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Criminal - Evidence of Sexual Activity [CCC 276] (5). R. v. Kinamore
In R. v. Kinamore (SCC, 2025) the Supreme Court of Canada allowed a criminal appeal, here from a sexual assault conviction.
The court considers the admissibility of history of sexual activity [under CCC 276], here from both the defence and Crown perspectives:A. Principles Governing the Admissibility of Sexual History Evidence
[21] Sexual history evidence is subject to specific rules that govern its admissibility. Those rules are found in statute when it comes to defence-led evidence, while the admissibility of Crown-led evidence is largely regulated by common law rules. The relationship between these rules has led to some confusion, and this appeal provides an opportunity to clarify that, subject only to one necessary modification, the substantive admissibility requirements in both cases are the same.
(1) Defence-Led Sexual History Evidence
[22] The common law historically permitted an accused to adduce evidence of a complainant’s sexual history as a form of character evidence. Character evidence refers to “proof that is presented in order to establish the personality, psychological state, attitude, or general capacity of an individual to engage in particular behaviour” (D. M. Paciocco, P. Paciocco and L. Stuesser, The Law of Evidence (8th ed. 2020), at p. 63). This evidence can be used to support an inference about how likely it is that an individual engaged in an alleged behaviour or to assess an individual’s credibility (ibid.; see also R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at para. 39; R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, at pp. 685-86).
[23] In criminal proceedings, one way in which the common law regulates the use of character evidence is through the “centuries-old” rule that Crown-led evidence of the accused’s bad character is presumptively inadmissible (R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544, at para. 73; see also R. v. T.J.F., 2024 SCC 38, at para. 76; M. Vauclair, T. Desjardins and P. Lachance, Traité général de preuve et de procédure pénales 2024 (31st ed. 2024), at p. 1085). This exclusionary rule stems from a recognition that this evidence carries a high risk of reasoning prejudice and moral prejudice. Reasoning prejudice refers to the risk that the evidence will distract the trier of fact from deciding the issue in a reasoned way, including by causing confusion or attracting disproportionate attention. Moral prejudice refers to the risk that the evidence will be used to draw the prohibited “general propensity” inference that the accused is the kind of “bad person” likely to commit the offence in question (Hart, at para. 74; R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 100; see also Paciocco, Paciocco and Stuesser, at p. 70).
[24] The bad character evidence rule does not extend to ordinary witnesses in criminal proceedings because only the accused is being judged at trial and therefore risks being wrongfully convicted (see R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at para. 32; R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129, at p. 139). As a result, the common law previously permitted the accused to use the complainant’s sexual history as character evidence, inviting the trier of fact to infer that, because the complainant was a sexually active or “unchaste” woman, (1) she had a propensity to consent and therefore was more likely to have consented to the sexual activity that formed the subject matter of the charge; and (2) she was less worthy of belief (H. C. Stewart, Sexual Offences in Canadian Law (loose-leaf), at § 7:12; J. Desrosiers and G. Beausoleil-Allard, L’agression sexuelle en droit canadien (2nd ed. 2017), at p. 192). These are now commonly referred to as the “twin myths”.
[25] In recognition of the fact that this reasoning evoked discriminatory myths and stereotypes about sexual assault complainants, Parliament amended the Criminal Code in 1982 to prohibit the accused in certain sexual offence proceedings from adducing evidence of a complainant’s sexual history, subject to three limited exceptions (An Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, S.C. 1980-81-82-83, c. 125, s. 19).
[26] However, in Seaboyer, this Court held that this evidentiary rule violated an accused’s right to a fair trial and right to make full answer and defence guaranteed by ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms. Trial fairness requires that an accused be able to adduce relevant evidence where its probative value is not substantially outweighed by its potential prejudice (pp. 611-12; see also R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595, at pp. 663-66). This Court agreed with Parliament’s determination that the sexual nature of a complainant’s sexual history was irrelevant to the issue of consent and credibility. But because the statutory provision failed to distinguish between the relevant and irrelevant purposes for which evidence of a complainant’s sexual history could be used, it unfairly prevented the accused from adducing evidence which they were constitutionally entitled to adduce (Seaboyer, at pp. 620-21).
[27] In invalidating the exclusionary rule, this Court acknowledged the need to clarify the common law to prevent the return of the “outmoded, sexist-based use of sexual conduct evidence” (Seaboyer, at pp. 630-31). Accordingly, this Court established guidelines for sexual history evidence that reflected the “application of the general rules of evidence governing relevance and the reception of evidence” (pp. 633‑34). These guidelines offered the “maximum protection to the complainant compatible with the maintenance of the accused’s fundamental right to a fair trial” (p. 598).
