Understanding the Twin Myths and s.276 of the Criminal Code: A Calgary Criminal Lawyer Guide
Facing a sexual assault charge in Alberta is a life-altering experience. The Canadian legal system has established complex rules to balance the rights of the accused with the privacy of complainants. Central to these rules is s. 276 of the Criminal Code, often referred to as part of Canada’s “rape shield” laws. These laws were designed to dismantle the twin myths —harmful stereotypes that historically prevented fair outcomes in sexual offence trials. If you are navigating the justice system, it is vital to understand how these evidentiary rules affect your ability to present a full answer and defence. In this guide, a Calgary criminal lawyer breaks down the nuances of section 276, the definition of “other sexual history,” and what lines of questioning remain permitted in the courtroom.
What are the “Twin Myths” in Canadian Law?
Before diving into the specifics of the Criminal Code, we must understand the “twin myths” that s. 276 was created to eradicate. For decades, the legal systems in many Commonwealth countries relied on two deeply flawed assumptions about complainants in sexual assault cases:
- The Myth of Consent: The belief that if a person has consensually engaged in sexual activity in the past (either with the accused or others), they are more likely to have consented to the sexual activity in the current charge.
- The Myth of Credibility: The belief that a person with a sexual history is “unchaste” and, therefore, less worthy of belief or more likely to lie under oath.
The Supreme Court of Canada, most notably in the landmark case of R. v. Seaboyer, recognized that these inferences are not only discriminatory but legally irrelevant. They do not help the court find the truth; they only serve to prejudice the jury and discourage victims from coming forward. As a result, any evidence intended to support these myths is strictly prohibited.
POINT 1: What Does s. 276 of the Criminal Code Preclude?
Section 276 functions as an exclusionary rule. It starts with the presumption that evidence of a complainant’s sexual history is inadmissible. Specifically, s. 276 of the Criminal Code precludes any evidence or questioning regarding a complainant’s “sexual activity”—whether with the accused or a third party—if that evidence is being used to support one of the twin myths.
The Categorical Ban
The law is clear: you cannot argue that someone is “the type of person” to consent because of their past. However, the prohibition goes further than just the twin myths. Even if the evidence is not being used for a twin-myth purpose, it is still excluded unless it meets a rigorous three-part test:
- It is of specific instances of sexual activity.
- It is relevant to an issue at trial (such as a specific defence).
- It has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
A Calgary criminal lawyer must file a formal “Section 276 Application” to even argue for the inclusion of such evidence. This is not a “blanket” ban, but the threshold for “significant probative value” is intentionally high to protect the complainant’s privacy and the integrity of the trial.
POINT 2: What is “Other Sexual History” of the Complainant?
A common point of confusion for those facing charges is what actually constitutes “sexual activity” or “other sexual history” under the law. Many assume it only refers to physical acts of intercourse. However, Canadian courts and recent legislative updates have broadened this definition significantly.
Expanding the Definition
Under s. 276(4), “sexual activity” includes:
- Physical Acts: Any sexual contact, including kissing, touching, or previous consensual encounters with the accused.
- Communications: Any communication made for a sexual purpose or whose content is of a sexual nature. This includes text messages (“sexting”), emails, or social media DMs.
- Images and Recordings: Nude photos or videos, even if they were shared voluntarily in the past.
- Sexual Inactivity: Interestingly, recent Supreme Court of Canada rulings (such as R. v. Kinamore, 2025) have clarified that evidence of a complainant’s “sexual inactivity” or “virginity” is also governed by these rules. The Crown cannot use a complainant’s lack of sexual history to imply they are “more likely to be telling the truth” without a proper hearing.
In short, “other sexual history” covers almost any information that touches upon the complainant’s sexual life outside of the specific incident currently being prosecuted.
POINT 3: Does s. 276 Prohibit Asking Any Question About Sexual History?
