395
Evidence of
Other Sexual
Activity:
Section
13
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. Adavit 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—Specic 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 Adavit and Testimony from Application ................
This chapter was authored by Meaghan Cunningham.
© 2024 Emond Montgomery Publications. All Rights Reserved.
396 Prosecuting and Defending Sexual Oence 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 their sexual history was a common
defence tactic, and it was often designed to mislead the trier of fact into accepting
faulty reasoning. Evidence of the victim’s sexual history was routinely presented and
accepted as tending to make it more likely that they consented to the alleged assault
or that they were generally lacking in credibility. This practice subverted the truth-
seeking function of the court and put the complainant on trial.
In Rv Seaboyer; R v Gayme,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 section276 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 char-
acter.3 These “twin myths” distort the trial process and operate particularly unfairly
to victims.
The SCC in Seaboyer struck down an earlier version of section276 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-
tion276 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 RvDarrach.4 Section276 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 oences by protecting the security,
privacy, and dignity of victims.
On December 13, 2018, Bill C-515 received royal assent and brought about changes
to both the procedural and substantive aspects of this legislation. In 2019, the SCC
released a trilogy of cases6 that further refined and clarified this complex area of the
law. In RvJJ,7 the SCC upheld the constitutionality of the procedures that apply to
section 276 applications, which are found in sections 278.93 and 278.94.
1 [1991] 2 SCR 577, 66 CCC (3d) 321.
2 RSC 1985, c C-46.
3 RvAntonelli, 2011 ONSC 5416 at para 11.
4 2000 SCC 46.
5 An Act to amend the Criminal Code and the Department of Justice Act and to make consequential
amendments to another Act, 1st Sess, 42nd Parl (assented to 13 December 2018), SC 2018, c 29.
6 RvBarton, 2019 SCC 33; RvGoldfinch, 2019 SCC 38; RvRV, 2019 SCC 41.
7 2022 SCC 28.
© 2024 Emond Montgomery Publications. All Rights Reserved.
Chapter Evidence of Other Sexual Activity: Section 397
II. Overview of the Legislative Scheme
The legislative scheme governing the admissibility of evidence relating to a vic-
tim’s other sexual activity is found in sections276 and 278 of the Criminal Code.
Section276(1) prohibits the use of evidence about the victim’s sexual activity to sup-
port either of the twin myths—that they are more likely to have consented to the
sexual activity in question or that they are less worthy of belief because of their sexual
history. There is no discretion, and there are no circumstances under which this rea-
soning ispermitted.
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 dierent 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 them to be less credible
because of their 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 aront to the victim’s privacy and dignity. In enacting these provi-
sions, Parliament sought to balance the privacy and equality rights of the victim with
the fair trial rights of the accused. To accomplish this, section276(2) sets out a gen-
eral 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 circumstances
under which it may be admitted. Unlike section276(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 sections276(2)(a) to (d). The factors
that thejudge must consider in determining whether that test is met are set out in
section276(3).
Before an accused person can tender evidence of a victim’s sexual activity,
they must follow the procedures outlined in sections278.93 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 sections278.93(2) and (4), and the second stage involves an evidentiary hearing
under section278.94 to determine the admissibility of the evidence. The new pro-
cedures are virtually identical to the old ones but with one significant exception: the
complainant now has standing to appear, make submissions, and be represented by
counsel on the admissibility hearing under section278.94. For more details on how
sections 278.92-94 operate, see Chapter 12, Cross-Examination on Private Records:
Section278.92.
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