Joshua Boyle's defence lawyers will be allowed to introduce as evidence the sexual history of his wife, who accuses the former terrorist captive of assaulting her.
In a ruling Tuesday, Ontario Superior Court Justice Ronald Laliberté upheld the trial judge's ruling, clearing a major legal obstacle that has placed the high-profile trial on hiatus.
Boyle faces 19 charges, including assault with a weapon, sexual assault and forcible confinement against his wife Caitlan Coleman.
Section 276 of the Criminal Code — the 'rape shield' law — typically prevents the defence from using a victim's sexual past to prove a pattern of promiscuity or to suggest consent.
Ontario court Judge Peter Doody ruled, however, that Boyle's defence could introduce evidence that he and Coleman engaged in "prior acts of consensual anal intercourse, consensual vaginal intercourse from the rear, sexual acts involving ropes and consensual biting as acts of sexual play."
Boyle and Coleman were held captive in Afghanistan for five years by Taliban-linked groups. After the couple and their children (born in captivity) were released in 2017 and settled in Ottawa, police arrested and charged Boyle with physical and sexual assault against his wife.
In his 21-page ruling, Laliberté determined a mid-trial application was not the appropriate way to challenge the trial judge's ruling on the admissibility of a victim's sexual history.
Laliberté wrote that Coleman's lawyer had an opportunity to raise concerns about the judge's ruling during a special hearing that was held by the trial judge earlier this year.
Laliberté also ruled the trial judge did not err in allowing Coleman's sexual history to be introduced because Coleman brought it up herself.
Citing the trial judge's ruling, Laliberté referred to several instances while Coleman was on the stand where she seemed unsure about the alleged assaults.
The trial is expected to resume in July.
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