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How the Recent Changes to the Criminal Code May Affect Your Sexual Assault Trial

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Joseph A. Neuberger

Neuberger & Partners LLP


If you have been charged with sexual assault, it is of the utmost importance that you and your lawyer lay out a coherent defence theory and obtain all necessary evidence to marshal your defence.  This will often include details of the complainant’s sexual history as it relates to your defence and to issues that are relevant in the evidence of the complainant.  In order to prevent complainants from unnecessary humiliation at trial, there are very strict guidelines and procedures on what and how sexual history evidence can be used at trial.  In the past, in order to narrow the scope of this evidence, the Criminal Code dictated that an application was necessary under section 276.  However, with the introduction of recent reforms by the federal government, the definition of “sexual activity” has been expanded to include other evidence, including evidence that is in direct relation to the subject matter offence thus  requiring a motion that can result in further restrictions on what evidence may be relevant and used by your defence lawyer.

Previously, the section of the Criminal Code of Canada which dealt with vetting this type of evidence was  section 276, however, with the introduction of Bill C-51, many parts have been repealed and it is now replaced by section 278.

What was contained in section 276?

Section 276 came into force as a result of some defence lawyers bringing up complainants’ sexual history as a means to discredit their testimony.  The section was meant to combat the twin myths that:

  1. A complainant with prior sexual history was more likely to have consented; and
  2. The complainant is less believable.


Section 276 did not prevent a complainant’s sexual history from being admitted as evidence in a sexual assault trial but it did mean that such evidence had to meet very strict criteria and be vetted by a judge to see if it met that criteria before it could be admitted.  It had to be relevant to an issue at trial and not go to the twin myths.

Before a judge will admit such evidence into court, he or she will weigh it against a set of criteria including that it must be directly relevant to an issue or issues at trial; and that it will not unduly cause the court or jury to become prejudiced, sympathetic or hostile. The judge will also consider how the evidence might affect the complainant’s dignity and right of privacy as well as any other factors they deem relevant.

What changed in section 278?

Since the introduction of Bill C-51, it is still necessary for a defence lawyer to make an Application to the court before evidence involving a complainant’s sexual history may be brought forward as part of the defence case and cross-examination of the complainant.  The evidence still must meet the same criteria as that originally set out in the former Section 276.

What has changed however, is that the definition of sexual activity has been broadened to include all forms of communications, recordings and images including those that are about the subject matter of the offence.  This is the major expansion whereas before there was no restriction on communications, recordings or images on the exact subject matter of the charge of sexual assault.

How might these changes affect your trial?

Under the old Section 276, an Application hearing to submit evidence could be completed in as little as one day with the judge making a quick decision.

Bill C-51 granted the complainant standing in the proceeding and will also be represented by counsel. This thus includes the right to appear at the hearing and make their own submissions but also for the lawyer for the complainant to cross-examine the accused on his or her Affidavit in support of the motion.  This is a profound shift in disclosure by the defence and granting extensive participation for the complainant that can not only make the process much more complex but also more lengthy and costly to persons accused of sexual related offences.  These amendments have access to justice issues and can serve to bar certain accused from being able to afford to defend themselves.  In addition, it seems that the complainant may now also have a right to appeal a judge’s decision at trial and thus put the sexual assault trial on hold pending the outcome of the appeal.

A number of these new provisions are being challenged on the basis that they are unconstitutional.  There are a few recent decisions, but it will take some time before the Supreme Court of Canada will be in a position to rule on the constitutional validity of these new provisions.

If you have been charged with sexual assault, you must seek legal counsel as quickly as possible. At Neuberger and Partners, we stay apprised of all relevant legislation, and case law.  We are active in challenging new legislation when it impedes the right to a fair trial.  All criminal charges demand a rigorous review of the evidence and each client is entitled to the best defence possible.  When necessary, our criminal lawyers will an application to introduce any and all relevant evidence, including prior sexual history evidence, in order to properly and thoroughly defend out clients.

In order to avail yourself, you need a law firm that has the knowledge and expertise in sex assault cases and is able to draft persuasive applications in a precise manner to advance your defence.  If in need of assistance, contact Neuberger & Partners LLP for a consultant.

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