[28] The Seaboyer guidelines can be summarized as follows: (1) in a trial for a sexual offence, evidence of a complainant’s prior sexual conduct is not admissible solely to support twin-myth reasoning; (2) evidence of a complainant’s prior sexual conduct may be admissible for relevant purposes if its probative value is not substantially outweighed by its prejudicial effect; (3) the admissibility of sexual conduct evidence must be established on a voir dire (which may be held in camera) by affidavit or the testimony of the accused or third parties; and (4) if evidence of a complainant’s sexual conduct is admitted in a jury trial, the trial judge should warn the jury against twin-myth reasoning (pp. 634-36).
[29] This guidance subsequently came to be reflected in s. 276 of the Criminal Code (R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, at para. 20; see also Desrosiers and Beausoleil-Allard, at p. 199). This Court has stated that the s. 276 regime has three purposes: (1) to protect the integrity of the trial by excluding irrelevant and misleading evidence; (2) to protect an accused’s right to a fair trial; and (3) to encourage the reporting of sexual offences by protecting the security, privacy, and equality interests of complainants (Barton, at para. 58; Darrach, at para. 25; see also R. v. Kruk, 2024 SCC 7, at para. 40).
[30] In proceedings in respect of certain enumerated offences, s. 276(1) categorically bars the admission of evidence that the complainant has engaged in sexual activity to support an inference that the activity, by reason of its sexual nature, makes it more likely that the complainant consented to the sexual activity that forms the subject matter for the charge or makes the complainant less worthy of belief. Section 276(2) then provides that evidence of the complainant’s prior sexual activity “adduced by or on behalf of the accused” is presumptively inadmissible. For that evidence to be admitted, the specific procedures set out in ss. 278.93 and 278.94 must be followed, and it must be shown that the sexual activity evidence is being adduced for purposes other than the impermissible purposes identified in s. 276(1), is relevant to an issue at trial, is of specific instances of sexual activity, and has significant probative value that is not substantially outweighed by its prejudicial effect. Section 276(3) sets out a non-exhaustive list of factors that a trial judge must consider when weighing probative value and prejudicial effect.
[31] In Darrach, this Court held that the version of s. 276 that existed at the time respected an accused’s right to a fair trial and right to make full answer and defence (paras. 37 and 43). It stressed that s. 276 was designed to exclude only irrelevant information or relevant information that was substantially more prejudicial than it was probative (para. 43). Because an accused had “never had a right to adduce irrelevant evidence” or to “adduce misleading evidence to support illegitimate inferences”, the statutory rule was constitutionally compliant (para. 37).
[32] In 2018, Parliament added s. 276(4) to clarify that sexual activity for the purposes of this section includes “any communication made for a sexual purpose or whose content is of a sexual nature” (An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, S.C. 2018, c. 29, s. 21(3)). As this Court recognized in R. v. J.J., 2022 SCC 28, [2022] 2 S.C.R. 3, this amendment was introduced within a larger package of Criminal Code reforms that were “designed to protect the interests of complainants in their own private records” (para. 3).
(2) Crown-Led Sexual History Evidence
[33] While s. 276(1) prohibits both the Crown and the accused from adducing evidence of a complainant’s sexual history for twin-myth purposes, s. 276(2) applies exclusively to evidence tendered by the accused. In Barton, this Court clarified that the common law principles articulated in Seaboyer regarding evidence of a complainant’s sexual history continue to apply to the Crown in proceedings in respect of a listed offence under s. 276(1) (para. 80). The common law therefore treats Crown-led sexual history evidence as presumptively inadmissible in these proceedings and requires the Crown to bring an application before a trial judge to determine its admissibility on a voir dire (J.J., at para. 74).
[34] This appeal provides an opportunity for this Court to identify the rationale for treating Crown-led evidence of a complainant’s sexual history as presumptively inadmissible at common law and to explain the substantive admissibility requirements that trial judges should apply when determining whether such evidence can be introduced by the Crown.
[35] The rationale behind treating Crown-led sexual history evidence as presumptively inadmissible at common law is rooted in the same three purposes as the s. 276 regime: to exclude irrelevant or misleading evidence, to protect an accused’s right to a fair trial, and to safeguard the dignity, privacy, and equality interests of complainants. As this Court noted in R.V., regardless of which party adduces evidence of a complainant’s sexual history, the trial judge must always “guard against twin-myth reasoning as well as prejudice to the complainant, the trial process and the administration of justice” (para. 78). To be clear, the purpose of the common law exclusionary rule for Crown-led sexual history evidence is not to eliminate myths and stereotypes about the accused or other witnesses in sexual offence trials. Instead, the rule embraces the common law’s broader asymmetrical approach to myths and stereotypes in sexual offence trials, which recognizes the need to eradicate well-established forms of discriminatory reasoning about complainants (Kruk, at para. 44).
