Criminal Code of Canada - section 276.4 - Judge to instruct jury re use of evidence

section 276.4

INTRODUCTION AND BRIEF DESCRIPTION

This section requires judges to instruct juries on the proper use of evidence admitted under section 276.2.

SECTION WORDING

276.4 Where evidence is admitted at trial pursuant to a determination made under section 276.2, the judge shall instruct the jury as to the uses that the jury may and may not make of that evidence.

EXPLANATION

Section 276.4 of the Criminal Code of Canada governs the use of evidence relating to a complainant's sexual history in trials involving sexual offences. Under this section, if a judge admits evidence of a complainant's sexual history pursuant to a determination made under section 276.2, the judge is obligated to provide clear instructions to the jury about the permissible uses of that evidence. Section 276.2 sets out the procedure that a judge must follow in determining whether to admit evidence of a complainant's sexual history in sexual offence trials. Generally speaking, such evidence is not admissible. However, if the defence can demonstrate that the evidence is relevant, it must be weighed against its potential prejudicial effect on the complainant and the fair trial rights of the accused. Section 276.4 acts to provide guidance to the jury so that they understand how they may and may not use the admitted evidence. In order to protect the rights of both the complainant and the accused, the judge must ensure that the jury is made aware of the appropriate ways in which they may use the evidence. For example, the evidence may be used to challenge the credibility of the complainant or to establish a motive for fabricating the complaint. However, the evidence cannot be used to suggest that the complainant consented to the sexual activity or that they are more likely to have consented to the accused's actions because of their sexual history. In essence, section 276.4 serves to prevent the misuse of evidence relating to a complainant's sexual history in sexual offences trials. By providing explicit guidance to the jury about the permissible uses of this evidence, the section promotes fairness and ensures that the complainant's rights are protected.

COMMENTARY

Section 276.4 of the Criminal Code of Canada plays a vital role in ensuring fair trials for individuals accused of sexual offences. The section requires that judges provide instructions to juries regarding the uses they may and may not make of evidence admitted at trial under section 276.2. Section 276.2 of the Criminal Code of Canada pertains to the admissibility of evidence regarding a complainant's sexual activity or history in cases of sexual assault. The section aims to prevent irrelevant and harmful evidence from being used to undermine the credibility of the complainant and avoid perpetuating damaging myths and stereotypes about sexual assault. Prior to the enactment of section 276.2, complainants were often subjected to invasive and irrelevant questioning about their sexual history or behaviour, which often had no bearing on the case at hand. This form of questioning was used by defence lawyers to discredit complainants by suggesting that they were promiscuous or otherwise sexually immoral, and therefore not to be believed. Section 276.2 seeks to curtail such practices by requiring the defence to seek the court's permission before introducing evidence about the complainant's sexual history or behaviour. The judge must determine whether the evidence is relevant, and whether its potential prejudicial effects outweigh its probative value. Once the judge has determined that evidence under section 276.2 is admissible, section 276.4 requires them to provide specific instructions to the jury as to the uses of that evidence. Typically, the judge will instruct the jury that evidence regarding a complainant's sexual activity or history should not be used to diminish the complainant's credibility, nor should it be used to suggest that the complainant consented to the sexual activities in question. The requirement for judges to provide specific instructions to juries is crucial in ensuring that the evidence is used appropriately and that the trial proceeds fairly. It helps to prevent the use of evidence that is prejudicial or inflammatory, and avoids perpetuating false and damaging stereotypes about sexual assault. Overall, section 276.4 is an important provision that is designed to protect the rights of complainants in sexual offence cases by ensuring that evidence is used appropriately in court. It provides a framework for judges to manage the use of evidence under section 276.2, and helps to ensure that trials proceed fairly and without bias. In doing so, it contributes to the fair administration of justice and helps to inspire confidence in the legal system among survivors of sexual assault.

STRATEGY

Section 276.4 of the Criminal Code of Canada provides guidance on how the jury should use the evidence admitted at trial pursuant to a determination made under section 276.2. This section requires that the judge provide instructions to the jury as to the uses that the jury may and may not make of that evidence. This section is of great importance to both the prosecution and defense teams, and there are several strategic considerations that arise when dealing with this section of the Criminal Code. One of the most important strategic considerations when dealing with section 276.4 is to ensure that the evidence admitted at trial pursuant to section 276.2 is used in a way that benefits the client's case. For example, if the defense team has successfully argued that evidence of the complainant's sexual history is irrelevant, the defense team will want to ensure that the jury does not improperly use this evidence to make assumptions about the complainant's character or credibility. Similarly, the prosecution team will want to ensure that evidence of the complainant's sexual history is used to establish a pattern of behavior or to undermine the defense team's argument, rather than to simply bolster the complainant's credibility. Another important strategic consideration when dealing with section 276.4 is to ensure that the jury fully understands the instructions given by the judge. The language used by the judge in providing instructions can be complex and technical, and may not be immediately clear to the average juror. Therefore, it may be necessary to provide clear and concise explanations of the instructions to the jury. This can be done through the use of visual aids, such as diagrams or flowcharts, or through the use of expert testimony to explain the legal concepts involved. Finally, it may be necessary to anticipate and address potential challenges to the instructions provided by the judge. For example, the defense team may argue that the judge's instructions were insufficient or biased, which could impact the jury's ability to properly use the evidence admitted at trial. In such cases, it may be necessary to appeal the judge's decision or seek to have the jury re-instructed on the proper use of the evidence. There are several strategies that can be employed to ensure that section 276.4 is used effectively in a given case. One such strategy is to use expert testimony to help the jury understand the legal concepts involved and to provide context for the evidence admitted at trial. This can be particularly effective when dealing with complex legal issues or highly technical evidence. Another strategy is to use visual aids, such as diagrams or flowcharts, to help the jury understand the judge's instructions. This can be particularly effective when dealing with instructions that are complex or technical in nature. Finally, it may be necessary to engage in extensive pre-trial preparation to ensure that the evidence presented at trial is properly categorized and that the judge's instructions are carefully crafted to address the specific evidence in question. This can help to minimize challenges to the instructions provided by the judge and ensure that the evidence is used in a way that benefits the client's case. In conclusion, section 276.4 of the Criminal Code of Canada is a critical component of sexual assault trials, and there are several strategic considerations that must be taken into account when dealing with this section. By carefully crafting arguments to ensure that evidence is used in a way that benefits the client's case, providing clear and concise explanations of the judge's instructions, and anticipating potential challenges to those instructions, legal teams can effectively navigate this complex area of the law.