Evidence of Other Sexual Activity: Section 276

• Author: Daniel Brown/Jill Witkin
• Pages: 353-395



13

Evidence of

Other Sexual

Activity:

Section 

This chapter was authored by Meaghan Cunningham.

I. Introduction ............................................. 

II. Overview of the Legislative Scheme .......................... 

III. When Is It Necessary to Bring a Section  Application? ........ 

IV. Procedure: Timing and Notice Requirements ................... 

V. Stage One: Should There Be an Evidentiary Hearing? ............ 

VI. Adavit and Cross-Examination ............................. 

VII. Remedy for Non-Compliance at First Stage .................... 

VIII. Stage Two: Evidentiary Hearing .............................. 

IX. First Admissibility Test—Twin Myths, “Context,” and “Narrative” ... 

X. Second Admissibility Test—Relevant to an Issue at Trial .......... 

XI. Third Admissibility Test—Specic Instances of Sexual Activity ..... 

XII. Fourth Admissibility Test—Balancing ......................... 

XIII. Duty to Give Reasons ...................................... 

XIV. The Court’s Gatekeeper Role ................................ 

XV. Publication Limitations .................................... 

XVI. Instruction to Jury Concerning Use of Evidence ................. 

XVII. Use of Adavit and Testimony from Application ................ 

© [2020] Emond Montgomery Publications. All Rights Reserved.

 Prosecuting and Defending Sexual Oence Cases

I. Introduction

Prior to the enactment of the first “rape shield” laws in 1982, the common law rules

permitted evidence of the victim’s sexual history to be adduced even when it had little

probative value. Cross-examining the victim on his or her sexual history was a com-

mon defence tactic, and it was often designed to mislead the trier of fact into accept-

ing faulty reasoning. Evidence of the victim’s sexual history was routinely presented

and accepted as tending to make it more likely that he or she consented to the alleged

assault or that he or she was generally lacking in credibility. This practice subverted

the truth-seeking function of the court and put the complainant on trial.

In R v Seaboyer,1 the Supreme Court of Canada (SCC) stated very clearly that

these inferences were not based on logic or reality, but instead relied on myths

about unchaste women. The purpose behind the enactment of section276 of the

Criminal Code2 was the reduction in reliance on inappropriate stereotypes about

sexually active women existing in a perpetual state of consent and being of bad

character.3 These “twin myths” distort the trial process and operate particularly

unfairly to victims.

The SCC in Seaboyer struck down an earlier version of section276 on the basis

that it could potentially exclude evidence of critical relevance without permitting

adequate judicial discretion. In 1992, Parliament responded by enacting a new sec-

tion276 that codified the decision in Seaboyer and set out the process by which a judge

must determine the admissibility of evidence of other sexual activity when adduced

by the accused.

The constitutionality of this legislative scheme was upheld by the SCC in the 2000

decision of R v Darrach.4 It was held that evidence of other sexual activity is of limited

admissibility because it is of limited relevance. Section276 is designed to protect the

integrity of the trial process by excluding evidence that is misleading, protecting

the fair trial rights of the accused, and encouraging the reporting of sexual oences by

protecting the security, privacy, and dignity of victims.

On December 13, 2018, Bill C-51 received Royal Assent and brought about changes

to both the procedural and substantive aspects of this legislation.5 In 2019, the SCC

released a trilogy of cases6 that further refined and clarified this complex area of the law.

1 [1991] 2 SCR 577, 66 CCC (3d) 321, 7 CR (4th) 117.

2 RSC 1985, c C-46.

3 R v Antonelli, 2011 ONSC 5416 at para 11.

4 2000 SCC 46.

5 Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make con-

sequential amendments to another Act, 1st Sess, 42nd Parl, December 2018. The Act received

Royal Assent on December 13, 2018.

6 R v Barton, 2019 SCC 33; R v Goldfinch, 2019 SCC 38; R v RV, 2019 SCC 41.

© [2020] Emond Montgomery Publications. All Rights Reserved.

Chapter  Evidence of Other Sexual Activity: Section  

II. Overview of the Legislative Scheme

The legislative scheme governing the admissibility of evidence relating to a victim’s

other sexual activity is found in sections276 and 278 of the Criminal Code. Sec-

tion 276(1) prohibits the use of evidence about the victim’s sexual activity to sup-

port either of the twin myths—that he or she is more likely to have consented to the

sexual activity in question or that he or she is less worthy of belief because of his or her

sexual history. There is no discretion, and there are no circumstances under which

this reasoning ispermitted.

It is important to note that this prohibition relates to the use of this evidence, not

the admissibility of it. This use prohibition applies regardless of who has tendered the

evidence and for what purpose the evidence was tendered. As a result, if the Crown

adduced evidence of the victim’s sexual history for a dierent purpose, it cannot be

used by the accused to support one of the prohibited inferences.

Section 276(1) does not prohibit the use of evidence of the victim’s other sexual

activity for purposes other than inferring consent or finding his or her to be less cred-

ible because of his or her sexual history. However, tendering evidence of the victim’s

other sexual activity, even if not for the purpose of engaging one of the twin myths,

can still be a significant aront to the victim’s privacy and dignity. In enacting these

provisions, Parliament sought to balance the privacy and equality rights of the victim

with the fair trial rights of the accused. To accomplish this, section276(2) sets out

a general exclusionary rule prohibiting admission of this type of evidence by or on

behalf of the accused, along with an exception to that rule that sets out the circum-

stances under which it may be admitted. Unlike section276(1), these provisions relate

to the admissibility of the evidence, not simply its use.

Section 276(2) states that no evidence of the victim’s other sexual activity can be

adduced by or on behalf of the accused unless a judge determines that certain criteria

have been met. These criteria are set out in sections276(2)(a) to (d). The factors

that thejudge must consider in determining whether that test is met are set out in

section276(3).

Before an accused person can tender evidence of a victim’s sexual activity, he must

follow the procedures outlined in sections278.93 and 278.94. Prior to December 13,

2018, these procedures were set out in sections 276.1 and 276.2 (now repealed).

Sections 278.93 and 278.94 set out a two-stage procedure to be followed: the first

stage involves making a written application that satisfies the criteria set out in sec-

tions278.93(2) and (4), and the second stage involves an evidentiary hearing under

section278.94 to determine the admissibility of the evidence. The new procedures

are virtually identical to the old ones, but with one significant exception: the com-

plainant now has standing to appear, make submissions, and be represented by coun-

sel on the admissibility hearing under section278.94.

© [2020] Emond Montgomery Publications. All Rights Reserved.