Rape Shield Provisions: “Specific Instances of Sexual Activity”
In order to be admissible under section 276(2) of the Criminal Code, the evidence must meet three preconditions, the first of which is that the evidence refer to “specific instances of sexual activity”.
This requirement is designed to ensure that the nature of
the proposed evidence is properly identified so that the criteria for
admissibility in s. 276(2) can be accurately applied. The provision also
serves to ensure that the Crown has full notice of the evidence to be adduced
and that the complainant’s legitimate interests can be properly safeguarded.
R. v. B. (B.),
[2009] O.J. No. 862 (Ont. Sup. Ct.), at para. 16.
In an inquiry under section 276, the court is not called upon to
make findings of credibility or to determine the accuracy or reliability of the
evidence put forward by the accused.
See
R. v. N.K., 2017 ONSC 3482, at para.
16 (obiter).
Degree of Specificity will depend on the Nature of the Sexual
Activity
The phrase “specific instances” modifies the phrase “sexual
activity”. The degree of specificity required to meet s. 276(2) (a)
depends to a large extent on the nature of the sexual activity that the accused
seeks to adduce: see R. v. Aziga,
2008 CanLII 60336 (ON SC), at paras. 21-22 (S.C.).
If an accused wants to lead evidence of a specific incident
of sexual activity, the details must identify that specific incident. If,
however, the accused seeks to adduce evidence of a general nature, describing
the relationship between himself and the complainant, the specificity
requirement speaks to factors relevant to identifying the relationship and its
nature and not to details of specific sexual encounters. Insofar as
relationship evidence is concerned, the required specifics would include
reference to the parties to the relationship, the relevant time period, and the
nature of the relationship.
R. v. L.S.,
2017 ONCA 685, at para. 83.
Evidence may meet the test
of being evidence of specific instances of sexual activity without
precise dates and times.
R.
v. N.K., 2017 ONSC 3482, at para. 19.
Stuart
O’Connell, O’Connell Law Group, leadersinlaw.ca
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