Rape Shield Provisions: Evidence that the Sexual Relationship Continued Past the Date of the Alleged Assault


Section 276(2) of the Criminal Code provides that evidence that a complainant engaged in sexual activity with the accused or anyone else, other than the sexual activity alleged in the charge (other sexual activity), is inadmissible at the instance of the accused, regardless of the purpose for which it is tendered, unless the accused meets the three criteria set down in s. 276(2).  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)).

Relevant to an Issue at Trial
Evidence that the relationship between the complainant and the accused, including the sexual component of the relationship, carried on as it had before the alleged assault may be relevant to whether the assault occurred, where the defence takes the position that the parties carried on as if nothing had happened because nothing had in fact happened.

R. v. L.S., 2017 ONCA 685

Evidence does not have to establish or refute a fact in issue to be relevant; it need only, as a matter of common sense and human experience, have some tendency to make the existence or non-existence of that material fact more or less likely.  There is a big difference between evidence that is relevant and evidence that is determinative:  see R. v. A. (No. 2), [2001] 2 W.L.R. 1546, at para. 31 (H.C.).  Evidence that the relationship continued as before is far from determinative of whether the assault occurred, but it may be relevant.

R. v. L.S., 2017 ONCA 685, at para. 89.

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

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