Criminal Code (R.S.C., 1985, c. C-46)

Marginal note:Instruction to jury — use of evidence

276.04 If evidence is admitted at trial on the basis of a determination made under subsection 276.02(4), the judge shall instruct the jury as to the uses that the jury may and may not make of that evidence.

Marginal note:Appeal

276.05 For the purposes of sections 675 and 676, a determination made under subsection 276.02(4) is deemed to be a question of law.

Procedure for Prosecutor

Marginal note:Application

• 276.06 (1) Application may be made to the judge, provincial court judge or justice by the prosecutor to determine whether evidence is admissible under subsection 276(2).

• Marginal note:Form and content

  (2) The application must be made in writing and must set out detailed particulars of the evidence that the prosecutor seeks to adduce and the relevance of that evidence to an issue at trial.

• Marginal note:Clarification

  (3) The application need not be supported by any affidavit or oral testimony of the complainant or of any other person with knowledge of the complainant’s sexual history, any transcript from any preliminary inquiry or any sworn police statement.

• Marginal note:Copy of the application

  (4) A copy of the application must be given to the accused and filed with the clerk of the court at least 60 days before the hearing or within any shorter interval that the judge, provincial court judge or justice may allow in the interests of justice.

• Marginal note:Jury and public excluded

  (5) The jury and the public shall be excluded from the hearing.

• Marginal note:Complainant not compellable

  (6) The complainant is not a compellable witness at the hearing.

• Marginal note:Determination and reasons

  (7) At the conclusion of the hearing, the judge, provincial court judge or justice shall determine 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:Record of reasons

  (8) The reasons provided under subsection (7) must be entered in the record of the proceedings or, if the proceedings are not recorded, must be provided in writing.

Marginal note:Publication prohibited

• 276.07 (1) A person shall not publish in any document, or broadcast or transmit in any way, any of the following:

  • (a) the contents of an application made under subsection 276.06(1);

  • (b) any evidence taken, the information given or the representations made at the consideration of an application made under subsection 276.06(1) or at a hearing under section 276.06;

  • (c) the determination made and the reasons provided under subsection 276.06(7), unless that determination is that evidence is admissible or the judge, provincial court judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the determination and the reasons may be published, broadcast or transmitted.

• Marginal note:Exception

  (1.1) Subsection (1) does not apply if the disclosure of any information referred to in paragraphs (1)(a) to (c) is

  • (a) made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community;

  • (b) made by the complainant or any witness and about that complainant or witness and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by this section; or

  • (c) made by the complainant or any witness when the purpose of the disclosure is not one of making the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the complainant or the witness.

• Marginal note:Offence

  (2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.

Marginal note:Instruction to jury — use of evidence

276.08 If evidence is admitted at trial on the basis of a determination made under subsection 276.06(7), the judge shall instruct the jury as to the uses that the jury may and may not make of that evidence.

Marginal note:Appeal

276.09 For the purposes of sections 675 and 676, a determination made under subsection 276.06(7) is deemed to be a question of law.

Joint Application

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.

Marginal note:Publication prohibited

• 276.11 (1) A person shall not publish in any document, or broadcast or transmit in any way, any of the following:

  • (a) the contents of an application made under subsection 276.1(1);

  • (b) any evidence taken, the information given or the representations made at the consideration of an application made under subsection 276.1(1);

  • (c) the determination made and the reasons provided under section 276.1, unless that determination is that evidence is admissible or the judge, provincial court judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the determination and the reasons may be published, broadcast or transmitted.

• Marginal note:Exception

  (1.1) Subsection (1) does not apply if the disclosure of any information referred to in paragraphs (1)(a) to (c) is

  • (a) made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community;

  • (b) made by the complainant or any witness and about that complainant or witness and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by this section; or

  • (c) made by the complainant or any witness when the purpose of the disclosure is not one of making the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the complainant or the witness.

• Marginal note:Offence

  (2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.

Marginal note:Instruction to jury — use of evidence

276.12 If evidence is admitted at trial on the basis of a determination made under subsection 276.1(4), the judge shall instruct the jury as to the uses that the jury may and may not make of that evidence.

Marginal note:Appeal

276.13 For the purposes of sections 675 and 676, a determination made under subsection 276.1(4) or (5) is deemed to be a question of law.

276.2 [Repealed, 2018, c. 29, s. 22]

276.3 [Repealed, 2018, c. 29, s. 22]

276.4 [Repealed, 2018, c. 29, s. 22]

276.5 [Repealed, 2018, c. 29, s. 22]

Reputation Evidence

Marginal note:Reputation evidence

277 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, evidence of sexual reputation, whether general or specific, is not admissible for the purpose of challenging or supporting the credibility of the complainant.

