Sexual History and Private Records Rules in Sexual Assault Cases

The short answer

In a sexual assault case, the defence cannot simply use evidence of the complainant's other sexual activity or their private records. It must apply to the judge first, in writing, usually at least 60 days ahead, and the judge decides whether the evidence can be used. These rules are strict and technical. Missing a step can mean that important evidence is kept out or that the trial is delayed, so they need attention from the very start of the case.

Why these rules exist

These rules are often called rape shield laws. Section 276(1) bans two lines of reasoning. The first is that the complainant was more likely to have consented because of their sexual history. The second is that the complainant is less believable because of it. Evidence offered for either purpose is never allowed, and the rules also protect the complainant's privacy and dignity. These rules often matter in cases that raise the mistaken belief in consent defence, because the evidence an accused wants to rely on may involve past communications with the complainant.

When sexual activity evidence can be used

Evidence of other sexual activity, including activity with the accused, can be used only if the judge finds that it meets every part of the test in s. 276(2):

• It is not being used for either banned line of reasoning.
• It is relevant to an issue at trial.
• It is about specific instances of sexual activity.
• It has significant value that is not substantially outweighed by the risk of prejudice.

Sexual activity includes sexual communications. As a result, some text messages between you and the complainant may need an application before they can be used.

Private records: the 2026 rules

A record is any personal information for which a person has a reasonable expectation of privacy. Examples include counselling or medical files, diaries and some private messages.

Since July 18, 2026, a record that the accused already has cannot be used at trial unless the judge is satisfied that it meets the s. 278.29 test:

• If it involves sexual activity, it must meet the s. 276 test.
• It must be relevant to an issue at trial and have significant value that is not substantially outweighed by prejudice.

For a therapeutic record, such as counselling notes, the test is stricter. The record must be likely to raise a reasonable doubt, and no other evidence can be capable of doing so.

Records held by someone else, such as a counsellor or a hospital, follow a separate process for having them produced to the court.

How the application works

1. Written application: The defence files an application with an affidavit explaining the evidence and why it matters.
2. Notice: A copy goes to the Crown and is filed with the court at least 60 days before the application is considered, although the judge can allow less time in the interests of justice (ss. 276.01 and 278.3).
3. First review in private: The judge looks at the application without the public or a jury present.
4. Hearing: If the evidence could be admissible, the judge orders a hearing, and the complainant receives a copy of the application, delivered by someone other than the accused.

The 60-day notice means these issues must be identified early, often months before the trial date.

The complainant's role

The complainant has the right to take part in the hearing and to be represented by a lawyer. The complainant cannot be forced to testify at the hearing. The judge must consider the complainant's privacy and dignity when deciding whether the evidence can be used. The complainant's identity is also protected by a publication ban, which usually applies throughout the case.

Which messages may need an application

Messages between you and the complainant often fall into three groups. Messages about plans, logistics or the timeline may not need an application. Messages with sexual content usually do. Messages that the complainant sent privately to other people may be records. Sorting the messages into these groups early helps your lawyer prepare the right applications on time.

Effects on delay

Because these applications take time, they can affect the trial schedule. Under Bill C-16, courts dealing with delay under s. 11(b) of the Charter must now consider remedies other than a stay of proceedings. That makes early preparation even more important.

What happens after you are charged

1. Release: Most people are released with a condition not to contact the complainant.
2. Disclosure: The Crown provides the complainant's statement, messages and other evidence.
3. Review of messages and records: Your lawyer sorts the material into what can be used freely and what needs an application.
4. Applications: Any applications are filed at least 60 days before they are heard.
5. Trial: The trial proceeds with the evidence the judge has allowed.

Records held by others

Sometimes the defence wants a record that someone else holds, such as counselling notes or hospital files. The defence must apply to the judge for the record to be produced. The judge first decides whether to review the record privately. Only after that review does the judge decide whether any part should be given to the defence. The complainant and the record holder can take part in these steps.

Why early review matters

These applications take time to prepare. The 60-day notice period adds more time. If messages or records are found late, the trial may be delayed. In some cases, the evidence may be kept out. Reviewing the disclosure early avoids these problems.

How we can help

We review the disclosure early, identify messages or records that may need an application, and prepare it on time. Call (647) 223-1980 for a free, confidential consultation.

Frequently asked questions