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EVIDENCE - Methods of proof - Circumstantial evidence

Tuesday, December 01, 2020 @ 6:41 AM  


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Ruling to determine whether R. v. M.D. applied to evidence of complainant’s sexual activity sought to be adduced by the accused. The accused was charged with three sexual services offences and uttering threats. The Crown alleged the accused exploited the complainant in the sex trade after they were initially in a romantic relationship. The defence wished to cross-examine the complainant about her experience working in the sex trade before meeting the accused and after their relationship ended and about three other romantic relationships the complainant had during the time the offences allegedly occurred. In an earlier ruling, the case management judge determined s. 276 did not apply. Subsequently, R. v. M.D. determined a process analogous to that provided by s. 276 applied in cases where the accused was charged with sexual services offences.

HELD: R. v. M.D. was not followed. R. v. M.D. exceeded the bounds of the sorts of modifications to common law rules judges were permitted to make. Extending the rules and procedures established in Seaboyer to an entirely new category of offences involved more than an incremental change to the existing common law rules. It was apparent that Parliament’s decision not to list the sexual services offences in s. 276(1) of the Criminal Code was deliberate. Sexual services cases did not pose the same risk of twin-myths reasoning endemic to sexual offences cases. Existing evidence rules were adequate to the task of protecting the trial process from irrelevant and prejudicial evidence in sexual services prosecutions. At trial, the admissibility of any evidence concerning other sexual activity by the complainant was to turn on the trial judge’s application of the existing rules of evidence and not on the procedure established in R. v. M.D.

R. v. Williams, [2020] O.J. No. 4567, Ontario Superior Court of Justice, J. Stribopoulos J., October 20, 2020. Digest No. TLD-November302020004