Evidence of Other Sexual Activity: Section 276 Applies Beyond Trials
Section 276 of the Criminal Code and its ancillary provisions create a strict regime for the admission of evidence of a complainant’s other sexual activity, that is, sexual activity that does not form the subject-matter of the criminal charge. The application of section 276 extends beyond trials to other proceedings, such as preliminary inquiries and bail proceedings. R. v. Kuzmich , 2020 ONCA 359, at para. 34; Conversely, see R. v. S. (M.P.) , 2014 BCCA 338, (2014), 338 C.C.C. (3d) 200, where the British Columbia Court of Appeal held that s. 276 has no application at a preliminary inquiry. Relying on T. (W.S.) , Groberman J.A. held, at para. 68, that “[n]othing in the current s. 276 and ancillary provisions compels an interpretation that would apply the exception in s. 276(2) at a preliminary inquiry.” Written by Stuart O’Connell (Barrister/Solicitor)