Limits on the admission of evidence about the victim’s sexual activity

The Criminal Code protects your privacy if you are the victim in a case of sexual assault or another form of sexual violence (crime of a sexual nature).

During criminal proceedings, the criminal and penal prosecuting attorney (the prosecutor) must disclose the evidence collected by the police to the accused’s lawyer (the defence lawyer). The prosecutor will disclose the evidence to the accused, if the accused has chosen to self-represent.

If the police investigation reveals information about one or more aspects of your sexual activity, the prosecutor will disclose this information to the defence unless it is not relevant.

However, neither the defence lawyer nor the prosecutor will be able to use this evidence in the criminal proceedings without authorization from the judge.

Sexual activity means sex of any kind, whether or not you consented to it. It includes activity before, during and after the offence targeted by the proceedings.

For example, a sexual assault in the past, prostitution, a consensual relationship with the accused before or after the offence, and so on, are all sexual activities.

The notion of sexual activity also covers emails, text messages, chat messages, video recordings and other images with sexual content in which you feature or that are written or produced for sexual purposes.

A judge may allow information about your sexual activity to be produced in evidence at the trial.

The judge will make this decision only after receiving an application from the prosecutor or defence lawyer.

The information about your sexual activity cannot be used to show that you were more likely to have consented to the sexual activity that forms the subject-matter of the charge.

For example: you consented to sexual relations with the accused after the event for which charges were brought. The defence lawyer cannot imply that, as a result, you must have consented to the original incident.

In addition, the information cannot be used to show that you are less worthy of belief.

Last, the information must be relevant to an issue at trial and concern specific instances of sexual activity, and must have significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

After receiving the application, the judge calls a hearing, in the absence of the jury and public. You are not required to attend the hearing.

If you attend, you may present arguments against the admission of the evidence. You may be represented by a lawyer free of charge, regardless of your financial situation.

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The prosecutor is also present at the hearing to present his or her point of view about the admission of the evidence.

In deciding whether or not to admit evidence about your sexual activity, the judge considers

• 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;
• 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 (if a jury has been formed for the trial);
• the potential prejudice to your personal dignity and right of privacy;
• your right to personal security and protection.

If the judge prohibits the use, as evidence, of information about your sexual activity, no person may publish or disseminate

• the contents of the application to the judge to have the information admitted in evidence;
• anything said or produced for the application or during the hearings;
• any decision about the application and the supporting reasons.

If the judge agrees to the admission of the information in evidence, all the elements listed may be published.