1/ All right. Here we go. This is going to be a long thread, so bear with me. I apologize in advance. Here are the results of the poll. 
2/ My starting point: It should not be this confusing. This is a fundamental problem that arises regularly (more regularly with lots of affidavits required prior to trial for 276 and, unless struck down, 278.92). Everyone should be on the same page. We're not - because...
3/ The jurisprudence on point is poor - and confusing - and it has not been clarified in a way that makes sense. Wait until you see how many precedents I have to address to get to an answer of how this should be dealt with. Who (aside from a Professor) has the time???
4/ Feel free to disagree with my analysis if you like (and many will). But it doesn't change the problem: a lack of clarity. This should not have to be argued from first principle, when so many (based on the poll) risk getting it wrong - and it's a fundamental concern.
5/ Cross-examination of the accused on an affidavit provided prior to trial, often describing a key matter to be raised at trial, can swing a trial. If it's not allowed, it should not happen.
6/ Let's start with the YES answer. Well, the leading precedent (but stay tuned...) is Darrach. It says EXPLICITLY that you CAN cross-examine the accused on relevant matters that were provided in a 276 affidavit.
7 Quoting from para 67, it says: "A prior inconsistent statement in the accused’s testimony on this voir dire could be used later at trial only to impugn his credibility and not to establish his culpability."
8/ And we're done, correct? Not so fast. The problem here is that the testimony provided by the accused is a statement, and the question in Darrach was whether it could be used without violating s 13 of the Charter.
9/ Darrach at para 67 said, "no problem", but it was relying on the leading decision of that time - R v Kuldip, which held there was a distinction between incrimination and impeachment. Here is para 66:
10/ Kuldip is no longer good law. It was overruled by the Supreme Court in R v Henry, where the Court decided that distinguishing between "impeachment" and "incriminates" is not a good idea. Here's the key passages.
11/ This does not end the matter, but it does change it. Still, what's frustrating is that many cases simply rely on Darrach as authority for the idea that cross-examination on the affidavit is permissible. In my view, Darrach tells us nothing about this.
12/ Except that it does tell us one thing: Section 13 applies to evidence given on the voir dire. Again, from Darrach
13/ Not done with "yes" yet. Because in Henry (and subsequently) in Nedelcu, the SCC creates a new distinction - whether the evidence was "compelled" or "voluntary".
14/ My view is this: it is compelled. I say this because s 276 is a form of compulsion that is not nearly as "free" as deciding to testify at your own trial (which was what was at stake in Henry). You do not waive 11(c) to provide a 276 affidavit.
15/ If you read Henry carefully, it is clearly restricted to the situation of the "retrial", where an accused has given evidence. I believe that is correct (though my reasoning on this is complex) - but I feel strongly that it should not be extended to the voir dire scenario
16/ And that is ESPECIALLY true where the accused is effectively compelled by statute to provide a pre-trial affidavit simply in order to allow his defence to be fully vetted.
17/ Section 276 is constitutional, and I take no issue with it. But it seems to me that if the state wants to get the accused's evidence on sexual activity FOR THE SOLE PURPOSE of resolving the admissibility of that evidence, the trade off is the Crown can't use it - for any
18/ I don't actually think that's particularly controversial, though I realize it is a "contestable" point. Still, my view is that section 13 IS designed for this very scenario, and should apply. The argument that this is "voluntary", should be resisted.
19/ My colleague @NWhitling has raised Jones, 2017 SCC 60 as resolving this - and making the answer "yes". With respect, I disagree. Here is the excerpt:
20/ To begin with, Jones does not come close to deciding the matter. The Court says as much in a footnote
21/ So I think the matter is very arguable, and for the reasons I raised earlier, I think the Court should not treat a VD like a re-trial. But even if the Court wants to treat a constitutional application in this way, I STILL think 276 applications are different.
22/ A constitutional application to exclude is certainly "more" voluntary than a 276 application. Again, the latter relates to the admissibility of evidence you wish to raise in Full answer and defence. The former is different.
23/ To be clear, I'd treat all voir dires the same, but if the SCC wanted to distinguish, it certainly could.
24/ So, there is a case to be made for "yes", but I think that case has not been made - and, frankly, should not be made, even though you could argue the leading case (Darrach) and perhaps Jones push that way.
25/ Reading this lengthy thread, you probably think I come out on the "no" side of the equation. Well, I think "no" is the correct result as a matter of theory, particularly because I think Nedelcu is one of the dumber decisions of the past 20 years (with respect....)
