Decision reveals N.S. judges divided on use of sexual history in Garnier case

Two Nova Scotia judges were split on whether the sexual history of police officer Catherine Campbell could be used as evidence in the case of the man who killed her, a newly released court ruling reveals.

Last week, a 12-member jury found Christopher Garnier guilty of murdering the off-duty officer, rejecting his claim that she died accidentally during rough sex.

As part of Garnier’s defence, lawyer Joel Pink had called a man who briefly dated Campbell to testify about her prior sexual activity.

Nova Scotia Supreme Court Justice Joshua Arnold permitted the testimony after an in-camera hearing, instructing jury members that they may decide to use the man’s evidence to determine whether Campbell had an interest in rough sex.

READ: Jury finds Christopher Garnier guilty of second-degree murder in death of Catherine Campbell

However, a decision by provincial court Judge Anne Derrick at the preliminary inquiry in July 2016 found Campbell’s prior sexual relationship inadmissible at that hearing.

In her written decision, released publicly Wednesday, Derrick said the use of prior sexual conduct to establish consent has been discredited.

“Boiled down, evidence of Ms. Campbell’s prior sexual conduct is being sought in order that Mr. Garnier can say, ‘My claim that Ms. Campbell had ‘erotic asphyxiation’ sex with me should be believed because Ms. Campbell had previously had consensual ‘rough sex,”‘ she said in the decision.

But Derrick found this defence invokes “impermissible reasoning” and “illegitimate inferences.”

Using the 36-year-old woman’s sexual history to support an assumption that she had consensual sex with Garnier is “stereotypical reasoning about women, sex and consent,” the judge said.

“It invokes the discredited myth that Ms. Campbell, having previously consented to have sex with (the man) was likely to have consented to sex with Mr. Garnier,” she said. “It is reasoning that is prejudicial to the proper administration of justice.”

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Furthermore, Derrick said the evidence of Campbell’s previous sexual relationship “bears no resemblance to what Mr. Garnier is suggesting about the events that led to Ms. Campbell’s death” and that the man “did not describe anything remotely similar to ‘erotic asphyxiation.”‘

During Garnier’s trial earlier this month, Arnold allowed the man’s evidence to be put before the jury. But the Supreme Court judge told jury members that the circumstances in which evidence of a person’s prior sexual conduct is admissible is restricted.

“That’s because past experience has taught us that to this day, some still believe that a woman who has engaged in sexual activity with others is more likely to consent to sexual activity and is less worthy of belief. These assumptions are wrong and unfair,” Arnold said at trial.

“The evidence of (the witness) will be admitted for limited purpose. Depending on the testimony of (the witness), you may be permitted to use this evidence in determining whether you believe Ms. Campbell had an interest in rough sex.”

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Arnold told the jury they should not let the witness’s evidence influence their decision on any other issues in the trial.

The man, whose name is protected by a publication ban, told the jury he had sex with her on two occasions, and at one point, he put his hand on her throat.

When he was asked by Pink to describe for the jury how he did that, he opened his hand and placed it around the front of his own neck.

Under cross-examination by Crown attorney Christine Driscoll, the man conceded that he did not put pressure on Campbell’s neck, and he agreed when Driscoll said his hand was on her throat in a “caressing fashion.”

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He agreed that she never asked to be choked.

Garnier took the stand in his own defence, telling the jury that Campbell encouraged him to choke and slap her during sex play.

The defence had also called an expert in sexual masochism to the stand to explain consensual “erotic asphyxiation.”

However, after about 21 trial days, the seven-woman, five-man jury took less than five hours to find Garnier guilty of second-degree murder and interfering with a dead body.