Digest: R v B.T.H., 2018 SKQB 85

• Date: March 14, 2018

Reported as: 2018 SKQB 85

Docket Number: CRM 68/17 JCS , QB17472

Court: Court of Queen's Bench

Date: 2018-03-14

Judges:

• Danyliuk

Subjects:

• Statutes � Interpretation � Criminal Code, Section 276(2)
• Criminal Law � Assault � Sexual Assault - Consent
• Criminal Law � Evidence � Conduct of the Complainant � Application to Cross-Examine

Digest: The accused was charged with sexual assault. He applied pursuant to s. 276(2) of the Criminal Code to testify about his prior sexual history with the complainant and her sexual proclivities as well as to cross-examine the complainant on these matters. He argued that to make full answer and defence to the charges and in particular to advance his claim of honest but mistaken belief in the complainant�s consent to the sexual acts, he must be allowed to adduce the evidence. The court found that the applicant met the threshold of the first stage of the application that the evidence was capable of admission pursuant to s. 276(2) of the Code. The matter proceeded to an in camera hearing at which the accused testified and was cross-examined. The accused�s defence of honest but mistaken belief rested on the fact that the complainant and he had been friends for a considerable time up until June 2016, when they had an intense four-day sexual relationship. They then returned to a platonic friendship but on the day of the alleged offence, the accused had visited the complainant�s house and gotten into bed with her without a sexual purpose, but based upon her actions, he believed that she was trying to initiate sex with him. However, in cross-examination, the accused clearly stated that his actions on the day of the incident were not based upon what had happened between him and the complainant the year prior.
HELD: The application was dismissed. The accused had not provided any evidence that linked what happened at the time of the offence to sexual activity between him and the complainant a year earlier. The prejudicial effect of the proposed evidence would outweigh its probative value.

Federal Statutes Considered:

• Criminal Code, RSC 1985, c C-46, s 276
• Criminal Code, RSC 1985, c C-46, s 276(2)
• Criminal Code, RSC 1985, c C-46, s 276(2)(a)
• Criminal Code, RSC 1985, c C-46, s 276(2)(b)
• Criminal Code, RSC 1985, c C-46, s 276(2)(c)
• Criminal Code, RSC 1985, c C-46, s 276(3)
• Criminal Code, RSC 1985, c C-46, s 276(3)(a)
• Criminal Code, RSC 1985, c C-46, s 276(3)(b)
• Criminal Code, RSC 1985, c...