This article is a modified version of a commentary originally published by Éditions Yvon Blais in May 2025 (EYB2025REP3843).
The legislature recently introduced a new section into the Civil Code of Québec that creates a presumption of irrelevance regarding facts that support inappropriate inferences based on myths and stereotypes about sexual and domestic violence. The recent decision in A.C. v. Rozon provides, for the first time, a detailed assessment of the interpretation and scope of this presumption.
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In this high-profile case, the plaintiffs are suing the defendant, alleging sexual assault and harassment during the 1980s and 1990s. A few days before the start of the trial, Article 2858.1 of the Civil Code of Québec came into force. It provides as follows:
2858.1. Where a matter contains allegations of sexual violence or spousal violence, the following facts are presumed to be irrelevant:
(1) any fact relating to the reputation of the person who is the alleged victim of the violence;
(2) any fact related to the sexual behaviour of that person, other than a fact pertaining to the proceeding, and that is invoked to attack the person’s credibility;
(3) the fact that the person did not ask that the behaviour cease;
(4) the fact that the person did not file a complaint or exercise a recourse regarding the violence;
(5) any fact in connection with the delay in reporting the alleged violence; and
(6) the fact that the person maintained relations with the alleged perpetrator of the violence.
Any debate relating to the admissibility in evidence of any such fact is an issue of law and is to be held in camera, despite section 23 of the Charter of Human Rights and Freedoms (chapter C-12).
After the nine plaintiffs had had the opportunity to testify, objections based on Article 2858.1 C.C.Q. were raised during one cross-examination.
Relying on the Act respecting the implementation of the reform of the Civil Code, the defendant argued that the law in force prior to the introduction of the Civil Code should apply, since most of the facts giving rise to the proceedings in this case took place before the C.C.Q. came into force in 1994.
The court rejected the defendant’s argument, confirming that Article 2858.1 C.C.Q. is a rule of evidence of immediate application intended to organize the production of evidence and the debate on its admissibility, and not the consequences on the merits of the facts enumerated therein, as would a presumption of law.
The court was also of the opinion that it should exercise its discretion to intervene even if no party objected on the basis of this Article. Indeed, allowing questions that are presumed to be irrelevant and prejudicial to the rights of alleged victims without prior debate as to their admissibility would likely bring the administration of justice into disrepute.
Finally, the court considered the procedure to be followed in order to rebut the presumption of irrelevance set out in Article 2858.1 C.C.Q., which was not specified by the legislature. Taking its cue from the Criminal Code, the court determined that a request for an in camera hearing must be made. The party concerned must demonstrate that the evidence is relevant and not based on myths and stereotypes. The court may review any interlocutory decision should new evidence come to light.
COMMENTARY
Lawmakers and the courts have recognized the insidious and negative influence of myths and biases in cases of domestic and sexual violence. The rule regarding the relevance of evidence makes it possible to prevent this. The decision under review specifies that, in the absence of objection, the court may intervene ex officio under Article 2858.1 C.C.Q.
Since the decision is being appealed, it will be interesting to see how the Court of Appeal interprets the new Article 2858.1 C.C.Q. It will also be interesting to follow the debate on its constitutionality, which will shortly be decided by the Superior Court in connection with this same case.
Finally, it should be noted that Article 2858.1 C.C.Q. has attracted some criticism. For instance, some stakeholders have pointed out that the use of the term “alleged victim” is inappropriate because of its minimizing nature, which could lead to secondary victimization. These same stakeholders consider that subparagraph 6 of the first paragraph should be broadened to include victims of domestic violence who resumed a relationship with the alleged perpetrator of the violence. This addition would be justified in view of the great difficulty a victim may face in leaving a relationship in which domination and control are present.