Sexual Offences Charges Are Different
By Hans 'John' Kalina | Originally published October 3, 2025 | Reviewed and updated October 7, 2026
Sexual-offence prosecutions have special rules for evidence of sexual activity and private records. Obtaining a record and using it at trial are different steps. A sound defence requires early identification of the applicable procedure while respecting the complainant's privacy and the accused's right to a fair trial.
Important update to the statutory framework
The Criminal Code was amended in July 2026. The former sections 278.92–278.94 no longer provide the current accused-held records procedure. This article now follows the revised provisions, including section 276, the record definitions and section 278.29. Counsel should check the applicable law and any transitional questions in the particular proceeding.
Evidence of sexual activity
Section 276 prohibits the use of sexual activity to suggest that a complainant was more likely to consent or less worthy of belief because of that activity. The prohibition applies whether the activity involved the accused or another person. It is not a blanket ban on every fact connected with a relationship.
Evidence of other sexual activity must be specific, relevant and directed to a legally permissible purpose. The current provision sets different probative-value and prejudice tests for defence and prosecution evidence. A defence application generally proceeds under section 276.01, with a written application and affidavit, judicial screening and, where appropriate, an admissibility hearing. Do not assume either party can introduce the evidence without the required ruling.
Records held by a third party
A therapeutic record is separately defined and subject to stricter requirements than an ordinary protected record. Section 278.1 defines both categories. A private message is not automatically a protected record simply because it is a message; its content and context matter.
For protected records held by someone other than the prosecutor or accused, sections 278.11–278.19 govern production. The process involves an application, possible production to the judge for review and a further decision about disclosure to the accused. Speculation that a record might undermine credibility is not enough. Therapeutic records have additional reasonable-doubt and alternative-source requirements. Production does not itself authorize use at trial.
Records held by the prosecution
Section 278.2 and sections 278.21–278.28 provide a separate production framework for protected records in the prosecutor's possession. The Code permits disclosure of specified material, including communications between the accused and complainant, but other protected records may require an application. Ordinary prosecution disclosure and protected-record production should not be treated as identical procedures.
Records already held by the accused
Possession of a record does not make it admissible. Under section 278.29, an ordinary protected record must be relevant and have significant probative value not substantially outweighed by prejudice to the proper administration of justice. A therapeutic record faces an additional test concerning likely reasonable doubt and the absence of other evidence capable of raising that doubt. Section 276 may apply as well.
The application and hearing procedures are now found in sections 278.3 and 278.31. The Code also provides a joint-application route for eligible non-therapeutic records. Applications require preparation well before trial; current notice provisions include 60-day periods, subject to judicial shortening where the interests of justice permit. The complainant may participate with counsel in the relevant hearing.
Earlier decisions must be read in context
In R. v. J.J., 2022 SCC 28, the majority upheld the former accused-held records screening regime. That decision is important historical context, not a substitute for the amended statutory text. The Crown continues to bear the burden of proving guilt beyond a reasonable doubt.
Prepare early and preserve evidence
Give counsel the complete, unaltered messages and documents lawfully in your possession, including their context.
Do not access someone else's private accounts or delete, edit or circulate potential evidence.
Identify whether a production application, an admissibility application or both are required.
Follow release conditions and publication bans. Do not contact the complainant about the case contrary to an order.
Related guidance
For advice about your circumstances, contact our office. General information only, not legal advice.