[36] It may be less obvious how the three purposes of the s. 276 regime are furthered by screening Crown-led sexual history evidence given that the Crown is unlikely to evoke twin-myth reasoning (see Stewart, at § 8:2). The answer lies in the fact that this evidence is “inherently prejudicial” to the trial process (see Kruk, at para. 40). Evidence of prior sexual activity intrinsically has the potential to infect the fact-finding process with twin-myth reasoning regardless of whether a party explicitly invites such reasoning (see Barton, at para. 80; Goldfinch, at para. 72). This inherent risk explains why juries must be instructed against twin-myth reasoning even when this evidence is admitted for a proper purpose. The facts of Barton exemplify this inherent risk well. In that case, the Crown referred to the victim as a “prostitute” in its opening address and explained that she “struck a working relationship” with the accused on the night before her death (para. 66). While such comments were not made to evoke twin-myth reasoning, this Court recognized that these comments, coupled with the sexual history evidence adduced by the accused, left the jury “adrift in a sea of dangerous and impermissible inferences” (para. 84; see also paras. 80-81).
[37] In addition, as I discuss below, it is possible that sexual history evidence may be used to evoke discriminatory myths and stereotypes about sexual assault complainants that are different from the twin myths. While these myths and stereotypes can be raised by either party, the Crown may be more likely to evoke some forms of flawed reasoning that are particularly disadvantageous to the accused. These misleading lines of reasoning must be prohibited to ensure a trial that is fair for the accused, the complainant, and the broader public (Kruk, at para. 43).
[38] Moreover, the common law’s substantive admissibility requirements for Crown-led sexual history evidence must be clarified given that the Seaboyer principles were articulated with defence-led evidence in mind. Specifically, it was held in Seaboyer that, in order for sexual history evidence to be admitted, its probative value must not be “substantially outweighed” by its prejudicial effect (p. 635). This reflects the common law standard governing the admissibility of defence-led evidence generally, which is specifically calibrated to respect an accused’s right to a fair trial (see R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475, at para. 19). By contrast, Crown-led evidence is inadmissible where its prejudicial effect simply outweighs its probative value. This is the applicable standard for admitting Crown-led sexual history evidence. However, where the Crown and the defence seek to rely on the same evidence, the standard for defence-led evidence should apply.
[39] Some interveners argue that the standard for admitting Crown-led sexual history evidence should be articulated as requiring “significant” probative value (I.F., Criminal Lawyers’ Association (Ontario), at para. 26; I.F., Criminal Trial Lawyers’ Association, at paras. 17-20). This is to ensure consistency with s. 276(2)(d) of the Criminal Code, which requires the accused to demonstrate that evidence of the complainant’s sexual history has “significant” probative value that is not substantially outweighed by its prejudicial effect. In my view, a departure from the traditional common law standard governing the admission of Crown-led evidence is unnecessary. As explained in Darrach and recently reaffirmed in J.J., the requirement of “significant” probative value under s. 276(2) “is not a departure from the conventional rules of evidence” and simply acknowledges that there are “inherent ‘damages and disadvantages . . .’” presented by sexual history evidence (Darrach, at paras. 39 and 41, quoting Seaboyer, at p. 634; J.J., at para. 131). In other words, the “significant” probative value requirement recognizes that sexual history evidence will need to have more than “trifling relevance” to overcome its intrinsic prejudice (Darrach, at para. 41). There is no indication that anything else was meant by the inclusion of the word “significant” in s. 276(2)(d), particularly because the word has no equivalent in the French version of the provision, which simply speaks of “valeur probante” (Darrach, at para. 39).
[40] I would also note that, in weighing the probative value and prejudicial effect of Crown-led evidence of a complainant’s sexual history, trial judges must consider the non-exhaustive list of factors set out in s. 276(3) of the Criminal Code. These factors provide a helpful framework for assessing the proposed evidence’s probative value and for considering how the evidence can trigger reasoning prejudice for triers of fact as well as prejudice the privacy, dignity, and equality interests of complainants. Trial judges should remember, however, that some of the s. 276(3) factors have been articulated with defence-led evidence in mind. For example, s. 276(3)(a) refers to consideration of an accused’s right to make a full answer and defence, which is not implicated in the same way in the context of Crown-led evidence.
[41] In sum, the common law principles governing the admissibility of Crown-led sexual history evidence must be harmonized with the statutory regime for defence-led evidence of this kind, subject only to the necessary modification that I have detailed above. . R. v. Kinamore
In R. v. Kinamore (SCC, 2025) the Supreme Court of Canada summarizes an allowed criminal appeal, here from a sexual assault conviction:[1] The increasing complexity of sexual offence trials in Canada poses a challenge to our overburdened criminal justice system. One source of complexity lies in the application of the rules that govern evidence of a complainant’s sexual history. Although these evidentiary rules are essential to eliminate discriminatory myths and stereotypes from the fact-finding process and safeguard the dignity, privacy, and equality interests of complainants, uncertainty about their scope and procedural requirements has caused unnecessary confusion and disruption. This appeal provides an opportunity to address some of this uncertainty by resolving two issues that were left unaddressed in this Court’s prior jurisprudence.
