Sections 276 of the Criminal Code of Canada has been dubbed “rape shield law”. Essentially, it affords protections to complainants, with respect to adducing their prior sexual history as evidence in criminal proceedings. The idea is to protect alleged victims of sexual assault, while still preserving the rights of the accused.
Under the new terms of Bill C-51, these laws will be expanded to include “communications of a sexual nature or communications for a sexual purpose” between the defendant and the complainant, either before or after the alleged assault. This would include text messages, emails and video recordings.
What this essentially means is that the defendants will now have to apply through a pre-trial hearing to use these communications at trial.
More importantly, complainants now have the right to legal representation at a section 276 hearing.
Further, private records applications can be brought under section 278.1 of the Criminal Code of Canada. These seek to adduce records such as medical records, psychiatric records, and counselling records.
Now, all private records relating to a complainant that are in the possession or control of the accused are subject to an application – not just those held by third parties. These “private records” relating to the complainant (which may include text messages and emails) are presumptively inadmissible subject to an evidentiary hearing, which must be brought at least 60 days before trial.
Moreover, counsel will be required to provide “detailed particulars” of the evidence that the accused seeks to adduce, and the relevance of that evidence to an issue at trial, as part of the 278 application. The complainant will also have access to this information as he or she will have standing at a 278.1 proceeding.
Ottawa, Ontario Criminal Defence
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