Criminal Code (R.S.C., 1985, c. C-46)

Marginal note:Where belief in consent not a defence

273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where

• (a) the accused’s belief arose from

  • (i) the accused’s self-induced intoxication,

  • (ii) the accused’s recklessness or wilful blindness, or

  • (iii) any circumstance referred to in subsection 265(3) or 273.1(2) or (3) in which no consent is obtained;

• (b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting; or

• (c) there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct.

Marginal note:Removal of child from Canada

• 273.3 (1) No person shall do anything for the purpose of removing from Canada a person who is ordinarily resident in Canada and who is

  • (a) under the age of 16 years, with the intention that an act be committed outside Canada that if it were committed in Canada would be an offence against section 151 or 152 or subsection 160(3) or 173(2) in respect of that person;

  • (b) 16 years of age or more but under the age of eighteen years, with the intention that an act be committed outside Canada that if it were committed in Canada would be an offence against section 153 in respect of that person;

  • (c) under the age of 18 years, with the intention that an act be committed outside Canada that if it were committed in Canada would be an offence against section 155, subsection 160(2) or section 170, 171, 267, 268, 269, 271, 272, 273 or 320.102 in respect of that person; or

  • (d) under the age of 18 years, with the intention that an act be committed outside Canada that, if it were committed in Canada, would be an offence against section 293.1 in respect of that person or under the age of 16 years, with the intention that an act be committed outside Canada that, if it were committed in Canada, would be an offence against section 293.2 in respect of that person.

• Marginal note:Punishment

  (2) Every person who contravenes this section is guilty of

  • (a) an indictable offence and is liable to imprisonment for a term not exceeding five years; or

  • (b) an offence punishable on summary conviction.

Marginal note:Corroboration not required

274 If an accused is charged with an offence under section 151, 152, 153, 153.1, 155, 160, 170, 171, 172, 173, 271, 272, 273, 286.1, 286.2 or 286.3, no corroboration is required for a conviction and the judge shall not instruct the jury that it is unsafe to find the accused guilty in the absence of corroboration.

Marginal note:Rules respecting recent complaint abrogated

275 The rules relating to evidence of recent complaint are hereby abrogated with respect to offences under sections 151, 152, 153, 153.1 and 155, subsections 160(2) and (3) and sections 170, 171, 172, 173, 271, 272 and 273.

Marginal note:Evidence of complainant’s sexual activity

• 276 (1) In proceedings in respect of an offence under section 151, 152, 153, 153.1 or 155, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, 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.

• Marginal note:Conditions for admissibility

  (2) In proceedings in respect of an offence referred to in subsection (1), evidence shall not be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94, that the evidence

  • (a) is not being adduced for the purpose of supporting an inference described in subsection (1);

  • (b) is relevant to an issue at trial; and

  • (c) is of specific instances of sexual activity; and

  • (d) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

• Marginal note:Factors that judge must consider

  (3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account

  • (a) the interests of justice, including the right of the accused to make a full answer and defence;

  • (b) society’s interest in encouraging the reporting of sexual assault offences;

  • (c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;

  • (d) the need to remove from the fact-finding process any discriminatory belief or bias;

  • (e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;

  • (f) the potential prejudice to the complainant’s personal dignity and right of privacy;

  • (g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and

  • (h) any other factor that the judge, provincial court judge or justice considers relevant.

• Marginal note:Interpretation

  (4) For the purpose of this section, sexual activity includes any communication made for a sexual purpose or whose content is of a sexual nature.

276.1 [Repealed, 2018, c. 29, s. 22]

276.2 [Repealed, 2018, c. 29, s. 22]

276.3 [Repealed, 2018, c. 29, s. 22]

276.4 [Repealed, 2018, c. 29, s. 22]

276.5 [Repealed, 2018, c. 29, s. 22]

Marginal note:Reputation evidence

277 In proceedings in respect of an offence under section 151, 152, 153, 153.1 or 155, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence of sexual reputation, whether general or specific, is not admissible for the purpose of challenging or supporting the credibility of the complainant.

Marginal note:Spouse may be charged

278 A husband or wife may be charged with an offence under section 271, 272 or 273 in respect of his or her spouse, whether or not the spouses were living together at the time the activity that forms the subject-matter of the charge occurred.