[2] The first issue is whether evidence of a complainant’s sexual inactivity constitutes a form of presumptively inadmissible evidence under s. 276 of the Criminal Code, R.S.C. 1985, c. C-46, and the analogous common law rules governing Crown-led evidence of a complainant’s sexual history. In R. v. R.V., 2019 SCC 41, [2019] 3 S.C.R. 237, this Court explicitly left this question open but expressed doubt about appellate authority that has held that such evidence is not captured by these exclusionary rules (para. 81). In this case, I confirm that sexual inactivity evidence is indeed presumptively inadmissible under s. 276 and the common law given that it forms part of a complainant’s sexual history and can evoke distinct myths and stereotypes that these rules seek to eliminate.
[3] The second issue relates to the substantive and procedural requirements that apply to Crown-led evidence of a complainant’s sexual history. Since R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, this Court has held that the common law treats this evidence as presumptively inadmissible and that the Crown must follow the principles and procedure articulated in R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577. However, little explanation has been provided by this Court as to how the Seaboyer principles and procedure can be transposed to Crown-led evidence given that they were developed with defence-led evidence in mind. As well, limited attention has been devoted to whether the common law procedure articulated in Seaboyer differs significantly from the procedural requirements found in the statutory s. 276 regime. Subject only to two necessary modifications, which I discuss below, the common law rules on substantive admissibility and procedure should align with those that apply to defence-led evidence under s. 276. A harmonized regime for the admission of sexual history evidence will best allow courts to perform their important evidentiary gatekeeping function, without creating the undue complication that parallel regimes could cause.
[4] During the judge-alone sexual assault trial in this case, the Crown introduced evidence of social media communications between the complainant and the accused, Dustin Kinamore, that were sent over a month before the alleged assault. The evidence was entered as a marked exhibit with no voir dire. Some of these messages were explicitly sexual in nature, while others involved references to the complainant’s virginity or indications by the complainant of her disinterest in having a sexual relationship with Mr. Kinamore. The Crown and the defence relied on these messages when examining both the complainant and Mr. Kinamore, creating viva voce evidence about them in the process. The trial judge relied heavily on this evidence in her reasons for finding Mr. Kinamore guilty of sexual assault. The Court of Appeal found no error in the trial judge’s failure to hold a voir dire.
[5] In my view, the social media communications that included discussions of the complainant’s sexual activity and inactivity were presumptively inadmissible sexual history evidence. Accordingly, the trial judge erred in failing to hold a voir dire to determine the admissibility of the evidence. Since this sexual history evidence played a material role in the trial judge’s reasons, this evidentiary error was not harmless and the curative proviso cannot be applied. . R. v. J.O.P.
In R. v. J.O.P. (Ont CA, 2025) the Ontario Court of Appeal considered a trial level open court exception issue respecting criminal sex offence evidence [under CCC 278.94 and 278.95], and their non-application at the appeal stage where the appeal court's "implied jurisdiction to control its own processes" applies the Sherman Estate test:[6] Sections 278.94 and 278.95 of the Criminal Code establish exceptions to the open court principle applicable to hearings at first instance on the admissibility of evidence under s. 276(2) and s. 278.92(2). The purpose of these exceptions is the protection of the dignity and privacy of complainants in sexual offence prosecutions and the exclusion of irrelevant evidence advanced for an improper purpose. These exceptions do not govern appeal hearings: R. v. T.W.W., 2024 SCC 19, 437 C.C.C. (3d) 1, at paras. 64-67. However, an appellate court’s implied jurisdiction to control its own processes includes the discretionary ability to make orders for in camera hearings, sealing orders and publication bans: T.W.W., at para. 68. This discretion “should be exercised in a way that maintains court openness as far as practicable while protecting the complainant’s personal dignity and privacy and the accused’s fair trial rights”: T.W.W., at para. 4.
[7] Orders by appellate courts compromising the open court principle remain exceptional and the discretion to limit public access to court hearings should not be exercised lightly: T.W.W., at paras. 69 and 71-73. The criteria set out in Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R. 75, at para. 38, apply:In order to succeed, the person asking a court to exercise discretion in a way that limits the open court presumption must establish that:
(1) court openness poses a serious risk to an important public interest;
(2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and,
(3) as a matter of proportionality, the benefits of the order outweigh its negative effects.
Only where all three of these prerequisites have been met can a discretionary limit on openness … properly be ordered. [8] The onus of persuading the court that it should limit the open court presumption accordingly rests with the moving party: T.W.W., at paras. 71-72. Applying these principles in R. v. Reimer, 2024 ONCA 588, leave to appeal requested, [2024] S.C.C.A. No. 397, this court denied a request by the Crown for an order banning any publication of its decision on the merits of the appeal.[2]
[9] In camera hearings “are greater incursions on court openness compared to publication bans, because they more absolutely limit public discourse on the subject information by preventing access to the protected material entirely”: T.W.W., at para. 75. The same interests animating the limitations on the open court principle prescribed by the Criminal Code will nonetheless justify an appeal hearing that excludes the public in some instances. In R. v. D.V., 2025 ONCA 67, for example, this court ordered an in camera hearing of a motion to adduce fresh evidence of a complainant’s prior sexual activity. In that case, the argument for excluding the public was cogent because the admissibility of the proposed evidence had not been considered at first instance and the parties agreed that the order was needed to safeguard against any inadvertent public disclosure of the complainant’s sexual history.
