Defence appeal from dismissal of summary conviction appeal. Accused was convicted of sexual assault and unlawful confinement.
Issue on appeal of whether “the trial judge’s refusal to grant an adjournment to allow the appellant’s trial counsel to correct his procedural error [failure to bring a s. 276 application] resulted in an unfair trial”, or the appearance of unfairness.

Held: Appeal dismissed.

Appellant did not demonstrate that ineffective assistance led to a miscarriage of justice. “Evidence of prior sexual activity will rarely be relevant to support a denial that sexual activity took place: Darrach [2000 SCC 46] at para 58. The defence advanced at trial was that the events described by the complainant did not occur. Evidence that the complainant had exposed her thigh on a previous occasion would have no relevance or probative value in the context of that defence. It follows that a s 276 application could not have succeeded and that no unfairness or miscarriage of justice resulted from the refusal to allow the application
to be brought.”

D. Hatch – Defence Counsel