Criminal Code (R.S.C., 1985, c. C-46)

Act current to 2015-07-09 and last amended on 2015-06-23. Previous Versions

Marginal note:Evidence of complainant’s sexual activity
  •  (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.

  • R.S., 1985, c. C-46, s. 276;
  • R.S., 1985, c. 19 (3rd Supp.), s. 12;
  • 1992, c. 38, s. 2;
  • 2002, c. 13, s. 13.
Marginal note:Application for hearing
  •  (1) Application may be made to the judge, provincial court judge or justice by or on behalf of the accused for a hearing under section 276.2 to determine whether evidence is admissible under subsection 276(2).

  • Marginal note:Form and content of application

    (2) An application referred to in subsection (1) must be made in writing and set out

    • (a) detailed particulars of the evidence that the accused seeks to adduce, and

    • (b) the relevance of that evidence to an issue at trial,

    and a copy of the application must be given to the prosecutor and to the clerk of the court.

  • Marginal note:Jury and public excluded

    (3) The judge, provincial court judge or justice shall consider the application with the jury and the public excluded.

  • Marginal note:Judge may decide to hold hearing

    (4) Where the judge, provincial court judge or justice is satisfied

    • (a) that the application was made in accordance with subsection (2),

    • (b) that a copy of the application was given to the prosecutor and to the clerk of the court at least seven days previously, or such shorter interval as the judge, provincial court judge or justice may allow where the interests of justice so require, and

    • (c) that the evidence sought to be adduced is capable of being admissible under subsection 276(2),

    the judge, provincial court judge or justice shall grant the application and hold a hearing under section 276.2 to determine whether the evidence is admissible under subsection 276(2).

  • 1992, c. 38, s. 2.