[Stuart O’Connell is a lawyer and head of O’Connell Law Group, a Toronto-based law firm which focuses on defence-side criminal and civil litigation, privacy law, and victim rights.  He also regularly works in association with Donich Law Professional Corporation]

Section 276(1) of the Criminal Code sets out an absolute bar against introducing evidence of the complainant’s prior sexual activity for the purpose of drawing either of two prohibited inferences: that, by reason of the sexual nature of that activity, the complainant is (a) more likely to have consented to the sexual activity that forms the subject-matter of the charge; or (b) less worthy of belief.

Further, where an accused seeks to introduce such evidence of the complainant’s prior sexual activity for some other purpose, that evidence is presumptively inadmissible, under s. 276(2).  Thus, evidence that the accused and the complainant were involved in a sexual relationship will not always be put before the jury.

It may be that in the course of a trial the jury will hear other evidence that (while not constituting evidence of the complainant’s prior sexual activity) results in the jury conjecturing that there was a sexual relationship between the accused and the complainant.  An obvious example of this is when the jury hears that the accused and the complainant are or have been married.

The danger of such evidence is that if the jury speculates that there was a sexual relationship, they may involve themselves in the prohibited reasoning that 276 seeks to protect against. (This danger is likely heightened, in my opinion, when the accused advances a defence of  honest but mistaken belief in consent).  In Canada, jurors are prohibited from disclosing the content of their deliberation. [See section 649, Criminal Code].  If a  jury does engage in such improper reasoning, their doing so would likely never be remedied, as it would likely never be disclosed.

In R. v. Goldfinch, a majority of the Supreme Court of Canada suggested that where a trial judge is concerned that the jury may improperly speculate about the complainant’s past sexual activity with the accused, it may be helpful for the judge to give an instruction specifying that the jury will not hear any evidence about whether the relationship included a sexual aspect.

“The instruction should explain that the details of previous sexual interactions are simply not relevant to the determination of whether the complainant consented to the act in question. No means no, and only yes means yes: even in the context of an established relationship, even part way through a sexual encounter, and even if the act is one the complainant has routinely consented to in the past. Giving such an instruction would both reinforce the principles which guide a proper analysis of consent and mitigate the risk that jurors will rely on their own conceptions of what sexual activity is “typical” in a given relationship.”

R. v. Goldfinch, 2019 SCC 38, at para. 74.