When facing a sexual assault allegation, many people wonder if a prior romantic or sexual relationship with the complainant can be used to support their defence. In Canadian courts, especially in Alberta, this question involves complex legal principles designed to balance fairness for the accused with protection for complainants.
This blog talks about how courts interpret prior relationships, when such evidence might be admissible, and why guidance from a qualified sexual assault defence lawyer is essential when navigating these sensitive and technical cases.
Understanding the Role of Consent in Sexual Assault Law
In Canadian criminal law, the issue of consent forms the foundation of every sexual assault case. Under Section 273.1 of the Criminal Code of Canada, consent must be voluntary, ongoing, and informed by the person giving it.
A prior relationship does not imply consent for any future sexual contact. Even within marriage or long-term partnerships, consent must be clearly expressed and can be withdrawn at any time. Courts have consistently ruled that consent cannot be assumed from past intimacy.
A key precedent, R v. Ewanchuk [1999] 1 S.C.R. 330, confirmed that there is no “implied consent” defence in Canadian law. This landmark ruling continues to shape how Alberta courts interpret allegations where prior relationships exist between the parties.
Can Prior Relationships Be Mentioned in Court?
Evidence of a complainant’s previous sexual activity, including any relationship with the accused, is almost always inadmissible in court. This restriction arises from Section 276 of the Criminal Code, often called the “rape-shield law.”
This section prevents defence lawyers from introducing sexual history evidence unless it directly relates to a factual issue in dispute and is not intended to suggest that the complainant was more likely to have consented or is less credible.
To rely on such evidence, a defence lawyer must file a formal Section 276 application. The judge then holds a private hearing (known as a 276 hearing) to determine whether the information is:
- Significantly relevant to a material issue in the trial.
- Of greater probative value than potential prejudice; and
- Respectful of the complainant’s privacy and dignity.
If the evidence fails to meet these criteria, it will be excluded. The Department of Justice Canada outlines how these provisions safeguard both fairness and privacy within sexual assault proceedings.
When Relationship History May Be Relevant
Although prior relationship evidence is rarely admitted, there are exceptional circumstances where it may be considered. An experienced sexual assault defence lawyer may seek to include such evidence if it clarifies a specific issue central to the defence, such as:
- Context for Communication: Prior interactions may explain text messages, emails, or social-media exchanges that seem ambiguous when isolated.
- Mistaken Belief in Consent: When the accused’s belief in consent stems from ongoing communication or conduct within the relationship, and that belief is reasonable and fact-based.
- Contradictions in Testimony: If statements about the nature or timing of the relationship conflict with other verified facts, the court may permit limited reference to resolve inconsistencies.
These exceptions are narrow and require precise legal reasoning. Each request is examined under strict judicial control to ensure relevance and fairness.
Legal Safeguards and Privacy Protections
Canadian courts apply a rigorous two-stage process before admitting any prior-relationship evidence:
- Relevance Review: The judge confirms the evidence directly relates to an issue at trial, not general character or morality.
- Balancing Test: The court weighs the evidence’s usefulness against the risk of prejudice, stereotype reinforcement, or privacy intrusion.
Most hearings occur in camera (privately) to protect both parties’ privacy. Judges also remind juries that consent must be determined based on the specific incident, not prior behaviour.
These safeguards uphold the principles of the Canadian Charter of Rights and Freedoms, ensuring both the right to a full defence and the protection of individual dignity.
Why Legal Representation Is Essential
Sexual assault law involves intricate procedural and evidentiary rules. Misinterpreting them can seriously harm your defence. Skilled criminal defence lawyers in Edmonton understand how to prepare and argue Section 276 applications while maintaining full compliance with the law.
A defence lawyer can:
- Evaluate whether past-relationship evidence strengthens your position.
- Draft and file the required legal motion, affidavit, and arguments;
- Address prosecutorial objections effectively;
- Protect your Charter rights during the investigation, pre-trial, and trial stages.
Many experienced defence lawyers also work with forensic, digital, or psychological experts to analyze communication patterns and ensure all relevant facts are accurately presented.
Conclusion
A past relationship cannot serve as a blanket defence in a sexual assault case, but it may hold limited relevance when it directly supports a legally recognized argument and meets the strict evidentiary requirements outlined under Section 276 of the Criminal Code.
Courts are cautious about how such evidence is used, ensuring that it informs legitimate context rather than inviting prejudice or stereotype-based assumptions.
Defending against a sexual assault allegation requires far more than pointing to prior intimacy; it demands a comprehensive legal strategy built on evidence analysis, procedural knowledge, and a clear understanding of how consent is evaluated under Canadian law.
Anyone accused of sexual assault in Alberta should seek immediate legal advice to understand their rights, preserve vital evidence, and prepare a well-founded defence. Early legal intervention can influence how charges are pursued, how evidence is interpreted, and ultimately, the outcome of the case. Strong representation ensures your story is heard and your future is protected.
About Slaferek Law
Slaferek Law is an Edmonton criminal defence firm committed to protecting the rights of individuals accused of serious offences under Canadian law. The firm focuses on sexual assault and domestic assault defence, providing strategic representation that preserves both legal rights and personal reputations.
Led by a dedicated defence lawyer, the firm approaches every case with precision, using evidence analysis, Charter applications, and targeted negotiations to achieve the most favourable outcomes possible. Each defence is customized to reflect the facts of the case, especially in matters where consent, credibility, and context are disputed.
If you are facing sexual assault charges in Edmonton, contact us for confidential and timely legal assistance.
