A Delicate Act of Judicial Balancing: Breathing New Life into Section 276 of the Criminal Code

Abstract

Section 276 of the Criminal Code of Canada regulates the admission of evidence of a complainant’s prior sexual activity in sexual assault trials. Restricting the admission of such evidence has long been recognized as having salutary effects for the integrity of the criminal justice process, by eliminating reliance on stereotypical and false modes of thinking in the fact-finding process of judges and juries. The gatekeeping function of the application judge serves to ensure that the accused person’s right to full and answer and defence is not compromised in pursuit of these aims. Recent legislative changes enacted through Bill C-51, in conjunction with related jurisprudence from the Supreme Court of Canada, extend the reach of section 276. Through legislative amendments, complainants now have a right to counsel at a section 276 application, providing an opportunity for application judges to hear submissions about the impact of any proposed evidence on the privacy and dignity of a complainant. Through jurisprudential developments, Crown-led evidence of the complainant’s prior sexual activity is now subject to the same degree of scrutiny, and must meet the admissibility criteria of section 276(1) as well as R. v. Seaboyer. Complainants in cases that do not directly involve an allegation of sexual assault may also fall under the protective umbrella of section 276, as long as there is some connection between an offence of sexual violence and the offence(s) charged. Public confidence in the integrity of the administration of justice stands to be enhanced by these legislative and jurisprudential changes.

Keywords: prior sexual activity, sexual assault, Seaboyer, section 276

JEL Classification: K14