Complainant Sexual Activity Evidence and Related Evidence

From Criminal Law Notebook

General Principles

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

Section 276 is an exclusionary rule of evidence prohibiting any party from adducing evidence of past sexual activity of a complainant in certain sexual offence proceedings for certain uses.

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 a person with a disability], 155 [incest] or 159 [anal intercourse], subsection 160(2) or (3) [bestiality] or section 170 [Parent or guardian procuring sexual activity], 171 [Householder permitting sexual activity], 172 [corrupting children], 173 [indecent act], 271 [sexual assault], 272 [sexual assault causing bodily harm or with a weapon] 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.

...

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.


The exclusionary rule under s. 276 can be broken down into three components to be engaged:[1]

  • offence charged
  • subject-matter
  • purpose

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 a person with a disability], 155 [incest] or 159 [anal intercourse], subsection 160(2) or (3) [bestiality] or section 170 [Parent or guardian procuring sexual activity], 171 [Householder permitting sexual activity], 172 [corrupting children], 173 [indecent act], 271 [sexual assault], 272 [sexual assault causing bodily harm or with a weapon] 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.


– CCC

This prohibition under s. 277 is absolute with no exceptions.[2] It is directed at evidence of reputation and not actual fact.[3]

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.[4]

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.[5] However, it has been observed that s. 276 "cannot be interpreted so as to deprive a person of a fair defence".[6]

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

  1. ↑ R v MT, 2012 ONCA 511 (CanLII), per Watt JA, at para 29
  2. ↑ R v Brothers, 1995 ABCA 185 (CanLII), per Russell JA, at para 26
  3. ↑ Brothers, ibid., at para 27
  4. ↑ R v Gray, 2015 ONSC 3284(*no CanLII links)
  5. ↑ R v Darrach, [2000] 2 SCR 443, 2000 SCC 46 (CanLII), per Gonthier J
  6. ↑ R v Crosby, [1995] 2 SCR 912, 1995 CanLII 107 (SCC), per L'Heureux‑Dubé J, at para 11
  7. ↑ R v Seaboyer; R v Gayme, [1991] 2 SCR 577, 1991 CanLII 76 (SCC), per McLachlin J

Exception to Prohibition

276 ...

Conditions for admissibility

(2) In proceedings in respect of an offence referred to in subsection (1), 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 and 278.94, that the evidence

(a) is not being adduced for the purpose of supporting an inference described in subsection (1);
(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.

... 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.


Factors

276...

Factors that judge must consider

(3) In determining whether evidence is admissible under subsection (2), 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.

...
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.


Purpose

Section 276(1) prohibits evidence of prior sexual conduct where it is used to make prohibited general inferences. These inferences are known as the "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 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.[2] This legislation was brought into force August 15, 1992 with An Act to amend the Criminal Code (sexual assault), S.C. 1992, c. 38 (Bill C-49).[3]

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]

Where the purpose of the evidence does not touch on the two "myths", then the exclusionary rule does not apply.[5]

Section 276(2) sets out the exception to the rule permitting extrinsic evidence of sexual activity to be admitted where it:[6]

  • 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.

When considering whether evidence meets these requirements the courts must consider the factors set out in s.276(3).

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.[7]

  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 (S.C.J.), per Langdon J, at para 19
    R v MT, 2012 ONCA 511 (CanLII), per Watt JA, at para 32
  2. ↑ R v Darrach, [2000] 2 SCR 443, 2000 SCC 46 (CanLII), per Gonthier J, at para 33
  3. ↑ List of Criminal Code Amendments (1984 to 1999)
  4. ↑ Darrach, ibid.
  5. ↑ MT, supra, at para 32
  6. ↑ MT, supra, at para 33
  7. ↑ R v Temertzoglou, 2002 CanLII 2852 (ON SC), [2002] OJ No 4951 (O.S.C.), per Furest J

Offence Charged

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

Applicable Subject Matter

Section 276 applies to prior sexual acts consisting of "Evidence ... 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]

  1. ↑ Section 276(2)
  2. ↑ R v DRS, 1999 ABQB 330 (CanLII), per Lee J, at para 19
    R v Silva, 1994 CanLII 4673 (SK CA), per Wakeling JA, at para 33
  3. ↑ R v RSL, 2006 NBCA 64 (CanLII), per Richard JA
    R v Van Oostrom, [1993] O.J. No 1084(*no CanLII links) - re "continued friendly social contact" and "consensual sexual intercourse"
  4. ↑ R v CC, 2015 ONCA 59 (CanLII), per Pardu JA, at para 32
  5. ↑ R v Pittiman, 2005 CanLII 23206 (ON CA), 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), per Russell JA

"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

276 ...

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.


Other forms of "sexual activity"

It has also be found to include the following activities of the complainant:

  • discussions of having 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]


  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 876 (CanLII), per Weagant PCJ, at para 7
  2. ↑ R v Drakes, 1998 CanLII 14968 (BC CA), per Lambert JA, at paras 16 to 17
  3. ↑ R v Zachariou, 2013 ONSC 6694 (CanLII), [2013] OJ No 4899 (S.C.J.), per Code SCJ -- appeal dismissed 2015 ONCA 527 (CanLII), per curiam
  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.

History

On December 13, 2018, sections 276.1 to 276.5 were repealed.

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.

See Also

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