Setting up a s. 276 Application: Don’t Build it on a Rotten Core
The fact that inadmissible evidence is adduced by the accused without objection from the Crown or comment by the trial judge does not render that evidence admissible. Inaction does not transform the improper into the proper. In the context of a section 276 Criminal Code application, counsel is not permitted to use evidence of a complainant’s other sexual activity as part of the evidentiary basis for a 276 application if that sexual activity evidence was adduced at a criminal proceeding (be it a trial, a bail hearing, or a preliminary inquiry) but was not admissible under section 276. If it were otherwise, counsel could potentially ignore section 276 and its associated provisions to their benefit, defeating the purpose of the provisions themselves: the protection of complainants’ privacy, equality, and security interests in sexual offence prosecutions. In R. v. Kuzmich , 2020 ONCA 359, the complainant, in response to a question put to her by the defence in ...