Marginal note:Definition of record

278.1 For the purposes of sections 278.2 to 278.92, record means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence.

Marginal note:Production of record to accused

• 278.2 (1) Except in accordance with sections 278.3 to 278.91, no record relating to a complainant or a witness shall be produced to an accused in any proceedings in respect of any of the following offences or in any proceedings in respect of two or more offences at least one of which is any of the following offences:

  • (a) an offence under section 151, 152, 153, 153.1, 155, 160, 170, 171, 172, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3; or

  • (b) any offence under this Act, as it read from time to time before the day on which this paragraph comes into force, if the conduct alleged would be an offence referred to in paragraph (a) if it occurred on or after that day.

• Marginal note:Application of provisions

  (2) Section 278.1, this section and sections 278.3 to 278.91 apply where a record is in the possession or control of any person, including the prosecutor in the proceedings, unless, in the case of a record in the possession or control of the prosecutor, the complainant or witness to whom the record relates has expressly waived the application of those sections.

• Marginal note:Duty of prosecutor to give notice

  (3) In the case of a record in respect of which this section applies that is in the possession or control of the prosecutor, the prosecutor shall notify the accused that the record is in the prosecutor’s possession but, in doing so, the prosecutor shall not disclose the record’s contents.

Marginal note:Application for production

• 278.3 (1) An accused who seeks production of a record referred to in subsection 278.2(1) must make an application to the judge before whom the accused is to be, or is being, tried.

• Marginal note:No application in other proceedings

  (2) For greater certainty, an application under subsection (1) may not be made to a judge or justice presiding at any other proceedings, including a preliminary inquiry.

• Marginal note:Form and content of application

  (3) An application must be made in writing and set out

  • (a) particulars identifying the record that the accused seeks to have produced and the name of the person who has possession or control of the record; and

  • (b) the grounds on which the accused relies to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify.

• Marginal note:Insufficient grounds

  (4) Any one or more of the following assertions by the accused are not sufficient on their own to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify:

  • (a) that the record exists;

  • (b) that the record relates to medical or psychiatric treatment, therapy or counselling that the complainant or witness has received or is receiving;

  • (c) that the record relates to the incident that is the subject-matter of the proceedings;

  • (d) that the record may disclose a prior inconsistent statement of the complainant or witness;

  • (e) that the record may relate to the credibility of the complainant or witness;

  • (f) that the record may relate to the reliability of the testimony of the complainant or witness merely because the complainant or witness has received or is receiving psychiatric treatment, therapy or counselling;

  • (g) that the record may reveal allegations of sexual abuse of the complainant by a person other than the accused;

  • (h) that the record relates to the sexual activity of the complainant with any person, including the accused;

  • (i) that the record relates to the presence or absence of a recent complaint;

  • (j) that the record relates to the complainant’s sexual reputation; or

  • (k) that the record was made close in time to a complaint or to the activity that forms the subject-matter of the charge against the accused.

• Marginal note:Service of application and subpoena

  (5) The accused shall serve the application on the prosecutor, on the person who has possession or control of the record, on the complainant or witness, as the case may be, and on any other person to whom, to the knowledge of the accused, the record relates, at least 60 days before the hearing referred to in subsection 278.4(1) or any shorter interval that the judge may allow in the interests of justice. The accused shall also serve a subpoena issued under Part XXII in Form 16.1 on the person who has possession or control of the record at the same time as the application is served.

• Marginal note:Service on other persons

  (6) The judge may at any time order that the application be served on any person to whom the judge considers the record may relate.

Marginal note:Hearing in camera

• 278.4 (1) The judge shall hold a hearing in camera to determine whether to order the person who has possession or control of the record to produce it to the court for review by the judge.

• Marginal note:Persons who may appear at hearing

  (2) The person who has possession or control of the record, the complainant or witness, as the case may be, and any other person to whom the record relates may appear and make submissions at the hearing, but they are not compellable as witnesses at the hearing.

• Marginal note:Right to counsel

  (2.1) The judge shall, as soon as feasible, inform any person referred to in subsection (2) who participates in the hearing of their right to be represented by counsel.

• Marginal note:Costs

  (3) No order for costs may be made against a person referred to in subsection (2) in respect of their participation in the hearing.