Section 276: How Prior Sexual History Rules Shape Your Defence

What Section 276 Does

Section 276 of the Criminal Code creates a default rule: evidence that the complainant has engaged in sexual activity, whether with the accused or with anyone else, is not admissible to support an inference that the complainant is more likely to have consented to the sexual activity at issue or is less worthy of belief.

These are the “twin myths” — two lines of stereotypical reasoning that Parliament and the Supreme Court of Canada have rejected as having no probative value and a high risk of prejudice. Section 276 exists to ensure that sexual assault trials focus on what actually happened, not on the complainant’s sexual history.

But section 276 is not an absolute bar. The defence can apply to admit evidence of prior sexual activity if the evidence is being offered for a legitimate purpose — one that does not rely on the twin myths.

The Three-Part Test

To admit evidence of the complainant’s prior sexual activity, the defence must satisfy all three prongs of the test under section 276(2):

1. Relevance. The evidence must be relevant to an issue at trial. It cannot be used solely to support a twin-myth inference. Legitimate purposes include: explaining the source of physical evidence (e.g., DNA, injury), establishing a pattern of conduct directly connected to the allegation, showing bias or motive to fabricate, or providing context that is essential to the accused’s narrative.
2. Significant probative value. The evidence must have probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. The judge weighs the evidence’s potential to illuminate a live issue against the risk that it will distort the trial by inviting impermissible reasoning about the complainant.
3. Interests of justice. The admission of the evidence must be in the interests of justice. The court considers society’s interest in encouraging the reporting of sexual offences, the accused’s right to make a full answer and defence, and the need to remove discriminatory bias from the trial process.

The Written Application Process

Section 276 applications are not raised casually during trial. The Criminal Code imposes a structured process:

Step 1: Written application. The defence must file a written application that sets out detailed particulars of the evidence to be adduced and its relevance to an issue at trial. The application must explain why the evidence does not rely on twin-myth reasoning and why it satisfies the three-part test. This written material is filed with the court and served on the Crown.

Step 2: Voir dire (closed hearing). The application is heard in a voir dire — a hearing conducted in the absence of the jury (if there is one) and typically closed to the public. The complainant has standing to appear and make submissions, either personally or through independent counsel. The defence may call witnesses and present evidence at the voir dire.

Step 3: Ruling. The trial judge decides whether the evidence, or some portion of it, is admissible. The judge must give reasons for the ruling, applying the three-part test. If the evidence is admitted, the judge may impose conditions on how it is used — for example, a limiting instruction to the jury about the purpose for which the evidence can be considered.

When Section 276 Applications Arise

Section 276 applications come up in a range of factual scenarios. Some of the most common:

Prior sexual contact between the accused and the complainant. Where the accused and complainant had a prior sexual relationship, the defence may seek to introduce evidence of that relationship to provide context for the encounter at issue or to support the defence of honest but mistaken belief in consent.

Sexual contact shortly before or after the alleged offence. Evidence that the complainant engaged in sexual activity close in time to the alleged assault may be relevant to explaining physical evidence (e.g., the source of DNA or injuries) or to providing context for the accused’s account.

Motive to fabricate. In some cases, the complainant’s sexual activity with a third party may be relevant to a motive to fabricate the allegation — for example, where the complainant made the allegation after being discovered in a sexual relationship and may have attributed consensual contact with the accused to non-consensual conduct.

Inconsistent statements. If the complainant made prior statements about their sexual history that contradict their testimony at trial, the defence may seek to introduce those statements to challenge credibility.

Why These Applications Matter

Section 276 applications can be the most consequential motions in a sexual assault trial. A successful application gives the defence access to evidence that may undermine the complainant’s account, explain physical evidence that would otherwise be incriminating, or provide the factual foundation for a consent defence. A denied application can foreclose an entire line of defence.

The quality of the written application is critical. A poorly drafted application that fails to articulate a legitimate purpose for the evidence, or that implicitly relies on twin-myth reasoning, will be denied. The application must demonstrate, with specificity, how the evidence connects to a live issue at trial without invoking stereotypical assumptions about the complainant.

Section 278: Third-Party Records

Section 278 is the companion provision to section 276. While section 276 governs evidence of prior sexual activity already known to the defence, section 278 governs access to the complainant’s private records held by third parties — counselling notes, therapy records, medical records, psychiatric records, school records, child welfare records, and similar documents.

The section 278 process involves two stages. First, the defence must convince the judge that the records are “likely relevant” to an issue at trial. If so, the judge orders the records produced to the court (not to the defence) for review. Second, the judge reviews the records and decides what, if anything, should be disclosed to the defence, weighing the accused’s right to a fair trial against the complainant’s privacy interests.

Representative Case Results

Section 276 applications have played a decisive role in several of the firm’s published case outcomes:

• R v S.B. — Client was charged with a sexual assault that occurred at his place of employment. Following a four-day trial by judge alone in Newmarket, which included a section 276 application.
• R v D.C. — Client was a youth charged with sexual assault. The defence brought a section 276 application to admit evidence of sexual contact following the alleged offence.
• R v D.W. — Client was charged with a historic sexual assault involving two complainants in Brampton. Following a finding of collusion between the two complainants, the two trials proceeded separately.

A Defence Specialization

Section 276 and 278 applications require specialized knowledge that goes beyond general criminal defence work. The written application, the closed voir dire, the three-part test, and the complainant’s right to independent counsel create a procedural landscape that demands precision and experience. These motions are often where sexual assault trials are won or lost. RH Criminal Defence regularly brings section 276 and 278 applications across Ontario courthouses — in Toronto, Newmarket, Brampton, and beyond.