No. While the law is restrictive, it is not a total “gag order.” The Canadian Charter of Rights and Freedoms guarantees an accused person the right to a fair trial and the right to make a “full answer and defence.”
If a Calgary criminal lawyer can demonstrate that the evidence is crucial to the case and does not rely on the twin myths, it may be admitted.
Examples of When Evidence Might Be Admissible:
- Alternative Source of Physical Evidence: If the Crown points to physical injury or the presence of DNA as proof of the assault, the defence may be permitted to show that a different, recent sexual encounter caused those specific markers.
- Prior Inconsistent Statements: If a complainant makes a statement about their sexual history in their testimony that contradicts a documented record (like a text message), the defence may apply to use that record to challenge their reliability—not because they are “sexual,” but because they provided conflicting accounts of the same event.
- Establishing a Pattern (Motive to Fabricate): In very rare cases, if the sexual history provides a specific motive for the complainant to lie about the current charge, it might meet the threshold.
However, none of these are “automatic.” Every single question must be vetted through a two-stage application process before the jury ever hears it.
POINT 4: What Line of Questioning is Permitted Under s. 276?
Permitted lines of questioning are those that focus on specific facts rather than general character. The court looks for a “logical nexus” between the evidence and a legitimate defence, such as “honest but mistaken belief in consent.”
The Permitted Framework
To be permitted, the questioning usually must follow these parameters:
- No “Fishing Expeditions”: You cannot ask open-ended questions about a complainant’s lifestyle or past partners in hopes of finding something useful.
- Focus on the Incident: Questioning is always permitted regarding the subject matter of the charge itself. Section 276 only applies to “other” sexual activity.
- Non-Sexual Features: The court may allow evidence of a sexual encounter if the non-sexual aspects are what matter. For example, if a complainant and accused had a specific “code word” for consent established in previous encounters, that history may be relevant to the accused’s belief in consent during the incident in question.
The Application Process (The Voir Dire)
If you wish to ask these questions, your Calgary criminal lawyer must:
- File a Written Application: This must detail the specific evidence and why it is relevant.
- The Stage One Hearing: The judge decides if the evidence is capable of being admitted.
- The Stage Two Hearing (Voir Dire): A private hearing where the judge hears the evidence (and potentially the complainant’s testimony) without the jury present to make a final ruling.
POINT 5: How Hoare Claxton Can Help With Your Case
The rules surrounding s. 276 of the Criminal Code and the twin myths are among the most technically demanding areas of criminal law. A mistake in a Section 276 application can lead to vital evidence being excluded, or worse, an unfair trial that results in a conviction.
At Hoare Claxton, our team specializes in defending complex sexual offence allegations in Calgary and across Alberta. We understand that these cases often hinge on private communications and personal histories that the law now protects under a “presumption of inadmissibility.”
Our approach includes:
- Rigorous Evidence Review: We meticulously analyze digital forensics, including text messages and social media, to identify records that are essential to your defence.
- Strategic Applications: We draft comprehensive s. 276 and s. 278.92 applications to ensure your side of the story is heard while respecting the legal framework.
- Protecting Your Charter Rights: We ensure that the “rape shield” laws do not overreach and deprive you of your right to a fair trial.
If you charged with a sexual offence, you need a defence team that understands the local Calgary courts and the national legal precedents.
Conclusion
The intersection of privacy and the right to a fair trial is a delicate balance. Understanding s. 276 of the Criminal Code is the first step in recognizing that the “twin myths” no longer have a place in our courtrooms, but legitimate evidence still does. Navigating these applications requires a deep understanding of the law and a strategic mind. Choosing the right Calgary criminal lawyer is critical.
If you are facing a criminal record or are currently under investigation, do not leave your future to chance. The legal landscape for sexual offences in Calgary is constantly evolving, and having an experienced advocate by your side is essential.
If you have a criminal record, contact Hoare Claxton in Calgary for a free consultation at (587) 355-8889 or via our contact form.
