The fact that inadmissible evidence is adduced by the accused without objection from the Crown or comment by the trial judge does not render that evidence admissible. Inaction does not transform the improper into the proper.

In the context of a section 276 Criminal Code application, counsel is not permitted to use evidence of a complainant’s other sexual activity as part of the evidentiary basis for a 276 application if that sexual activity evidence was adduced at a criminal proceeding (be it a trial, a bail hearing, or a preliminary inquiry) but was not admissible under section 276. 

If it were otherwise, counsel could potentially ignore section 276 and its associated provisions to their benefit, defeating the purpose of the provisions themselves: the protection of complainants’ privacy, equality, and security interests in sexual offence prosecutions.

In R. v. Kuzmich, 2020 ONCA 359, the complainant, in response to a question put to her by the defence in cross-examination at a preliminary inquiry, stated that she had not had sex with the accused. Such evidence is other sexual activity evidence and is presumptively admissible under section 276 of the Criminal Code.  However, the Crown did not object to the admission of this evidence and the preliminary inquiry judge did not intervene.  

The defence had a video of the complainant engaging in oral sex with the accused. Not surprisingly, at trial the defence sought to adduce evidence of the complainant’s prior sexual activity with the accused in order to contradict her preliminary inquiry statement and thus impugn her credibility.

However, “the defence counsel was not entitled to set up this contradiction in the first place.”

R. v. Kuzmich, 2020 ONCA 359, at para. 58.

Written by Stuart O’Connell (Barrister/Solicitor)