Complainant's Sexual History (Prior to December 13, 2018)

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2019. (Rev. # 92246)

General Principles

See also: Complainant's Sexual History

The following consists of review of sections that have since been repealed or significantly modified.

Procedure

The application to adduce evidence under s. 276(2) requires two stages:

  • An application under s. 276.1 to determine whether the impugned evidence is capable of being admitted;
  • If s. 276.1 is satisfied, there can be an evidentiary hearing under s. 276.2 to determine if the impugned evidence will be admissible.
Requirement of a Voir Dire

The judge must hold a hearing to determine if the evidence of prior sexual history is admissible.[1] Failure to hold such a hearing is an error in law.[2]

  1. ↑ see R v Darrach, 2000 SCC 46 (CanLII), [2000] 2 SCR 443, per Gonthier J
    United States of America v Shephard, 1976 CanLII 8 (SCC), [1977] 2 SCR 1067
  2. ↑ R v Wright, 2012 ABCA 306 (CanLII), 536 AR 320, per curiam (3:0), at para 10 and s.276.5

In Camera Hearing

Section 276.1 and 276.2 requires that during all parts of the s. 276 application both the public and jury must be excluded:

276.1
...

Jury and public excluded

(3) The judge, provincial court judge or justice shall consider the application with the jury and the public excluded.
...
1992, c. 38, s. 2.

– CCC (CanLII), (DOJ)

Jury and public excluded

276.2 (1) At a hearing to determine whether evidence is admissible under subsection 276(2), the jury and the public shall be excluded.
...
1992, c. 38, s. 2.

– CCC (CanLII), (DOJ)

Procedure on Jury Trial

Judge to instruct jury reuse of evidence

276.4 Where evidence is admitted at trial pursuant to a determination made under section 276.2, the judge shall instruct the jury as to the uses that the jury may and may not make of that evidence.
1992, c. 38, s. 2.

– CCC (CanLII), (DOJ)

Appellate Review

Appeal

276.5 For the purposes of sections 675 and 676, a determination made under section 276.2 shall be deemed to be a question of law.
1992, c. 38, s. 2.

– CCC (CanLII), (DOJ)

Application Stage (s. 276.1)

Section 276.1 sets out the first step in an application under s. 276.1. It effectively describes the requirements of the application and permits the judge or justice to screen the application for threshold merit. Section 276.1 states:

Application for hearing

276.1 (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 276.2 to determine whether evidence is admissible under subsection 276(2).

Form and content of application

(2) An application referred to in subsection (1) must be made in writing and set out

(a) detailed particulars of the evidence that the accused seeks to adduce, and
(b) 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.

...

Judge may decide to hold hearing

(4) Where the judge, provincial court judge or justice is satisfied

(a) that the application was made in accordance with subsection (2),
(b) that a copy of the application was given to the prosecutor and to the clerk of the court at least seven days previously, or such shorter interval as the judge, provincial court judge or justice may allow where the interests of justice so require, and
(c) that the evidence sought to be adduced is capable of being admissible under subsection 276(2), the judge, provincial court judge or justice shall grant the application and hold a hearing under section 276.2 to determine whether the evidence is admissible under subsection 276(2).

1992, c. 38, s. 2.

– CCC (CanLII), (DOJ)

Form of the Application

Under s. 276.1 (2), the accused must make application in writing.[1] The application must set out "detailed particulars" of the impugned evidence and explain its relevancy to an issue at trial.[2]

Notice

Under s. 276.1(4)(b), the applicant must give "seven days" notice to the Crown and the court before making application, less the judge permits later notice if it is necessary for the "interests of justice".

Other Components to the Application

The evidence being proposed for the s. 276.2 hearing must be filed in affidavit form at the s. 276.1 stage.[3]

Timing of the Application

In certain cases, it may be desirable for the judge to rule on s. 276 evidence after hearing the direct evidence of the complainant and then, if granted, allow Crown to re-open direct examination or cover it in re-direct.[4]

Granting an Evidentiary Hearing

Should the court find that the application conforms with the requirements of s. 276(2), that notice has been given, and that the evidence "is capable of being admissible under [s.] 276(2)" then the judge or justice "shall" hold an evidentiary hearing under s. 276.2.[5] The only question at this stage for the judge is to determine whether the evidence as it appears "on the face" of the application is "capable" of being admitted, not whether it will be admitted.[6]

Constitution

Section 276.1(2) does not violate the accused's right to silence.[7]

  1. ↑ R v Darrach, 2000 SCC 46 (CanLII), [2000] 2 SCR 443, per Gonthier J, at para 27
  2. ↑ s. 276.1(2)(a), (b)
  3. ↑ Darrach, supra, at para 2
  4. ↑ R v Harris, 1997 CanLII 6317 (ON CA), 118 CCC (3d) 498, per Moldaver JA
  5. ↑ s. 276.1(2)(c)
  6. ↑ R v Ecker, 1995 CanLII 3910 (SK CA), 96 CCC (3d) 161, per Cameron JA
  7. ↑ Darrach, supra

Evidentiary Stage (s. 276.2)

The evidentiary stage is a voir dire to determine the ultimate admissibility of the impugned evidence.

276.2
...

Complainant not compellable

(2) The complainant is not a compellable witness at the hearing.

Judge’s determination and reasons

(3) At the conclusion of the hearing, the judge, provincial court judge or justice shall determine whether the evidence, or any part thereof, is admissible under subsection 276(2) and shall provide reasons for that determination, and

(a) where 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) that affected the determination; and
(c) where 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

(4) The reasons provided under subsection (3) shall be entered in the record of the proceedings or, where the proceedings are not recorded, shall be provided in writing.
1992, c. 38, s. 2.

– CCC (CanLII), (DOJ)

A judge may wish to give an outline of the permissible area of questioning and the guidelines to follow in conducting an examination of the complainant.[1]

The voir dire must not be permitted to be used as a "fishing expedition."[2]

Crown Right to Cross-Examine

The Crown has the right to ask that a witness or accused be cross-examined on their affidavit that sets out the relevancy of the impugned activity to the issues at trial.[3]

The trial judge must, however, narrow the questioning so as to "meet the statutory goals", "protect the rights of the accused" and "avoid unfair questioning."[4]

  1. ↑ e.g. R v JH, 2012 ONCJ 708 (CanLII), per M Green J
  2. ↑ R v Darrach, 2000 SCC 46 (CanLII), [2000] 2 SCR 443, per Gonthier J, at para 68
  3. ↑ Darrah, supra, at para 64
  4. ↑ Darrah, supra, at para 64

Consequence of Satisfying s. 276.2

Once the court finds that the impugned evidence is admissible from a s. 276.2 voir dire, the evidence's use is not limited under the legislation and may be used in the examination of the accused, complainant, or any other witness.[1]

  1. ↑ R v Darrach, 2000 SCC 46 (CanLII), [2000] 2 SCR 443, per Gonthier J, at para 60

Case Digests

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