Spouse May Be Charged

Marginal note:Spouse may be charged

278 A husband or wife may be charged with an offence under section 271, 272 or 273 in respect of his or her spouse, whether or not the spouses were living together at the time the activity that forms the subject-matter of the charge occurred.

Production and Admissibility of Records and Therapeutic Records

Definitions

Marginal note:Definitions

278.1 The following definitions apply in sections 278.11 to 278.36.

record

record means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes medical, education, employment, child welfare, adoption and social services records, personal journals and diaries, and any record containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence. (dossier)

therapeutic record

therapeutic record means any form of record, regardless of its contents, that was produced in the course of psychiatric treatment or any therapy or counselling provided by a health care professional who is entitled under the laws of a province or of a foreign state to provide the treatment, therapy or counselling. (dossier thérapeutique)

Production to Accused of Records and Therapeutic Records in the Possession of Third Party

Marginal note:Records and therapeutic records possessed by third party

• 278.11 (1) Except in accordance with sections 278.12 to 278.19, no record or therapeutic record relating to a complainant or a witness that is in the possession or control of a third party shall be produced to an accused in any proceedings in respect of any of the following offences or in any proceedings in respect of two or more offences at least one of which is any of the following offences:

  • (a) an offence under section 151, 152, 153, 153.1, 155, 160, 170, 171, 172, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 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;

  • (b) any offence under this Act, as it read from time to time before the day on which this paragraph comes into force, if the conduct alleged would be an offence referred to in paragraph (a) if it occurred on or after that day.

• Marginal note:Definition of third party

  (2) In subsection (1), third party means a person other than the prosecutor or the accused.

Marginal note:Application for production

• 278.12 (1) An accused who seeks production of a record or therapeutic record referred to in section 278.11 must make an application for its production to the judge before whom the accused is to be, or is being, tried.

• Marginal note:No application in other proceedings

  (2) For greater certainty, the application referred to in subsection (1) must not be made to a judge, provincial court judge or justice presiding at any other proceedings, including a preliminary inquiry.

• Marginal note:Form and content

  (3) The application must be made in writing and must set out

  • (a) particulars identifying the record or the therapeutic record that the accused seeks to have produced and the name of the person who has possession or control of it;

  • (b) in the case of a record, the grounds on which the accused relies to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify; and

  • (c) in the case of a therapeutic record, the grounds on which the accused relies to establish that the therapeutic record contains evidence that could raise a reasonable doubt as to the accused’s guilt.

• Marginal note:Insufficient grounds

  (4) Any one or more of the following assertions by the accused are not sufficient on their own to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify or that the therapeutic record contains evidence that could raise a reasonable doubt as to the accused’s guilt:

  • (a) that the record or therapeutic record exists;

  • (b) that the record or therapeutic record relates to medical or psychiatric treatment, therapy or counselling that the complainant or witness has received or is receiving;

  • (c) that the record or therapeutic record relates to the incident that is the subject matter of the proceedings;

  • (d) that the record or therapeutic record may disclose a prior inconsistent statement of the complainant or witness;

  • (e) that the record or therapeutic record may relate to the credibility of the complainant or witness;

  • (f) that the record or therapeutic record may relate to the reliability of the testimony of the complainant or witness merely because the complainant or witness has received or is receiving psychiatric treatment, therapy or counselling;

  • (g) that the record or therapeutic record may reveal allegations of sexual abuse of the complainant by a person other than the accused;

  • (h) that the record or therapeutic record relates to the sexual activity of the complainant with any person, including the accused;

  • (i) that the record or therapeutic record relates to the presence or absence of a recent complaint;

  • (j) that the record or therapeutic record relates to the complainant’s sexual reputation;

  • (k) that the record or therapeutic record was made close in time to a complaint or to the activity that forms the subject matter of the charge against the accused.

• Marginal note:Service of application and subpoena

  (5) The accused shall serve the application on the prosecutor, on the person who has possession or control of the record or therapeutic record, on the complainant or witness, as the case may be, and on any other person to whom, to the knowledge of the accused, the record or therapeutic record relates, at least 60 days before the hearing referred to in subsection 278.13(1) or within any shorter interval that the judge may allow in the interests of justice. The accused shall also serve a subpoena issued under Part XXII in Form 16.1 on the person who has possession or control of the record or therapeutic record at the same time as the application is served.

• Marginal note:Service on other persons

  (6) The judge may at any time order that the application be served on any person to whom the judge considers the record or therapeutic record may relate.

• Marginal note:Service on complainant

  (7) The service requirement on the accused in subsection (5) is not fulfilled if the accused personally serves the application or a subpoena on the complainant.