Character Evidence of Third Parties

Seaboyer, R v. (1992) (S.C.C.)

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  Facts: Seaboyer accused of sexual assault of a friend visiting his school. He wanted to put forward evidence that she routinely came to the school to engage sexually with him and others, but s.276 (the original “rape shield provision”) didn’t allow it.
  
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  Issue: Does s. 276 violate s. 7 or s. 11(d) of the Charter?
  
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  Decision:
  
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    s.276 found unconstitutional, because:
    
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      The limitation was too narrow
      
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      It may exclude evidence which is relevant to a defence of mistake (concerning consent) and the probative value of which is not substantially outweighed by potential prejudice to the trial process (the price of potentially convicting innocent people outweighs the risk of the jury drawing illegitimate inferences from such evidence)
      

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  Evidence of specific instances of sexual conduct tending to prove that a person other than the accused caused the physical consequences of the rape alleged by prosecution.
  
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  Evidence of sexual conduct tending to prove bias or motive to fabricate on the part of the complainant.
  
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  Evidence of prior sexual conduct known to the accused at time of the act charged, tending to prove that the accused believed that the complainant was consenting to the act charged.
  
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  Evidence of prior sexual conduct which meets requirements for the reception of similar act evidence, bearing in mind that such evidence cannot be used illegitimately merely to show that complainant consented or is unreliable witness.
  
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  Evidence tending to rebut proof introduced by prosecution regarding complainants sexual conduct.
  

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  Evidence cannot be admitted just to show one of the “twin myths”: that previous sexual activity of complainant, or previous activity with accused, makes complainant more likely to have consented this time (s.276(1)(a)) or is less believable (s.276(1)(b))
  

For other purposes (i.e. not to pursue the twin myths), evidence relating to sexual history can be admissible e.g. to show MR not present due to mistaken belief in consent, and judge has discretion whether to allow in evidence s.276(2) but it must:

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  Be relevant to current case (s.276(2)(b)) – this replaces the limit to 3 circumstances found unconstitutional in Seaboyer
  
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  It must have significant probative value (can it help to prove anything), and must not be substantially outweighed by potential prejudice (s.276(2)(c))
  

1. 
   Interests of justice, including the right of the accused to make full answer and defence
   
2. 
   Society’s interest in encouraging the reporting of sexual assault offences
   
3. 
   Whether there is a reasonable prospect that the evidence will assist in arriving at a just determination
   
4. 
   Need to remove from fact-finding any discriminatory belief or bias
   
5. 
   Risk that evidence my unduly raise sentiments of prejudice, sympathy or hostility in the jury
   
6. 
   Potential prejudice to complainant’s personal dignity and right of privacy
   
7. 
   Right to personal security and full protection and benefit of the law
   
8. 
   Any other factor that the judge considers relevant
   

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  s.273.2(b) for the defence of mistaken belief in consent, requires that the accused took reasonable steps to ascertain if consent was being given i.e. objective element added by Parliament
  

Imposes on an accused who is attempting to raise the defence of consent a duty to demonstrate that they took “reasonable” steps – objective due diligence standard

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  Could still be mistake as to consent, but will only allow mistake if reasonable steps were nonetheless taken
  

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  277. In proceedings in respect of an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence of sexual reputation, whether general or specific, is not admissible for the purpose of challenging or supporting the credibility of the complainant
  

Darrach (2000) (SCC)

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  The current s.276 strikes the right balance.
  
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  Leaves the door open just a crack so that sexual evidence can be admitted if absolutely necessary.
  
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  It addresses the myths of women’s sexuality.
  
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  It will be rare that evidence of prior sexual history will be admissible
  

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