Complainant's Sexual Activity Evidence
|This page was last substantively updated or reviewed January 2021. (Rev. # 80904)|
Section 276 of the Criminal Code is an exclusionary rule of evidence prohibiting any party from adducing evidence of sexual activity of a complainant that is not part of a criminal offence on the basis that it may be used to support prohibited inferences related to the sexual activity of the victim.
- Applicable to Defence and Crown
The exclusionary rule found in s. 276 will require both defence and Crown to apply to the trial judge before they can adduce sexual activity evidence.
- Components of the Rule
The exclusionary rule under s. 276 can be broken down into three components to be engaged:
- offence charged
It is considered rare for prior sexual activity to have any bearing to support a finding that the sexual offence did not occur.
The intention of Parliament in enacting this provision was to respond to the findings of R v Seaboyer as they relate to the false relevancy of prior sexual activities.
The purpose behind the principles from Seaboyer is to protect "a complainant’s dignity, equality and privacy rights".
- Principles of Fundamental Justice
The principles of fundamental justice include three purposes of s. 276:
- "protecting the integrity of the trial by excluding evidence that is misleading"
- "protecting the rights of the accused, as well as encouraging the reporting of sexual violence" and
- "protecting the “security and privacy of the witnesses” "
- Context Necessary
Section 276 is not a "blanket exclusion of evidence of other sexual activity" and should not leave the trier-of-fact with a "misleading impression" of the relationship between the parties.
- When Section 276 Not Usually Available to Accused
Where the accused's defence is a denial that the sexual activity ever took place, the use of evidence captured by s. 276 will "rarely" be available.
- Accidental Disclosure of 276 Records
Defence counsel are not permitted to possess s. 276 records nor can they use the records without first making an application. When obtained unlawfully, they must be returned and then subject to an application. The records cannot be used to support the granting of the application.
R v Barton, 2019 SCC 33 (CanLII),  2 SCR 579, per Moldaver J, at para 80 ("...s. 276(1), which confirms the irrelevance of the “twin myths”, is categorical in nature and applies irrespective of which party has led the prior sexual activity evidence. Thus, regardless of the evidence adduced by the Crown, Mr. Barton’s evidence was inadmissible to support either of the “twin myths”.")
R v Goldfinch, 2019 SCC 38 (CanLII), 380 CCC (3d) 1, per Karakatsanis J, at para 75 ("I note that Crown counsel would not have adduced this evidence but for the s. 276 application, which I have concluded should not have been granted. While the parties did not have the benefit of this Court’s recent holding in Barton, I would reiterate that Crown-led evidence of prior sexual activity must be governed by the principles set out in s. 276(1) and Seaboyer (Barton, at paras. 68, 80 and 197)")
- R v MT, 2012 ONCA 511 (CanLII), 289 CCC (3d) 115, per Watt JA, at para 29
MT, ibid., at para 41
R v Darrach, 2000 SCC 46 (CanLII),  2 SCR 443, per Gonthier J, at para 58
Darrach, ibid., at para 33
- R v Delmas, 2020 ABCA 152 (CanLII), 64 CR (7th) 71, at para 46, per curiam (2:1) ("The purpose of the Seaboyer common law principle ..., and s 276 is to protect “a complainant’s dignity, equality and privacy rights,”")
- Darrach, supra, at para 25
- R v Temertzoglou, 2002 CanLII 2852 (ON SC),  OJ No 4951 (O.S.C.), per Furest J
- R v Kulasingam, 2019 ABCA 6 (CanLII), per curiam, at para 8 (" Evidence of prior sexual activity will rarely be relevant to support a denial that sexual activity took place:" citing Darrach, supra, at para 58)
- R v Gray2015 ONSC 3284(*no CanLII links)
- Constitutionality of s. 276 and 277
Both the procedural and substantive aspects of s. 276 do not violate s. 7 or 11(d) of the Charter of Rights and Freedoms. However, it has been observed that s. 276 "cannot be interpreted so as to deprive a person of a fair defence".
Section 277 does not violate s. 7 or 11(d) of the Charter.
- Retrospectivity of Bill C-51 Amendments
The amendments are procedural and do not affect substantive rights.
- Constitutionality of Bill C-51 Amendments
There are various challenges to the Bill C-51 amendments. Most courts are finding them to be constitutional.
