criminal
Sexual Offences Charges are Different
03 October, 2025
Unlike other criminal offences, sexual offence cases are governed by a specific set of procedures for allowing evidence to be introduced at trial.
The Context
Special rules for the admissibility of evidence at trial apply to an offence under sections 151, 152, 153, 153.1, 155, 160, 170, 171, 172, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3.
The enumerated categories are: Sections 271-273 of the Criminal Code of Canada deal with sexual offences generally. Sections 151-173 deals with sexual offences involving children. Sections 279.01-279.03 deals with human trafficking. Sections 286.1-286.3 deal with obtaining sexual services for a benefit.
Admissibility of Evidence
There are four evidentiary scenarios that are specific to sexual offences.
- Admissibility of a complainant’s prior sexual activity governed by section 276.
- Admissibility of personal records governed by section 278.1.
- Admissibility of private records in possession of the accused governed by section 278.2.
- Admissibility of records in the possession of a third party governed by section 278.2.
In the context of sexual offences, the procedure outlined in section 278 becomes crucial when dealing with personal records of the complainant. The accused may seek to use these records to challenge the credibility of the complainant or to establish other defences. However, they must first satisfy the court that the records are likely relevant and that it is in the interests of justice to order their production.
Section 276: Complainant Sexual Activity Evidence and Related Evidence1
Section 276 of the Criminal Code of Canada is an exclusionary rule of evidence prohibiting any party from adducing evidence of sexual activity of a complainant that is not part of a criminal offence before the Court on the basis that it may be used to support prohibited inferences related to the sexual activity of the victim. Both the defence and Crown must apply to the trial judge before they can adduce sexual activity evidence.
The exclusionary rule under section 276 can be broken down into three components to be engaged:
- Offence charged
- Subject-matter
- Purpose
It is considered rare for prior sexual activity to have any bearing to support a finding that the sexual offence did not occur. The intention of Parliament in enacting this provision was to respond to the findings of R v Seaboyer [1991] 2 SCR 577 as they relate to the false relevancy of prior sexual activities. The purpose behind the principles from Seaboyer is to protect "a complainant’s dignity, equality and privacy rights"1.
The principles of fundamental justice include three purposes of section 276:
- Protecting the integrity of the trial by excluding evidence that is misleading.
- Protecting the rights of the accused, as well as encouraging the reporting of sexual violence.
- Protecting the “security and privacy of the witnesses”.
Note that section 276 is not a “blanket exclusion of evidence of other sexual activity” and should not leave the trier-of-fact with a “misleading impression” of the relationship between the parties.
The prohibition in section 276 relates to the “twin myths” which refer to two erroneous and prohibited inferences that can be drawn from a complainant’s prior sexual history. These are codified in subsection 276(1) of the Criminal Code of Canada. The twin myths are:
- Myth of Consent: The erroneous belief that because a complainant has engaged in other sexual activities, they are more likely to have consented to the sexual activity that forms the subject-matter of the charge.
- Myth of Credibility: The erroneous belief that because a complainant has engaged in other sexual activities, they are less worthy of belief.
These myths are considered harmful stereotypes that can prejudice the trial process, and their use is prohibited in Canadian law. Evidence of a complainant’s previous sexual history is NOT admissible at trial if this evidence is introduced to invite a judge or jury to make either of these inferences.
The purpose of this rule is to protect the reputation and dignity of complainants of sexual assaults and to encourage those complainants to report sexual assaults. This rule was developed in an attempt to stop the stigma and myths surrounding complainants in sex assault cases.
A practical example is the case of R v Barton 2019 SCC 33, where the Supreme Court of Canada confirmed that the trial judge erred in failing to comply with the mandatory requirements set out in section 276 of the Criminal Code. The Court stated that the error had ripple effects, most acutely in the instructions on the defence of honest but mistaken belief in communicated consent, upon which the accused relied.
Determining Admissibilty
Section 278 of the Criminal Code of Canada is a critical piece of legislation that governs the production of personal records in sexual offence cases. These records often contain sensitive information about the complainant and can include a wide range of documents such as psychiatric records, police records, Children’s Aid records, and private electronic communications such as text messages.
The primary objective of section 278 is to balance the rights of the accused to a fair trial and the privacy rights of the complainant. The legislation starts with the presumption that records for which the complainant retains an expectation of privacy should not be produced. However, it also provides a mechanism for the accused to apply for the production of these records if they can demonstrate that the records are likely relevant to an issue at trial and if it is in the interests of justice to order their production.
