A Manitoba man facing trial for sexually assaulting and choking his girlfriend will be allowed to enter evidence of their shared history of "rough sex" after a judge ruled it was a key factor in assessing the man’s state of mind.
Evidence the man may have been mentally ill at the time of the alleged assault raises the question how he would perceive his actions, given his sexual history with the alleged victim, Queen’s Bench Justice Shawn Greenberg wrote in a decision released this month.
Under section 276 of the Criminal Code, known as the "rape shield law," an alleged victim’s sexual history is not admissible in court to show they are either "more likely to have consented" to the sexual activity that is the subject matter of the charge before the court or that they are "less worthy of belief."
In this case, "the evidence is relevant to the defence of honest, but mistaken, belief," Greenberg said. "It is not being used to support one of the twin myths. It is being used to understand how the accused perceived the events that occurred."
The Free Press cannot name the accused as it might identify the alleged victim.
According to the alleged victim’s police statement, the two had been living together for five months when on July 11, 2018, the man attacked the woman following an argument.
The woman alleges the man tried to tie her up and choke her as she screamed for help. When the woman stopped fighting back, he raped her, she alleged. When it was over, the woman ran to her landlord’s apartment and called 911.
In an affidavit, the man said he and the woman had engaged in "rough sex" just two days before the alleged assault, with the woman saying she "loved it" and that he "could do whatever he wanted."
The man said he and the woman had previously agreed on a "safe word" to say when they wanted sexual activity to stop.
The woman told police she had used the safe word — "purple" — with the accused responding by saying he had changed it.
The man makes no mention in his affidavit of the woman using the safe word.
Defence lawyer Wendy Martin White filed three psychiatric assessments with the court. They show the accused has a history of schizophrenia and at the time of the alleged attack, had not been taking his medication.
A psychiatrist who examined the man concluded he did not meet the criteria for a not criminally responsible finding, but believed he was likely suffering symptoms of psychosis around the time of the incident, including delusional beliefs and auditory hallucinations.
The defence has retained another psychiatrist for an assessment, and depending on the result, may again pursue a not criminally responsible defence, Greenberg said. If that is not possible, the defence will argue the man did not have the state of mind to know the woman did not consent to the sex act.
"But for the evidence of his mental health, I would have difficulty finding that the proposed sexual history would be relevant to an issue at trial," Greenberg said, adding neither the Crown nor defence could find a similar case in their review of the case law.
"While relationship history may not be relevant to determine mens rea in a healthy person, in my view, not allowing that evidence in this case would undermine the accused’s ability to present his defence," Greenberg said.
Greenberg recommended the couple’s sexual history be admitted to court by way of an agreed statement of facts, a move that would free the alleged victim from the prospect of being cross-examined about her sex life.
"My decision on admissibility is based on what I understand will be the nature of the Crown and defence case at trial," Greenberg said. "If the nature of the Crown or defence case changes, it may be necessary to reconsider this ruling."
University of Manitoba law professor Karen Busby is involved in a study on how often so-called "276 applications" were made in Winnipeg sex assault trials over a four-year period.
"I can’t tell you if it’s 10 per cent of cases or 50 per cent of cases, and I can’t say how often it’s successful — we just don’t know," she said.
A decision by the Supreme Court of Canada in 2019 sent a firm message to judges, prosecutors and defence lawyers by reiterating the importance of 276 applications. That decision ordered a new trial for trucker Bradly Barton, who was acquitted of murder and manslaughter in the death of Cindy Gladue in an Edmonton motel room.
During Barton’s trial, Gladue was repeatedly referred to as a prostitute, side-stepping provisions to prevent a victim’s sexual history from being used against them. No 276 application was made in the case.
Busby said Greenberg’s decision is "pretty narrow," and does not go to the question of motive or whether the accused choked the alleged victim.
"It only goes in to the very narrow question of whether or not what they had done in the past might have affected his perception of consent given his mental illness," she said. "It’s a key distinguishing feature from other cases of so-called 'rough sex'."
Someone once said a journalist is just a reporter in a good suit. Dean Pritchard doesn’t own a good suit. But he knows a good lawsuit.