Canadian Criminal Evidence/Character/Complainant's Sexual History

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General Principles[edit]

Section 276 is an exclusionary rule of evidence prohibiting any party from adducing evidence of past sexual activity of a complainant in a 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.

CCC

The section was enacted in response to the decision of R. v. Seaboyer, [1991] 2 S.C.R. 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 at para. 29

Offence Charged[edit]

The applicable offences are listed in s. 276*1) as consisting of 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273.

Applicable Subject Matter[edit]

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]

  1. Section 276(2)
  2. R. v. S. (D.R.), 1999 ABQB 330 (CanLII) [1] at 19
    R. v. Silva, 1994 CanLII 4673 (SK CA) at 33 [2]

Purpose[edit]

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).

  1. R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577 at p.386
    R. v. M.M., [1999] O.J. No. 3943 (S.C.J.) at para. 19
    R. v. M.T., 2012 ONCA 511 at para. 32
  2. R. v. M.T., 2012 ONCA 511 at para. 32
  3. R v MT 2012 ONCA 511 at para. 33

Factors[edit]

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]

  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 SCC 30, [2000] 1 S.C.R. 781
  3. Darrach at 40
  4. Darrach

Evidence related to credibility and consent[edit]

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]

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.[4]

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.[5]
  1. Ecker (1995), 96 C.C.C.(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. Harper (1995), 137 Nfld. & P.E.I.R. 77 (P.E.I.S.C.), rev’d on other grounds (1997), 149 Nfld. & P.E.I.R. 295 (P.E.I.C.A.),
  4. Harris (1997), 118 C.C.C.(3d) 498 (C.A.)
  5. R. v. McDonald, 2003 SKQB 165

Procedure[edit]

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).

CCC

For a helpful summary of the procedure to follow, see: R. v. Strickland, [2007] O.J. 517 at 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.

CCC

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.

  1. see Darrach, Sheppard
  2. R. v. Wright, 2012 ABCA 306 (CanLII) at 10 and s.276.5

Case Digests[edit]