The sexual-assault trial of former Afghanistan hostage Joshua Boyle is dealing with more concerns about admitting evidence of the alleged victim's past sexual history.
Boyle, 35, has pleaded not guilty to offences allegedly committed against his wife, Caitlan Coleman, 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 a backpacking trip in Asia.
Coleman, who is now estranged from Boyle, was to be cross-examined Tuesday following a weeks-long delay over what evidence of their sexual history could be raised by the defence.
An Ontario Superior Court judge ruled in early June that Boyle's lawyer could introduce some of that history, which is unusual in sexual-assault cases.
However the cross-examination was delayed at least a day and a half pending a hearing to determine the admissibility of evidence the court has already heard about certain consensual sexual activity between Boyle and Coleman. The Crown introduced that material during Coleman's direct testimony in March.
Judge Peter Doody raised six specific circumstances the Crown asked Coleman about that are not the subject of the charges against Boyle. He said he's concerned about the impact on the admissibility of that evidence of two decisions from the Supreme Court of Canada that have been delivered since Coleman testified.
In May, the Supreme Court ordered a new trial for Bradley Barton, an Ontario trucker acquitted of first-degree murder and manslaughter in the 2011 death of Cindy Gladue in Alberta. In that case the top court raised questions about information entered into evidence about the victim by both the Crown and the defence, which was said to be prejudicial against her.
And just last week, the high court ordered a new trial for Patrick John Goldfinch, who had been acquitted of a 2014 sexual assault. The Supreme Court said information about a past sexual relationship between the alleged victim and the accused should not have been entered into evidence and refined the rules for when such evidence is acceptable.
Defence lawyer Lawrence Greenspon argued that three of the six circumstances had been well covered by the Ontario Superior Court decision.
The remaining three, as well as one piece of physical evidence, will be the subject of a hearing before Doody Wednesday morning. He granted Coleman's lawyer, Ian Carter, standing to present arguments as well. In doing so Doody is allowing Carter the unusual chance to consult with his client in the middle of her testimony but limiting him to only asking her whether she has any concerns for her personal dignity and privacy if the material remains in evidence.
Coleman will not be cross-examined until Doody makes a decision on the evidence. That could happen as early as Wednesday morning, paving the way for Coleman to return to testifying late Wednesday morning or in the afternoon.
Greenspon says he cannot cross-examine Coleman until the decision is made because some of his questions pertain to the evidence that's now in question.
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