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 or 155, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273 or any other offence under this Act, or any other Act of Parliament, that is of a sexual nature or that is committed for a sexual purpose, 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:Conditions for admissibility

  (2) In proceedings in respect of an offence referred to in subsection (1), evidence 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, shall not be adduced unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 276.01, 276.02, 276.06, 276.1, 278.3 and 278.35, as the case may be, that the evidence is not being adduced for the purpose of supporting an inference described in subsection (1), is relevant to an issue at trial, is of specific instances of sexual activity and

  • (a) if sought to be adduced by or on behalf of the accused, has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice; or

  • (b) if sought to be adduced by or on behalf of the prosecutor, has probative value that is not 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.

• Marginal note:Interpretation

  (4) For the purpose of this section, sexual activity includes any communication made for a sexual purpose or whose content is of a sexual nature.

• Marginal note:For greater certainty

  (5) For the purposes of this section, and for greater certainty, evidence of sexual activity includes evidence of sexual inactivity.