Admission of Certain Complainant Evidence for Sexual Offences

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2020. (Rev. # 96150)

General Principles

See also: Disclosure of Third Party Records, Complainant's Sexual History, and Production of Records for Sexual Offences

There are several statutory prohibitions that prevent the Crown or defence from adducing types evidence of sexual activity in a trial for certain sexual offences. The prohibitions consist of:

  • prohibition against evidence relating to complainant's prior sexual activity (276(1))
  • prohibition on private records relating to complainant (278.92)
  • prohibition on sexual reputation evidence of the complainant (277)

Stage One: Application for an Admissibility Hearing (Screening Hearing)

Section 278.93 contemplates an application process where the court must grant leave before holding a 278.94 hearing.

Application for hearing — sections 276 [prohibition against evidence of complainant’s sexual activity] and 278.92 [screening of protected sexual offence records in possession of accused]

278.93 (1) Application may be made to the judge, provincial court judge or justice by or on behalf of the accused for a hearing under section 278.94 [hearing to admit s. 276 evidence or s. 278.92 records] to determine whether evidence is admissible under subsection 276(2) [preconditions to admit evidence of complainant’s sexual activity] or 278.92(2) [requirements for admissibility].

Form and content of application

(2) An application referred to in subsection (1) [screening application for hearing — sections 276 and 278.92] must be made in writing, setting out detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial, and a copy of the application must be given to the prosecutor and to the clerk of the court.

Jury and public excluded

(3) The judge, provincial court judge or justice shall consider the application with the jury and the public excluded.

Judge may decide to hold hearing

(4) If the judge, provincial court judge or justice is satisfied that the application was made in accordance with subsection (2) [form and content of screening application], that a copy of the application was given to the prosecutor and to the clerk of the court at least seven days previously, or any shorter interval that the judge, provincial court judge or justice may allow in the interests of justice and that the evidence sought to be adduced is capable of being admissible under subsection 276(2) [preconditions to admit evidence of complainant’s sexual activity], the judge, provincial court judge or justice shall grant the application and hold a hearing under section 278.94 [hearing to admit s. 276 evidence or s. 278.92 records] to determine whether the evidence is admissible under subsection 276(2) [preconditions to admit evidence of complainant’s sexual activity] or 278.92(2) [requirements for admissibility].

2018, c. 29, s. 25.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 278.93(1), (2), (3), and (4)

Stage 2: Application to Admit Evidence

Hearing — jury and public excluded

278.94 (1) The jury and the public shall be excluded from a hearing to determine whether evidence is admissible under subsection 276(2) [preconditions to admit evidence of complainant’s sexual activity] or 278.92(2) [requirements for admissibility].

Complainant not compellable

(2) The complainant is not a compellable witness at the hearing but may appear and make submissions.

Right to counsel

(3) The judge shall, as soon as feasible, inform the complainant who participates in the hearing of their right to be represented by counsel.

Judge’s determination and reasons

(4) At the conclusion of the hearing, the judge, provincial court judge or justice shall determine whether the evidence, or any part of it, is admissible under subsection 276(2) [preconditions to admit evidence of complainant’s sexual activity] or 278.92(2) [requirements for admissibility] and shall provide reasons for that determination, and

(a) if not all of the evidence is to be admitted, the reasons must state the part of the evidence that is to be admitted;
(b) the reasons must state the factors referred to in subsection 276(3) [factors to admit evidence of complainant’s sexual activity] or 278.92(3) [factors that judge shall consider] that affected the determination; and
(c) if all or any part of the evidence is to be admitted, the reasons must state the manner in which that evidence is expected to be relevant to an issue at trial.
Record of reasons

(5) The reasons provided under subsection (4) [judge’s determination and reasons] shall be entered in the record of the proceedings or, if the proceedings are not recorded, shall be provided in writing.

2018, c. 29, s. 25.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 278.94(1), (2), (3), (4), and (5)


Stage 2: Exception to Section 276(1) Prohibition

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.[1]

Section 276(2) sets out the exception to the rule permitting extrinsic evidence of sexual activity to be admitted where it:[2]

  • 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:

  1. not being used for a prohibited inference described in 276(1);
  2. is relevant to a trial issue;
  3. is of specific instances of sexual activity; and
  4. has a significant probative value not substantially outweighed by the prejudice.

