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ual component in a physical sense are excluded under s. 278.92(2), raising
the question of whether they would have been captured under s. 276 had
Bill C-51 not been passed. Conversely, what does get excluded through the
new provisions (aside from sexual activity of a physical nature) tends to be
evidence that is clearly irrelevant and would have been excluded under
longstanding common law rules of evidence.
Does the first-party regime make trials less daunting for survivors of sexual
assault? Will it do much to encourage survivors to report crimes? Concerns
arise from the early cases indirectly. The cases suggest that
complainants are being represented at hearings under s. 278.92, which may
be empowering for some and may render trials less daunting or unpredictable.
But for other complainants, participating in a hearing under s.
278.92 could be re-traumatizing. The hearing might involve exploring a private
document in some detail, in a way that cannot but provoke embarrassment
and the resurfacing of painful emotions.
We are not suggesting that the first-party regime should be rescinded for
this reason or that without it trials would be less daunting for complainants
across the board. Rather, we suggest the regime brings about new problems
and challenges in the process of trying to address older ones. As the case
law evolves, the full effects of the Ghomeshi amendments will become
clearer. In keeping with other facets of criminal justice and sexual assault,
the first-party regime remains a work-in-progress.
1. Bill C-51, An Act to amend the Criminal Code and
the Department of Justice Act and to make consequential
amendments to another Act, 42nd Parl, 1st
Sess, Canada, 2018 (assented to 13 December
2018), SC 2018, c 29.
2. Criminal Code, RSC 1985, c C-46, s 276(1).
3. R v Goldfinch, 2019 SCC 38 at para 46.
4. See Criminal Code, supra note 2, ss 278.1–278.91.
5. Ibid, s 278.5(2).
6. R v Osolin, 1993 4 SCR 595 Osolin.
7. Ibid at para 37, Cory J (“cross examination for the
purposes of showing consent or impugning credibility
which relies upon ‘rape myths’ will always be
more prejudicial than probative”). See also Canada,
Legal and Social Affairs Division, Parliamentary
Information and Research Service, “Bill C-51: An Act
to amend the Criminal Code and the Department of
Justice Act and to make consequential amendments
to another Act” (Legislative Summary), No 42-1-
C51-E (Ottawa: Library of Parliament, 1 October
2018) at 23, online: <lop.parl.ca/staticfiles/Public
8. Some courts did support this reading. See e.g. R v
Drakes, 1998 CanLII 14968 at para 16 (BCCA)
Drakes (“communicating for the purposes of prostitution
constitutes ‘sexual activity’ on the part of the
communicator” because “it is an activity which
takes place for a sexual purpose. ‘Sexual activity’ is
not limited to overtly sexual acts”). See also R v I(J),
2015 ONCJ 61 at para 20 I(J).
9. Osolin, supra note 6 at 671. See also R v Shearing,
2002 SCC 58 (holding that the “complainant’s privacy
interest did not substantially outweigh the
accused’s right to test the complainant’s memory by
cross-examination on the absence of entries in the
diary recording abuse”).
10. R v Ghomeshi, 2016 ONCJ 155.
11. Ibid at para 117.
12. Ibid at para 141.
13. Many of these changes were recommended by the
Standing Senate Committee on Legal and Constitutional
Affairs in its Statutory Review on the Provisions
and Operation of the Act to amend the Criminal
Code (production of records in sexual offence proceedings)
(December 2012) at 20, online: <sencanada.
14. I(J), supra note 8; Drakes, supra note 8.
15. The requirement to submit a s 276 application
regardless of one’s intended purpose for past sexual
activity evidence is set out in s 276(2).