By Canadian Press

Boyle’s lawyer cites dangers of mid-trial appeal about sexual-activity evidence

May 17, 2019 | 12:18 PM

OTTAWA — A mid-trial appeal about sensitive evidence concerning sexual activity could endanger the timely completion of Joshua Boyle’s assault case, a lawyer for the former Afghanistan hostage told a judge Wednesday.

Eric Granger said the legal challenge by Boyle’s estranged wife Caitlan Coleman, the alleged victim, is resulting in “fragmented proceedings” amid the pressures of a schedule intended to ensure the constitutional right to be tried within a reasonable time.

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

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 an ill-fated backpacking trip to Asia.

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Boyle’s trial, which began in late March, is suspended indefinitely while the dispute over evidence plays out in Ontario Superior Court.

At a one-day hearing Wednesday, Coleman’s lawyer Ian Carter asked the court to review a recent ruling by trial judge Peter Doody that allows Boyle’s defence to introduce evidence concerning certain consensual sexual activity with his wife.

Granger, the defence lawyer, said the Superior Court review is 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.

As a result, the Superior Court’s decision here, expected some time next month, is likely to have broad implications for such trials in spelling out whether a complainant can challenge a ruling under the so-called rape-shield provisions.

Carter, Coleman’s lawyer, argued Wednesday that Doody’s analysis was flawed and that his ruling should be tossed out.

Granger’s co-counsel, Lawrence Greenspon, said the judge conducted a thorough evaluation and considered relevant factors in coming to a ruling that some of Boyle’s and Coleman’s history can be brought into the trial.

“He got it absolutely correct,” Greenspon said.

Legislative changes that took effect in December gave complainants in sexual-assault cases a bigger say in proceedings on allowable evidence.

Howard Krongold, representing the Criminal Lawyers’ Association as an intervener, argued Wednesday that the new measures are limited to the trial level and do not open the door to the sort of challenge Coleman is making.

Krongold said the criminal justice system should not be permitted to grind to a halt when a party believes a trial judge has made a mistake. “A system that does that will not function.”

Gillian Hnatiw, representing another intervenor, the Women’s Legal Education and Action Fund, said concerns about potential delays stemming from challenges in sexual-assault cases “are somewhat alarmist” and premature.

Carter also downplayed the notion that Coleman’s application would “open the floodgates” and make such challenges commonplace.

Boyle’s trial is tentatively slated to resume July 2. But timing will depend on the pending Superior Court decision and whether it is appealed, resulting in additional delays.

—Follow @JimBronskill on Twitter

Jim Bronskill , The Canadian Press