276
[omitted (1)]

Conditions for admissibility

(2) In proceedings in respect of an offence referred to in subsection (1) [prohibition against evidence of complainant’s sexual activity], evidence shall not be adduced by or on behalf of the accused 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, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 [screening application for hearing — sections 276 and 278.92] and 278.94 [hearing to admit s. 276 evidence or s. 278.92 records], that the evidence

(a) is not being adduced for the purpose of supporting an inference described in subsection (1) [prohibition against evidence of complainant’s sexual activity];
(b) is relevant to an issue at trial; and
(c) is of specific instances of sexual activity; and
(d) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

[omitted (3) and (4)]
R.S., 1985, c. C-46, s. 276; R.S., 1985, c. 19 (3rd Supp.), s. 12 1992, c. 38, s. 2 2002, c. 13, s. 13; 2018, c. 29, s. 21; 2019, c. 25, s. 100.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 276(2)

Standard of Proof

The applicant must satisfy the requirements of admission on a balance of probabilities.[3]

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.[4]

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."[5]

  1. ↑ 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.")
  2. ↑ R v MT, 2012 ONCA 511 (CanLII), 289 CCC (3d) 115, per Watt JA, at para 33
  3. ↑ R v Darrach, 2000 SCC 46 (CanLII), [2000] 2 SCR 443, per Gonthier J, at para 46
  4. ↑ R v Langan, 2019 BCCA 467 (CanLII), 383 CCC (3d) 516, per Bauman CJ, at para 112 - affirmed at 2020 SCC 33 (CanLII)
  5. ↑ R v Seaboyer; R v Gayme, 1991 CanLII 76 (SCC), [1991] 2 SCR 577, per McLachlin J, at para 101

Factors

Section 276(3) sets out statutory factors that must be considered on defence application:

276
[omitted (1) and (2)]

Factors that judge must consider

(3) In determining whether evidence is admissible under subsection (2) [preconditions to admit evidence of complainant’s sexual activity], the judge, provincial court judge or justice shall take into account

(a) the interests of justice, including the right of the accused to make a full answer and defence;
(b) society’s interest in encouraging the reporting of sexual assault offences;
(c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;
(d) the need to remove from the fact-finding process any discriminatory belief or bias;
(e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;
(f) the potential prejudice to the complainant’s personal dignity and right of privacy;
(g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and
(h) any other factor that the judge, provincial court judge or justice considers relevant.

[omitted (4)]
R.S., 1985, c. C-46, s. 276; R.S., 1985, c. 19 (3rd Supp.), s. 12; 1992, c. 38, s. 2; 2002, c. 13, s. 13; 2018, c. 29, s. 21; 2019, c. 25, s. 100.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 276(3)

Where the application comes from the Crown, the factors from 276(3) still apply.[1] This arises from the fact that s. 276 codifies the rules articulated in Seaboyer.[2]

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. [3]

Credibility at Large

Using prior sexual activity to go to credibility at large or in general is not a valid purpose.[4]

Commentators have suggested that the prohibition should focus on "general" inference that are focused on attacking the character of the complainant.[5] Some courts have adopted this in an attempt to reconcile s.276(1) and (2). [6]

Credibility at Issue

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.[7]


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.[8]

Denial of Allegations

Evidence of extrinsic sexual activity of the complainant is "rarely ... relevant to support a denial that sexual activity took place or to establish consent."[9]

"Specific Instances"

The hurdle of showing relevance is not trivial. Mere assertions of relevance to context, narrative or credibility is not sufficient.[10]

The requirement of "specific instances" in 276(2) will be satisfied by evidence of "the parties to the relationship, the nature of the relationship and the relevant time period."[11]

Prior Sexual Assaults

Whether the complainant has previously been sexually assaulted is irrelevant.[12]

Non-Sexual Features

Sexual activity can be used for its non-sexual features, including to show "a pattern of conduct or a prior inconsistent statement."[13]

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. [14] "Significant" must be read in light of the requirement of having "full answer and defence."[15]

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).[16]

  1. ↑ 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.")
  2. ↑ R v Darrach, 2000 SCC 46 (CanLII), [2000] 2 SCR 443, per Gonthier J, at para 20
  3. ↑ R v Ecker, 1995 CanLII 3910 (SK CA), 96 CCC (3d) 161, per Cameron JA
  4. ↑ R v Goldfinch, 2019 SCC 38 (CanLII), 380 CCC (3d) 1, per Karakatsanis J, at para 56
    R v SR, 2014 ONSC 1795 (CanLII), at para 22
  5. ↑ David M. Paciocco, "The New Rape Shield Provisions In Section 276 Should Survive Charter Challenge" (1993), 21 C.R.(4th) 223
  6. ↑ 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
  7. ↑ 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), [1997] 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
  8. ↑ R v Ayenun, 2013 ONCJ 260 (CanLII), per Feldman J, at paras 35, 36
  9. ↑ Darrach, ibid., at para 58
    R v Kulasinngam, 2019 ABCA 6 (CanLII), at para 8
  10. ↑ Goldfinch, supra, at paras 51 and 65
  11. ↑ Goldfinch, supra, at para 54
  12. ↑ 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), [2000] 1 SCR 781 , per McLachlin CJ
  13. ↑ Darrach, supra, at para 40
    R v Crosby, 1995 CanLII 107 (SCC), [1995] 2 SCR 912, per L'Heureux-Dubé J
  14. ↑ Darrach, supra, at para 40
  15. ↑ Darrach, supra
  16. ↑ 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

Examples

Prior acts of prostitution are generally never considered relevant for admission.[1]

Examples where sexual history should be admitted:[2]

