Created three new offences: S. 271, S. 272 and S. 273
These abolished a number of stereotypes and sexual myths: no corroboration required (S. 274), abrogated rules relating to the doctrine of recent complaint (S. 275), sexual reputation is not allowed to challenge credibility (S. 277), rape shield law (S. 276) S. 276 was challenged in Seaboyer and Gayme as being too narrow and exceptions were changed S. 265(4) introduced mistaken belief in consent
Challenged in Osolin, found it was simply a codification of the common law mistake of fact. 1992 – Bill C-49
This was Parliaments response to Seaboyer and Gayme.
(1) Replaced old S. 276 with new provisions which dealt with the admissibility of evidence of a complainants prior sexual activity (a) S. 276(1): Can’t use prior sexual history to say more likely to have consented or less worthy of being believed (b) S. 276(2): Can admit history if it is relevant to an issue and has significant probative value. (c) S. 276(3): Judge must consider 8 factors
(2) Added S. 273.1 and 273.2 by defining sexual offences and by removing the defence of honest by mistaken belief in consent unless the accused can show reasonable steps in the circumstances known to the accused at the time to ascertain that the complainant was consenting. These laws were challenged in Darrach, but upheld and Section 273.1 was discussed in Ewanchuk 1996 Amendments – Bill C-46
In response to O’Connor in which the court said that personal records of the accused could be subpoenaed subject to judicial inquiry. S. 278.1-278.9 challenged and upheld in Mills Personal Records: 2-step procedure modeled O'Connor dissent, Summarized in Darrach, (1) The defence must first apply in writing under s. 278.3 with grounds to establish that the record is "likely relevant". On a voir dire, the judge may order the holder of the record to produce it if the defence can demonstrate that the record is "likely relevant" and "is necessary in the interests of justice". (2) The judge then reviews the material and decides whether or not to produce it to the accused. The Code contains a list of factors to help the judge determine the relevance of the record Past Sexual History:
(i) Replaced the old s. 276 of the Criminal Code with new provisions (s. 276 to s. 276.5) which are designed to deal comprehensively with the admission of evidence of a complainant's prior sexual activity; and Codified the approach of the majority in Seaboyer:
Section 276(1) categorically prohibits evidence of a complainant's sexual history if it is being used to support either of the twin myths: (i) more likely to have consented, or (ii) less worthy of belief. (b) Section 276(2) provides that before admitting evidence of the complainant's prior sexual history, the judge must determine [according to the procedures in s. 276.1-276.2] that the evidence is (i) relevant to an issue at trial and (ii) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. (c) Section 276(3) provides that in determining whether such evidence is admissible the judge must take into account at least eight listed factors (which factors attempt to balance the accused's, the complainant's and society's interests). (ii) Added s. 273.1 and 273.2 which amend the law by defining consent in regard to sexual offences and by removing the defence of honest but mistaken belief in consent unless the accused took "reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting."
1. Was there Sexual Assault?
S. 265 defines assault and S. 265(2) says that sexual assaults are included in this. SCC defines sexual assault as (a) an assault (S. 265) (b) in circumstances of a sexual nature whereby the sexual integrity of the victim is violated. (Chase) Sexual nature is assessed objectively = (a) the body part touched,...
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