R v Crosby, 1995 CanLII 107 (SCC),  2 SCR 912, per L'Heureux‑Dubé J, at para 11
R v Seaboyer; R v Gayme, 1991 CanLII 76 (SCC),  2 SCR 577, per McLachlin J
- R v RMR, 2019 BCSC 1093 (CanLII), 56 CR (7th) 414, at para 5
R v AC, 2019 ONSC 4270 (CanLII), 439 CRR (2d) 360, per Sutherland J
R v FA, 2019 ONCJ 391 (CanLII), 56 CR (7th) 182, per Caponecchia J
R v AM, 2019 SKPC 46 (CanLII), 56 CR (7th) 389, per Henning J
Prohibited Inferences for Certain Offences
Section 276(1) of the Criminal Code prohibits evidence of prior sexual conduct where it is used to make prohibited general inferences. These inferences are known as the "dual myths" or "dual myths", summarized as inferring "that unchaste women were more likely to consent to intercourse and in any event, were less worthy of belief" 
The myths also cover the belief that the sexual assault complainant has a higher tendency to fabricate, which is not supported by the law.
The section states:
- Must Relate to Myths
Where the purpose of the evidence does not touch on the two "myths", then the exclusionary rule does not apply.
- Exclusion Other than Twin Myths
This section also provides that even if the impugned evidence is not being used in violation of the twin myths it can still be inadmissible where the probative value is not sufficiently "significant" to outweigh competing considerations.
R v Seaboyer, 1991 CanLII 76 (SCC),  2 SCR 577, per McLachlin J, at p. 386
R v MM, 1999 CanLII 15063 (ON SC),  OJ No 3943 (SCJ), per Langdon J, at para 19
R v MT, 2012 ONCA 511 (CanLII), 289 CCC (3d) 115, per Watt JA, at para 32
- R v G(A), 2000 SCC 17 (CanLII),  1 SCR 439, per L’Heureux-Dubé J, at para 3
R v MT, 2012 ONCA 511 (CanLII), 289 CCC (3d) 115, per Watt JA, at para 32
- Darrach, ibid.
Sexual Reputation Evidence
Section 277 further prohibits the use of "sexual reputation" evidence to challenge or bolster credibility:
Where the accused seeks to lead evidence of the complainant's prior sexual history for one or more valid purposes, they must apply under s. 276(2) and satisfy the necessary pre-conditions.
When the Crown seeks to lead evidence of the complainant's prior sexual history for one or more valid purposes, they must apply under Seyboyer to determine whether the evidence is admissible.
Failure to comply with these principles will not be fatal to the integrity of the trial, but will be a case-by-case assessment.
R v Stover, 2020 BCCA 368 (CanLII), per Abrioux JA, at para 43 ("The legal framework which governs this ground of appeal is well known. An accused who seeks to lead evidence of the complainant’s prior sexual history for a purpose apart from the twin myths must make an application and satisfy the pre-conditions for admissibility set out in s. 276(2) of the Code.")
Stover, ibid., at para 43 ("Where the Crown seeks to lead such evidence, trial judges should follow the Supreme Court’s guidance in Seaboyer to determine the admissibility of the evidence in a voir dire...")
R v Barton, 2019 SCC 33 (CanLII),  2 SCR 579, per Moldaver J, at para 80
Stover, supra, at para 43 ("Non-compliance with these principles, however, will not always undermine trial integrity. Rather, the individualized features of the case will determine the result...")
R v CMM, 2020 BCCA 56 (CanLII), BCJ No 208, per DeWitt‑Van Oosten JA, at para 183
The applicable offences are listed in s. 276(1) as consisting of:
- sexual interference (151)
- invitation to sexual touching (152)
- sexual exploitation (153)
- sexual exploitation of a person with a disability (153.1)
- incest (155)
- anal intercourse (159)
- bestiality (160(2) and (3))
- Parent or guardian procuring sexual activity (170)
- Householder permitting sexual activity (171)
- Corrupting children (172)
- indecent act (173)
- sexual assault (271)
- sexual assault with a weapon (272)
- sexual assault causing bodily harm (272)
- aggravated sexual assault (273)
In addition to the enumerated charges, the protections of s. 276 will also apply to any charges that have "some connection" to an enumerated offence.
R v Barton, 2019 SCC 33 (CanLII),  2 SCR 579, per Moldaver J, at para 76 ("...I am of the view that the s. 276 regime applies to any proceeding in which an offence listed in s. 276(1) has some connection to the offence charged, even if no listed offence was particularized in the charging document. ...")
Applicable Subject Matter
Section 276 applies to prior sexual acts consisting of "[e]vidence ... that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person." This includes sexual acts that occur in the moments before the alleged sexual assault. It can also include sexual activity occurring after the events at issue.
