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

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General Principles

See also: 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.

The section states:

Evidence of complainant’s sexual activity
276. (1) In proceedings in respect of an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, 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.

Idem
(2) In proceedings in respect of an offence referred to in subsection (1), no evidence shall 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 276.1 and 276.2, that the evidence

(a) is of specific instances of sexual activity;
(b) is relevant to an issue at trial; and
(c) 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.


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The section was enacted in response to the decision of R v Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 SCR 577.

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

  • offence charged
  • subject-matter
  • purpose
  1. ↑ R v M.T., 2012 ONCA 511 (CanLII) at para 29

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]

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.[3]

  1. ↑ Section 276(2)
  2. ↑ R v S. (D.R.), 1999 ABQB 330 (CanLII) at para 19
    R v Silva, 1994 CanLII 4673 (SK CA) at para 33
  3. ↑ R v C.C., 2015 ONCA 59 (CanLII), at para 32

Purpose

Section 276(1) prohibits evidence of prior sexual conduct where it is used to make prohibited general inferences. These inference is 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]

Where the purpose of the evidence does not touch on the two "myths", then the exclusionary rule does not apply.[2]

Section 276(2) sets out the exception to the rule permitting extrinsic evidence of sexual activity to be admitted where it:[3]

  • 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.[4]

  1. ↑ R v Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 SCR 577 at p. 386
    R v MM, 1999 CanLII 15063 (ON SC), [1999] O.J. No. 3943 (S.C.J.) at para 19
    R v MT, 2012 ONCA 511 (CanLII) at para 32
  2. ↑ MT, ibid. at para 32
  3. ↑ R v MT at para 33
  4. ↑ R v Temertzoglou, 2002 CanLII 2852 (ON SC), [2002] O.J. No. 4951 (O.S.C.)

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.


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Evidence of extrinsic sexual activity of the complainant is "rarely ... relevant to support a denial that sexual activity took place or to establish consent".[1]

Whether the complainant has previously been sexually assaulted is irrelevant.[2]

Significant probative value
The significant probative value standard places a greater threshold on relevance for the admission of prior sexual history evidence. It is intended to prohibit evidence that may be of trifling relevance. Regardless of the purpose of the evidence, sexual history evidence can tend to bring the administration of justice to disrepute.[3] "Significant" must be read in light of the requirement of having "full answer and defence".[4]

  1. ↑ R v Darrach, 2000 SCC 46 (CanLII), [2000] 2 SCR 443 at para 58
  2. ↑ R v B. (A.R.) 1998 CanLII 14603 (ON CA), (1998), 41 O.R. (3d) 361 (C.A.), at p. 365, aff’d 2000 SCC 30 (CanLII), [2000] 1 SCR 781
  3. ↑ Darrach at 40
  4. ↑ Darrach

Evidence Related to Credibility and Consent

Evidence advanced to make an inference supported by an established myth is prohibited. Any other inferences directed to credibility and consent may be argued as admissible. [1]

Commentators have suggested that the prohibition should focus on "general" inference that are focused on attacking character of the complainant.[2] Some courts have adopted this in an attempt to reconcile s.276(1) and (2). [3]

Where credibility is an essential issue of trial, the right to full answer and defence weighs in favour of admitting evidence of inconsistencies and contradictions even where it involves prior sexual activity.[4]

Evidence has been admitted in the following scenarios:

  • where the defence wanted to lead evidence of a romantic relationship between the accused and complainant where the complainant characterized it as platonic.[5]
  • evidence of prior sexual activity between the accused and complainant is relevant to the issue of consent as it addresses the complainant's state of mind[6]
  • evidence of prior relationships to demonstrate the development of the relationship between the accused and victim[7]

Evidence has been found inadmissible in the following scenarios:

  • A sex toy party earlier in the day held by the victim constitutes sexual activity and is not relevant to the allegations so is not admissible.[8]


