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

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General Principles

See also: 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.

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 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.


– CCC

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 Section 276 Rule

276
...

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.


– CCC

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, ibid., at para 32
  6. ↑ R v MT 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]

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. J.L. 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 para 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.

Admissible Evidence

The requirements for the admission of prior sexual activity evidence is set out in s. 276(2):

276
...

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.


– CCC

Standard of Proof

The applicant must satisfy the requirements of admission on a balance of probabilities.[1]


  1. ↑ R v Darrach, [2000] 2 SCR 443, 2000 SCC 46 (CanLII), per Gonthier J, at para 46

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.


– CCC

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]

No Need for Full Analysis

Where the prejudicial effect of the evidence outweighs its probative value, the judge need not undertake a full consideration of all the factors found in s. 276(3).[5]

  1. ↑ Darrach, ibid., at para 58
  2. ↑ R v ARB 1998 CanLII 14603 (ON CA), (1998), 41 O.R. (3d) 361 (C.A.), per Finlayson JA, at p. 365, (2:1) aff’d 2000 SCC 30 (CanLII), [2000] 1 SCR 781 , per McLachlin CJ
  3. ↑ Darrach, supra at 40
  4. ↑ Darrach, supra
  5. ↑ R v Nicholson, 1998 ABCA 290 (CanLII), per Rawlins JA, at para 17
    see also R v Gauthier, 1995 CanLII 8937 (BC CA), 100 CCC (3d) 563 (BCCA)

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 the 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 that contradicts the complainant's claims that she had no sexual interest in the accused at the time of the incident;[7]
  • evidence of prior relationships to demonstrate the development of the relationship between the accused and victim[8]
  • evidence of prior activity as an explanation for the presence of semen during the medical examination of the complainant at after the offence.[9]
  • complainant's prior reports of strikingly similar incidents of sexual assaults[10]
  • evidence that contradicts the complainant's claims that they believed the sexual encounter was "too early in the relationship".[11]

Evidence has been found inadmissible in the following scenarios:

  • A sex toy party earlier in the day held by the victim was not relevant to the allegations so is not admissible.[12]


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".[13]

Evidence of sexual activity tending to establish the development of the parties' relationship can often be admitted. It may be admitted to provide the 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.[14]

Excluding such evidence will distort and diminish the accused's evidence enough to suggest sexual activity occurred "out of the blue".[15]

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.[16]


  1. ↑ R v Ecker, 1995 CanLII 3910 (SK CA), (1995), 96 CCC (3d) 161(C.A.), per Cameron JA
  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), per Jenkins J, rev’d on other grounds 1997 CanLII 4553 (PE SCAD), (1997), 149 Nfld. & P.E.I.R. 295 (P.E.I.C.A.), per Carruthers CJ
  4. ↑ R v Gill, 2011 ONCJ 345(*no CanLII links) , at para 27
    see R v Harris, [1997] OJ No 35 60 (C.A.), (1997), 118 CCC (3d) 498 , 1997 CanLII 6317 (ON CA), per Moldaver JA at p.509 citing R v Crosby, 1995 CanLII 107 (SCC), (1995), 98 CCC (3d) 225 (SCC), per L'Heureux-Dubé J
  5. ↑ Harris, 1997 CanLII 6317 (ON CA), (1997), 118 CCC (3d) 498 (C.A.)
  6. ↑ R v WJA, et al., 2010 YKTC 108 (CanLII), per Cozens J, at para 33
  7. ↑ Harris, supra
  8. ↑ Gill, supra, at para 32
  9. ↑ R v Downey, 1992 CanLII 2615 (NS CA), per Hallett JA
  10. ↑ R v SG, 2007 CanLII 14331 (ONSC), per Spies J
    R v Anstey, 2002 NLCA 7 (CanLII), per O'Neill JA
  11. ↑ R v Nelson, 2001 BCCA 351 (CanLII), per Prowse JA (2:1)
  12. ↑ R v McDonald, 2003 SKQB 165 (CanLII), per Hrabinsky J
  13. ↑ Gill at para 29
    R v McIntyre, [1993] OJ No 2971 (C.A.)(*no CanLII links)
  14. ↑ R v MM, [1999] OJ No 3943 (O. S.C.), 1999 CanLII 15063 (ON SC), per Langdon J
    see also R v Harris, 1997 CanLII 6317 (ON CA), [1997], OJ No 3560 (Ont. C.A.), per Moldaver JA
    R v Strickland, 2007 CanLII 3679 (ON SC), [2007] OJ No 517 (O.S.C.), per Heeney J at para 34-35
    R v BB, [2009] OJ No 862 (O.S.C.), 2009 CanLII 9404 (ON SC), per Spies J, at para 19-20
    R v WJA, 2010 YKTC 108 (CanLII), [2010] Y.J. No. 118 (YKTC), per Cozens J, at para 35
  15. ↑ Strickland, supra, at para 22
    R v Jesse, 2012 SCC 21 (CanLII), [2012] 1 SCR 716, per Moldaver J, at para 53 - judge states accused must be on a level playing field
  16. ↑ R v Ayenun, 2013 ONCJ 260 (CanLII), per Feldman J at para 35, 36

