Admission of Certain Complainant Evidence for Sexual Offences
| This page was last substantively updated or reviewed January 2020. (Rev. # 87045) |
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General Principles
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]
Stage Two: Admission of Protected Records
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]
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]
Procedure
- Accused
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]
- 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.[2]
- 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.[3]
- 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. [4]
- ↑
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), [2019] 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 - ↑ 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")
Hearing Procedure
- 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]
- 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]
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]
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.