In a recent decision from the Supreme Court of Canada, the Court has dismissed a man’s appeal of his conviction for sexual assault after determining that he failed to identify the usefulness of adducing evidence of the complainant’s prior sexual activity in his application under sextion 276 of the Criminal Code of Canada.
This blog will explore the legal principle of twin myths in the context of sexual assault cases. It will also summarize the Supreme Court of Canada’s decision, which provides additional guidance on this area of law.
What is Twin Myths in Canadian Criminal Law?
Twin Myths is a legal principle that is codified in s. 276 of the Criminal Code. It states that:
“In proceedings in respect of an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant
(a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or
(b) is less worthy of belief.”
In essence, evidence of a complainant’s prior sexual activity is not admissible at trial if the evidence is introduced to invite the trier of fact to make the inference that, because the complainant has consented in the past, the complainant is more likely to consent to the sexual activity in question. This principle protects the dignity and reputation of complainants of sexual assault. It also sends the message that, just because the complainant is sexually active does not mean they are less worthy of belief.
Accused Convicted of Sexual Assault
The case of R. v. T.W.W., 2024 SCC 1 involved the accused and the complainant, who were involved in a romantic relationship for over twenty years. In February 2018, the couple separated and the accused resided in the basement of the family home. The complainant had told police that she and the accused had consensual intercourse on April 1, 2018; however, the accused sexually assaulted her the next morning.
The accused brought a pre-trial application before the trial judge to adduce evidence of the initial consensual activity, pursuant to ss. 276 and 278.93 of the Criminal Code. However, the trial judge found that the events that took place on April 1 were not relevant to the issue of consent on April 2 and rejected the accused’s argument that it “formed a continuous event” with the alleged assault. Accordingly, the trial judge dismissed this application “on the basis that the evidence was not being adduced for a purpose other than twin-myth reasoning” and the accused was convicted of sexual assault.
Accused’s Appeal Dismissed by Court of Appeal
The accused appealed his conviction to the Court of Appeal for British Columbia, which rejected his appeal. The majority of the Court of Appeal held that the accused failed to establish how evidence of the events on April 1 was fundamental to his defence, which was not a defence of consent. In the Court of Appeal’s view “evidence of consensual sex on April 1 could not support a defence that a sexual assault on April 2 did not occur.” The Court of Appeal upheld the trial judge’s determination.
Of note, the dissenting judge wrote that the “evidence of prior sexual activity was essential to challenging the complainant’s credibility and the Crown’s theory that the sexual assault occurred in the context of a complete breakdown” of the parties’ relationship.
Other Sexual Activity Evidence Admissible in Relation to Context or Credibility
The accused appealed this finding to the Supreme Court of Canada, arguing that the Court of Appeal erred in finding that the trial judge made no error by dismissing his s. 276 application. Section 278.97 of the Criminal Code provides that an appeal from a trial judge’s determination to admit or refuse evidence of other sexual activity is a question of law, but does not prescribe a standard of review. The Court also noted that sexual offence trials require a “delicate balance in order to uphold their truth-seeking function: the process must safeguard the fair trial rights of the accused while also respecting the complainant’s dignity and right of privacy to achieve a result that is fair to all involved.”
The Court stated that “other sexual activity evidence” is only admissible in relation to credibility or context, however, the s. 276 framework must permit the use of information.The probative value and relevance of such information must relate to a specific issue at hand that cannot otherwise be resolved. The burden is also on the accused, in this case, to establish that the probative value of the information outweighs its prejudicial effect. In other words, the information in question must “must go beyond a general ability to undermine the complainant’s credibility or to add helpful context to the circumstances of the case.”
Supreme Court of Canada Dismisses Appeal
The appellant argued that the trial judge erred in denying the application to introduce prior sexual activity evidence and asserted that evidence was not being proffered for twin-myth reasoning, but was instead relevant to challenging the complainant’s credibility and to the context required for his defence. However, the majority of the Court disagreed and noted that “in light of the “chaotic” way in which the s. 276 application was presented … the appellant was unable to discharge his burden of satisfying the conditions for admissibility of the prior sexual activity evidence.”
Ultimately, the trial judge was not found to have made an error in dismissing the accused’s application to adduce such evidence.
Prior Evidence of Consensual Sex Not Relevant
The Court found that prior sexual activity evidence had no permissible purpose for either context or credibility in this case. It went on to outline that regime under s. 276 of the Criminal Code, which requires trial judges to consider whether the evidence is inadmissible because it supports an inference relying upon one or both of the twin myths. If evidence is admitted that supports twin-myth reasoning, this becomes an error or law.
The Court determined that the trial judge did not err by finding that the evidence would invoke twin-myth reasoning, as it was admitted and uncontested that the parties had previously had a sexual relationship. As such, “there could be no use for the April 1 evidence beyond twin-myth reasoning” as “nothing turned on whether they had engaged in consensual sex the prior night.”
Dissenting Reasons Identify Credibility as Central Issue
Justices Côté and Moreau co-wrote dissenting reasons about credibility being the central issue at trial. The dissenting reasons noted that the complainant’s story had changed between her initial statement to police and her testimony at trial. Such evolutions “would have left the trier of fact with the mistaken impression that the circumstances of the separation and her belief that the appellant was in a relationship with another woman made it unlikely and improbable for her to consent to sexual activity with him.”
Accordingly, the dissenting Justices would have allowed the appeal, quashed the conviction, and ordered a new trial for the accused. The dissenting reasons stated that the trial judge should have allowed the appellant to cross‑examine the complainant about the “consensual sexual activity that took place between her and the appellant the previous evening for the limited purposes of neutralizing the suggestion that she was unlikely to consent to sexual activity after their separation and testing her credibility on this point.”
Contact Barrison Law Criminal Defence Lawyers for Trusted Represent Against Sexual Assault Charges
If you have been arrested for sexual assault or historic sexual assault, the skilled criminal defence lawyers at Barrison Law can help. Our lawyers have extensive experience representing clients facing sexual assault charges. We understand that the strain of such charges can impact you and your family, which is why we work hard to defend our clients rights and interests. Please contact our office online or call us at 905-404-1947 to speak with a member of our team. We also offer a 24-hour phone service for your convenience.