  • 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."
  • where the defence wanted to lead evidence of a romantic relationship between the accused and complainant where the complainant characterized it as platonic.[3]
  • 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[4]
  • evidence that contradicts the complainant's claims that she had no sexual interest in the accused at the time of the incident;[5]
  • evidence of prior relationships to demonstrate the development of the relationship between the accused and victim[6]
  • complainant's prior reports of strikingly similar incidents of sexual assaults[7]
  • evidence that contradicts the complainant's claims that they believed the sexual encounter was "too early in the relationship."[8]

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.[9]

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."[10]

  1. ↑ R v Seaboyer; R v Gayme, 1991 CanLII 76 (SCC), [1991] 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.")
  2. ↑ R v Seaboyer; R v Gayme, 1991 CanLII 76 (SCC), [1991] 2 SCR 577, per McLachlin J, at paras 99 to 106
  3. ↑ R v Harris, 1997 CanLII 6317 (ON CA), 118 CCC (3d) 498, per Moldaver JA
  4. ↑ R v WJA, et al., 2010 YKTC 108 (CanLII), per Cozens J, at para 33
  5. ↑ Harris, supra
  6. ↑ Gill, supra, at para 32
  7. ↑ 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
  8. ↑ R v Nelson, 2001 BCCA 351 (CanLII), per Prowse JA (2:1)
  9. ↑ R v McDonald, 2003 SKQB 165 (CanLII), 156 CCC (3d) 248, per Hrabinsky J
  10. ↑ Gill, supra, at para 29
    R v McIntyre, [1993] OJ No 2971 (CA)(*no CanLII links)

Stage Two: Exception to Section 278.92(2) Prohibition

278.92
[omitted (1)]

Requirements for admissibility

(2) The evidence is inadmissible unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 [screening application for hearing — sections 276 and 278.92] and 278.94 [hearing to admit s. 276 evidence or s. 278.92 records],

(a) if the admissibility of the evidence is subject to section 276 [prohibition against evidence of complainant’s sexual activity], that the evidence meets the conditions set out in subsection 276(2) [preconditions to admit evidence of complainant’s sexual activity] while taking into account the factors set out in subsection (3); or
(b) in any other case, that the evidence 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.

[omitted (3)]
2018, c. 29, s. 25; 2019, c. 25, s. 403.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 278.92(2)

278.92 [omitted (1) and (2)]

Factors that judge shall consider

(3) In determining whether evidence is admissible under subsection (2) [requirements for admissibility], the judge, provincial court judge or justice shall take into account

(a) the interests of justice, including the right of the accused to make a full answer and defence;
(b) society’s interest in encouraging the reporting of sexual assault offences;
(c) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences;
(d) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;
(e) the need to remove from the fact-finding process any discriminatory belief or bias;
(f) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;
(g) the potential prejudice to the complainant’s personal dignity and right of privacy;
(h) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and
(i) any other factor that the judge, provincial court judge or justice considers relevant.

2018, c. 29, s. 25; 2019, c. 25, s. 403.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 278.92(3)

Procedure

Crown

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.[1]

Non-Compliance

Failure to comply with these principles will not be fatal to the integrity of the trial, but will be a case-by-case assessment.[2]

Complainant Reviewing Application Records

It is in the discretion of the trial judge to order that any part of the contents of the application not be disclosed to the complainant. [3]

  1. ↑ 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), [2019] 2 SCR 579, per Moldaver J, at para 80
  2. ↑ 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
  3. ↑ R v JJ, 2022 SCC 28 (CanLII), per Wagner CJ and Moldaver J (The "presiding judge retains the discretion to direct that the application not be disclosed to the complainant or that portions of it be redacted")


Publication of Hearing or Records

Publication prohibited

278.95 (1) A person shall not publish in any document, or broadcast or transmit in any way, any of the following:

(a) the contents of an application made under subsection 278.93 [screening application for hearing — sections 276 and 278.92];
(b) any evidence taken, the information given and the representations made at an application under section 278.93 or at a hearing under section 278.94 [hearing to admit s. 276 evidence or s. 278.92 records];
(c) the decision of a judge or justice under subsection 278.93(4) [judge may decide to hold hearing], unless the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the decision may be published, broadcast or transmitted; and
(d) the determination made and the reasons provided under subsection 278.94(4) [judge’s determination and reasons], unless
(i) that determination is that evidence is admissible, or
(ii) the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the determination and reasons may be published, broadcast or transmitted.
Offence

(2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.

2018, c. 29, s. 25.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 287.95(1) and (2)

Consequence of Admission

Judge to instruct jury — re use of evidence

278.96 If evidence is admitted at trial on the basis of a determination made under subsection 278.94(4) [judge’s determination and reasons], the judge shall instruct the jury as to the uses that the jury may and may not make of that evidence.

2018, c. 29, s. 25.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 278.96

Appeals

Appeal

278.97 For the purposes of sections 675 [right of appeal of person convicted] and 676 [right of Attorney General to appeal], a determination made under subsection 278.94(4) [judge’s determination and reasons] shall be deemed to be a question of law.

2018, c. 29, s. 25.

– CCC (CanLII), (DOJ)

Note up: 278.97

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