Featured in Robson Crim
May 286 min
Anna Nymus
Evidence presented in criminal trials is an essential element of the decision-making process of judges and juries. There is perhaps no form of evidence more contested than that which arises out of a so-called “he-said-she-said” alleged sexual assault. Over time the Canadian criminal justice system has amended its views to acknowledge more contemporary beliefs about sexual assault, particularly rebuking and protecting the system from the pitfalls of the “twin myths” of sexual assault.[1]
These logical fallacies allow the presumption that the more sexual history someone has, the more likely they consented to the sexual interaction being contested.[2] Evidentiary rules have not, however, completely removed issues related to historical sexual activity and conduct. In fact, these are issues that continue to come up regularly and can create procedural difficulties. The Manitoba Court of Appeal’s (“MBCA”) decision in R v Diakite[3] raises a relatively new question as to the role of section 276 of the Criminal Code[4] as evidence of past sexual activity may be raised by Crown counsel in sexual assault where the sexual history of a complainant may be material to direct and cross-examination.
It is well-known that the defence must tread carefully when it comes to section 276, but Diakite potentially points to an increased onus on the Crown when introducing evidence in these cases. Most poignantly, the incredible underreporting rate of sexual assaults, paired with what is often an exhausting and emotional rollercoaster for complainants, it is imperative that the judicial process maintains an emphasis on the privacy and dignity of victims of sexual assault.[5]
The facts in Diakite are as simple as they are uniquely interesting. The accused was arrested for sexual assault of the victim.[6] The victim was adamant that she was a virgin at the time and that she had made that clear to the accused, with two witnesses confirming the same.[7] The accused conversely stated that his religion did not allow him to be sexually active with a virgin and that as soon as he was made aware, he removed himself from the situation and that there was no further sexual activity.[8] Regardless of the contentious matter of consent, the facts showed that the complainant’s dress was torn, and the interaction caused vaginal bleeding and pain.[9]
The relevant section of the Criminal Code which was analyzed in the appeal was section 276.[10] This section creates
obligations for criminal lawyers in relation to the presentation and admission of evidence of past sexual activity, and as addressed in this case, sexual inactivity.[11] The purpose of section 276(1) is to avoid the admission of the “twin myths” of prior sexual history. These being that prior sexual activity presupposes that a complainant (1) is more likely to have consented to the sexual activity that forms the subject matter of the charge, or (2) is less worthy of belief.[12] In Diakite, the primary question raised by the accused was whether evidence about the complainant’s virginity demonstrated that she was less likely to have consented.[13] To be admissible, the evidence must not be for the purpose of advancing the twin myths, it must be relevant to an issue at trial, it must relate to specific instances of sexual activity, and it must have a significant probative value which is not outweighed by the risk of prejudice.[14]
The scope of section 276 was recently discussed at length by the Supreme Court of Canada (“SCC”) in the cases R v RV, R v Barton, and R v Goldfinch.[15] Of these, only RV specifically addressed the issue of sexual inactivity, but the Court inferred that if it is not limited as an issue under section 276, the scope of that section remains relevant.[16] In RV the accused sought to cross-examine the complainant to determine when she lost her virginity as it related to the pregnancy she later reported.[17] Another issue in RV was whether the questioning about the conception of pregnancy – with whom and when was unknown at the time – constituted a specific instance, as required by section 267.[18] The court found that it was specific enough in that case. However, in future cases, it is questionable if a claim of virginity raised by the Crown constitutes any kind of “specific instance” as it is a lack thereof. As it was not an issue discussed at length in Diakite, it remains an open question for the court to respond to.
