Criminal Law

SCC hearing provides hope on relationship evidence

By Staff

Toronto criminal lawyer Joseph Neuberger says he is encouraged by a Supreme Court of Canada (SCC) hearing on the admissibility of relationship evidence in cases of sexual assault.

The nation’s top court recently heard arguments on a defence appeal in an Alberta case, centred around s. 276 of the Criminal Code, which prohibits the use of evidence of sexual activity when it’s used to support the so-called “twin myths” — that a complainant is more likely to have consented or that she is less worthy of belief because of her sexual history.

In a lively exchange between the Crown and Justice Michael Moldaver, the judge appeared to express concern about the ability of a judge or jury to try a case without information about a previous sexual relationship between a defendant and complainant if relationship evidence was deemed subject to a s. 276 application.

“The hearing was encouraging, and perhaps foreshadows how the court will come down on the issue,” says Neuberger, partner with Neuberger & Partners LLP. “What the government and Crown seem to be trying to do is to prevent an accused from bringing any evidence about prior sexual contact with the complainant, regardless of whether they were in a relationship that was intimate.

“If the Supreme Court comes down on the side that this type of evidence is relevant, and should rarely be excluded, then I think it will lead us on a path away from wrongful convictions,” he tells

The defendant in the case is accused of striking the complainant and engaging in sexual relations without her consent during a 2014 visit to his home.

At trial, the defendant was acquitted after claiming the woman consented — or that he was honestly mistaken in his belief that she had consented — to the sexual activity.

As part of the defence, the accused was allowed to lead evidence that he had previously lived with the woman and that the pair continued to engage in sexual activity even after their breakup, describing the relationship between them as “friends with benefits.”

But Alberta’s appeal court overturned the acquittal and ordered a new trial after a 2-1 majority found the relationship evidence violated s. 276.

Neuberger says the Crown is trying to have it both ways by leading evidence about the relationship between the accused and complainant when it suits them — such as in domestic violence cases involving spouses — while resisting any attempt by defendants to note a past or ongoing sexual relationship.

“There’s an incongruity there that frankly brings this area of the law to the point of absurdity,” he says.

If the Crown’s position is adopted by the SCC, he says juries will be left to decide "in a vacuum" cases involving excluded relationship evidence.

“If you eliminate all the contextual evidence, all you can talk about is the sexual act itself. Juries can’t be expected to try allegations of sexual assault without relationship evidence that is relevant to the context, and does not offend the twin myth principle,” Neuberger says. “The relationship evidence is needed to provide context to the incident, especially if the defence is one of honest mistaken belief of consent.

“But the hearing gives me a glimmer of hope that the Supreme Court recognizes the danger that this could lead to miscarriages of justice,” he adds.

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