Section 276 of the Criminal Code and its ancillary provisions create a strict regime for the admission of evidence of a complainant’s other sexual activity, that is, sexual activity that does not form the subject-matter of the criminal charge. 

The application of section 276 extends beyond trials to other proceedings, such as preliminary inquiries and bail proceedings.

R. v. Kuzmich, 2020 ONCA 359, at para. 34; 

Conversely, see R. v. S. (M.P.), 2014 BCCA 338, (2014), 338 C.C.C. (3d) 200, where the British Columbia Court of Appeal held that s. 276 has no application at a preliminary inquiry. Relying on T. (W.S.), Groberman J.A. held, at para. 68, that “[n]othing in the current s. 276 and ancillary provisions compels an interpretation that would apply the exception in s. 276(2) at a preliminary inquiry.”

Written by Stuart O’Connell (Barrister/Solicitor)