[10] D.V. does not, however, establish an invariable or blanket rule. Requests for in camera hearings before this court are adjudicated on a case-by-case basis, weighing competing considerations in the context of the issues and facts in the case on appeal.
[11] Preserving a complainant’s privacy and dignity is a critical interest in every sexual assault proceeding. This interest could be at risk here as the result of the open court presumption. The first leg of the Sherman Estate test is accordingly met. Applying the second part of the test, however, the Crown did not persuade the court that an in camera hearing was necessary to prevent this risk from materializing. There are alternative means to address it. Submissions could be made on the appeal of the s. 276(2) application decision without referring in detail to the complainant’s prior sexual history. As well, the publication ban already in effect prohibits the identification of the complainant by name or personal information.
[12] In these circumstances, the need for an exceptional order excluding the public from the appeal hearing was not made out. . R. v. Gorges
In R. v. Gorges (Ont CA, 2024) the Ontario Court of Appeal allowed a conviction appeal from charges of "kidnapping, assault, assault with a weapon, uttering death threats and a human trafficking", here on the trial court's application of CCC 276 ['Evidence of complainant’s sexual activity'].
Here the court reviews the important CCC s.276 recent case of R v A.M.:(1) Section 276 of the Criminal Code and this court’s recent decision in R. v. A.M.
[28] Section 276 of the Criminal Code restricts the admissibility of evidence regarding a complainant’s prior sexual activities in proceedings “in respect of” certain offences. In R. v. A.M., 2024 ONCA 661, this court recently explained the history and objectives of s. 276. For this appeal, it is not necessary to repeat the history and objectives, but they form the background to the reasoning in this decision.
[29] Section 276(1) of the Criminal Code applies to proceedings in respect of 14 listed offences. It provides that in such proceedings evidence that a complainant has engaged in sexual activity, with an accused or 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. Section 276(4) provides that “sexual activity includes any communication made for a sexual purpose or whose content is of a sexual nature.”
[30] Section 276(2) provides that, in proceedings in respect of a listed offence, the accused shall not adduce evidence that the complainant has engaged in sexual activity, other than the sexual activity that forms the subject-matter of the charge, unless the court, following the procedure set out in ss. 278.93 and 278.94 of the Criminal Code, determines that the evidence:(a) is not being adduced for the purpose of supporting an inference described in subsection (1);
(b) is relevant to an issue at trial; and
(c) is of specific instances of sexual activity; and
(d) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. [31] Section 276(3) sets out specific factors a trial judge is to consider when deciding whether to admit evidence that a complainant has engaged in sexual activity other than sexual activity that forms the subject matter of the charges.
[32] None of the offences charged in this case are offences listed under s. 276(1). At the time of the trial, there was some disagreement amongst lower court decisions regarding whether s. 276 applies categorically to non-enumerated offences that may have a sexual aspect, like sexual services and human trafficking offences: see, for example, R. v. Williams, 2020 ONSC 206, 64 C.R. (7th) 226; R. v. M.D., 2020 ONSC 951, at paras. 17-46; R. v. Langford, 2021 ONSC 4307, 74 C.R. (7th) 147, at paras. 2, 6-25; R. v. Powell, 2021 ONCJ 708, at paras. 6-10; R. v. Europe, 2023 ONSC 5322, at paras. 8-24; R. v. Floyd, 2019 ONSC 7006; R. v. T.A., 2020 ONSC 6714; R. v. MacMillan, 2021 ONSC 3952, at paras. 16-27; R. v. Ryckman, 2022 ONSC 20, at paras. 4-15; R. v. Maldonado Vallejos, 2022 ONSC 2753; R. v. Lees, 2023 ONSC 124; and R. v. N.G., 2023 ONSC 792.
