Preuves relatives à l'activité sexuelle du plaignant

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General Principles

Section 276 du Code Criminel is an exclusionary rule of evidence prohibiting any party from adducing evidence of sexual activity of a complainant that is not part of a criminal offence on the basis that it may be used to support prohibited inferences related to the sexual activity of the victim.

Applicable to Defence and Crown

The exclusionary rule found in s. 276 will require both defence and Crown to apply to the trial judge before they can adduce sexual activity evidence.

Components of the Rule

The exclusionary rule under s. 276 can be broken down into three components to be engaged:

• offence charged
• subject-matter
• purpose

It is considered rare for prior sexual activity to have any bearing to support a finding that the sexual offence did not occur.

Purpose

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.

The purpose behind the principles from Seaboyer is to protect "a complainant’s dignity, equality and privacy rights." This protection exists beyond the trial and includes the appeal process and potentially beyond.

Principles of Fundamental Justice

The principles of fundamental justice include three purposes of s. 276:

1. "protecting the integrity of the trial by excluding evidence that is misleading"
2. "protecting the rights of the accused, as well as encouraging the reporting of sexual violence" and
3. protecting the “security and privacy of the witnesses” "

Context Necessary

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.

When Section 276 Not Usually Available to Accused

Where the accused's defence is a denial that the sexual activity ever took place, the use of evidence captured by s. 276 will "rarely" be available.

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.

Complainant Sexual Activity Evidence

Section 276(1) du Code Criminel prohibits evidence of prior sexual conduct where it is used to make prohibited general inferences. These inferences are known as the "dual myths" or "dual myths", summarized as inferring "that unchaste women were more likely to consent to intercourse and in any event, were less worthy of belief"

The myths also cover the belief that the sexual assault complainant has a higher tendency to fabricate, which is not supported by the law.

The section states:

Evidence of complainant’s sexual activity

276 (1) In proceedings in respect of an offence under section 151 [contacts sexuels], 152 [incitation à des contacts sexuels], 153 [exploitation sexuelle], 153.1 [personnes en situation d’autorité] or 155 [inceste], subsection 160(2) [bestialité impérieuse] or (3) [Bestialité en présence d’un enfant ou incitation de celui-ci] or section 170 [père, mère ou tuteur qui sert d’entremetteur], 171 [maître de maison qui permet des actes sexuels interdits], 172 [corruption d’enfants], 173 [actions indécentes], 271 [agression sexuelle], 272 [agression sexuelle militaire ou causant des lésions corporelles] or 273 [agression sexuelle grave], 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.

[omis (2), (3), and (4)]
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; 2019, c. 25, s. 100.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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Must Relate to Myths

Where the purpose of the evidence does not touch on the two "myths", then the exclusionary rule does not apply.

Exclusion Other than Twin Myths

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.

Sexual Reputation Evidence

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 [contacts sexuels], 152 [incitation à des contacts sexuels], 153 [exploitation sexuelle], 153.1 [personnes en situation d’autorité] or 155 [inceste], subsection 160(2) [bestialité impérieuse] or (3) [Bestialité en présence d’un enfant ou incitation de celui-ci] or section 170 [père, mère ou tuteur qui sert d’entremetteur], 171 [maître de maison qui permet des actes sexuels interdits], 172 [corruption d’enfants], 173 [actions indécentes], 271 [agression sexuelle], 272 [agression sexuelle militaire ou causant des lésions corporelles] or 273 [agression sexuelle grave], 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; 2019, c. 25, s.101.

– CCC (CanLII), (Jus.)

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This prohibition under s. 277 is absolute with no exceptions. It is directed at evidence of reputation and not actual fact.

Constitutionality

Constitutionality of s. 276 and 277

Both the procedural and substantive aspects of s. 276 do not violate s. 7 or 11(d)du Charte canadienne des droits et libertés. However, it has been observed that s. 276 "cannot be interpreted so as to deprive a person of a fair defence."

Section 277 does not violate s. 7 or 11(d) of the Charter.

Retrospectivity of Bill C-51 Amendments

The amendments are procedural and do not affect substantive rights.

Constitutionality of Bill C-51 Amendments

There are various challenges to the Bill C-51 amendments. Most courts are finding them to be constitutional.

Offence Charged

The applicable offences are listed in s. 276(1) as consisting of:

• sexual interference (151)
• invitation to sexual touching (152)
• sexual exploitation (153)
• sexual exploitation of a person with a disability (153.1)
• incest (155)
• anal intercourse (159)
• bestiality (160(2) and (3))
• Parent or guardian procuring sexual activity (170)
• Householder permitting sexual activity (171)
• Corrupting children (172)
• indecent act (173)
• sexual assault (271)
• sexual assault with a weapon (272)
• sexual assault causing bodily harm (272)
• aggravated sexual assault (273)

In addition to the enumerated charges, the protections of s. 276 will also apply to any charges that have "some connection" to an enumerated offence.

Applicable Subject Matter

Section 276 applies to prior sexual acts consisting of "[e]vidence ... 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." This includes sexual acts that occur in the moments before the alleged sexual assault. It can also include sexual activity occurring after the events at issue.

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.

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.

Collateral Facts

The trial judge may prohibit the accused from impeaching the complainant on their version of prior sexual contact on account that it violates the collateral fact rule.

"Sexual Activity"

The meaning of "sexual activity" is not restricted to "overly sexual acts" and can include acts "done for a sexual purpose." It can include general activities that are for a sexual purpose such as communicating for the purpose of prostitution.

Communications

Section 276(4) adds to the meaning of "sexual activity" to include communications that either:

1. were made for a sexual purpose or
2. have contents of a sexual nature.

The section states:

276
[omis (1), (2) and (3)]

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.
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; 2019, c. 25, s. 100.

– CCC (CanLII), (Jus.)

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Other forms of "sexual activity"

It has also be found to include the following activities of the complainant:

• discussions and solicitation to have a "threesome";
• passionate kissing in the bathroom;
• posting of sexually explicit images on social media;
• a description of being sexual assaulted in the past;
• engaging in online sex chat with a stranger;
• the presence of BDSM equipment used by the complainant.

Statements as to the absence of sexual activity, such as the statement that the complainant is a virgin, will likely be captured by s. 276.

Solo activities of a sexual nature such as watching pornography can constitute "sexual activity."

Not Included as "sexual activity"

Courts have found that the following types of evidence are not "sexual activity":

• discussions of prospective sexual activity
• general discussions of the complainant's relationship

Sexual inactivity is not a form of sexual activity within the meaning of s. 276.

History

On December 13, 2018, sections 276.1 to 276.5 were repealed by 2018, c. 27 (Bill C-51). 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.

See Also

• Complainant's Sexual History (Prior to December 13, 2018)
• Admission of Certain Complainant Evidence for Sexual Offences
• Production of Records for Sexual Offences
• Precedent_-_Section_276_Application
• Precedent - Section 278.3 Application
• Precedent - Seaboyer Application