Rape Shield Provisions:  Evidence of Significant Probative Value

Section 276 of the Code, the so called “rape shield” provision, prohibits using any evidence of the complainant’s sexual activity other than the activity which is the subject of the charge for “twin myth” reasoning. 

Evidence that “the complainant has previously engaged in sexual activity, whether with the accused or any other person, is never admissible to support an inference that, by reason of the sexual nature of that activity”, the complainant is “more likely to have consented to the sexual activity that forms the subject matter of the charge” or that the “complainant is less worthy of belief”.

If the evidence is to be used for a different purpose then it may only be introduced with leave of the court following the procedure set out in the section if it meets the statutory test. In particular the evidence of other sexual activity must be:

·         evidence of specific instances of sexual activity (s. 276(2)(a));

·         relevant to an issue at trial (s. 276(2)(b)); and

·         have “significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice” (s. 276(2)(c)).

Evidence of Significant Probative Value

The third condition to admissibility, as stated in s. 276(2)(c), is that the accused must demonstrate that the evidence has “significant probative value”, and that the probative value “is not substantially outweighed by the danger of prejudice to the proper administration of justice”. 

 Evidence of “significant probative value” is evidence that has more than “trifling relevance” and is capable in the context of all of the evidence of leaving the jury with a reasonable doubt.

R. v. Darrach, [2000] S.C.R. 443, at paras. 39-41. 

Evidence that a sexual relationship between the accused and the complainant continued after the date of the alleged offence

Evidence that a sexual relationship between the accused and the complainant continued after the date of the alleged offence has probative value that is more than trifling.

The potential probative value of such evidence can be demonstrated by considering the effect of evidence that the relationship had ended immediately after the alleged assault.  Had the evidence been that the relationship ended, the Crown could argue that the termination of the relationship was consistent with the complainant’s testimony that a sexual assault had occurred.  The same logic applies to defence use of the evidence based on the absence of any change in the relationship, although evidence of absence of any change in the relationship may have less potential probative value than, for instance, evidence that the complainant immediately terminated the relationship after the alleged assault. 

R. v. L.S., 2017 ONCA 685, at paras. 91, 92.



CRIMINAL CODE

Evidence of complainant’s sexual activity

276(1) In proceedings in respect of an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant

(a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or

(b) is less worthy of belief.

Idem

(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.



Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca








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