The fact that the complainant had previously made allegations of sexual abuse against another person is not admissible to establish a false pattern of accusations or to undermine the complainant unless the other allegations have been recanted or demonstrated as false.
This section does not prohibit the complainant from testifying that she is a virgin, as this is a question of physical fact and not a "sexual activity". Such evidence, however, is prohibited under s. 277 from being used to bolster credibility.
- Section 276(2)
R v DRS, 1999 ABQB 330 (CanLII), 247 AR 315, per Lee J, at para 19
R v Silva, 1994 CanLII 4673 (SK CA), 31 CR (4th) 361, per Wakeling JA, at para 33
R v RSL, 2006 NBCA 64 (CanLII), 209 CCC (3d) 1, per Richard JA
R v Van Oostrom,  OJ No 1084(*no CanLII links) - re "continued friendly social contact" and "consensual sexual intercourse"
R v CC, 2015 ONCA 59 (CanLII), 329 OAC 272, per Pardu JA, at para 32
R v Pittiman, 2005 CanLII 23206 (ON CA), 198 CCC (3d) 308, per Weiler JA, at para 33, Borins JA dissenting on result, appealed to 2006 SCC 9 (CanLII), per Charron J (5:0) on another issue
R v Brothers, 1995 ABCA 185 (CanLII), 99 CCC (3d) 64, per Russell JA
The meaning of "sexual activity" is not restricted to "overly sexual acts" and can include acts "done for a sexual purpose". It can include general activities that are for a sexual purpose such as communicating for the purpose of prostitution.
Section 276(4) adds to the meaning of "sexual activity" to include communications that either:
- were made for a sexual purpose or
- have contents of a sexual nature.
The section states:
- Other forms of "sexual activity"
It has also be found to include the following activities of the complainant:
- discussions and solicitation to have a "threesome";
- passionate kissing in the bathroom; 
- posting of sexually explicit images on social media;
- a description of being sexual assaulted in the past;
- engaging in online sex chat with a stranger;
- the presence of BDSM equipment used by the complainant.
Statements as to the absence of sexual activity, such as the statement that the complainant is a virgin, will likely be captured by s. 276.
- Not Included as "sexual activity"
Courts have found that the following types of evidence are not "sexual activity":
- discussions of prospective sexual activity
- general discussions of the complainant's relationship
Sexual inactivity is not a form of sexual activity within the meaning of s. 276.
R v JL, 2015 ONCJ 61 (CanLII), per Murray J, at para 20 ("“sexual activity” can be comprised of any activity which the evidence establishes was done for a sexual purpose. It need not involve the touching of body parts. It need not be an “invitation” to touching.)
R v AM, 2017 NBQB 61 (CanLII), per Walsh SCJ, at para 11
R v NS, 2016 ONCJ 874 (CanLII), per Weagant PCJ, at para 7
R v Drakes, 1998 CanLII 14968 (BC CA), 122 CCC (3d) 498, per Lambert JA, at paras 16 to 17
R v Zachariou, 2013 ONSC 6694 (CanLII),  OJ No 4899 (SCJ), per Code SCJ -- appeal dismissed 2015 ONCA 527 (CanLII), per curiam
- Zachariou, ibid.
- R v JI, 2015 ONCJ 61 (CanLII),  OJ No 703 (Ont. C.J.), per Murray PCJ
- JI, ibid.
- JI, ibid.
- R v Boyle, 2019 ONCJ 516 (CanLII), per Doody J
- R v RV, 2019 SCC 41 (CanLII), 378 CCC (3d) 193, per Karakatsanis J, at para 81
- R v Langan, 2019 BCCA 467 (CanLII), 383 CCC (3d) 516, per Bauman CJ, at paras 118 to 119 - affirmed at 2020 SCC 33 (CanLII)
- Langan, ibid., at paras 106 to 109
- R v Antonelli, 2011 ONSC 5416 (CanLII), 280 CCC (3d) 96, per Himel J
Purpose of Admission
Evidence Related to Credibility and Consent
Evidence advanced to make an inference supported by an established myth is prohibited. Any other inferences directed to credibility and consent may be argued as admissible. 
Using prior sexual activity to go to credibility at large is not a valid purpose.
Commentators have suggested that the prohibition should focus on "general" inference that are focused on attacking the character of the complainant. Some courts have adopted this in an attempt to reconcile s.276(1) and (2). 
Where credibility is an essential issue of trial, the right to full answer and defence weighs in favour of admitting evidence of inconsistencies and contradictions even where it involves prior sexual activity.
Evidence has been admitted in the following scenarios:
- where the defence wanted to lead evidence of a romantic relationship between the accused and complainant where the complainant characterized it as platonic.
