In order to be admissible under section 276(2) of the Criminal Code, the evidence must meet three preconditions, the first of which is that the evidence refer to “specific instances of sexual activity”. 

This requirement is designed to ensure that the nature of the proposed evidence is properly identified so that the criteria for admissibility in s. 276(2) can be accurately applied.  The provision also serves to ensure that the Crown has full notice of the evidence to be adduced and that the complainant’s legitimate interests can be properly safeguarded.

R. v. B. (B.), [2009] O.J. No. 862 (Ont. Sup. Ct.), at para. 16.

In an inquiry under section 276, the court is not called upon to make findings of credibility or to determine the accuracy or reliability of the evidence put forward by the accused. 

See R. v. N.K., 2017 ONSC 3482, at para. 16 (obiter).

Degree of Specificity will depend on the Nature of the Sexual Activity

The phrase “specific instances” modifies the phrase “sexual activity”.  The degree of specificity required to meet s. 276(2) (a) depends to a large extent on the nature of the sexual activity that the accused seeks to adduce:  see R. v. Aziga, 2008 CanLII 60336 (ON SC), at paras. 21-22 (S.C.). 

If an accused wants to lead evidence of a specific incident of sexual activity, the details must identify that specific incident.  If, however, the accused seeks to adduce evidence of a general nature, describing the relationship between himself and the complainant, the specificity requirement speaks to factors relevant to identifying the relationship and its nature and not to details of specific sexual encounters.  Insofar as relationship evidence is concerned, the required specifics would include reference to the parties to the relationship, the relevant time period, and the nature of the relationship. 

R. v. L.S., 2017 ONCA 685, at para. 83.

Evidence may meet the test of being evidence of specific instances of sexual activity without precise dates and times.

R. v. N.K., 2017 ONSC 3482, at para. 19.
Stuart O’Connell, O’Connell Law Group, leadersinlaw.ca