Case information

Criminal law - Appeals - Powers of Court of Appeal - Remedy - Right to cross-examine - Complainant’s sexual activity - Trial judge dismissing application by accused to cross-examine complainant on sexual activity within week prior to offence - Where a trial judge has unduly restricted the right to cross-examine the Crown’s principal witness, and the Defence abided by that restriction, what remedy is warranted? - Criminal Code, R.S.C. 1985, c. C-46, ss. 276.1 [now s. 278.93], 683(1)(b), 686(1)(b)(iii).

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(PUBLICATION BAN)

At trial, the appellant, Mr. Cortes Rivera, was convicted of sexual assault contrary to s. 271 of the Criminal Code. The trial judge dismissed a s. 276.1 application [now a s. 278.93 application] to have an evidentiary hearing to determine the admissibility of evidence of prior sexual activity of the complainant. On appeal before the Court of Appeal of Alberta, Mr. Cortes Rivera argued, amongst other, that the trial judge erred in dismissing the s. 276.1 application. A majority of the Court of Appeal dismissed the appeal. Slatter J.A., dissenting in part, agreed with the majority that the appellant was improperly denied an opportunity to cross-examine the complainant about sexual activity. However, he concluded that there was a more appropriate remedy than that of invoking the curative proviso in s. 686(1)(b)(iii) of the Criminal Code. The more appropriate remedy was to invoke the powers of appellate courts (s. 683(1)(b)) and direct the inquiry that should have taken place at trial. In his view, the appeal should not be decided on the existing record; the complainant’s evidence should be supplemented, and the appeal resolved only once that is done.