[33] When the appeal was argued, this court had under reserve its decision in A.M. That decision has since been released. In A.M., the court confirmed that s. 276 does not apply categorically to all proceedings where an accused is charged with a sexual service or human trafficking offence but not a listed offence. Rather, whether a listed offence is implicated in the proceeding, and accordingly whether s. 276 applies, must be determined on a case-by-case basis having regard to the charges, the Crown’s proposed evidence, and whether the defence proposes to lead evidence of a listed offence. The court reached this conclusion as a matter of statutory interpretation and in accordance with the Supreme Court of Canada’s decision in R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579. At para. 92, van Rensburg J.A. summarized her conclusion on the applicability of s. 276 to non-enumerated offences:In summary, the issue is whether the proceeding is, in substance, “in respect of” one of the listed offences. It is incorrect to adopt the categorical approach taken in a number of cases that s. 276 will always apply to prosecutions for sexual services or human trafficking offences, with the result that any offence that is analogous to, or shares some common features with, a listed offence is essentially read into s. 276. Instead, the application of s. 276 to proceedings in respect of non-enumerated offences must be determined “in the context of [the] particular prosecution, taking into account the charges, the nature of the allegations, and the subjects about which the accused seeks to cross-examine the complainant”. [Citations omitted.] [34] The court further rejected the suggestion made by at least one lower court decision, namely M.D., that the procedure established by the Supreme Court of Canada in R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, should be required in all cases involving non-enumerated offences such that an accused person charged with a sexual service offence would be obliged to bring a written application when seeking to admit evidence of a complainant’s extraneous sexual activity: A.M., at para. 107. In doing so, endorsing other lower court decisions where requiring a Seaboyer application in all cases involving sexual services or human trafficking offences was rejected, this court emphasized at paras. 111-12 that, regardless of whether s. 276 applies in a particular case, trial judges remain responsible as gatekeepers to prevent accused persons from adducing evidence from complainants that improperly engages myths and stereotypes:[W]hile there is a risk of stereotypical or myth-based reasoning in sexual services and human trafficking prosecutions, the trial judge as gatekeeper has the ability to intervene, with or without objection at trial, to preclude questions from being answered on the basis of relevance or where the probative value of the evidence is substantially outweighed by its prejudicial effect. The trial judge will always have the authority and responsibility to guard against improper reasoning and the invocation of myths and stereotypes: see Barton, at paras. 1, 68 and 201.
As Stribopoulos J. emphasized in Williams #2, at paras. 50-63, existing rules of evidence already protect against the admission of irrelevant and prejudicial evidence. Even without Seaboyer’s extension, a trial judge is well-positioned to balance the competing interests at play as testimony unfolds by barring or placing limits on the admissibility and use of evidence of other sexual activity, intervening to stop inappropriate questioning, and directing a voir dire in exceptional cases if one is required. Trial judges, as Nakatsuru J. observed in Langford, at paras. 48-49, are not powerless when a sex worker is questioned about unrelated sexual activity:
A trial judge hearing the evidence of a complainant [in such a case] is well-placed to assess and balance the competing interests as the testimony unfolds, both in examination-in-chief and cross-examination. A trial judge can quickly intervene and stop inappropriate questioning. They can even set prior limits to the questioning … [and] can instruct the jury in such a fashion as to ensure that the evidence is rightfully considered and that no prejudicial stereotypes or myths enter into the deliberations. How this role is exercised by the trial judge will depend very much upon the facts of each individual case.
… Finally, if questions are permitted, the trial judge can place strict limits on it. It does not have to be an all or nothing choice.
[Emphasis added.] [35] In A.M., the court allowed the appeal. In that case, the appellants had been charged with a number of offences, including human trafficking and various sexual services offences, none of which were listed offences under s. 276. The trial judge nevertheless heard and decided an application under s. 276 and excluded some evidence of the complainant’s prior work in the sex trade, including her experience posting advertisements. On appeal, based on the legal analysis discussed above, this court found that it was an error to apply s. 276 to the admissibility of the evidence at issue. The court reasoned as follows, at paras. 97-98:I disagree that s. 276 applied in the circumstances of this case. None of the listed offences was an included offence to the charges in this case, nor was such an offence implicated in the factual circumstances advanced by the Crown. As noted earlier, sexual assault is not an included offence to procuring, even when it is alleged that the accused has committed the offence by exercising control over the complainant’s movements. The requirement that the Crown prove an accused “exercised control, direction or influence” is not the same as saying the complainant did not consent to the sexual act. In a different case it might be alleged that the accused used violence or the threat of violence to compel the complainant to offer her sexual services, implicating the offence of sexual assault: see e.g., R. v. J.C. and D.B., 2023 ONSC 6093. In this case however there was no suggestion that the sexual services A.K. provided were non-consensual. Nor was lack of consent an element of the two counts of human trafficking. For one count (exercising control, direction or influence for the purpose of exploitation contrary to s. 279.01(1)), any consent is statutorily declared to be invalid by s. 279.01(2), and for the other (receiving material benefits from the commission of a s. 279.01(1) offence), consent is irrelevant.
