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In many jurisdictions, the criminal standard of proof is, subject to Blackstone’s ratio, “beyond a reasonable doubt.”

Yet some rules such as s276, Canadian Criminal Code, state, simply and plainly, seemingly by fiat, and without stated rationale or justification, that certain evidence is not to be admissible, seemingly regardless as to whether or not it presents a reasonable doubt as to an accused’s guilt.

But what legal principle is this judicial held that this is reconcilable with the fundamental precept of presuming innocence and burdening the prosecution with making out guilt? In other words, how is it not reasonable to suppose that a complainant’s past conduct can play a role in the reasonable interpretation of their future gestures? And if it is, then how are such rules held not to conflict with fundamental or constitutional rights?

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The Supreme Court of Canada has held unanimously that section 276 does not infringe any Charter rights. See R. v. Darrach, 2000 SCC 46.

Your question makes the same error that the appellant made in Darrach.

32 The accused objects to the exclusionary rule itself in s. 276(1) on the grounds that it is a “blanket exclusion” that prevents him from adducing evidence necessary to make full answer and defence, as guaranteed by ss. 7 and 11(d) of the Charter. He is mistaken in his characterization of the rule. Far from being a “blanket exclusion”, s. 276(1) only prohibits the use of evidence of past sexual activity when it is offered to support two specific, illegitimate inferences. These are known as the “twin myths”, namely that a complainant is more likely to have consented or that she is less worthy of belief “by reason of the sexual nature of [the] activity” she once engaged in.

33 This section gives effect to McLachlin J.’s finding in Seaboyer that the “twin myths” are simply not relevant at trial. They are not probative of consent or credibility and can severely distort the trial process. Section 276(1) also clarifies Seaboyer in several respects. Section 276 applies to all sexual activity, whether with the accused or with someone else.

What Justice McLachlin wrote in Seaboyer was this:

As all counsel on these appeals accepted, the reality in 1991 is that evidence of sexual conduct and reputation in itself cannot be regarded as logically probative of either the complainant's credibility or consent. Although they still may inform the thinking of many, the twin myths which s. 276 sought to eradicate are just that -- myths -- and have no place in a rational and just system of law.

The accused can submit evidence of sexual history evidence only after it is established at a voir dire that the evidence:

  • will not be used to support an inference either that the complainant (a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or (b) is less worthy of belief; and
  • is relevant to an issue at trial; and
  • is of specific instances of sexual activity; and
  • has significant probative value that is not substantially outweighed by the danger of prejudice to the administration of justice.

If sexual history evidence is able to introduce a reasonable doubt, it would not be via the reasoning prohibited by s. 276. The reasoning prohibited by s. 276 would be based on the application of myths or stereotypes about behaviour and therefore any doubts generated by those lines of reasoning would not be reasonable. Sexual history evidence is simply not legally relevant to the two inferences prohibited by s. 276.

For example, sexual history evidence can be introduced in support of a defence of honest but mistaken belief in communicated consent, but "the accused must be able to explain how and why that evidence informed his honest but mistaken belief that she communicated consent to the sexual activity in question at the time it occurred" (R. v. Barton, 2019 SCC 33, para. 93). And

great care must be taken not to slip into impermissible propensity reasoning. The accused cannot rest his defence on the false logic that the complainant’s prior sexual activities, by reason of their sexual nature, made her more likely to have consented to the sexual activity in question, and on this basis he believed she consented. This is the first of the "twin myths", which is prohibited under s. 276(1)(a) of the Code.

(Barton, para. 94).

Last, s. 276 did not simply arise "by fiat" or "without justification." Its current form is a result of back-and-forth of litigation and legislation to come to a form that is constitutionally permissible.

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