Case information

Criminal law — Evidence — Admissibility — Evidence of prior sexual attraction — Whether Quebec Court of Appeal erred in law in finding that Crown’s evidence of accused’s prior sexual attraction to victim could be admitted without first being screened.

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(PUBLICATION BAN IN CASE)

The applicant, Alexandre Gagné, was tried on a charge of sexually assaulting the victim. These two persons were both in the Reserve Force of the Canadian Army. The events concerned the way in which certain security searches, a procedure preceding unarmed ground combat training, were conducted during a training session. The way in which Mr. Gagné conducted the searches was criticized. The content of text messages, sent by Mr. Gagné to the victim in the evening, also formed part of the crux of the dispute.

At trial, the dispute essentially concerned the assessment of the witnesses’ credibility, the reliability of the testimony and the assessment of the evidence as a whole. Following an analysis, the court rejected Mr. Gagné’s version; his defence did not raise any doubt. The truthfulness and accuracy of the victim’s clear and convincing version were demonstrated beyond a reasonable doubt. The court convicted Mr. Gagné on the count of sexual assault as charged. On appeal, Mr. Gagné argued that the judge had erred in allowing his sexual attraction to the victim to be proved through an account of their prior communication and that a voir dire had been necessary. The Court of Appeal rejected the facts underlying the ground of appeal because they did not correspond in any way to those that the trial judge had accepted. Mr. Gagné failed to demonstrate that the judgment under appeal was tainted by a reviewable error. The evidence of his sexual attraction to the victim was not propensity evidence, and, in fact, the judge had been careful not to draw conclusions from it concerning Mr. Gagné’s guilt. The appeal was dismissed.