Consent was also not a live issue based on the application record before the trial judge. There was no suggestion that A.K. had been sexually assaulted or that the appellants forced her to work in the sex trade. Rather, the Crown’s theory that the appellants exploited A.K. rested on the allegation that they had abused a position of trust, power or authority by taking advantage of her drug and alcohol addiction, and not on any meaningful vitiation of consent. Further, and in any event, while abusing a position of trust, power or authority vitiates consent for the purpose of a sexual assault charge (see Criminal Code, s. 273.1(2)(c)), lack of consent is only one element of the sexual assault offence: see. R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 25. As Fraser J. explained in R. v. A.M., 2021 ONCJ 266, at paras. 25 and 27, s. 276 is not engaged “by the mere alignment of ‘some elements’ of the charged offence and an enumerated offence” but requires “the complete constellation of elements comprising a listed offence”. Here that constellation of elements is lacking. Even on the Crown’s theory, there was no sexual assault. [36] The court went on to find that, because of this error, the appellants had been precluded from cross-examining the complainant about evidence that was relevant to their defence. Moreover, the evidence at issue did not engage the twin myths.
[37] Finally, the court in A.M. refused to apply the curative proviso in s. 686(1)(b)(iii) of the Criminal Code. The court noted that the proviso will rarely apply where cross-examination has been improperly curtailed: at para. 130. The appellants in A.M. had been precluded from asking the complainant questions about her prior work as an escort, including her experience posting her own advertisements. The court explained why the appellants’ convictions would not have been inevitable had they been able to elicit such evidence on cross-examination. In the circumstances, the excluded evidence could have affected the outcome of the trial and reliance on the curative proviso was not appropriate. At paras 48-56 the court further considered the situation where the trial court, while holding that the charges did not fall under CCC 276, applied "the principles underlying s. 276 to disregard all of the complainant’s evidence regarding her work in the sex trade" - particularly as it bore on credibility.
. R. v. A.M.
In R. v. A.M. (Ont CA, 2024) the Divisional Court allowed a criminal appeal, here that focussed on CCC 276 which addresses "to what extent evidence may be led by an accused with respect to a complainant’s sexual activities other than the offence charged" with respect to one or more of 14 listed offences. Here the specific issue was "the test for applying s. 276 to offences that are not specifically listed in the section, which I refer to as “non-enumerated offences”".
Here the court considers whether a 'Seaboyer' "pre-trial screening procedure for the admissibility of evidence of a complainant’s other sexual activity (and in particular, evidence of other sex work)" is required in the circumstances of the case:(iii) A “Seaboyer-type” Application Is Not Required in All Sexual Services and Human Trafficking Proceedings
[101] I pause here to refer to the Crown’s alternative argument – that, in the event that s. 276 does not apply to all trials for human trafficking and sexual services offences, this court should recognize an extension to the common law under Seaboyer to require a pre-trial screening procedure for the admissibility of evidence of a complainant’s other sexual activity (and in particular, evidence of other sex work). The Crown relies on M.D., where Dennison J., after rejecting the application of s. 276 to proceedings involving sexual services and human trafficking offences, directed that a Seaboyer-type procedure be adopted in respect of evidence of other sexual conduct by sex workers where the accused is charged with sexual services offences: at paras. 47-76. Dennison J. also directed, in that particular case, that the complainant be afforded counsel and provided with the opportunity to make submissions at the hearing.
[102] The appellants argue that this court should not extend the Seaboyer process where s. 276 does not apply because this would be an unwarranted extension of the common law in circumstances where Parliament has spoken clearly: R. v. Williams, 2020 ONSC 6347, 396 C.C.C. (3d) 267 (“Williams #2”), at paras. 8-65; Langford, at paras. 40-52.
[103] Seaboyer resulted from the Supreme Court’s decision to strike down the earlier version of s. 276 as unconstitutional and its unwillingness to return to the pre-s. 276 status quo. In place of s. 276 the court provided guidelines for the admission of evidence designed “to remedy [the section’s] defects while preserving the intent of s. 276”: Darrach, at para. 19. And in 1992, Parliament enacted a new s. 276 regime which essentially codified the common law principles set out in Seaboyer governing the admissibility of other sexual activity evidence. As such, applications under s. 276 of the Criminal Code are often referred to as “Seaboyer” applications.
[104] As noted earlier, in Barton Moldaver J. observed that, although s. 276(2) applies only to evidence adduced by or on behalf of the accused, trial judges should follow Seaboyer to determine the admissibility of Crown-led prior sexual activity evidence in a voir dire: at para. 80. In other words, he recognized that Seaboyer will apply in some cases that fall outside s. 276, and will require a similar prior assessment of admissibility to be made.
[105] In M.D., after determining that s. 276 did not apply, Dennison J. concluded that an accused person charged with a sexual service offence should be required to bring a written application when seeking to admit evidence of other sexual conduct of the complainant. In her careful analysis of the issue, she relied on the obligation of a trial judge to ensure that only relevant evidence is admitted and to exclude irrelevant and misleading evidence. Recognizing that the common law Seaboyer procedure was in relation to sexual assault complainants, she noted that its purpose and rationale “applies with at least equal force when considering the admission of evidence of other sexual conduct by sex workers”: at para. 57. Referring to the systemic biases, prejudices and stereotypes faced by sex workers, she concluded that a voir dire was necessary in proceedings involving sexual services to ensure that evidence of other sexual activity was not introduced for the purpose of fostering myths and stereotypes: at paras. 62-63. Her decision also appointed counsel for the complainant and anticipated that the factors under s. 276 would be applied in the determination of the Seaboyer application.
