July 1. The application
judge was unable to continue with the trial and another judge (the “trial judge”) was
assigned. The accused renewed his s. 276 application, but the trial judge held that
the application judge’s s. 276 ruling was binding on him pursuant to s. 669.2 of the
Code. Alternatively, he found that if he had the discretion to rehear the s. 276 ruling,
he would not do so, as there had been no change in circumstances that would justify
a reconsideration of the ruling. The accused appealed his conviction.
Held, the appeal should be allowed.
The application judge erred in refusing to permit the proposed cross-examination. The Crown is correct that the scope of the cross-examination sought
by the defence was too broad and that the relevant question was whether the complainant engaged in sexual activity with someone other than the accused that
could have accounted for her pregnancy. The application judge erred in her application of the s. 276(2)(a) requirement that, to be admissible, evidence must be of
“specific instances” or particularized examples of sexual activity, on which he
wished to question the complainant. The provision requires that the proposed evidence be adequately identified to enable a proper s. 276 evaluation to be undertaken
and to enable the Crown to safeguard the complainant’s legitimate interests.
The proposed cross-examination satisfied that requirement. The application judge
also erred in balancing the competing interests under s. 276. Her finding that the
probative value of the proposed cross-examination was not high was based on her
erroneous assumption that the accused did not need to ask the complainant about
her sexual experiences because he could challenge her paternity claim by using
medical evidence of the gestational age of the fetus and by cross-examining the
complainant as to whether she was truthful in her statement that she was a virgin. Not only was the cross-examination envisaged by the application judge not
a meaningful substitute for the cross-examination sought by the accused, it would