It is not unusual in a sexual assault trial in Canada for the accused to argue that consensual sexual contact they had with the complainant, before the alleged offence, is relevant on the issue of whether the complainant consented to the activity that forms the basis for the charge or to the defence of mistaken belief in consent. “Historically, the [Criminal Code of Canada] did not place any specific limits on the admissibility of evidence about a complainant’s prior sexual activities or the uses to which that evidence could be put.” R. v. Barton, 2019 SCC 33, para. 55 (Can.).
As a result, at one time in Canada, “[s]ubjecting the complainant to humiliating or prolonged examination and exploiting assumptions about ‘communication, dress, revenge, marriage, prior sexual history, therapy, lack of resistance and delayed disclosure’ was commonplace . . . These tactics shifted the focus away from the accused and essentially put the complainant on trial.” R. v. Goldfinch, 2019 SCC 38, para. 33 (Can.). This is no longer true.
THE CRIMINAL CODE OF CANADA
The Criminal Code of Canada now “specifically restricts the admissibility of evidence of a complainant’s sexual history in a prosecution for sexual assault.” R. v. Grant, 2019 BCCA 369, para. 22 (Can.). These restrictions are contained within section 276 of the Criminal Code. In this section and its accompanying provisions, which were enacted in 1992, Canada’s Parliament “established substantive rules that prevent evidence of a complainant’s sexual activities from being used for improper purposes, backed by procedural requirements designed to enforce these rules.” Barton, 2019 SCC 33 at para. 58. These limitations are broad in scope and exclusionary in nature. As a result, “[e]vidence of a complainant’s past sexual activity is generally not relevant, and therefore generally not admissible in sexual assault trials.” R. v. Kennedy, 2020 NLCA 25, para. 55 (Can.). However, there are exceptions to this general prohibition.
In this column, I will set out the process which exists in Canada for determining the admissibility of evidence relating to a complainant’s sexual activity that does not involve “the subject matter of the charge.” Criminal Code § 276(2). I will review a recent Supreme Court of Canada decision, R. v. J.J., 2022 SCC 28 (Can.), that has considered these provisions and discuss the manner in which Canadian courts have attempted to strike a balance between the privacy interests of complainants in sexual assault trials against the right of the accused to make full answer and defence. This has been described as balancing “between, on the one hand, admitting evidence of a sexual relationship that may be fundamental to making full answer and defence, and on the other, protecting complainants and the integrity of the trial process from prejudicial reasoning.” Goldfinch, 2019 SCC 38 at para. 2.
I will commence with the procedural requirements and then turn to the substantive elements. The procedure to be followed in a section 276 application and hearing are set out in sections 278.93 and 278.94 of the Criminal Code.
