Complainant Sexual Activity Evidence and Related Evidence

From Criminal Law Notebook
(Redirected from Prior Sexual History)
This page was last substantively updated or reviewed November 2023. (Rev. # 96533)

General Principles

See also: Complainant's Sexual History (Prior to December 13, 2018), Crown Duty to Disclose, Disclosure of Third Party Records, Admission of Sexual Activity Evidence for Sexual Offences, and Production of Records for Sexual Offences

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.[1]

Components of the Rule

The exclusionary rule under s. 276 can be broken down into three components to be engaged:[2]

  • offence charged
  • subject-matter
  • purpose

It is considered rare for prior sexual activity to have any bearing to support a finding that the sexual offence did not occur.[3]

Purpose

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.[4]

The purpose behind the principles from Seaboyer is to protect "a complainant’s dignity, equality and privacy rights."[5] This protection exists beyond the trial and includes the appeal process and potentially beyond.[6]

Principles of Fundamental Justice

The principles of fundamental justice include three purposes of s. 276:[7]

  1. "protecting the integrity of the trial by excluding evidence that is misleading"
  2. "protecting the rights of the accused, as well as encouraging the reporting of sexual violence" and
  3. 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.[8]

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.[9]

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.[10]

  1. ↑ R v Barton, 2019 SCC 33 (CanLII), [2019] 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)")
  2. ↑ R v MT, 2012 ONCA 511 (CanLII), 289 CCC (3d) 115, per Watt JA, at para 29
  3. ↑ MT, ibid., at para 41
    R v Darrach, 2000 SCC 46 (CanLII), [2000] 2 SCR 443, per Gonthier J, at para 58
  4. ↑ Darrach, ibid., at para 33
  5. ↑ 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,”")
  6. ↑ R v Davies, 2022 BCCA 103 at para 1 and 2
  7. ↑ Darrach, supra, at para 25
  8. ↑ R v Temertzoglou, 2002 CanLII 2852 (ON SC), [2002] OJ No 4951 (O.S.C.), per Furest J
  9. ↑ 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)
  10. ↑ R v Gray2015 ONSC 3284(*no CanLII links)

Complainant Sexual Activity Evidence

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" [1]

The myths also cover the belief that the sexual assault complainant has a higher tendency to fabricate, which is not supported by the law.[2]

The section states:

Evidence of complainant’s sexual activity

276 (1) In proceedings in respect of an offence under section 151 [sexual interference], 152 [invitation to sexual touching], 153 [sexual exploitation], 153.1 [sexual exploitation of disabled] or 155 [incest], subsection 160(2) [compelling bestiality] or (3) [bestiality in presence of or by child] or section 170 [parent or guardian procuring sexual activity], 171 [householder permitting prohibited sexual activity], 172 [corrupting children], 173 [Indecent acts], 271 [sexual assault], 272 [sexual assault with a weapon or causing bodily harm] or 273 [aggravated sexual assault], evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant

(a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or
(b) is less worthy of belief.

[omitted (2), (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(1)

Must Relate to Myths

Where the purpose of the evidence does not touch on the two "myths", then the exclusionary rule does not apply.[3]

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.[4]

  1. ↑ R v Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 SCR 577, per McLachlin J, at p. 386
    R v MM, 1999 CanLII 15063 (ON SC), [1999] 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
  2. ↑ R v G(A), 2000 SCC 17 (CanLII), [2000] 1 SCR 439, per L’Heureux-Dubé J, at para 3
  3. ↑ R v MT, 2012 ONCA 511 (CanLII), 289 CCC (3d) 115, per Watt JA, at para 32
  4. ↑ Darrach, ibid.

Sexual Reputation Evidence

Section 277 further prohibits the use of "sexual reputation" evidence to challenge or bolster credibility:

Reputation evidence

277. In proceedings in respect of an offence under section 151 [sexual interference], 152 [invitation to sexual touching], 153 [sexual exploitation], 153.1 [sexual exploitation of disabled] or 155 [incest], subsection 160(2) [compelling bestiality] or (3) [bestiality in presence of or by child] or section 170 [parent or guardian procuring sexual activity], 171 [householder permitting prohibited sexual activity], 172 [corrupting children], 173 [Indecent acts], 271 [sexual assault], 272 [sexual assault with a weapon or causing bodily harm] or 273 [aggravated sexual assault], evidence of sexual reputation, whether general or specific, is not admissible for the purpose of challenging or supporting the credibility of the complainant.
R.S., 1985, c. C-46, s. 277; R.S., 1985, c. 19 (3rd Supp.), s. 13; 2002, c. 13, s. 14; 2019, c. 25, s.101.

