16 Sep Admissibility of Evidence in Sexual Assault Cases: Evidence of Other Sexual Activity
In a sexual assault trial, the defendant may seek the introduction of evidence of the complainant’s prior sexual activity to ensure their right to make full answer and defence to any accusations. A defendant can apply under section 276 of the Criminal Code if he or she desires to adduce such evidence.
However, it is essential to understand the various factors courts consider when weighing whether defence counsel can submit such sensitive material at trial.
This article explores the situations where it may be necessary to bring a section 276 application, the meaning of “other sexual activity”, and the different judicial considerations in allowing the submission of evidence relating to a complainant’s sexual history.
For expert guidance, ensure to consult a highly skilled and experienced Calgary sexual assault lawyer.
When to Bring a Section 276 Application
A section 276 application must be made so that counsel for an accused may do any of the following at trial:
- Question the complainant about their other sexual activity
- Question a separate witness about the complainant’s other sexual activity
- Allow the accused to testify about the complainant’s other sexual activity
- Submit to the Court any photographs, documents, or other evidence that may pertain to the complainant’s other sexual activity
Notably, a section 276 application is only necessary before submitting evidence of the complainant’s activity. It is not required to make such an application where the accused proposes to cross-examine a non-complainant witness as to his or her sexual activity at trial.
The focus of section 276 is strictly on the complainant.
How Sexual Activity is Defined
Section 276(4) outlines that sexual activity comprises any communications made for a sexual purpose or the content of which is of a sexual nature. The following are some examples that Canadian courts have found to constitute sexual activity:
- Paying for the services of a prostitute
- Sending suggestive photos that imply nudity but do not expose breasts or genitalia
- Postings on social media of a sexually suggestive nature
- Possessing condoms
- Conversations about threesomes
Notably, section 276 operates only when the evidence sought to be submitted deals with sexual activity that is separate and apart from the allegations against the accused. Therefore, “other” sexual activity means evidence that falls outside the accusations in the trial.
It also does not capture sexual activity that occurred shortly before or after the specific activity which the complainant argues was nonconsensual. The activity captured by section 276 must be separate from the alleged sequence of events.
Factors Courts Consider
Unsurprisingly, there are numerous factors courts must consider before allowing the submission of such sensitive material as evidence at trial. There are two tests under section 276 in this respect. The first is s. 276(2), which outlines that evidence of a complainant’s past sexual history:
- must not be used to support either of the twin myths of sexual assault cases
- needs to be relevant to an issue at trial
- has to relate to specific instances of sexual activity
- must have a significant evidentiary value that is not substantially outweighed by any danger of prejudice it may cause to the proper administration of justice
The Twin Myths
Section 276(1) explicitly prohibits using evidence of a complainant’s other or past sexual activity to demonstrate either that the complainant was more likely to have consented to the sexual activity at trial or that they are less deserving of belief because of such evidence.
These are the twin myths of sexual assault cases, and there are no situations where reliance on these myths is allowed.
The Supreme Court of Canada has held that evidence of a complainant’s past sexual history is allowed only when it is fundamental to providing relevant context or narrative to an accused’s defence at trial.
Relevance to an Issue at Trial
For a Court to accept that the proposed evidence is relevant to an issue at trial, an accused must successfully argue that the evidence affects issues which are material in sexual assault cases. Such material matters may relate to the following:
- establishing whether sexual contact occurred
- identify the perpetrator of a sexual assault
- determining whether the complainant consented to the sexual activity
- establishing whether there is credible defence of honest but mistaken belief in consent
Specific Instances of Sexual Activity
This requirement outlines that any submitted evidence must relate to a specific instance of sexual activity, not a complainant’s past or other engagement in sexual activity that is of a general nature.
However, this does not mean that an accused must provide the precise time and location of the sexual activity. Instead, it means an accused must outline sufficient details to help the Court accurately understand his evidence. The extent of precision required in presenting such evidence depends on the exact nature of the sexual activity in question.
Weighing the Evidentiary Value
Courts engage in a balancing test when weighing the probative value of the evidence the accused submits. Notably, any potential damage to the administration of justice cannot substantially outweigh the evidentiary value of the evidence.
The Supreme Court of Canada has acknowledged that the legislative inclusion of the word “substantial” affords the accused a heightened degree of protection against conviction. In this way, if the Court deems the evidence of a complainant’s past sexual history to have a considerable degree of evidentiary value, the judge can only exclude the evidence if submitting it would potentially cause significant damage to the justice system.
Section 276(3)
If the Court finds the accused’s arguments to satisfy the above four requirements of s. 276(2), they will then move to the second branch of the admissibility test, set out under s. 276(3). This stage is a more general weighing of the evidence, where the judge considers whether the evidence can be submitted keeping in mind the following:
- the interests of justice, which includes the accused’s right to make full answer and defence
- the societal interest in encouraging the reporting of sexual assaults
- if the evidence has a reasonable prospect of assisting the trier-of-fact in arriving at a fair outcome to the trial
- the need to rid the fact-finding process of any discriminatory belief or bias
- the risk that the evidence may bring about sentiments of prejudice, sympathy or hostility in the jury
- the potential for the evidence to cause prejudice to the complainant’s personal dignity and right to privacy
- the complainant’s and every individual’s enjoyment of the right to personal security and full protection and benefit of the law
- any other consideration that the Court deems relevant.
Final Thoughts
There are numerous factors to consider in assessing whether a section 276 application is likely to succeed. If the Court allows the submission of evidence, one must understand the correct uses and legal limitations of such evidence at trial.
The admissibility of evidence in sexual assault cases is a particularly complex and technical area of criminal law. Acquiring the services of a highly skilled and experienced Calgary sexual assault lawyer is, therefore, necessary to ensure one’s defence is robust, legally sound, and offers the greatest chance of securing a favourable outcome to proceedings.
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