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

Mar 12, 2019 By Melody 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 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with Caramanna Friedberg LLP, agrees that evidence offending the twin myths should be excluded for encouraging outdated views.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.

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