Section 278.1 to 278.91 governs the procedure for the production of personal records concerning the complainant in relation to certain sexual offences. Typically this will capture records such as psychiatric records, police records, Children’s Aid records, diaries and private electronic communications7 such as text and WhatsApp messages. These are records for which there is a reasonable expectation of privacy.
Section 278.2 prohibits the disclosure of certain types of records to the defence unless applied for through the process described in sections 278.3 to 278.91 where the accused is charged with one or more enumerated sexual offences listed earlier. These records are protected on the basis of their expectation of privacy, regardless of whether they include content relating to the person’s sexual history.
In determining what is a “record”, a Court will take into account a number of factors:
- Is it a record akin to those enumerated in the section? (278.1 or 278.2)
- Is the information in the record akin to that which one might reasonably expect to find in the records that are enumerated in the section?
- How was the information obtained? Was it voluntarily surrendered or surreptitiously recorded in the form of a permanent record?
- For what purpose was the information provided to the accused?
- Was the communication public or semi-public or between two private individuals?
- Was there an express desire that the communication remain private or can such a desire be reasonably inferred from all of the circumstances?
- How many other people were privy to the communication?
- If it is not sexual history, is it something akin to sexual history?
- If it is not akin to sexual history, is it the kind of information that has historically, and improperly, been used to discredit sexual assault complainants? Such as their street-involved status or (non-sexual) mistreatment by others?
- Is it information that might be considered biographical core information as that concept is explained in R. v. Plant [1993] 3 SCR 281, R. v. Mills [1999] 3 SCR 668 and all subsequent case law?
- In relation to photos or videos, where were they taken? By whom were they taken? For what purpose were they taken and how did the accused end up with them?
- For social media postings, what is the nature of the social media application in question? Is it designed for public sharing of information or immediate destruction of the communication once sent?
- Is the social media posting of a child or an adult?
- What is the nature of the relationship between the parties that are communicating? For example, is it a relationship of trust or authority?
- Whose account was the information taken from and what are the privacy settings?
- Did the accused gain access to the account through fraud or deceit?
What is an expectation of privacy?
Absence evidence to the contrary, the judge may assume that there is a reasonable expectation of privacy attached to records that fall into the enumerated categories. A reasonable expectation of privacy is "not limited to trust-like, confidential, or therapeutic relationships". Absence of such relationship is not dispositive". A loss of possession or control of a record by the privacy holder will not necessarily remove the expectation of privacy.
Application Process to Allow Use of Evidence at Trial
All four admissibility scenarios are governed by the record screening application process in sections 278.92 to 278.94. The application process to access the records involves the same two phases to determine the release of records:
- Determine whether records should be reviewed by the court.
- Determine whether the reviewed records should be disclosed.
The applicant must satisfy the judge that the record is likely relevant to the proceedings against the accused. If so, the judge may order the production solely for the court’s inspection. After inspection, the judge must then determine what portions of the documents are to be produced for the defence for use at trial.
In the case of prior sexual history governed by section 276, the judge must determine what questions can be asked of a complainant and what specific instances of prior sexual activity made be admissible at trial.
Case Analysis: R. v. J.J. 2022 SCC 28
The case of R. v. J.J. 2022 SCC 28 provides a practical application of these sections. In this case, two accused, J and R, challenged the constitutionality of sections 278.92 to 278.94, arguing that Parliament had jeopardized three fundamental rights guaranteed to accused persons under sections 7, 11(c) and 11(d) of the Charter of Rights and Freedoms.
The Supreme Court found the record screening process in sections 278.92 to 278.94 of the Criminal Code constitutional. The court held that the process does not violate the Charter rights of the accused person even though the complainant (who is not a party to the proceedings) has an opportunity to be heard during the record screening application process. The Court stated that the accused’s right to silence is not in issue because they are not forced to testify during the record screening process. This decision underscores the Court’s attempt at balancing the rights of the accused to a fair trial and the privacy rights of the complainant in sexual offence cases.
Conclusion
The procedures outlined in sections 276 and 278 of the Criminal Code of Canada play a critical role in sexual offence cases. They are complex procedures designed to ensure a fair trial process while protecting the privacy rights of the complainant. Understanding these procedures and their application in real-world cases is crucial for ensuring a proper defence.
The lawyers at Kalina & Tejpal are experiencing at navigating the minefield in sexual offence cases. We can be reached (416) 900-6999 or mail@lawyer4u.ca
