Historically, evidence of an accused’s prior sexual history was much more restricted than comparable evidence relative to a complainant. That is no longer the case, however.
Section 276 the Criminal Code specifically restricts the admissibility of evidence of a complainant’s sexual history in a prosecution for sexual assault. The Criminal Code does not contain a similar provision prohibiting evidence of the sexual history of an accused.
Any such restriction, therefore, must depend on general principles of the law of evidence or on concerns of trial fairness.
Evidence of an accused’s sexual history must be treated cautiously, and not routinely admitted. The law of evidence restricts the admissibility of evidence of character, and there is a particular danger that evidence of sexual history will be misused. Where such evidence is admissible for some purpose, precautions should be taken to ensure that it is not misused to simply label the accused as a person unworthy of credit or respect.
R. v. Grant, 2019 BCCA 369 (CanLII), at para. 30.
Courts cannot countenance an asymmetry in which tenuously relevant evidence of the complainant’s sexual history is excluded, but equally dubious evidence of the accused’s sexual history is used to draw questionable inferences.
R. v. Grant, at para. 31.
Stuart O’Connell, O’Connell Law Group (All rights reserved to author).