In Diakite, the accused proposed that the Crown introduced evidence of the complainant’s virginity to infer the inverse of a twin myth, being that because she did not have a sexual history, she would have been less likely to have consented to the sexual activity alleged to be sexual assault.[19] Notably, the MBCA, following the SCC decision in RV, found that the issue was null as the evidence presented in both cases did not raise the twin myths.[20] However, Karakatsanis J noted that “[It] would be incongruous to hold that the statement ‘I am a virgin’ does not engage section 276 while an answer to the contrary would clearly be a reference to sexual activity.”[21]
Mr. Diakite appealed his conviction on three grounds: (1) whether the trial judge erred by admitting Crown evidence that the complainant was a virgin without a voir dire; (2) did the trial judge err by using evidence of the complainant’s sexual history for an improper purpose, and; (3) if the trial judge misapprehended evidence.[22] The MBCA dismissed the appeal for all three grounds.[23] The evidence was clear that regardless of whether a voir dire was held for the evidence, or even if the trial judge misapprehended evidence, the verdict would have been the same.[24]
There exists a fine line where the justice system must balance the right of an accused person to full and answer and defence, and the right of a victim not to be unfairly treated and their history used against them, regardless of its applicability.[25] While it was raised in both RV and Diakite as only a factual issue rather than a legal one, the court has made it clear that sexual inactivity cannot be held to not fall under section 267.[26] A victim of sexual assault must make the difficult decision of whether they testify as to their personal and often dehumanizing experience of sexual victimization. If they choose to do this – or perhaps are forced to through a subpoena by the Crown – they open themselves up to the possibility of the necessity of a voir dire to consider the admissibility of evidence relating to their own sexual history. Regardless of admissibility, it forces victims to face repeated and prolonged revictimization.
Despite a long history of Canadian courts grappling with section 276(1), it clearly remains a live issue and may have to be fully answered by the higher courts in relation to the sexual inactivity of complainants being raised as evidence. While it does not raise precisely the same issues as the twin myths, it still invades a complainant’s privacy which should only be done when clearly materially relevant.[27] It is doubtful that the criminal justice system will ever be able to try sexual assault cases without trauma to victims, and it will likely always be a very difficult decision for victims to come forward. Hopefully, the law can continue to evolve in such a way as to protect the interests, privacy and dignity of victims and survivors of sexual assault. Diakite opens a newer strain of consideration regarding sexual inactivity, likely which will lead to increased admissibility considerations of any type of sexual history. Both Crown and Defence must go forward cautiously, with fair consideration to both accused persons and victims in sexual assault trials and seek to avoid re-victimization.
Table of Authorities
Legislation
Criminal Code, RSC 1985, c C-46, LRC 1985, ch C-46
Jurisprudence
R v RV, 2019 SCC 41.
R v Diakite, 2023 MBCA 42.
Secondary Materials
Elaine Craig, Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession (Canada: McGill-Queen’s University Press, 2021).
[1] R v RV, 2019 SCC 41 at para 34 [RV].
[2] Ibid at para 33.
[3] R v Diakite, 2023 MBCA 42 [Diakite].
[4] Criminal Code, RSC 1985, c C-46, LRC 1985, ch C-46 at s. 267 [Criminal Code].
[5] Elaine Craig “Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession (Canada: McGill-Queen’s University press, 2021) at 21; Criminal Code, supra note 4 at s. 276(3).
[6] Diakite, supra note 3 at para 1.
[7] Ibid at paras 7-8.
[8] Ibid at para 10.
[9] Ibid at para 6.
[10] Criminal Code, supra note 4 at s. 276.
[11] Ibid at s. 276(1).
[12] Ibid.
[13] Diakite, supra, note 3 at para 31.
[14] Criminal Code, supra note 4 at s. 276(4).
[15] RV, supra note 1; R v Barton 2019 SCC 33 [Barton]; R v Goldfinch 2019 SCC 38 [Goldfinch].
[16] RV, supra note 1 at para 81.
[17] Ibid at paras 4, 6.
[18] Criminal Code, supra note 4 at s. 267(2)(c)
[19] Diakite, supra note 3 at para 31.
[20] Ibid at para 23.
[21] RV, supra note 1 at para 81.
[22] Diakite, supra note 3 at para 2.
[23] Ibid at para 41.
[24] Ibid .
[25] RV, supra note 1 at para 42.
[26] RV, supra note 1 at para 81.
[27] Criminal Code, supra note 4 at s. 276(3).