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Céline Dostaler
Preparing for a Section 276 Hearing: What Accused Persons Need to Know
If you’re facing a sexual assault charge in Ontario, your defence may rely on introducing text messages, social media exchanges, or other evidence that includes sexual content involving the complainant. But before that evidence can be used in court, you must go through a Section 276 hearing—a special legal process designed to protect the complainant’s privacy while ensuring your right to a fair trial.
Section 276 of the Criminal Code of Canada governs the admissibility of evidence relating to the complainant’s past sexual activity. This blog explains what a Section 276 hearing is, how it works, and how you can prepare with the help of a criminal defence lawyer.
What Is Section 276 of the Criminal Code?
Section 276 prevents the defence from using a complainant’s sexual history to:
- Suggest that they are less credible,
- Imply they are more likely to have consented to the alleged sexual activity.
This law is part of Canada’s rape shield legislation, designed to avoid reinforcing myths and stereotypes about sexual assault victims.
However, the law does not ban all sexual history evidence. Instead, it requires a pretrial application to determine if the proposed evidence is:
- Directly relevant to an issue at trial (such as consent or mistaken belief in consent),
- Not being used to attack the complainant’s character,
- Necessary for the accused to make a full answer and defence.
When Is a Section 276 Hearing Required?
A Section 276 hearing is triggered when the defence wants to introduce evidence that involves:
- The complainant’s past sexual activity with people other than the accused,
- Sexual communications between the accused and complainant (such as flirty texts or intimate messages),
- Videos, photos, or other material of a sexual nature.
If you have evidence like text messages or conversations that you believe support your defence, your lawyer must apply to the court in advance.
How a Section 276 Hearing Works
Step 1: Filing a Written Application
Your defence lawyer will file a formal 276 application, which must include:
- A description of the evidence you want to introduce,
- The specific issues it relates to (e.g., consent, credibility, timing),
- An explanation of how it’s relevant and not based on stereotypes.
Step 2: Judicial Review in Chambers
The judge will review the application in private (in chambers) and decide if there is an air of reality to its relevance.
If so, a formal 276 hearing is scheduled.
Step 3: The Section 276 Hearing
At the hearing:
- The complainant has a right to participate, often with their own lawyer,
- The judge will hear arguments from both sides,
- The court will assess whether admitting the evidence serves the interests of justice.
The judge will consider:
- The probative value (how helpful the evidence is),
- The prejudicial effect (whether it invades privacy or reinforces stereotypes),
- The accused’s right to a fair trial.
If the judge allows it, the evidence can be introduced at trial—sometimes with restrictions (e.g., redacted content or limits on questioning).
Why This Matters for Your Defence
Section 276 evidence can be powerful in challenging the Crown’s case, especially when:
- The messages show enthusiastic or ongoing consent,
- There are inconsistencies between what the complainant told police and what they wrote to you,
- The complainant initiated contact after the alleged assault,
- The communications demonstrate fabrication or manipulation.
But none of that evidence can be used unless the application is properly prepared and approved by the judge. That’s why working with a criminal defence lawyer who is experienced in Section 276 litigation is essential.
What You Can Do to Prepare
Gather and Preserve Evidence
Don’t delete messages, emails, or social media interactions. Back up your phone or accounts and provide your lawyer with full access to any potentially relevant material.
Be Transparent with Your Lawyer
Tell your lawyer about any sexual communications or history with the complainant. They can’t defend you effectively without knowing what might surface at trial.
Understand the Legal Threshold
Your lawyer will assess whether the evidence is relevant, necessary, and admissible under the law. Some messages may not meet the legal test—even if they seem important to you.
Stay Respectful and Discreet
Never contact the complainant about the application or trial. Violating bail conditions or communicating about the evidence can seriously damage your defence.
Common Misunderstandings About Section 276
My past relationship gives me the right to talk about our history at trial.
Not without court approval. Even if you had a long-term or intimate relationship, prior sexual activity is not automatically admissible.
If she texted me after, it proves I’m innocent.
It may help—but only if it’s relevant and admitted properly under a 276 application. The court will evaluate its context and content.
The complainant can’t stop me from presenting my side.
The law balances your right to a defence with their right to privacy. Section 276 ensures that balance is struck through a legal process—not assumptions.
Conclusion: Don’t Risk Your Defence—Prepare the Right Way
Section 276 hearings are complex, technical, and critically important. They can determine whether key evidence that supports your defence is seen by the judge or jury. If mishandled, you may lose the opportunity to introduce material that could result in an acquittal.
If you’re facing a sexual assault charge and believe you have messages or history that support your innocence, speak with an experienced criminal defence lawyer immediately. Céline Dostaler has defended numerous clients in Ottawa courts through 276 hearings and knows how to prepare a compelling, legally sound application that protects your rights and fights for your future.
Facing a sexual assault charge? Don’t go to trial unprepared. Contact Céline Dostaler Today
