Criminal Code

Marginal note:Admissibility of sexual activity evidence

• 276.1 (1) The prosecutor, the accused and the complainant may jointly apply to the judge, provincial court judge or justice for a determination as to whether any evidence referred to in subsection 276(1) is admissible under subsection 276(2) without holding a hearing under section 276.02.

• Marginal note:Form and content

  (2) The application must be made in writing and signed by the applicants and must set out the detailed particulars of the evidence and

  • (a) the relevance of that evidence to an issue at trial;

  • (b) how the conditions for admissibility referred to in subsection 276(2) are satisfied; and

  • (c) any information the applicants consider necessary to assist the judge, provincial court judge or justice when the judge, provincial court judge or justice takes into account the factors referred to in subsection 276(3).

• Marginal note:Copy to clerk

  (3) A copy of the application must be filed with the clerk of the court at least 60 days before the trial.

• Marginal note:Determination and reasons

  (4) The judge, provincial court judge or justice shall, in the absence of the applicants, and without holding a hearing, consider the application and make a determination no later than 30 days after the day on which the application is made as to whether the evidence, or any part of it, is admissible under subsection 276(2) and shall provide reasons for that determination, and

  • (a) if not all of the evidence is to be admitted, the reasons must state the part of the evidence that is to be admitted;

  • (b) the reasons must state the factors referred to in subsection 276(3) that affected the determination; and

  • (c) if all or any part of the evidence is to be admitted, the reasons must state the manner in which that evidence is expected to be relevant to an issue at trial.

• Marginal note:Power to grant application or hold hearing

  (5) If the judge, provincial court judge or justice is satisfied that the evidence of sexual activity is admissible under subsection 276(2), taking into account the factors set out in subsection 276(3), they shall grant the application. If they are not so satisfied, they shall hold a hearing under section 276.02 to determine whether the evidence is admissible under subsection 276(2).

• Marginal note:Use of evidence

  (6) If evidence of sexual activity is determined to be admissible, the judge, provincial court judge or justice shall direct the applicants as to the uses that they may and may not make of that evidence.

• Marginal note:For greater certainty

  (7) For greater certainty, the complainant has the right to be represented by counsel.