- evidence of prior sexual activity between the accused and complainant is relevant to the issue of consent as it addresses the complainant's state of mind
- evidence that contradicts the complainant's claims that she had no sexual interest in the accused at the time of the incident;
- evidence of prior relationships to demonstrate the development of the relationship between the accused and victim
- complainant's prior reports of strikingly similar incidents of sexual assaults
- evidence that contradicts the complainant's claims that they believed the sexual encounter was "too early in the relationship".
Evidence has been found inadmissible in the following scenarios:
- A sex toy party earlier in the day held by the victim was not relevant to the allegations so is not admissible.
Evidence should be admitted where it "contains highly distinctive features of a consensual sexual relationship as between the parties which is similar to the allegations before the Court".
Evidence of sexual activity tending to establish the development of the parties' relationship can often be admitted. It may be admitted to provide the necessary context to the incident evidence in order to avoid assessing the incident in a vacuum and lead to the perception that the accused's testimony was improbable.
Excluding such evidence will distort and diminish the accused's evidence enough to suggest sexual activity occurred "out of the blue".
Evidence of the closeness of the accused and complainant in the form of flirting, can be found relevant to the context of the incident and admissible.
- R v Ecker, 1995 CanLII 3910 (SK CA), 96 CCC (3d) 161, per Cameron JA
- R v Goldfinch, 2019 SCC 38 (CanLII), 380 CCC (3d) 1, per Karakatsanis J, at para 56
- David M. Paciocco, "The New Rape Shield Provisions In Section 276 Should Survive Charter Challenge" (1993), 21 C.R.(4th) 223
- R v Harper, 1995 CanLII 3483 (PE SCTD), Nfld & PEIR 77 (PEISC), per Jenkins J, rev’d on other grounds 1997 CanLII 4553 (PE SCAD), (1997), 149 Nfld. & PEIR 295 (P.E.I.C.A.), per Carruthers CJ
R v Gill, 2011 ONCJ 345 (CanLII), per Clark J, at para 27 ("Where credibility is the essential issue at trial, however, the right to make full answer and defence will often militate in favour of the admission of evidence that demonstrates inconsistencies or contradicts the complainant’s evidence, even if it reveals prior sexual activity")
see R v Harris, 1997 CanLII 6317 (ON CA),  OJ No 35 60 (CA), 118 CCC (3d) 498, per Moldaver JA, at p. 509 citing R v Crosby, 1995 CanLII 107 (SCC), 98 CCC (3d) 225, per L'Heureux-Dubé J
- R v Harris, 1997 CanLII 6317 (ON CA), 118 CCC (3d) 498, per Moldaver JA
R v WJA, et al., 2010 YKTC 108 (CanLII), per Cozens J, at para 33
- Harris, supra
Gill, supra, at para 32
R v SG, 2007 CanLII 14331 (ON SC), 219 CCC (3d) 549, per Spies J
R v Anstey, 2002 NLCA 7 (CanLII), 162 CCC (3d) 567, per O'Neill JA
- R v Nelson, 2001 BCCA 351 (CanLII), per Prowse JA (2:1)
- R v McDonald, 2003 SKQB 165 (CanLII), 156 CCC (3d) 248, per Hrabinsky J
Gill, supra, at para 29
R v McIntyre,  OJ No 2971 (CA)(*no CanLII links)
R v MM, 1999 CanLII 15063 (ON SC),  OJ No 3943 (ONSC), per Langdon J
see also R v Harris, 1997 CanLII 6317 (ON CA),  OJ No 3560, per Moldaver JA
R v Strickland, 2007 CanLII 3679 (ON SC),  OJ No 517 (O.S.C.), per Heeney J, at paras 34 to 35
R v BB, 2009 CanLII 9404 (ON SC),  OJ No 862 (O.S.C.), per Spies J, at paras 19 to 20
WJA, supra, at para 35
- Strickland, supra
R v Ayenun, 2013 ONCJ 260 (CanLII), per Feldman J, at paras 35, 36
Exception to Prohibition
Section 276(2) sets out the exception to the rule permitting extrinsic evidence of sexual activity to be admitted where it:
- is of specific instances of sexual activity;
- is relevant to an issue at trial; and
- has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
Section 276(2) prohibits the admission of sexual history evidence described in s. 276(1) unless it is:
- not being used for a prohibited inference described in 276(1);
- is relevant to a trial issue;
- is of specific instances of sexual activity; and
- has a significant probative value not substantially outweighed by the prejudice.