[106] Other cases have considered the issue and concluded that this aspect of M.D. was wrongly decided, and they have rejected the proposed extension of Seaboyer to proceedings involving sexual services and human trafficking offences: see Williams #2; Langford, at paras. 40-52; and Europe, at paras. 25-27.
[107] Essentially the procedure that was endorsed in M.D. and that the Crown urges this court to accept would result in an extension of s. 276 beyond its current scope which is “in proceedings in relation to” 14 named offences. I agree with the appellants that such an extension would be contrary to the intent of Parliament, and an unwarranted and unnecessary extension of the common law.
[108] First, applying the Seaboyer framework in this case would represent a dramatic shift in the common law. As Stribopoulos J. observed in Williams #2, at paras. 30-33, there are significant constraints on the authority of courts to change the common law, and extending the Seaboyer procedures to an entirely new category of offences would be more than an incremental change to the existing common law and would circumvent Parliament’s deliberate legislative choice not to include sexual offences in s. 276. The Supreme Court has repeatedly noted the need to proceed cautiously through incremental change to the common law. As L’Heureux-Dubé J. (dissenting, but not on this point) explained in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 45:[T]he duty to review the common law carries with it a corresponding responsibility to proceed prudently. This Court has limited changes in the common law to those which are “slow and incremental” rather than “major and far-reaching”: Watkins v. Olafson, 1989 CanLII 36 (SCC), [1989] 2 S.C.R. 750, at p. 760, per McLachlin J. This Court must restrict reforms to only “those incremental changes which are necessary to keep the common law in step with the dynamic and evolving fabric of our society”: R. v. Salituro, 1991 CanLII 17 (SCC), [1991] 3 S.C.R. 654, at p. 670, per Iacobucci J. [109] Barton’s extension of Seaboyer to Crown-led evidence of prior sexual activity is an example of this incremental approach, but it would be a major change to the common law if the Seaboyer framework were extended to human trafficking and sexual services offences. Such an extension to whole new categories of offences would have considerable consequences for the legal system, requiring a voir dire to determine the admissibility of proposed evidence of other sexual activity.
[110] Second, Seaboyer should not be extended because there is no legislative gap for the common law to fill. Parliament enumerated certain offences in s. 276 but chose not to include the human trafficking and sexual services offences within the provision’s purview. Extending Seaboyer to cover those non-enumerated offences would undermine Parliament’s deliberate choice not to include those offences within the s. 276 regime. Crown-led evidence is different, as s. 276 is simply silent on that issue.
[111] Third, while there is a risk of stereotypical or myth-based reasoning in sexual services and human trafficking prosecutions, the trial judge as gatekeeper has the ability to intervene, with or without objection at trial, to preclude questions from being answered on the basis of relevance or where the probative value of the evidence is substantially outweighed by its prejudicial effect. The trial judge will always have the authority and responsibility to guard against improper reasoning and the invocation of myths and stereotypes: see Barton, at paras. 1, 68 and 201.
[112] As Stribopoulos J. emphasized in Williams #2, at paras. 50-63, existing rules of evidence already protect against the admission of irrelevant and prejudicial evidence. Even without Seaboyer’s extension, a trial judge is well-positioned to balance the competing interests at play as testimony unfolds by barring or placing limits on the admissibility and use of evidence of other sexual activity, intervening to stop inappropriate questioning, and directing a voir dire in exceptional cases if one is required. Trial judges, as Nakatsuru J. observed in Langford, at paras. 48-49, are not powerless when a sex worker is questioned about unrelated sexual activity:A trial judge hearing the evidence of a complainant [in such a case] is well-placed to assess and balance the competing interests as the testimony unfolds, both in examination-in-chief and cross-examination. A trial judge can quickly intervene and stop inappropriate questioning. They can even set prior limits to the questioning… [and] can instruct the jury in such a fashion as to ensure that the evidence is rightfully considered and that no prejudicial stereotypes or myths enter into the deliberations. How this role is exercised by the trial judge will depend very much upon the facts of each individual case.
... Finally, if questions are permitted, the trial judge can place strict limits on it. It does not have to be an all or nothing choice. [113] Further, as Stribopoulos J. observed in Williams #2, at paras. 50-51, the fact that courts in the three decades since Seaboyer’s release have not, at least until M.D., extended Seaboyer to other offences suggests that courts have not found it necessary to apply the guidelines from that case to prosecutions for charges that lack a connection to the offences enumerated in s. 276.
[114] Accordingly, I reject the Crown’s invitation to require a Seaboyer-type application by the defence in all cases involving sexual services or human trafficking offences.
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