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Case comes down to communicated consent: Rosen

A hearing to determine whether and to what extent that an alleged victim’s sexual history can be entered into evidence should have been held prior to the trial of an Ontario truck driver charged in the death of a sex trade worker, says Toronto criminal lawyer John Rosen.

Rosen, founder of Rosen & Company Barristers, says the evidence about the woman’s sexual history was mishandled by both the Crown and defence at a trial in Edmonton that ended in the man’s acquittal on a first-degree murder charge.

“Anytime there is a sexual component to any offence, you have to screen the evidence of prior or subsequent sexual activity in advance of the trial to ascertain whether it is legally admissible. It doesn’t matter if it’s murder or shoplifting, as long as there is sexual activity underlying the transaction that gave rise to the charge, reference to other sexual conduct must first be vetted,” he tells

In a 4-3 decision, the Supreme Court has ordered a new trial in the case.

The Canadian Press (CP) reports that during his trial in Alberta, the man acknowledged that he hired the woman for sex in 2011 and said the severe injury to her vaginal wall that caused her death was an accident during rough but consensual activity.

The Crown argued that the accused intentionally wounded the alleged victim and was guilty of first-degree murder or, at the very least, manslaughter, because the 36-year-old woman had not consented.

The man, who hired the woman for two nights of sex, testified that he put his fist in her vagina on both occasions, but on the second night, she started bleeding.

He said he woke up the next morning to find her dead in a bathtub, CP reports.

The truck driver was found not guilty by a jury. However, the Alberta Court of Appeal set aside the acquittal and ordered a new first-degree murder trial. That decision was appealed to the Supreme Court.

The top court, in ordering a new trial on a charge of manslaughter, said the trial judge failed to apply provisions in the law that limit the extent to which alleged victims’ sexual history can be discussed — in this instance, her history as a sex trade worker and particularly the first night of sexual activity between the two.

The intention of the law is to prevent judge and juries from relying on one or both myths that due to her prior sexual history, the woman was more likely to have consented to the sexual activity in question or that the man did not need to ask for consent because she had given it to him on a previous occasion. The court said those provisions should have been followed before introducing evidence about the woman’s interaction with the accused during their first encounter, CP says.

If any of that evidence had been deemed admissible, the trial judge would be required to carefully instruct the jury as to its limited use and the danger of resorting to the myths when assessing the accused’s assertion that he believed the woman was consenting, the Supreme Court added in its decision.

Writing on behalf of the majority, Justice Michael Moldaver said, “The trial judge erred in failing to comply with the mandatory requirements set out in s. 276 of the Criminal Code. That error had ripple effects, most acutely in the instructions on the defence of honest but mistaken belief in communicated consent, upon which the accused relied. In particular, non-compliance with the s. 276 regime translated into a failure to expose and properly address misleading evidence and mistakes of law arising from the accused’s defence. This resulted in a reversible error warranting a new trial.”

Rosen, who was not involved in the case and comments generally, says prior to the new trial, the defence will need to make a s. 276.1 application if it wishes to introduce evidence of sexual history previous to the night the woman died.

“The accused may say, ‘I was with this woman the night before, and she consented to rough sex. I paid her and here are all the circumstances of that meeting. Then, when I met her again, I wanted to do the same thing, she participated, or she said, ‘Yes, you can do it.’ However, he is not entitled to say to himself, ‘Well, we did it yesterday this way. Why can’t we do it again today?’ The consent can’t be implied. It has to be communicated,” Rosen says.

“The hearing will ultimately determine whether his account of the first night is legally admissible.”

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