– CCC (CanLII), (DOJ)

Note up: 277

This prohibition under s. 277 is absolute with no exceptions.[1] It is directed at evidence of reputation and not actual fact.[2]

  1. ↑ R v Brothers, 1995 ABCA 185 (CanLII), 99 CCC (3d) 64, per Russell JA, at para 26
  2. ↑ Brothers, ibid., at para 27

Constitutionality

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.[1] However, it has been observed that s. 276 "cannot be interpreted so as to deprive a person of a fair defence."[2]

Section 277 does not violate s. 7 or 11(d) of the Charter.[3]

Retrospectivity of Bill C-51 Amendments

The amendments are procedural and do not affect substantive rights.[4]

Constitutionality of Bill C-51 Amendments

There are various challenges to the Bill C-51 amendments. Most courts are finding them to be constitutional.[5]

  1. ↑ Darrach, supra
  2. ↑ R v Crosby, 1995 CanLII 107 (SCC), [1995] 2 SCR 912, per L'Heureux‑Dubé J, at para 11
  3. ↑ R v Seaboyer; R v Gayme, 1991 CanLII 76 (SCC), [1991] 2 SCR 577, per McLachlin J
  4. ↑ R v RMR, 2019 BCSC 1093 (CanLII), 56 CR (7th) 414, at para 5
  5. ↑ Constitutional:
    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
    Unconstitutional:
    R v AM, 2019 SKPC 46 (CanLII), 56 CR (7th) 389, per Henning J

Offence Charged

The applicable offences are listed in s. 276(1) as consisting of:

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.[1]

  1. ↑ R v Barton, 2019 SCC 33 (CanLII), [2019] 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."[1] This includes sexual acts that occur in the moments before the alleged sexual assault.[2] It can also include sexual activity occurring after the events at issue.[3]

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.[4]

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.[5]

Collateral Facts

The trial judge may prohibit the accused from impeaching the complainant on their version of prior sexual contact on account that it violates the collateral fact rule.[6]

  1. ↑ Section 276(2)
  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
  3. ↑ R v RSL, 2006 NBCA 64 (CanLII), 209 CCC (3d) 1, per Richard JA
    R v Van Oostrom, [1993] OJ No 1084(*no CanLII links) - re "continued friendly social contact" and "consensual sexual intercourse"
  4. ↑ R v CC, 2015 ONCA 59 (CanLII), 329 OAC 272, per Pardu JA, at para 32
  5. ↑ 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
  6. ↑ R v Peters, 2023 MBCA 96 (CanLII) at paras 25 to 26(complete citation pending) Collateral Fact Rule

"Sexual Activity"

The meaning of "sexual activity" is not restricted to "overly sexual acts" and can include acts "done for a sexual purpose."[1] It can include general activities that are for a sexual purpose such as communicating for the purpose of prostitution.[2]

Communications

Section 276(4) adds to the meaning of "sexual activity" to include communications that either:

  1. were made for a sexual purpose or
  2. have contents of a sexual nature.

The section states:

276
[omitted (1), (2) and (3)]

Interpretation

(4) For the purpose of this section, sexual activity includes any communication made for a sexual purpose or whose content is of a sexual nature.
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.

– CCC (CanLII), (DOJ)

Note up: 276(4)

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";[3]
  • passionate kissing in the bathroom; [4]
  • posting of sexually explicit images on social media;[5]
  • a description of being sexual assaulted in the past;[6]
  • engaging in online sex chat with a stranger;[7]
  • the presence of BDSM equipment used by the complainant.[8]

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.[9]

Solo activities of a sexual nature such as watching pornography can constitute "sexual activity."[10]

Not Included as "sexual activity"

Courts have found that the following types of evidence are not "sexual activity":

  • discussions of prospective sexual activity[11]
  • general discussions of the complainant's relationship[12]

Sexual inactivity is not a form of sexual activity within the meaning of s. 276.[13]

  1. ↑ 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
  2. ↑ R v Drakes, 1998 CanLII 14968 (BC CA), 122 CCC (3d) 498, per Lambert JA, at paras 16 to 17
  3. ↑ R v Zachariou, 2013 ONSC 6694 (CanLII), [2013] OJ No 4899 (SCJ), per Code SCJ -- appeal dismissed 2015 ONCA 527 (CanLII), per curiam
    Drakes, supra
  4. ↑ Zachariou, ibid.
  5. ↑ R v JI, 2015 ONCJ 61 (CanLII), [2015] OJ No 703 (Ont. C.J.), per Murray PCJ
  6. ↑ JI, ibid.
  7. ↑ JI, ibid.
  8. ↑ R v Boyle, 2019 ONCJ 516 (CanLII), per Doody J
  9. ↑ R v RV, 2019 SCC 41 (CanLII), 378 CCC (3d) 193, per Karakatsanis J, at para 81
  10. ↑ R v DCS, 2022 ABPC 223 (CanLII), at para 18
    R v RI, 2021 ONSC 3236 (CanLII) (working hyperlinks pending)
    R v DM2019 ONSC 3895(*no CanLII links)
  11. ↑ R v Langan, 2019 BCCA 467 (CanLII), 383 CCC (3d) 516, per Bauman CJ, at paras 118 to 119 (dissent) with majority rev'd at 2020 SCC 33 (CanLII)
  12. ↑ Langan, ibid., at paras 106 to 109
  13. ↑ R v Antonelli, 2011 ONSC 5416 (CanLII), 280 CCC (3d) 96, per Himel J

History

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

On December 13, 2018, sections 276.1 to 276.5 were repealed by 2018, c. 27 (Bill C-51). [1] 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.

  1. ↑ List of Criminal Code Amendments (2010 to 2019)

See Also

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