A History of Canadian Sexual Assault Legislation
1900-2000

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No Evidence Concerning Sexual Activity

An Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, S.C. 1980-81-82-83, c. 125, s. 19.

[No evidence concerning sexual activity]
246.6 (1) In proceedings in respect of an offence under section 246.1, 246.2 or 246.3, no evidence shall be adduced by or on behalf of the accused concerning the sexual activity of the complainant with any person other than the accused unless
        (a) it is evidence that rebuts evidence of the complainant's sexual activity or absence thereof that was previously adduced by the prosecution;
        (b) it is evidence of specific instances of the complainant's sexual activity tending to establish the identity of the person who had sexual contact with the complainant on the occasion set out in the charge; or
        (c) it is evidence of sexual activity that took place on the same occasion as the sexual that forms the subject-matter of the charge, where that evidence relates to the consent that the accused alleges he believed was given by the complainant.
    [Notice]
    (2) No evidence is admissible under paragraph (1)(c) unless
        (a) reasonable notice in writing has been given to the prosecutor by or on behalf of the accused of his intention to adduce the evidence together with particulars of the evidence sought to be adduced; and
        (b) a copy of the notice has been filed with the clerk of the court.
    [Hearing]
    (3) No evidence is admissible under subsection (1) unless the judge, magistrate or justice, after holding a hearing in which the jury and the members of the public are excluded and in which the complainant is not a compellable witness, is satisfied that the requirements of this section are met.
    [Publication prohibited]
    (4) The notice given under subsection (2) and the evidence taken, the information given or the representations made at a hearing referred to in subsection (3) shall not be published in any newspaper or broadcast.
    [Offence]
    (5) Every one who, without lawful excuse the proof of which lies upon him, contravenes subsection (4) is guilty of an offence punishable on summary conviction.
    [Definition of "newspaper"]
    (6) In this section, "newspaper" has the same meaning as in section 261.

An Act to amend the Criminal Code and the Canada Evidence Act, R.S.C. 1985 (3d Supp.), c. 19, s. 12.

[No evidence concerning sexual activity]
276. (1) In proceedings in respect of an offence under section 151, 152, 153, 155 or 159, subsection 160(2) or (3), or section 170, 171, 172, 173, 271, 272 or 273, no evidence shall be adduced by or on behalf of the accused concerning the sexual activity of the complainant with any person other than the accused unless
        (a) it is evidence that rebuts evidence of the complainant’s sexual activity or absence thereof that was previously adduced by the prosecution;
        (b) it is evidence of specific instances of the complainant’s sexual activity tending to establish the identity of the person who had sexual contact with the complainant on the occasion set out in the charge; or
        (c) it is evidence of sexual activity that took place on the same occasion as the sexual activity that forms the subject-matter of the charge, where that evidence relates to the consent that the accused alleges he believed was given by the complainant.
    [Notice]
    (2) No evidence is admissible under paragraph (1)(c) unless
        (a) reasonable notice in writing has been given to the prosecutor by or on behalf of the accused of his intention to adduce the evidence together with particulars of the evidence sought to be adduced; and
        (b) a copy of the notice has been filed with the clerk of the court.
    [Hearing]
    (3) No evidence is admissible under subsection (1) unless the judge, magistrate or justice, after holding a hearing in which the jury and the members of the public are excluded and in which the complainant is not a compellable witness, is satisfied that the requirements of this section are met.
    [Publication prohibited]
    (4) The notice given under subsection (2) and the evidence taken, the information given or the representations made at a hearing referred to in subsection (3) shall not be published in any newspaper or broadcast.
    [Offence]
    (5) Every one who, without lawful excuse the proof of which lies on him, contravenes subsection (4) is guilty of an offence punishable on summary conviction.
    [Definition of "newspaper"]
    (6) In this section, "newspaper" has the same meaning as in section 297. 1980-81-82-83, c. 125, s. 19.

An Act to amend the Criminal Code (sexual assault), S.C. 1992, c. 38, s. 2.

[No evidence concerning sexual activity]
276. (1) In proceedings in respect of an offence under section 151, 152, 153, 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 the inference that, by reason of the sexual nature of the 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.
    [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.

[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).

[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.

[Publication prohibited]
276.3 (1) No person shall publish in a newspaper, as defined in section 297, or in a broadcast, any of the following:
        (a) the contents of an application made under section 276.1;
        (b) any evidence taken, the information given and the representations made an at application under section 276.1 or at a hearing under section 276.2;
        (c) the decision of a judge, provincial court judge or justice under subsection 276.1(4), unless the judge, provincial court judge or justice, after taking into account the complainant's right of privacy and the interests of justice, orders that the decision may be published; and
        (d) the determination made and the reasons provided under section 276.2, unless
            (i) that determination is that evidence is admissible, or
            (ii) the judge, provincial court judge or justice, after taking into account the complainant's right of privacy and the interests of justice, orders that the determination and reasons may be published.
    [Offence]
    (2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.

[Judge to instruct jury re use of evidence]
276.4 Where evidence is admitted at trial pursuant to a determination made under section 276.2, the judge shall instruct the jury as to the uses that the jury may and may not make of that evidence.

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