section 276(2)

INTRODUCTION AND BRIEF DESCRIPTION

This section prohibits the accused from introducing evidence of the complainants past sexual activity in sexual offence cases, unless certain conditions are met and the judge determines it is relevant and not prejudicial.

SECTION WORDING

276(2) In proceedings in respect of an offence referred to in subsection (1), no evidence shall be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 276.1 and 276.2, that the evidence (a) is of specific instances of sexual activity; (b) is relevant to an issue at trial; and (c) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

EXPLANATION

Section 276(2) of the Criminal Code of Canada pertains to the admissibility of evidence in proceedings related to sexual offences. It prohibits the accused from presenting evidence that the complainant was engaged in sexual activity other than the activity that forms the basis of the charges against them. However, certain exceptions may apply provided that the judge or justice determines that the evidence is relevant to the issues being addressed at trial and that its value outweighs any potential prejudice to the administration of justice. This section is aimed at protecting complainants from having their sexual history and past behaviour used against them in cases involving sexual offences. The goal is to prevent defendants from tarnishing the credibility of the complainant by introducing evidence that creates negative perceptions or biases in the mind of the judge or jury. Importantly, the section acknowledges that there may be rare cases where evidence of prior sexual activity is necessary, such as in situations where it directly relates to the issue at hand and where the probative value of the evidence is significant enough to justify its use. The exceptions to the rule established in section 276(2) take into account the need for fairness and justice in criminal proceedings. While the section restricts the use of certain types of evidence, it still enables the accused to present a full and fair defence in accordance with the principles of natural justice. Ultimately, this section reflects the importance of ensuring that the legal system addresses sexual offences in a manner that is both sensitive and fair to complainants.

COMMENTARY

Section 276(2) of the Criminal Code of Canada is a controversial and complex provision that has been the subject of much debate in legal and academic circles. This section essentially prohibits the admission of evidence regarding a complainant's sexual history, unless the judge or justice determines that such evidence is necessary and relevant to the trial. The provision was implemented in 1992 as part of a larger set of reforms intended to improve the treatment of sexual assault complainants in the criminal justice system. Prior to this amendment, it was common for defence lawyers to introduce evidence of a complainant's sexual history in an attempt to discredit their testimony or suggest that the complainant was more likely to have consented to sexual activity in question. This practice, known as "rape myth" or "sexual history evidence," was widely recognized as problematic and harmful, often further traumatizing the complainant and reinforcing harmful attitudes about sexual assault. Section 276(2) was intended to address this issue by strictly limiting the circumstances under which such evidence could be introduced. Under the current law, evidence of a complainant's sexual activity other than that which is directly related to the charges must first be approved by a judge or justice based on a three-part test. The judge must determine that the evidence is of "specific instances of sexual activity," is relevant to an issue at trial, and has significant probative value that outweighs the danger of prejudice to the proper administration of justice. In practice, this provision has been heavily criticized by some defence lawyers and civil liberties advocates as excessively restrictive and unfair. Many argue that the three-part test is overly burdensome, requiring defence lawyers to jump through numerous legal hoops in order to present evidence that may be crucial to their client's case. Others argue that the provision unfairly limits the ability of defendants to mount a full and fair defence, particularly in cases where consent is a central issue. At the same time, many legal and advocacy groups argue that the provision remains necessary in order to protect complainants from the harmful and stigmatizing effects of "rape myth" evidence. They point out that sexual assault cases continue to be plagued by deeply ingrained attitudes about consent, victim-blaming, and bias against complainants. Without strict limits on the use of sexual history evidence, many argue, the criminal justice system would continue to be an unwelcoming and hostile place for survivors of sexual violence. Overall, the current state of Section 276(2) remains a contentious issue with no easy solutions. While it is clear that the provision has significantly improved the treatment of sexual assault complainants in some respects, it is equally clear that it presents challenges for defence lawyers seeking to vigorously defend their clients. Regardless of one's opinion on the matter, it seems clear that this provision will continue to be the subject of ongoing debate and discussion in Canadian legal and political circles.

STRATEGY

Section 276(2) of the Criminal Code of Canada limits the type of evidence that can be presented by an accused in a trial involving a sexual offence. This section governs evidence relating to past sexual behaviour of the complainant that is not directly related to the offence being charged. Such evidence, if allowed, can be prejudicial to the complainant and may unfairly influence the outcome of the trial. As such, the section imposes strict conditions for allowing the evidence to be presented. Various strategic considerations come into play when dealing with this section of the Criminal Code. The defence lawyer must be knowledgeable of the applicable laws and procedural rules. They must be able to balance their client's interests with the need to maintain a fair judicial process. One strategy that could be employed when dealing with section 276(2) is to make a careful analysis of the evidence to be presented. The defence lawyer must determine whether such evidence is admissible under the criteria set out in subsection 276(2). They must then prepare the strongest arguments in support of admissibility under these criteria and seek to persuade the judge or justice. Another strategy is to anticipate possible objections from the Crown and prepare counterarguments in advance. The defence lawyer may need to address issues related to witness credibility and reliability, relevance of the evidence, and balancing of probative value against prejudicial effect. The defence may also want to consider the timing of when to raise the issue of admissibility of the evidence. The lawyer may want to argue that certain evidence be admitted early on in the trial, so as to avoid any potential interruption of the proceedings later on. Alternatively, waiting to raise the issue later in the proceedings may allow the defence lawyer to benefit from a better understanding of the case and the arguments being made by the Crown. It is important for the defence lawyer to communicate effectively with their client and advise them on the potential benefits and drawbacks of presenting certain evidence under section 276(2). The accused must understand the legal and strategic implications of their choices in order to make informed decisions. In conclusion, section 276(2) of the Criminal Code of Canada imposes significant restrictions on the type of evidence that can be presented by an accused in a sexual offence trial. Preparing a strategic approach to address these restrictions is critical for a successful defence and requires careful analysis and anticipation of potential objections from the Crown.