Criminal Code

Marginal note: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 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.

• Marginal note: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.

• Marginal note:Factors that judge must consider

  (3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account

  • (a) the interests of justice, including the right of the accused to make a full answer and defence;

  • (b) society’s interest in encouraging the reporting of sexual assault offences;

  • (c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;

  • (d) the need to remove from the fact-finding process any discriminatory belief or bias;

  • (e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;

  • (f) the potential prejudice to the complainant’s personal dignity and right of privacy;

  • (g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and

  • (h) any other factor that the judge, provincial court judge or justice considers relevant.