Section 276 of the Criminal Code is one of the most important evidentiary rules in sexual assault trials. It governs when, if ever, the defence may introduce evidence of a complainant’s sexual activity outside of the specific allegation before the court.
Often referred to as the “rape shield” provision, it was enacted to prevent reliance on discriminatory reasoning based on a complainant’s sexual history.
What Section 276 of the Criminal Code Does
Section 276 of the Criminal Code starts from a clear presumption: evidence of a complainant’s sexual activity other than the sexual activity that forms the subject matter of the charge is inadmissible. This includes both cross-examination of the complainant and evidence introduced through other witnesses.
The provision is designed to prevent reliance on the “twin myths”:
That a complainant who has consented to sexual activity in the past is more likely to have consented to the activity in question
That a complainant is less credible because of their prior sexual activity
Evidence offered for either purpose is categorically inadmissible.
When Sexual History Evidence May Be Admitted
Section 276 of the Criminal Code does permit evidence of prior sexual activity in limited circumstances, but only through a formal application and subject to strict requirements. The defence must identify specific instances of sexual activity and demonstrate that the evidence is relevant to a live issue at trial.
Even where relevance is established, the evidence will only be admitted if its probative value significantly outweighs the potential prejudice to the proper administration of justice.
In assessing admissibility, courts consider factors such as the accused’s right to make full answer and defence, the complainant’s privacy and dignity interests, the risk of discriminatory reasoning, and the broader societal interest in encouraging the reporting of sexual assault.
The Two-Stage Process
A section 276 application proceeds in two stages. Stage one is conducted in writing. The defence files an application setting out the evidence it seeks to adduce and the reasons it should be admitted. The judge reviews the application and determines whether the defence has established that the evidence is capable of being admissible. If that threshold is not met, the application ends at this stage.
Stage two is an oral hearing. The judge holds a hearing in which the defence presents evidence and argument, the Crown responds, and the complainant has the right to participate through independent counsel. The judge then decides whether the evidence will be admitted at trial.
Strict Notice Requirements
The defence must file the application at least seven days before the hearing, unless the court allows a shorter period for good reason. The application must be in writing and set out detailed particulars of the evidence sought to be admitted, along with its relevance to a live issue at trial.
Generic or boilerplate applications are not sufficient. The defence must identify specific evidence and clearly link it to a live issue. Courts regularly reject applications that fail to meet this standard.
Lessons From Recent Supreme Court Decisions
In R v Goldfinch, the Supreme Court of Canada held that evidence of a prior sexual relationship, including a “friends with benefits” arrangement, is subject to strict scrutiny under section 276 of the Criminal Code. The Court confirmed that such evidence is inadmissible where it risks engaging the prohibited twin myths or where it is not properly shown to be relevant to a live issue at trial. The decision reinforces that prior sexual history cannot be used as a general basis for inferring consent or credibility.
In R v Barton, the Court dealt with a case where the defence argued mistaken belief in consent based on prior sexual activity. The Supreme Court held that prior sexual activity cannot, on its own, support a mistaken belief defence. The accused must point to specific communicated consent for the activity that actually occurred.
Taken together, these decisions confirm that prior sexual history is tightly controlled in sexual assault trials. It cannot be relied on in a general way, and it is only admissible where the strict requirements of section 276 are met and the evidence is properly tied to a specific, relevant issue at trial.
What Counts as Sexual Activity
Section 276 covers a broad range of conduct. It includes physical sexual contact, but it can also extend to sexually explicit communications, the sharing of sexual images, and other conduct of sexual nature. The defence cannot avoid the rule by recharacterizing the evidence as something other than sexual activity. Courts look at the substance of the evidence, not the label.
Why Procedure Matters as Much as Substance
Section 276 applications are often won or lost on preparation. Counsel must file a proper written application well in advance of trial, with all required particulars, and clearly identify the specific issue at trial to which the evidence is said to relate. Counsel must also be prepared for the closed hearing and able to address the complainant’s privacy interests directly.
A poorly drafted or late application will not only fail but may also create a record that undermines the broader defence strategy. Effective section 276 litigation requires careful preparation and familiarity with how these applications are decided in practice.
Facing a sexual assault trial?
Section 276 applications are technical, time-sensitive, and can be decisive to the outcome of a case. Contact us early in your case to ensure your defence is properly prepared and protected.
