In Canadian criminal law, sexual cases are common – and complicated. This may be surprising because cases of simple assault, without the sexual component, are not usually complicated. It is the “sexual” component that increases the complexity of these cases by a wide margin. There are a few reasons for this, most of which relate to the special rules of evidence involved.


Reason #1 – Prior Sexual History Evidence

The first reason for the complexity of sexual assault cases is that the defence cannot introduce evidence of any prior sexual history of the complainant without first getting permission from the trial judge. The reason for this is that, in the past, judges and juries would sometimes find an accused not guilty of sexual assault because they thought the complainant’s prior sexual history made them more likely to have consented to sexual activity during the incident or less worthy of belief about how they were sexually assaulted. This is tied to old-fashioned notions that a woman who has had many sexual partners is somehow immoral or a person of bad reputation.

The idea that a woman consented to sex during an alleged sexual assault because she had previously consented to sex, either with others or the same person, is a discredited myth. Defence lawyers must get permission from judges before they can introduce prior sexual history of complainants to guard against these erroneous ideas. We call these ideas the “twin myths” of sexual assault.

Today, few people subscribe to the twin myths of sexual assault, but the rule remains because the law guards against the mere risk that a judge or jury’s thinking might be tainted by the twin myths.

The rule against introducing evidence of a complainant’s prior sexual history is strict. Even if the defence has no intention of bringing up this history to support the twin myths, that is not enough to get permission from the judge to introduce the evidence. The defence must also show that it is relevant to a central issue of the case that is not outweighed by the danger to the proper administration of justice.

The strictness of the rule exists because the courts are also concerned about the privacy rights of complainants. The law wants to prevent a situation where a complainant is reluctant to report that they have been the victim of a sexual assault because their privacy might be invaded during the trial.

Applications to admit the prior sexual history of complainants into evidence are further complicated by the fact they take place in two stages. At the first stage, called the screening stage, the defence must show that the evidence is capable of being admissible. At the second stage, the defence must show that the evidence is relevant to a central issue in the case. At this stage, the government appoints a lawyer to represent the complainant. That means the defence must argue against two lawyers at the second stage: the complainant’s government-appointed lawyer and the Crown prosecutor.


Reason #2 – Complainant Records

The second reason for the complexity of sexual assault cases is that the defence cannot introduce evidence of any prior records of a complainant without getting permission from the judge first. “Records” includes any material over which the complainant has a privacy interest. That means emails, text messages, letters, social media messaging, or diary entries may count as records.

The first question is whether the defence has the records at all. The Crown is not required to disclose any records the complainant has to the defence even if they are relevant to the trial. If the defence wants to even see those records, they must make an application to a judge.

If the defence wants to tender something they have received from the accused (and not the Crown), the question becomes whether what the defence wants to introduce in evidence is a record. Oddly, this is a choice that the defence must make. If they are wrong, then the Crown or judge will object and require the defence to properly apply to introduce the evidence. If this happens during the trial, the defence risks not being allowed to introduce the evidence because the application to do so needed to be made before the trial.

As with an application to admit prior sexual history of a complainant, an application to admit a complainant’s prior records takes place in two stages. There is a screening stage first, then a hearing if the defence is successful at the screening stage. The complainant has a lawyer appointed to them by the government. Once again, the defence must argue for the admissibility of the complainant’s records against two lawyers: the complainant’s lawyer and the Crown.

Although some cases of sexual assault will not involve pre-trial applications from the defence to introduce evidence of the complainant’s prior sexual history or their records, most cases involve at least one of these applications. This is because most sexual assault allegations are made against someone who is known to the complainant, sometimes very well known (e.g., a prior romantic partner). The accused and complainant will commonly have a prior sexual history of consensual sexual activity together and/or a documented history of communications together. Sexual assaults where the victim was randomly attacked on the street by a stranger are very rare.

Related: Sexual Assault and Consent Laws FAQ


Reason #3 – Lack of Consent is a Key Ingredient of Sexual Assault

Yet another reason why sexual assault trials are complicated is that a key ingredient in sexual assault offences is the lack of consent from the complainant. Violence resulting in cuts, bruises or broken bones is evidence of a lack of consent, however, sexual assault allegations frequently occur without any obvious violence.

Sometimes there is no dispute that the complainant and accused had sexual activity together. The only dispute is whether that sexual activity was consensual. In such cases, forensic evidence like matching the DNA of semen with the accused’s DNA might be irrelevant. The question entirely becomes one of credibility and reliability. That means putting a microscope to every little thing that occurred between the complainant and accused before, during, and after the alleged sexual assault.

In some cases, the issue is the complainant’s capacity to consent. This can occur when the complainant was highly intoxicated by drugs or alcohol during the alleged sexual assault. The law says that a complainant is still capable of consenting to sexual activity while intoxicated, but there is a line where the complainant no longer has that capacity. If the accused had sexual activity with the complainant during that time, they are guilty of sexual assault.

Trying to discern where the line between capacity and incapacity to consent from the complainant, and when that line may have been crossed, can be complicated. In some cases, the Crown and defence will both choose to call expert witnesses (toxicologists) who offer competing evidence about a complainant’s capacity to consent based on how much intoxicant a complainant consumed and how they reacted to it.



Sexual assault is a complicated and highly specialized area of criminal law. If you are accused of sexual assault, you need expert lawyers at Filkow Law to help you defend yourself from the charge. Call now for a consultation – (604) 558-8778.