Evidence should be admitted where it "contains highly distinctive features of a consensual sexual relationship as between the parties which is similar to the allegations before the Court".[9]

Evidence of sexual activity tending to establish the development of the parties' relationship can often be admitted. It may be admitted to provide necessary context to the incident evidence in order to avoid assessing the incident in a vacuum and lead to the perception that the accused's testimony was improbable.[10]

Excluding such evidence will distort and diminish the accused's evidence enough to suggest sexual activity occurred "out of the blue".[11]

Evidence of the closeness of the accused and complainant in the form of flirting, can be found relevant to the context of the incident and admissible.[12]


  1. ↑ R v Ecker, 1995 CanLII 3910 (SK CA), (1995), 96 CCC (3d) 161(C.A.),
  2. ↑ David M. Paciocco, "The New Rape Shield Provisions In Section 276 Should Survive Charter Challenge" (1993), 21 C.R.(4th) 223
  3. ↑ R v Harper, 1995 CanLII 3483 (PE SCTD), (1995), 137 Nfld & PEIR 77 (PEISC), rev’d on other grounds 1997 CanLII 4553 (PE SCAD), (1997), 149 Nfld. & P.E.I.R. 295 (P.E.I.C.A.)
  4. ↑ R v Gill, 2011 ONCJ 345 (CanLII) at para 27
    see R.v. Harris, [1997] O.J. No. 35 60 (C.A.), 1997 CanLII 6317 (ON CA), (1997), 118 CCC (3d) 498 at p.509 citing R.v. Crosby, 1995 CanLII 107 (SCC), (1995), 98 CCC (3d) 225 (S.C.C.)
  5. ↑ Harris, 1997 CanLII 6317 (ON CA), (1997), 118 CCC (3d) 498 (C.A.)
  6. ↑ R v W.J.A., et al., 2010 YKTC 108 (CanLII) at para 33
  7. ↑ Gill at para 32
  8. ↑ R v McDonald, 2003 SKQB 165 (CanLII)
  9. ↑ Gill at para 29
    R v McIntyre, [1993] O.J. No. 2971 (C.A.)(*no CanLII links)
  10. ↑ R v M.M., [1999] O.J. No. 3943 (O. S.C.)(*no CanLII links)
    see also R v Harris, 1997 CanLII 6317 (ON CA), [1997], O.J. No. 3560 (Ont. C.A.)
    R v Strickland, 2007 CanLII 3679 (ON SC), [2007] O.J. No. 517 (O.S.C.), at para 34-35
    R v B.B., [2009] O.J. No. 862 (O.S.C.)(*no CanLII links) at para 19-20
    R v W.J.A., 2010 YKTC 108 (CanLII), [2010] Y.J. No. 118 (YKTC), at para 35
  11. ↑ Strickland, supra at para 22
    R v Jesse, 2012 SCC 21 (CanLII), [2012] 1 SCR 716, at para 53 - judge states accused must be on a level playing field
  12. ↑ R v Ayenun, 2013 ONCJ 260 (CanLII) at para 35, 36

Procedure

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.

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) 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.


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For a helpful summary of the procedure to follow, see: R v Strickland, 2007 CanLII 3679 (ON SC),[2007] O.J. 517 at para 20.

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]

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.
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.


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Nor was there compliance with subsections 276.2(3) and (4), which require the judge to provide written reasons for a decision that the evidence is or is not admissible.

Judge to instruct jury re use 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.
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.
Reputation evidence
277. In proceedings in respect of an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, 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.


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.[3]

  1. ↑ see Darrach, 2000 SCC 46 (CanLII), [2000] 2 SCR 443
    United States of America v Shephard, 1976 CanLII 8 (SCC), [1977] 2 SCR 1067
  2. ↑ R v Wright, 2012 ABCA 306 (CanLII) at para 10 and s.276.5
  3. ↑ e.g. R v H.(J.), 2012 ONCJ 708 (CanLII)

Case Digests

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