does not balance competing interests. It creates an imbalance
that can create not only unfairness, but injustice.
 I agree with comments made by Spies J. in R. v. Nkemka,
 O.J. No. 3292, 2013 ONSC 2121 (S.C.J.). In Nkemka, the
Crown was alleging that the accused injured the complainant’s
vagina. It then attempted to prevent Mr. Nkemka from cross-
examining the complainant about whether sexual activity with oth-
ers in the relevant 48-hour period could have caused those injuries,
by insisting that Mr. Nkemka first particularize the specific sexual
activity he wanted to ask about. Justice Spies said, at para. 6:
In my view, in these circumstances the precondition requiring disclosure by
the defence of specific incidents of prior sexual activity cannot be interpreted
in a way that requires the Defence to give particulars of something Mr.
Nkemka would have no way of knowing; he would have no information about
specific incidents of prior sexual activity in this case unless given an oppor-
tunity to question the Complainant.
 Second, interpreting s. 276(2)(a) as allowing other sexual
activity evidence to be admitted only where specific instances of
sexual activity are identified with granular particularity would
create an absolute rule of exclusion for general evidence about
sexual experience, no matter how relevant and probative it is, or
how low its prejudicial impact would be. In my opinion, Parliament could not reasonably have intended such a result.
 I say that interpreting s. 276(2)(a) as imposing a particularized foundation requirement would have this unwarranted effect
because s. 276(2) prima facie prevents the accused from adducing
any evidence of sexual activity other than the sexual activity that
forms the subject matter of the charge, unless three preconditions
are met, including s. 276(2)(a)’s “specific instances of sexual activity” requirement. For example, in S. (L.), an interpretation of
s. 276(2)(a) requiring a particularized foundation to the admission
s. 276 evidence would have prevented L.S. from offering evidence
that he and his complainant spouse engaged in consensual sexual
intercourse both before and after the alleged assault, which was
found by this court to be relevant and probative.
 Perversely, if S. (L.) were required to identify particularized instances of the complainant’s previous sexual conduct to
win the right to cross-examine her so that he could show the sexual nature of their relationship, he would have had no choice but
to first disclose specific details of their sexual activity. Instead of
protecting the sexual privacy of the complainant, this would have
 As such, it is not surprising that courts have consistently
held that an accused person applying to engage in relevant cross-examination of complainants about their sexual conduct on other