Defending Sexual Violence Part 1: The Twin Myths under s. 276
By Jocelyn Heaton, Articling Student
The Criminal Code contains various provisions that limit an accused person's ability to adduce certain evidence for certain offences. S. 276 of the criminal code prohibits the admission of sexual history evidence unless it (1) is relevant to an issue at trial (2) is of specific, as opposed to broad or general, sexual activity, (3) has significant probative value not outweighed by prejudice to the complaint, and (4) proved to not perpetuate the twin myths.
While all 4 of these requirements can be litigated, the twin myths are subject to significant contention. The twin myths are what Parliament describes as the falsely held belief that evidence of prior sexual activity, be it with the accused or another person, renders the complainant either less credible and/or more likely to have consented to the sexual activity in question.
In other words, evidence of prior sexual activity can only be used at trial if it is not used to attack a complainant's credibility or suggest that they are more likely to have consented. While this legislation is meant to discourage perpetuating societal myths that complainants make up claims of sexual violence or lie about having consented to sexual activity, the reality is that this legislation debilitates the defence from raising often legitimate arguments with an evidentiary basis, by excluding that evidence from trial.
There is a body of well recognized case law which applies to s. 276. Most notably, the cases of R v. Goldfinch, 2019 SCC 38[1]; R v. R.V., 2019 SCC 41[2]; and R v. Barton, 2019 SCC 33[3].
Two of the major takeaways from Goldfinch, is that first, evidence of prior sexual activity must be sufficiently specific to be admissible, as the legislation requires that evidence be of specific sexual activity. Second, even if it is specific activity, the relevance of the evidence must go to more than “contextualizing” a relationship or interaction and must have a more specifically identifiable relevance to a triable issue.
A major takeaway from R.V. is that while the statue governs admissibility, the courts retain significant discretion, even on appeal, to determine the likely relevance of the proposed evidence, which often favours exclusion. In this case, the court determined that despite the trial judges’ error to not allow the defence to ask the complainant certain questions under s. 276, had they been allowed to ask those questions, the court concluded that the response would not have bared weight on the ultimate finding, therefore upholding the trial judges conviction.
Lastly, the Barton case raised many legal issues, but for the purposes of s. 276, the Supreme Court outlined some of the procedural duties of the court, Crown and Defence in raising the issue of s. 276 both prior to and during the trial. Further, on a more technical issue, the court held that even though the specific charge Barton faced, that being first degree murder, was not listed in the legislation as an offence subject to s. 276, that it applied regardless because the charge was premised on an included offence of sexual assault with a weapon, which is included.
In summary, the s. 276 regime has tightened the grip on accused person’s ability to make full answer and defence, mandating disclosure of defence evidence and strategy prior to trial, which is otherwise not generally expected in other areas of criminal law and increases the already high legal fees of defending sexual violence offences.
[1] https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17848/index.do
[2] https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17892/index.do
[3] https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17800/index.do