Criminal Law Study Guide
Sexual Assault
1983 Amendments
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
1983 Amendments
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