In a 2-1 decision, B.C.'s highest court has dismissed an appeal from a man convicted of sexual assaulting his spouse.

The appellant was identified as "T.W.W." and "W" in the September 16 decision to protect the identity of the complainant, who was referred to as "X". W hoped to cross-examine his spouse  about her previous sexual activity.

That request to the court was rejected by the trial judge and upheld by B.C. Court of Appeal Justices Gregory James Fitch and Mary Newbury.

Writing for the majority, Fitch stated that the trial judge properly dismissed an application under section 276 of the Criminal Code of Canada to adduce evidence of X's criminal history.

"It was incumbent on W to point to some legitimate use of this presumptively inadmissible evidence that would justify its admission," Fitch wrote. "In my respectful view, W did not do so."

In addition, Fitch stated that any evidence adduced through cross-examining X on her sexual history "could potentially be used to support twin-myth reasoning".

The "twin myths" concept was addressed in three 2019 Supreme Court of Canada rulings.

Under section 276 of the Criminal Code of Canada, defence counsel may file an application to have past sexual activity admitted as evidence. But the application cannot succeed if it infers that prior sexual activity makes the complainant less believable or is more likely to have given consent—i.e., the "Twin Myths".

Ottawa lawyer Maya Shukairy wrote in a 2019 blog post that Canada's top court emphasized in all three decisions "the importance of protecting the dignity and integrity of complainants in sex assault trials".

"In other words, the general rule in Canadian Criminal Law is that an accused person cannot introduce evidence of the complainant’s previous sexual activity if what he is inviting the judge or jury to infer is that because the complainant has consented to sex in the past, then she most likely consented to the sex in the case before the court; or that because she has had sex in the past, she should not be believed and is thus a less credible witness," Shukairy stated.

In addition, the evidence of prior sexual activity must be deemed to be relevant to the issue being tried, refer to specific instances of sexual activity, and the value of this evidence must not be substantially outweighed by the danger of prejudice to the administration of justice. Once this threshold is met, the trial judge must then explain why this evidence is being admitted and instruct the jury on the purposes for which it can be used.

In the case involving W, he was convicted of sexual assault against his spouse. The trial judge did not believe his denial or that his evidence had raised any reasonable doubt.

"According to W, shortly before the alleged assault they engaged in consensual sexual activity, the alleged assault never occurred, and they engaged in consensual sexual activity again later that day," wrote B.C. Court of Appeal Justice David Frankel in an 84-paragraph dissenting opinion. "In a statement to the police, X referred to them having engaged in consensual sexual activity the night before the morning incident."

However, on April 9, 2018, X told a friend, identified as "F", that she had been sexually assaulted by W. Police then interviewed X that afternoon.

Frankel's dissent stated that the complainant, X, testified that she and W had separated five weeks before the sexual assault after he had told her that he was in a relationship with another woman and wanted a divorce. W moved into a downstairs bedroom in their house after having been together with X for 26 years. She told the court that he came upstairs to sexually assault her.

She maintained that this occurred after the marriage was effectively over. The end of the marriage resulted in "a hostile relationship with a man who, several weeks after their relationship ended, forced himself on her one morning and attempted to do so again a few days later", according to Frankel's dissent.

"In my view, the judge in the case at bar erred in finding evidence of what occurred just prior to the alleged sexual assault to be irrelevant," Frankel wrote. "W’s proposed evidence was not sought to be adduced to support either of the twin-myth inferences. Rather, it was sought to be used to challenge X’s credibility, the central issue at trial."

Therefore, Frankel, unlike the two other judges on the panel, concluded that the conviction should have been set aside and a new trial ordered.

Writing for the majority, Fitch stated that he had the benefit of reading a draft form of Frankel's reasons. And Fitch had no issue with Frankel's description of the facts.

"Respectfully, I do not agree with the result my colleague proposes or with aspects of his analysis," Fitch declared.

Fitch stated in his reasons that W failed to present evidence satisfying the pre-conditions for a section 276 application. 

In the majority's ruling, Fitch also acknowledged that evidence of a sexual relationship may be "relevant when the complainant has provided inconsistent statements regarding a sexual relationship with the accused at a time proximate to the alleged offence".

This evidence, he added, "may be relevant to substantiate claims of an honest but mistaken believe in consent". But those weren't the circumstances in this case.

"The evidence was not shown to be relevant, let alone integral, to the defence," Fitch concluded. "In any event, whatever minimal probative value the evidence possessed was substantially outweighed by the danger of prejudice to the proper administration of justice that would flow from its admission. I would not interfere with the judge’s admissibility rulings."