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Section 276 Misconstrued: The Failure to Properly Interpret and Apply Canada's Rape Shield Provisions

(2016) 94 Canadian Bar Review 1

39 Pages Posted: 30 Mar 2016 Last revised: 9 Dec 2016

Elaine Craig

Dalhousie University - Schulich School of Law

Date Written: March 30, 2016

Abstract

Despite the vintage of Canada’s rape shield provisions (which in their current manifestation have been in force since 1992), some trial judges continue to misinterpret and/or misapply the Criminal Code provisions limiting the use of evidence of a sexual assault complainant’s other sexual activity. These errors seem to flow from a combination of factors including a general misunderstanding on the part of some trial judges as to what section 276 requires and a failure on the part of some trial judges to properly identify, and fully remove, problematic assumptions about sex and gender from their analytical approach to the use of this type of evidence. A lack of clarity as to how section 276 works, and the ongoing reliance on outdated stereotypes about sexual assault to interpret the provisions, are particularly problematic because trial judges continue to face applications to adduce evidence of a complainant’s sexuality activity which are inflammatory, discriminatory, and clearly excluded by section 276 of the Criminal Code. The reality that some defence counsel continue to ignore, or attempt to undermine, the legal rules dictated by section 276 heightens the need for competence, rigor, and accuracy among trial judges tasked with the adjudication of these applications. Following a brief explanation of how Canada’s rape shield regime works, four types of problems with the interpretation and application of section 276 are identified using examples from recent cases.

Keywords: sexual assault, evidence, rape shield, prior sexual history, complainant, rape myth, stereotype, Seaboyer, 276

Suggested Citation

Craig, Elaine, Section 276 Misconstrued: The Failure to Properly Interpret and Apply Canada's Rape Shield Provisions (March 30, 2016). (2016) 94 Canadian Bar Review 1. Available at SSRN: https://ssrn.com/abstract=2756510

Elaine Craig (Contact Author)

Dalhousie University - Schulich School of Law ( email )

6061 University Avenue
Halifax, Nova Scotia
Canada

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