By Canadian Press

Ontario court upholds ruling to allow sexual activity evidence in Boyle case

Jun 13, 2019 | 8:43 PM

OTTAWA — A lawyer for Joshua Boyle can introduce evidence of his client’s estranged wife’s past sexual history at the former Afghanistan hostage’s trial, the Ontario Superior Court of Justice has ruled.

Boyle, 35, has pleaded not guilty in the Ontario Court of Justice to offences against Caitlan Coleman, 33, including assault, sexual assault and unlawful confinement.

The Superior Court judgment upholds a decision last month by trial judge Peter Doody that was the subject of a review requested by Coleman’s lawyer Ian Carter.

“The Court finds the Justice Doody was correct in finding that the proposed evidence has significant probative value which is not substantially outweighed by the danger of prejudice to the proper administration of justice,” Justice Ronald Laliberte wrote in a judgment released Tuesday.

The offences are alleged to have occurred in late 2017, after the couple returned to Canada following five years as captives of Taliban-linked extremists who seized them during a backpacking trip to Asia.

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In April, the defence made the application to introduce evidence concerning certain consensual sexual activity between Boyle and Coleman.

Eric Granger, the defence lawyer, said the Superior Court review was unnecessary because sufficient safeguards are already built into the process followed by the trial judge.

The issue is significant because the law limits the extent to which an accused person can bring up an alleged victim’s sexual history during a trial.

Such information is only supposed to be admissible if it’s directly relevant to the case, and not to be used to suggest that a complainant is untrustworthy or was more likely to have consented to sexual activity because of his or her history.

The Superior Court’s decision could have implications for such trials in spelling out whether a complainant can challenge a ruling under the so-called rape-shield provisions.

Coleman’s lawyer argued that Doody failed to recognize a Supreme Court of Canada ruling that evidence of extrinsic sexual activity of the complainant is rarely relevant to support a denial that the sexual activity charged took place. 

Laliberte wrote that Doody was correct in finding the proposed evidence is relevant to an issue at trial. 

He noted that the defence position is that the alleged sexual violence did not happen and has argued that Coleman is consciously or unconsciously “inserting” into her evidence consensual activities that she and Boyle did, but added features to make those activities non-consensual.

Doody had found the proposed evidence was relevant due to statements she made to police in 2017 where Colemen said she couldn’t say with absolute certainty about what happened. She also said that memories can be invented and inserted.

Laliberte said the court must recognize that a balance must be achieved in weighing Charter rights.

“The point of all this is not to deny the importance of a complainant’s right to privacy, dignity and equality in matters of sexual violence,” he wrote.

“An accused person who is presumed innocent and whose liberty is at stake should not be given lesser rights.”

Boyle’s trial, which began in late March, was suspended last month over the dispute about the evidence.

The trial is to resume July 2.

The Canadian Press