Evidence of Other Sexual Activity (ss. 276; 276.4)

11.31 Evidence of Other Sexual Activity (ss. 276; 276.4)

(Last revised May 2019)

[1] You have heard evidence that (NOC) (describe briefly nature of sexual activity) with (specify name of other party) on (specify date, or otherwise identify occasion).

[2] The law restricts the purposes for which evidence of a person’s prior sexual conduct may be used. You may use this evidence only to help you (specify limited purpose for which the evidence was ruled admissible on the s. 276 application).

[3] You may not use this evidence for any other purpose. Specifically, you must not use this evidence to infer that, because of the sexual nature of what happened, (NOC) is more likely to have consented to the sexual activity with which (NOA) is charged or that (NOC) is less worthy of belief. These inferences are based on myths about sexuality that have no place in our law.

[1] “The s. 276 regime applies to any proceeding in which an offence listed in s. 276(1) has some connection to the offence charged, even if no listed offence was particularized in the charging document.” See R. v. Barton, 2019 SCC 33, at para 76.

[2] This instruction is mandatory under Code, s. 276.4. When consent is not an issue (e.g., when the complainant is under the age of sixteen, see s. 150.1(1)), omit the words “is more likely to have consented to the sexual activity that forms the subject matter of the charge or to infer that s/he.”