Complainant Sexual Activity Evidence and Related Evidence
General Principles
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]
- ↑ R v MT, 2012 ONCA 511 (CanLII), per Watt JA, at para 29
- ↑
R v Brothers, 1995 ABCA 185 (CanLII), per Russell JA, at para 26
- ↑
Brothers, ibid., at para 27
- ↑ R v Gray, 2015 ONSC 3284(*no CanLII links)
- ↑
R v Darrach, [2000] 2 SCR 443, 2000 SCC 46 (CanLII), per Gonthier J
- ↑
R v Crosby, [1995] 2 SCR 912, 1995 CanLII 107 (SCC), per L'Heureux‑Dubé J, at para 11
- ↑
R v Seaboyer; R v Gayme, [1991] 2 SCR 577, 1991 CanLII 76 (SCC), per McLachlin J
Exception to Prohibition
276.1 ...
- 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.
...
Factors
276.1
...
- 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.
- 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.
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.