R. v. T.W.W.2022 BCCA 3122024 SCC 19 (40406)

“The accused and the complainant were in a romantic relationship for over twenty years. In February 2018, they separated and the accused moved into the basement of the family home. According to a statement made to police by the complainant, she and the accused had consensual intercourse on the evening of April 1, 2018, and the accused sexually assaulted her the following morning. The accused brought a pre‑trial application to adduce evidence of the sexual activity from the evening of April 1, pursuant to ss. 276 and 278.93 of the Criminal Code. The application stated that the accused’s defence was consent. The trial judge dismissed the application. He held that the events of April 1 were not relevant to the issue of consent on April 2, and rejected the accused’s argument that the events on April 1 formed a continuous event with the events on April 2. He also concluded that the evidence was sought to be adduced for the prohibited purpose of arguing that the complainant was more likely to have consented to the alleged sexual activity or that she was less worthy of belief.

The accused was convicted of sexual assault and appealed his conviction. The appeal proceeded in camera and the appeal record was sealed. The majority of the Court of Appeal held that the accused failed to establish how evidence of the April 1 sexual activity was fundamental to his defence, which was not, in fact, a defence of consent as set out in his application, but was rather a complete denial that the assault occurred. It its view, evidence of consensual sex on April 1 could not support a defence that a sexual assault on April 2 did not occur. The dissenting judge held that the evidence of prior sexual activity was essential to challenging the complainant’s credibility and the Crown’s theory that the sexual assault occurred in the context of a complete breakdown in the accused and complainant’s relationship. The accused appealed to the Court as of right. The Crown brought a motion for the appeal to be held in camera, for filed materials to be sealed, and for any other order necessary to protect the information covered by ss. 276 and 278.93 to 278.95 of the Criminal Code, on the basis that the procedural protections prohibiting publication put in place at the trial level under ss. 278.94 and 278.95 should extend to the appeal before the Court.”

The SCC (7:2) dismissed the appeal and allowed the Crown’s motion in part.

Justice O’Bonsawin wrote as follows (at paras. 3-5, 36, 77-80, 82):

“The conduct of sexual offence trials calls for a delicate balance in order to uphold their truth-seeking function: the process must safeguard the fair trial rights of the accused while also respecting the complainant’s dignity and right of privacy to achieve a result that is fair to all involved. Thus, while the open court principle and the protection of complainants’ personal dignity and privacy present competing interests, they can operate harmoniously. An open court that protects complainants’ personal dignity and privacy increases public confidence in the court process and administration of justice and encourages the reporting of sexual offences.

Prior to the hearing before this Court, the Crown brought a motion requesting that this appeal be held in camera, a sealing order on all filed materials, and “any other order the Court deems necessary to protect information covered by sections 276 and 278.93-278.95 of the Criminal Code” (p. 1). It asserted that the procedural protections put in place at the trial level under ss. 278.94 and 278.95 should extend to the appeal before this Court. The Crown argued that either or both these provisions and a court’s implied jurisdiction to control its own processes grants this Court the authority to make the orders that it seeks. As I will explain, a court’s implied jurisdiction to control its own processes includes the discretionary ability to make those orders. However, the Court’s discretion should be exercised in a way that maintains court openness as far as practicable while protecting the complainant’s personal dignity and privacy and the accused’s fair trial rights.

On appeal, the appellant argues that the trial judge erred in refusing to admit the evidence for context and credibility purposes. I disagree. As I will explain, the appellant failed to sufficiently identify a specific use for the evidence that did not invoke twin-myth reasoning and that was essential to his ability to make full answer and defence.

It bears repeating that the applicant is tasked with establishing with clarity and precision the use to be made of the other sexual activity evidence sought to be adduced. Before a trial judge may grant an application for an admissibility hearing, they must be satisfied that the application “set[s] out detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial” (Criminal Code, s. 278.93(2)). As the majority noted on appeal below, “[s]pecificity is required so judges can apply the scheme in a way that protects the rights of the complainant and ensures trial fairness” (para. 97, quoting Goldfinch, at para. 53). The applicant need not include so many details that the witness’s privacy is unnecessarily intruded upon, but there must be a sufficient factual and evidentiary basis for the trial judge to properly consider and weigh the factors set out in s. 276.

With respect to the request for a sealing order, the full contents of the Court’s file do not need to be sealed in order to protect the complainant’s privacy and dignity. This can be accomplished in this case by banning publication of any information about or reference to the nature of the sexual activity other than that which forms the subject-matter of the charge, and I would make such an order. This balances respect for the goal of restricting publication of the details of s. 276 applications with this Court’s task as an appellate court to provide guidance to lower courts. The request to hold the hearing in camera is also a greater restriction than is necessary.Proceeding in camera at the trial level pursuant to s. 278.94 permits counsel in all cases to freely and vigorously argue the merits of the application where the information and evidence sought to be adduced may be highly prejudicial and its value is untested. In contrast, this appeal deals with a question of law and counsel are able to argue their case without heavy reliance on information and evidence that is mandatorily protected under s. 278.95. The publication ban that I would impose under the Court’s implied jurisdiction, the statutory one imposed under s. 486.4, and the use of initials for the appellant are further measures that protect the complainant’s privacy and dignity on this appeal.

Additionally, I do not find that the benefits of the requested orders outweigh their negative effects, bearing in mind the interests of justice in this case. The scope of “the interests of justice” within the open court principle is broad: in the jurisprudence, it has included an accused’s fair trial rights and right to make full answer and defence; the truth-seeking function of the trial process; the importance of freedom of the press to report on matters and the right of the public to receive such information; the proper administration of justice; and others (see, e.g., Crosby, at para. 12; Mills, at paras. 73-74; Mentuck, at paras. 23-24 C.B.C. v. New Brunswick, at paras. 23-25 and 39). In this case, the interests of justice include Parliament’s goal of protecting the integrity of sexual offence trials. As this Court observed in Mills, “[i]f constitutional democracy is meant to ensure that due regard is given to the voices of those vulnerable to being overlooked by the majority, then this court has an obligation to consider respectfully Parliament’s attempt to respond to such voices” (para. 58).

I have also considered the responsibility of this Court to provide clear and authoritative statements of law and guidance to lower courts, which supports judicial accountability in sexual offence trials. Reasons from, and hearings before, this Court provide not only an explanation of an appeal’s resolution to the parties but also give meaning to the judgment’s precedential value which, through the principle of stare decisis, binds and guides lower courts in the consistent application of the law. The interests of justice weigh in favour of court openness in this case because this appeal asks the Court to clarify the appropriate use of prior sexual activity evidence for context and credibility purposes. The law on sexual offences is quickly and ever-evolving, and guidance from appellate courts is important for the proper adjudication of these cases and to fulfill Parliament’s objectives to ensure fair sexual offence trials. In view of the alternative measures available, the benefits of the requested orders do not outweigh their negative effects on court openness.

For these reasons, I would allow the Crown’s motion in part by making less restrictive orders than those requested.


I would allow the Crown’s motion in part. The circumstances of this case do not justify all of the orders requested. I would order that:

  • a)  Any information about or reference to the nature of sexual activity of the complainant which is at issue in this proceeding, other than that which forms the subject-matter of the charge, shall not be published, broadcast, or transmitted; and
  • b) The parties shall file, within 30 days, versions of their factums for posting on the Court’s website in which any information about or reference to the nature of sexual activity of the complainant at issue in this proceeding, other than that which forms the subject-matter of the charge, and any information that could identify the complainant, shall be redacted.”