Editor’s Note: This post was written as a preview of an upcoming Supreme Court of Canada decision for the Fantasy Courts website and newsletter.

Hi, here’s what you need to know about the Supreme Court of Canada this week in 6 minutes.

Latest News

  1. 🧾 The SCC will release its judgment in R. v. T.W.W. on Friday, May 24, 2024. At issue is the application of s. 276 of the Criminal Code to restrict evidence of a complainant’s sexual history with the accused before and after the incident at issue.
  2. 🥊 On May 17, 2024, the SCC released its decision in R. v. Lozada, 2024 SCC 18. In a 3:2 split, the SCC dismissed the appeals and confirmed the manslaughter convictions for both appellants. The jury instructions conveyed the proper test for causation: whether the appellants’ conduct was a significant contributing cause of the victim’s death.
  3. 🔮 33% of players correctly predicted the outcome.

Head over to Fantasy Courts to lock in your predictions for this week’s decision, or read more about the cases below.

Case to Predict: Prohibiting Evidence of Sexual History

Appeal as of right from R. v. T.W.W., 2022 BCCA 312

SCC factums (webcast not available due to publication ban and sealing order)

What Happened?

Background: The appellant was charged with assaulting his spouse. He denied the assault occurred. The complainant said they had separated about five weeks before the assault. The appellant had moved to a downstairs bedroom in their house and one morning came upstairs and assaulted her. The appellant said they engaged in consensual sexual activity before and after the alleged sexual assault and that the alleged assault itself never occurred.

Trial: The trial judge refused to allow the appellant to adduce evidence of, and cross-examine the complainant on, sexual activity they engaged in before and after the alleged offence. The appellant was found guilty of sexual assault against his spouse.

Appeal: The appellant appealed his conviction on the basis that the trial judge erred in his application of s. 276 of the Criminal Code. The majority of the Court of Appeal for British Columbia dismissed the appeal. It found that the application to adduce evidence respecting the complainant’s sexual history was properly dismissed. The probative value of the evidence was insignificant and substantially outweighed by the risk of prejudice that would flow from its admission.

In dissent, Frankel J.A. would have allowed the appeal, set aside the conviction, and ordered a new trial. The appellant should have been permitted to cross-examine the complainant on whether they had engaged in consensual sexual activity in the hours before the sexual assault she described. The evidence bears directly on the appellant’s ability to mount a defence to a serious charge and will assist in arriving at just determination of the case.

What Was Argued at the SCC?

Appellants: Evidence of specific instances of sexual activity may be admissible if it is not being introduced to support the twin myths and it has significant probative value that is not outweighed by any prejudice it may cause. The evidence was critical to the appellant’s ability to challenge the Crown’s theory of the case, which was that the sexual assault had occurred in the context of a marriage that had come to an end weeks before.

Respondent: The application to adduce evidence respecting the complainant’s sexual history was properly dismissed. On its face, the evidence could potentially be used to support twin-myth reasoning. It was incumbent on the appellant to point to some legitimate use of this presumptively inadmissible evidence that would justify its admission and he did not do so. Even assuming that a claim to relevance could conceivably be made, the evidence possessed virtually no probative value given the nature of his defence.

What Else Should You Know Before Making a Prediction?

Due to the publication bans and sealing orders, the webcast of the hearing isn’t available and much of the Crown’s written argument has been redacted, making it difficult to properly assess the argument. There have been a number of challenges to s. 276 in recent years and almost all of them have been resolved in favour of the Crown. I’m leaning towards appeal dismissed, but with a dissent.

Previous Prediction: Causation for Co-Principal Liability

On May 17, 2024, the SCC released its decision in R. v. Lozada, 2024 SCC 18.

Held (3:2): Appeals dismissed. Manslaughter convictions confirmed. The jury instructions conveyed the proper test for causation in the context of a group fight where one person was stabbed and died.

Key Points:

  • Appellate courts take a functional approach in reviewing jury instructions by asking whether the jury was properly, not perfectly, instructed. Trial judges must be accorded the flexibility to put issues of causation to the jury in an intelligible fashion that is relevant to the circumstances of the case.
  • The overall test for legal causation for manslaughter is whether the accused’s unlawful acts were a significant contributing cause of death.
  • In cases where an intervening act is said to have broken the chain of causation between the accused’s acts and the victim’s death, asking whether the intervening act was reasonably foreseeable or was an independent factor can be helpful analytical aids, but the significant contributing cause test remains the legal standard.
  • There is no requirement that the specific subsequent attack be reasonably foreseeable. It is sufficient if the general nature of the intervening act and the risk of non‑trivial harm are objectively foreseeable at the time of the dangerous and unlawful acts.
  • Justices Rowe and Jamal in dissent would have ordered a new trial, finding that the jury was inaccurately instructed on whether the stabbing broke the chain of legal causation.

Predictions: The split decision made this one difficult. Only 33% of players correctly predicted that the appeal would be dismissed.

-Tom Slade

Thanks for reading and playing Fantasy Courts. If you liked today’s newsletter, we’d love for you to share it with a friend, or you can sign up to receive it as an email: https://mailchi.mp/37b20ffd0198/fantasycourts