Procedure

The application to adduce evidence under s. 276(2) requires two stages:

  • An application under s. 276.1 to determine whether the impugned evidence is capable of being admitted;
  • If s. 276.1 is satisfied, there can be an evidentiary hearing under s. 276.2 to determine if the impugned evidence will be admissible.
Requirement of a Voir Dire

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]

  1. ↑ see Darrach, 2000 SCC 46 (CanLII), [2000] 2 SCR 443, per Gonthier J
    United States of America v Shephard, 1976 CanLII 8 (SCC), [1977] 2 SCR 1067
  2. ↑ R v Wright, 2012 ABCA 306 (CanLII), per curiam (3:0) at para 10 and s.276.5

In Camera Hearing

Section 276.1 and 276.2 requires that during all parts of the s. 276 application both the public and jury must be excluded:

276.1
...
Jury and public excluded
(3) The judge, provincial court judge or justice shall consider the application with the jury and the public excluded.
...
1992, c. 38, s. 2.


– CCC

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.
...
1992, c. 38, s. 2.


– CCC

Procedure on Jury Trial

Judge to instruct jury reuse 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.


– CCC

Appellate Review

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.


– CCC

Application Stage (s. 276.1)

Section 276.1 sets out the first step in an application under s. 276.1. It effectively describes the requirements of the application and permits the judge or justice to screen the application for threshold merit. Section 276.1 states:

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.

...
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.


– CCC

Form of the Application
Under s. 276.1 (2), the accused must make application in writing.[1] The application must set out "detailed particulars" of the impugned evidence and explain its relevancy to an issue at trial.[2]

Notice

Under s. 276.1(4)(b), the applicant must give "seven days" notice to the Crown and the court before making application, less the judge permits later notice if it is necessary for the "interests of justice".

Other Components to the Application

The evidence being proposed for the s. 276.2 hearing must be filed in affidavit form at the s. 276.1 stage.[3]

Timing of the Application
In certain cases, it may be desirable for the judge to rule on s. 276 evidence after hearing the direct evidence of the complainant and then, if granted, allow Crown to re-open direct examination or cover it in re-direct.[4]

Granting an Evidentiary Hearing
Should the court find that the application conforms with the requirements of s. 276(2), that notice has been given, and that the evidence "is capable of being admissible under [s.] 276(2)" then the judge or justice "shall" hold an evidentiary hearing under s. 276.2.[5] The only question at this stage for the judge is to determine whether the evidence as it appears "on the face" of the application is "capable" of being admitted, not whether it will be admitted.[6]

  1. ↑ Darrach, supra, at para 27
  2. ↑ s. 276.1(2)(a), (b)
  3. ↑ Darrach, supra at para 2
  4. ↑ R v Harris, 1997 CanLII 6317 (ON CA), per Moldaver JA
  5. ↑ s. 276.1(2)(c)
  6. ↑ R v Ecker, 1995 CanLII 3910 (SK CA), per Cameron JA

Evidentiary Stage (s. 276.2)

The evidentiary stage is a voir dire to determine the ultimate admissibility of the impugned evidence.

276.2
...

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.


– CCC

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.[1]

The voir dire must not be permitted to be used as a "fishing expedition".[2]

Crown Right to Cross-Examine
The Crown has the right to ask that a witness or accused be cross-examined on their affidavit that sets out the relevancy of the impugned activity to the issues at trial.[3]

The trial judge must, however, narrow the questioning so as to "meet the statutory goals", "protect the rights of the accused" and "avoid unfair questioning".[4]

  1. ↑ e.g. R v JH, 2012 ONCJ 708 (CanLII), per M Green J
  2. ↑ Darrach, supra, at para 68
  3. ↑ Darrah, supra, at para 64
  4. ↑ Darrah, supra, at para 64

Consequence of Satisfying s. 276.2

Once the court finds that the impugned evidence is admissible from a s. 276.2 voir dire, the evidence's use is not limited under the legislation and may be used in the examination of the accused, complainant, or any other witness.[1]

  1. ↑ Darrach, supra, at para 60

Case Digests

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