Past history in sex assault cases a matter of context: Izadi

The Crown wants to have it both ways when it comes to the admission of evidence regarding a complainant’s past history with the accused, Toronto criminal lawyer Melody Izadi tells AdvocateDaily.com.

The Supreme Court of Canada 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.

Izadi, an associate with Caramanna Friedberg LLP, agrees that evidence offending the twin myths should be excluded for encouraging outdated views. However, she says the Crown’s approach is too strict, pointing out that certain sexual history evidence plays a valuable role when introduced as part of a narrative.

“It is important to give context to the nature of the relationship between the parties,” says Izadi, who was not involved in the case and comments generally. “Watching a movie with your long-term partner on the couch pre-assault is different than watching a movie with someone you just met on a dating website.

“It matters not because the woman must have consented in one scenario or another, but rather, because each parties’ actions and words prior to the alleged assault are relevant in different ways depending on the context,” she says.

Izadi says that prosecutors frequently recognize the value of evidence about the relationship between the accused and complainant when it suits them, such as in domestic violence cases.

“The Crown constantly seeks to have the court hear about past allegations of abuse in domestic assault trials, when those incidents are not part of the charges, despite the obvious prejudicial effects to the accused,” she says. “It seems as though the Crown is cherry-picking what forms of narrative are prejudicial and which are not, as it suits their case.

“They cannot have their cake and eat it too,” Izadi says.

The defendant in the Alberta case was accused of striking the complainant and engaging in sexual relations without her consent during a 2014 incident in his home.

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

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.

Izadi says the dissenting judge got it right by concluding that the trial judge properly analyzed the evidence, and gave clear and numerous instructions to the jury as to how they were to use it and, just as importantly, how not to use it.

“There was no danger that the jury engaged in impermissible reasoning. Any possibility of that was prevented by the clear instructions from the trial judge,” she says, adding the complainant’s questionable characterization of their past interactions as platonic in testimony patently put their previous relationship at issue.

“Once the complainant puts this in issue, it becomes a serious matter of credibility to challenge her on this point as she has now lied under oath on a significant point of her evidence,” Izadi says. “The jury, in this situation, must be made aware in order to properly assess her credibility when deciding a verdict.”

Barring the admission of the evidence could effectively allow the complainant to invent a version of her history with the accused that could not be challenged, she explains.

”That would be absurd and would make each justice actor complicit in misleading the jury. That is counter-intuitive and the antithesis to all principles of having a fair trial and the purpose of the truth-seeking function of the court,” Izadi says.