Precedent - Seaboyer Application

Adducing Seaboyer / s. 276 Evidence at Trial

See also: Complainant's Sexual History

Accused Application

Notice to Admit Evidence Under Section 276
C A N A D A File# ________________ PROVINCE OF [PROVINCE] COUNTY OF [COUNTY] IN THE [LEVEL OF COURT] OF [PROVINCE] ([name] Region) BETWEEN: HIS MAJESTY THE KING – and – [ACCUSED NAME] NOTICE OF INTENTION TO ADDUCE EVIDENCE OF COMPLAINANT'S SEXUAL ACTIVITY *(Pursuant to Section 276(2) of Criminal Code)* WHEREAS the accused, [accused name], has been charged that [on or about/between] [dates of the offence] he/she is alleged to have committed offences contrary to section(s) [list sections] of the Criminal Code; WHEREAS the trial for these outstanding charges is currently scheduled to begin before the [level of court] on [date] at [time]. TAKE NOTICE that pursuant to the provisions of section 276(2) of the Criminal Code at the forthcoming trial upon these charges, the Crown will introduce evidence, the particulars are as follows: ______________________________________ ______________________________________ ______________________________________ THE APPLICANT RELIES ON THE FOLLOW GROUNDS: [grounds consisting of reasons for granting the relief and alleged facts] ... Any additional grounds as counsel may advise and this Honourable Court may permit. IN SUPPORT OF THIS APPLICATION, THE APPLICANT RELIES ON THE FOLLOWING EVIDENCE: [SET OUT documents and transcripts upon which the applicant relies upon; e.g affidavit, transcript, business records, oral evidence] ... Any additional evidence as counsel may advise and this Honourable Court may permit. THE APPLICANT SEEKS THE FOLLOWING RELIEF: An Order for [describe the type of order and terms of the order] FOR THE PURPOSE OF THIS APPLICATION, THE APPLICANT MAY BE SERVED AT: In accordance with the appropriate Rules of Court, [party name] [party title] [address] [address] [address] Tel: (xxx) xxx-xxxx Fax: (xxx) xxx-xxxx Email: [email protected] DATED at ______________, in the Province of _______________, this _____ day of _____________, 20___. _________________________________ [Counsel's name] [Counsel's title] [Internal File Coding]

Crown Application

Notice to Admit Evidence Under Section Seaboyer
C A N A D A File# ________________ PROVINCE OF [PROVINCE] COUNTY OF [COUNTY] IN THE [LEVEL OF COURT] OF [PROVINCE] ([name] Region) BETWEEN: HIS MAJESTY THE KING – and – [ACCUSED NAME] NOTICE OF INTENTION TO ADDUCE COMPLAINANT'S SEXUAL ACTIVITY *(Pursuant to R v Seaboyer)* WHEREAS the accused, [accused name], has been charged that [on or about/between] [dates of the offence] he/she is alleged to have committed offences contrary to section(s) [list sections] of the Criminal Code; WHEREAS the trial for these outstanding charges is currently scheduled to begin before the [level of court] on [date] at [time]. TAKE NOTICE that pursuant to R v Seaboyer, [1991] 2 SCR 577 at the forthcoming trial scheduled upon these charges, the Crown seeks to introduce evidence of a complainant, IF, engaging in sexual activity other than that activity that constitutes the offence(s) at issue. THE APPLICANT RELIES ON THE FOLLOW GROUNDS: Section 276 prohibits the acceptance of evidence that can be used for the purpose of inferring that the complainant is more likely to have consented to the conduct that makes up the alleged offence or to infer that the complainant is less worthy of belief. The prohibition against such evidence applies even when the Crown adduce the evidence: R v Barton, 2019 SCC 33 at para 80; R v Goldfinch, 2019 SCC 38 at para 75. The Crown is permitted to lead "[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": R v Seaboyer, [1991] 2 SCR 577 at para 101. The factors that the judge are directed to consider under s. 276(3) applies to the Crown by virtue of s. 276 codifying the principles in Seaboyer: R v Darrach, 2000 SCC 46 (CanLII), [2000] 2 SCR 443 at para 20. Factors include: the interests of justice, including the right of the accused to make a full answer and defence; society’s interest in encouraging the reporting of sexual assault offences; whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case; the need to remove from the fact-finding process any discriminatory belief or bias; the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury; the potential prejudice to the complainant’s personal dignity and right of privacy; the right of the complainant and of every individual to personal security and to the full protection and benefit of the law [grounds consisting of reasons for granting the relief and alleged facts] ... Any additional grounds as counsel may advise and this Honourable Court may permit. IN SUPPORT OF THIS APPLICATION, THE APPLICANT RELIES ON THE FOLLOWING EVIDENCE: [SET OUT documents and transcripts upon which the applicant relies upon; e.g affidavit, transcript, business records, oral evidence] ... Any additional evidence as counsel may advise and this Honourable Court may permit. THE APPLICANT SEEKS THE FOLLOWING RELIEF: An Order for [describe the type of order and terms of the order] FOR THE PURPOSE OF THIS APPLICATION, THE APPLICANT MAY BE SERVED AT: In accordance with the appropriate Rules of Court, [party name] [party title] [address] [address] [address] Tel: (xxx) xxx-xxxx Fax: (xxx) xxx-xxxx Email: [email protected] DATED at ______________, in the Province of _______________, this _____ day of _____________, 20___. _________________________________ [Counsel's name] [Counsel's title] [Internal File Coding]