By Paul Russell, AdvocateDaily.com Contributor

The past relationship between the complainant and the accused cannot be introduced as evidence in sexual assault cases unless it is clearly shown to be relevant, says Toronto criminal lawyer Melanie Webb.

“There’s a very common saying that context is everything,” says Webb, principal of Melanie J. Webb Barrister. “Well, sometimes context is not sufficient, especially if you are dealing with an s. 276 application.”

She cites a recent Supreme Court of Canada (SCC) decision where a man was charged with sexually assaulting a woman he previously dated and lived with. The two remained friends, and the complainant would occasionally come to his house and stay overnight.

According to court documents, one night when she was staying at his house, there was a sexual encounter between them, which she claimed was forced and unwanted, though he says it was consensual. At his first trial at the Court of Queen’s Bench of Alberta, the accused requested a voir dire to determine if evidence that he and the complainant were in a sexual relationship — “friends with benefits” — at the time of the alleged assault was admissible under s. 276 of the Criminal Code, also known as the rape shield law.

The judge allowed that to be introduced, concluding that keeping this “relatively benign” evidence from the jury would lend an element of artificiality to the proceedings and harm the accused’s right to make full answer and defence, according to court documents. The jury acquitted the man, and that decision was appealed, with the majority of the nation’s top court ruling the duo’s past relationship was not relevant to any issue at trial, before ordering a new trial.

“As the Supreme Court says over and over again in its judgment, simply arguing that evidence of friends with benefits is relevant for context and narrative without offering a specific reason is not going to be sufficient,” Webb tells AdvocateDaily.com.

“The accused must be able to identify specific facts or issues relating to his defence that can only be resolved if reference is made to that sexual activity,” she adds. “In this case, the accused was unable to point to why he wanted to introduce this evidence of a past sexual relationship.”

The judgment states s. 276 “balances a number of trial fairness considerations, seeking to exclude evidence known to distort the fact-finding process while protecting the rights of both the accused and the complainant ... the provisions were intended to counter the twin myths that women with sexual experience are more likely to consent to sexual activity or are less worthy of belief.”

Webb says the SCC did not say that evidence of a past sexual relationship can never be admissible, but that it is up to the accused to show it is relevant to the case.

“The defence cannot just say that because the person consented at some point in the past, that’s why I thought she was consenting on this occasion,” says Webb.

She says the majority of the SCC agreed that by allowing the “friends with benefits” evidence to be introduced in the lower court, the twin-myth reasoning slipped in disguised as context, which may have misled the jury.

“The ‘context’ rationale offered by [the accused] was insufficient to satisfy s. 276 ... any conclusion to the contrary would open the door to the admission of sexual activity evidence in every case where the complainant and the accused were in a previous or ongoing sexual relationship, so long as the accused cites the need for greater ‘context’ in his application. This cannot have been Parliament’s intent,” the judgment reads.

In his testimony to the lower court, the man said the complainant called him a few days earlier asking for “birthday sex,” and the night of the incident, he mouthed the words “I’m going to f--- you” to her, to which she responded with a small smile.

In her testimony, the woman said she didn’t specifically remember asking for birthday sex, and that she may have smiled after he mouthed those words that night.

“If the jury didn’t have knowledge that they were in a sexual relationship before, that statement might have seemed pretty bizarre, or even more menacing,” says Webb. “I don’t know what you’re supposed to take from a smile, and so arguably, that part of it could have been relevant if he made it part of his argument why their past relationship was relevant in establishing context, but he didn’t.”

Webb says that in recent years, courts are recognizing the importance of becoming vigilant in carefully assessing the reasons for introducing this type of evidence, as there was a time when the defence would simply say it was necessary to understand their relationship

“The Supreme Court is calling for much more vigilance,” says Webb. “The problem is once jurors hear certain evidence, it may infect their reasoning and thereby the verdict, which is ultimately why the SCC ordered a new trial in this case.”

She says this decision is also a cautionary tale to defence counsel on how to advance s. 276 arguments.

“When sexual activity evidence is ultimately elicited at trial, it should be followed swiftly by a mid-trial limiting instruction to the jury that identifies both the permissible and impermissible uses of the evidence,” the judgment reads. “This instruction should be reinforced by a final jury instruction. In short, everyone must get crystal clear — and remain crystal clear — about why the evidence is being admitted.”