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.

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.”