- Standard of Proof
The applicant must satisfy the requirements of admission on a balance of probabilities.
- Application to Defence Only
The requirements of s. 276(2) will only apply to the accused and not the Crown. The Crown-led evidence is governed by 276(1) and the rule from Seyboyer.
Where the Crown seeks to lead 276 evidence, they are governed by the principles from Seaboyer that "[e]vidence of consensual sexual conduct on the part of the complainant may be admissible for purposes other than [the twin myths] where it possesses probative value on an issue in the trial and where that probative value is not substantially outweighed by the danger of unfair prejudice flowing from the evidence".
- R v MT, 2012 ONCA 511 (CanLII), 289 CCC (3d) 115, per Watt JA, at para 33
R v Darrach, 2000 SCC 46 (CanLII),  2 SCR 443, per Gonthier J, at para 46
- R v Langan, 2019 BCCA 467 (CanLII), 383 CCC (3d) 516, per Bauman CJ, at para 112 - affirmed at 2020 SCC 33 (CanLII)
- R v Seaboyer; R v Gayme, 1991 CanLII 76 (SCC),  2 SCR 577, per McLachlin J, at para 101
Section 276(3) sets out statutory factors that must be considered on defence application:
Evidence of extrinsic sexual activity of the complainant is "rarely ... relevant to support a denial that sexual activity took place or to establish consent".
Whether the complainant has previously been sexually assaulted is irrelevant.
- Significant probative value
The significant probative value standard places a greater threshold on relevance for the admission of prior sexual history evidence. It is intended to prohibit evidence that may be of trifling relevance. Regardless of the purpose of the evidence, sexual history evidence can tend to bring the administration of justice to disrepute.  "Significant" must be read in light of the requirement of having "full answer and defence".
- No Need for Full Analysis
Where the prejudicial effect of the evidence outweighs its probative value, the judge need not undertake a full consideration of all the factors found in s. 276(3).
- e.g. R v Boyle, 2019 ONCJ 516 (CanLII), per Doody J, at para 14 ("I must apply those principles [from s. 276(3)], appropriately modified because I am considering Crown-led evidence, in determining whether to admit the evidence in issue.")
- R v Darrach, 2000 SCC 46 (CanLII),  2 SCR 443, per Gonthier J, at para 20
- Darrach, ibid., at para 58
- R v ARB, 1998 CanLII 14603 (ON CA), OR (3d) 361, per Finlayson JA, at p. 365, (2:1) aff’d 2000 SCC 30 (CanLII),  1 SCR 781 , per McLachlin CJ
- Darrach, supra at 40
- Darrach, supra
R v Nicholson, 1998 ABCA 290 (CanLII), 129 CCC (3d) 198, per Rawlins JA, at para 17
see also R v Gauthier, 1995 CanLII 8937 (BC CA), 100 CCC (3d) 563
Prior acts of prostitution are generally never considered relevant for admission.
Examples where sexual history should be admitted:
- where the "[e]vidence of specific instances of sexual conduct tend[s] to prove that a person other than the accused caused the physical consequences of the rape alleged by the prosecution"
- where the "[e]vidence of sexual conduct tending to prove bias or motive to fabricate on the part of the complainant"
- where the "[e]vidence of prior sexual conduct, known to the accused at the time of the act charged, tending to prove that the accused believed that the complainant was consenting to the act charged (without laying down absolute rules, normally one would expect some proximity in time between the conduct that is alleged to have given rise to an honest belief and the conduct charged)";
- where there is "[e]vidence of prior sexual conduct which meets the requirements for the reception of similar act evidence, bearing in mind that such evidence cannot be used illegitimately merely to show that the complainant consented or is an unreliable witness";
- where there is "[e]vidence tending to rebut proof introduced by the prosecution regarding the complainant's sexual conduct."
- R v Seaboyer; R v Gayme, 1991 CanLII 76 (SCC),  2 SCR 577, per McLachlin J ("Evidence of prior acts of prostitution or allegations of prostitution are properly excluded by the provision. In my opinion, this evidence is never relevant and, besides its irrelevance, is hugely prejudicial.")
- R v Seaboyer; R v Gayme, 1991 CanLII 76 (SCC),  2 SCR 577, per McLachlin J, at paras 99 to 106
On December 13, 2018, sections 276.1 to 276.5 were repealed by 2018, c. 27 (Bill C-51).  Section 276.1(2) was modified to rely on s. 278.93 to 278.94 instead of s. 276.1 onward. It also added the requirement of establishing that it "is not being adduced for the purpose of supporting an inference described in subsection (1)". Section 276.1(4) was also added.