Criminal Code of Canada - section 276.1(2) - Form and content of application

section 276.1(2)

INTRODUCTION AND BRIEF DESCRIPTION

This section outlines the requirements for making a written application to adduce evidence regarding a complainants sexual activity in a criminal trial.

SECTION WORDING

276.1(2) An application referred to in subsection (1) must be made in writing and set out (a) detailed particulars of the evidence that the accused seeks to adduce, and (b) the relevance of that evidence to an issue at trial, and a copy of the application must be given to the prosecutor and to the clerk of the court.

EXPLANATION

Section 276.1(2) of the Criminal Code of Canada outlines the requirements for making an application to adduce evidence of a complainant's sexual activity. The section was introduced to protect complainants' rights to privacy and dignity in sexual assault cases. The subsection states that any application to adduce such evidence must be made in writing and provide detailed particulars of the evidence sought to be admitted. This means that the accused must provide a clear and precise account of what evidence they wish to present to the court. Moreover, the application must also explain the relevance of that evidence to an issue at trial. This means that the accused must demonstrate how the evidence is connected to a particular matter that is at issue in the case. This may include, for example, showing that the complainant's prior sexual activity with someone else is relevant to issues of consent or credibility. Finally, the accused must provide copies of the application to both the prosecutor and the clerk of the court. This ensures that all parties are aware of and have a chance to review the evidence in question. Overall, section 276.1(2) of the Criminal Code of Canada reflects the importance of treating complainants with dignity and respect in sexual assault cases, while still allowing the accused to present evidence that is relevant to their defence.

COMMENTARY

Section 276.1(2) of the Criminal Code of Canada outlines several requirements regarding the application process for evidence that is potentially relevant to the trial of an accused person. The section mandates that such an application must be made in writing, setting out detailed particulars of the evidence that the accused seeks to adduce, and the relevance of that evidence to an issue at trial. In addition, a copy of the application must be provided to the prosecutor and to the clerk of the court. This section of the Criminal Code is important in the context of sexual assault trials, as it creates a mechanism for introducing evidence of a complainant's prior sexual history or conduct. This type of evidence is often referred to as sexual history evidence" and it can be highly contentious. In many cases, the accused person may seek to introduce such evidence in an attempt to undermine the complainant's credibility or suggest that they had a pre-existing disposition towards engaging in sexual activity. Given the potential for such evidence to unfairly prejudice the complainant and disrupt the trial process, it is reasonable for the Criminal Code to impose strict requirements on the application process. This ensures that any evidence of a complainant's sexual history that is introduced at trial will be subject to careful scrutiny and consideration, and that the court will only allow such evidence where it is both relevant and necessary for determining the issues at hand. As noted in section 276.1(2)(b), the introduction of this type of evidence must be relevant to an issue at trial. This reflects the basic principle that evidence must be probative in order to be admissible. In other words, it must help the court to decide a factual question that is genuinely in dispute. Mere speculation or conjecture about how a complainant's prior sexual history might impact their credibility or motives, for example, is unlikely to meet this standard. Moreover, the section requires detailed particulars of the evidence to be provided in the application. This necessitates that the accused person has carefully examined and considered the evidence they wish to introduce, and that they are able to articulate how it relates to specific issues at trial. This process can help to avoid the introduction of unnecessary, irrelevant, or prejudicial evidence. Finally, the requirement for a copy of the application to be provided to the prosecutor and to the court ensures that all parties are aware of the evidence that may be introduced at trial. This allows the prosecutor to prepare an appropriate response to the application, and allows the court to assess the admissibility of the evidence before trial. It also provides an opportunity for the complainant to be informed about any potential for sexual history evidence to be introduced at trial, and to take steps to protect their rights and interests. Overall, section 276.1(2) of the Criminal Code helps to ensure that evidence of a complainant's sexual history is only introduced at trial where it is relevant, necessary, and fair. This can help to protect the rights of complainants, while also ensuring that accused persons are able to present a full and complete defence. By creating a clear and transparent process for the introduction of such evidence, the section promotes the proper administration of justice in sexual assault trials.

STRATEGY

Section 276.1(2)of the Criminal Code of Canada provides guidance on how an application for leave to introduce evidence concerning the sexual activity of the complainant can be made by an accused person. It is a critical section for criminal defense lawyers representing clients accused of sexual offenses as it regulates the admissibility of evidence in sexual assault cases. Strategic considerations when dealing with this section of the Criminal Code of Canada 1. Early preparation: When an accused person is charged with sexual offenses, the accused person's legal counsel must begin the process of preparing to make an application under Section 276.1(2) as early as possible. This involves reviewing the case, gathering evidence, and drafting an application that includes detailed particulars of the evidence that the accused seeks to adduce. 2. Understand the Evidence: The accused's legal counsel must have a good understanding of the evidence they wish to adduce and how it is relevant to the accused's defense. This is because Section 276.1(2) requires that the accused provide detailed particulars of the evidence and its relevance to an issue at trial. 3. Anticipate the Prosecutor's Response: It is essential to anticipate the prosecutor's response to the application and come up with counterarguments in advance. Prosecutors are likely to oppose such applications, and the accused person's legal counsel should be prepared to argue why the evidence should be admitted. 4. Judges' Attitude toward Evidence: The accused's legal counsel should also be aware of the judge's attitude toward evidence concerning sexual activity. This is important because some judges may have a low tolerance for evidence of this nature, while others may be more willing to consider such evidence. 5. The Overall Defense Strategy: The application for leave to introduce evidence concerning the sexual activity of the complainant is part of the overall strategy in defending an accused person charged with sexual offenses. The defense strategy should include a plan for presenting the evidence in a manner that is credible and persuasive. Strategies that could be employed 1. Make the Application Early: The defense counsel should submit an application for leave to introduce evidence concerning the sexual activity of the complainant as early as possible, preferably before any significant disclosure has been made. 2. Ensure that the Evidence is Relevant: The defense counsel should ensure that the evidence is relevant to the defense. The evidence must not be used to undermine the complainant's credibility or to humiliate or embarrass them. 3. Use Expert Evidence: Expert evidence, such as psychological evidence, can be used to support the application. This can be a persuasive strategy, particularly if the expert has substantial experience in this area. 4. Consider the Witnesses: The defense counsel should consider the witnesses that will be called to testify, including the complainant and any experts. The defense counsel should ensure that the evidence presented is consistent and persuasive. 5. Consider Alternative Strategies: If the application for leave to introduce evidence concerning the sexual activity of the complainant has been denied, the defense counsel may need to consider alternative strategies, such as calling other witnesses who can corroborate the accused's version of events. Conclusion Section 276.1(2) of the Criminal Code of Canada regulates the admissibility of evidence concerning the sexual activity of the complainant in sexual assault trials. To defend an accused person successfully, the defense counsel must understand the provisions of this section and come up with an effective strategy for making an application to introduce such evidence. The court's approach to such evidence, as well as the prosecutor's position, should be taken into account when developing the defense strategy. Proactive preparation, persuasive evidence, and a well-planned defense strategy can increase the chances of success when dealing with this section of the Criminal Code of Canada.