If you’re facing sexual assault charges, or if you’ve been following recent developments in Canadian Criminal Law, you probably realized that many of the recent criminal cases are sexual assaults cases. You’ve also likely heard about this thing called the “Twin Myths”. What exactly is this concept of Twin Myths?

The Twin Myths is a legal principle that is codified in the Criminal Code of Canada. More specifically, it is found in subsection one of section 276 of the Code. That section stipulates that:

276 (1)

In proceedings in respect of an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant

• (a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or
• (b) is less worthy of belief.
  

Not Admissible At Trial

276(1) is the Twin Myths. The Twin Myths is the legal principle that evidence of a complainant’s previous sexual history is NOT admissible at trial if this evidence is introduced to invite a judge or jury to make the inference that by reason of the sexual nature of the activity, the complainant is more likely to consent to the sexual activity in question or that she is less worthy of belief.

In other words, the general rule in Canadian Criminal Law is that an accused person cannot introduce evidence of the complainant’s previous sexual activity if what he is inviting the judge or jury to infer is that because the complainant has consented to sex in the past, then she most likely consented to the sex in the case before the court; or that because she has had sex in the past, she should not be believed and is thus a less credible witness.

Purpose Of This Rule

The purpose of this rule is, among other things, to protect the reputation and dignity of complainants of sexual assaults and to encourage those complainants to report sexual assaults. This rule was developed in attempt to stop the stigma and myths surrounding complainants in sex assault cases. In other words, an accused person cannot introduce at trial evidence that a complainant had sex with him or with another person on a previous occasion and because of that previous sexual activity she most likely consented to the sex in the present case. This reasoning is prohibited by the law as it is generally considered to be irrelevant to the issues at trial. You cannot therefore, in a criminal trial try to make the argument to a judge or jury that because the complainant had sex with you before or with other men, that she most likely consented to the alleged sexual activity.

The second part of the myth protects the complainant from the stereotype that because the complainant is someone who is sexually active and who has had sex, then she is less worthy of belief. In other words the law prohibits an accused of producing evidence of the previous sexual activity of a complainant in order to show that because she has already had sex, she’s basically a slut and her evidence should not believed.

Exceptions To The Rule

Though the Twin Myths is the rule and generally prohibits the introduction at trial of a complainant’s previous sexual activity, there are exceptions to the rule and they are stated in subsections two and three of section 276. Basically, an accused person can bring an application to introduce into evidence the previous sexual activity of a complainant but only under certain conditions including that the evidence is not being introduced for the purpose of supporting a Twin Myth inference and if that evidence is relevant to an issue at trial. There are other requirements that need to be fulfilled and are stated in section 276, and if those requirements are met, then the previous sexual activity of the complainant may be introduced in a sex assault trial. Note however that in order for this evidence to be introduced, there is a special procedure that must be followed and that procedure includes a written application and, if that application is granted, then the proceeding moves into a voir dire.

Recent Changes

The law on sex assaults has recently changed by adding more conditions and by providing the possibility for a complainant to participate in the proceeding and to retain her own lawyer. Those changes are reflected in the recent amendments to the Code. In addition, the Supreme Court of Canada released this year three important decisions on sexual assaults and on the Twin Myths, the most recent of those decisions was released just today.

Those decisions are the following:

• R. v. Barton, 2019 SCC 33
  
• R. v. Goldfinch, 2019 SCC 38
  
• R. v. R.V., 2019 SCC 41

In all three of these decisions, the Supreme Court emphasized on the importance of protecting the dignity and integrity of complainants in sex assault trials and on the fact that previous sexual history is as a general rule irrelevant and forbidden in a trial.