A rape shield law is a law that prohibits admitting certain evidence during trials for sexual offences, particularly evidence about a complainant’s (accuser) prior sexual behaviour. Governments have created rape shield laws in response to the use of twin myth reasoning in trials for sexual offences.

Twin myth reasoning is where a lawyer tries to argue that a complainant’s prior sexual behaviour with the accused or another person has:

  1. Made him or her more likely to consent to the sexual activity in question or,
  2. Made the complainant less credible or believable.

In essence, rape shield laws prohibit any suggestions that if the complainant had engaged in sexual activity before, they would be likely to do it again.

Canada’s rape shield laws are codified in sections 276 and 278 of the Criminal Code. These laws only affect proceedings in sex crimes (such as sexual assault, sexual interference, and sexual exploitation). Generally, they do not apply to proceedings in other crimes like robbery, theft, fraud, and murder, except for if some connection can be established to an enumerated sex crime. 276 & 278 can be summarized broadly as the following:

  • Section 276 prohibits introducing any evidence that triggers the twin myths.
  • Section 278 prohibits the admission of any “record” that contains the complainant’s private personal information without permission from the Court.
    • As of 2018, section 278 also encompasses records that the accused already has in their possession, such as texts and videos.

The earliest iteration of section 276 was struck down by the Supreme Court of Canada in R v Seaboyer. In that case, the Court determined that the blanket prohibition on any evidence related to prior sexual behaviour was overbroad and unfair to the accused’s right to a full answer and defence. Responding to this, Parliament made changes to section 276 which created a procedure through which information that falls into the category of triggering the twin myths could be admitted into evidence.

In R v Mills, the Supreme Court of Canada considered whether section 278 was constitutional. In Mills, the issue was whether the accused could obtain medical records relating to the complainant that were possessed by the complainant’s psychiatrists. There the Court held that section 278 did not prevent the accused from making a full answer and defence.

In R v JJ, the question was whether the new, post-2018 provisions on “records” already in possession of the accused were constitutional. Again, the Court held that these provisions did not violate the accused’s right to a fair trial.

What’s included as prior sexual history?

Section 276(4) states that “sexual activity includes any communication made for a sexual purpose or whose content is of a sexual nature”. However, prior sexual activity can also include:

  • Previous instances where the complainant engaged in sexual activity with the accused
  • Instances where the complainant engaged in sexual activity with people other than the accused.
  • Sexual conversations (in any medium) between the accused and the complainant
  • The complainant’s profession (such as if the complainant is or was a sex worker or adult film actor)
  • Previous instances of where the complainant made a statement accusing somebody of sexual assault but later recanted it.

What is the definition of a “record” under section 278?

A record under section 278 is any record with the complainant’s personal information where there is a reasonable expectation of privacy. Parliament included examples such as medical records, employment files, education files, and personal diaries. Records also include private communications between the complainant and the accused such as text messages. However, explicitly excluded in the scope of section 278 are records made by investigators (the police) and the prosecution.

One grey area related to third-party records and the reasonable expectation of privacy is allowing public social media posts into evidence. While public social media posts don’t ordinarily create a reasonable expectation of privacy and may be outside the scope of section 278 (since the creator intended for them to be public), in JJ, the Supreme Court states (at paragraph 69) that:

[R]ecords created or obtained in the public domain, where they could be accessed by multiple people or the general public (e.g., social media or news media), are less likely to attract a reasonable expectation of privacy. That said, the fact that certain information is already available somewhere in the public sphere does not preclude further harm to the privacy interest through additional dissemination that would increase access to the information. In other words, there are different degrees of publicity, and in some cases a complainant may have a reasonable interest in preventing information from being disseminated in court proceedings, even if it was not perfectly private before.

How does a judge determine whether to admit a “record” or line of questioning about a complainant’s sexual history?

The procedure for admitting evidence regarding a complainant’s previous sexual history (section 276) is different than the procedure to produce “records” related to the complainant’s privacy interest (section 278).

In determining whether to allow evidence of prior sexual activity (section 276), the trial judge must ensure that the evidence:

  1. is not used by the defence to invoke the twin myths,
  2. is relevant to an issue at trial,
  3. relates to specific instances of sexual activity (that is, it doesn’t make sweeping generalizations about the complainant), and
  4. has a significant probative value that isn’t substantially outweighed by its prejudicial effect.
    1. This element of the test asks whether the usefulness of the evidence brought by a 276 application won’t be overshadowed by potential harms of introducing it such as potentially misleading a jury or perpetuating sexual myths and stereotypes.

To admit third-party records under section 278, the judge must ensure that the following requirements are met:

  1. the application was made in accordance with the Criminal Code.
  2. the accused has established that the record is likely relevant to an issue at trial or to the competence of a witness to testify; and
  3. the production of the record is necessary in the interests of justice.

When making this determination, the judge will also consider the following factors, found in section 278.5(2):

  • the extent to which the record is necessary for the accused to make a full answer and defence;
  • the probative value of the record;
  • the nature and extent of the reasonable expectation of privacy with respect to the record;
  • whether production of the record is based on a discriminatory belief or bias;
  • the potential prejudice to the personal dignity and right to privacy of any person to whom the record relates;
  • society’s interest in encouraging the reporting of sexual offences;
  • society’s interest in encouraging the obtaining of treatment by complainants of sexual offences; and
  • the effect of the determination on the integrity of the trial process.

When applying to allow records that are already in the accused’s hands, the judge must ensure that:

  • the evidence does not trigger the twin myths per section 276, and
  • the evidence has significant probative value that is not outweighed by prejudice to the administration of justice.

To help the judge decide whether records in the accused’s hands should be allowed, section 278.92(3) outlines factors to consider:

  • the interests of justice, including the right of the accused to make a full answer and defence;
  • society’s interest in encouraging the reporting of sexual assault offences;
  • society’s interest in encouraging the obtaining of treatment by complainants of sexual offences;
  • whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;
  • the need to remove from the fact-finding process any discriminatory belief or bias;
  • the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;
  • the potential prejudice to the complainant’s personal dignity and right of privacy;
  • the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and
  • any other factor that the judge, provincial court judge or justice considers relevant.

How can we help?

At Lakin Afolabi Law, we are experts in defending sexual offence charges. It’s our bread and butter and we have been successfully defending charges of sexual assault and other sexual offences for over a decade. One of the most important things that we can do for you is to help your side of the story be heard. Section 276 and 278 applications are some of the main tools in our arsenal in helping defend you. If you or a loved one is facing a sexual offence charge, call us today.