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Criminal - Evidence of Sexual Activity [CCC 276] (6). 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 sexual inactivity and it's admissibility in a charge of sexual assault [under CCC 276]:C. Sexual Inactivity Evidence Is Presumptively Inadmissible
[61] As I previously stated, in this case, the Crown concedes that the trial judge erred by admitting, without a voir dire, the Crown-led evidence consisting of social media messages that involve explicit sexual conversations. Consequently, the primary question on this appeal is whether the messages referencing the complainant’s virginity and the complainant’s prior indications of disinterest in a sexual relationship are also presumptively inadmissible under the common law.
[62] This question implicitly asks whether this evidence is captured by s. 276 of the Criminal Code. The scope of the common law exclusionary rule and of s. 276 should generally be interpreted in a consistent manner given their shared purposes and the fact that the admissibility of Crown-led sexual history evidence is regulated both by s. 276(1) and by the common law. This Court has previously treated the common law exclusionary rule as equivalent to the s. 276 regime in this respect (see J.J., at para. 74; Barton, at para. 80; Goldfinch, at para. 75).
[63] The question of whether this evidence engages s. 276 and the common law exclusionary rule is reviewable on a standard of correctness (T.W.W., at para. 22).
[64] In the following analysis, I will refer to evidence about the complainant’s virginity and the complainant’s prior indications of disinterest in a sexual relationship as evidence of “sexual inactivity”. Sexual inactivity evidence can be understood as encompassing evidence that the complainant has not previously engaged in, or prefers not to engage in, any sexual activity, certain types of sexual activity, or sexual activity under particular circumstances (see S. Mazzuca, “Regulating the Admissibility & Use of Sexual Inactivity Evidence in Criminal Cases” (2022), 70 C.L.Q. 161, at p. 165). As I will explain, while there are relevant purposes for which they can be used, all of these types of evidence form part of a complainant’s sexual history and should thus be treated as presumptively inadmissible.
(1) Sexual Inactivity Evidence Engages Section 276 and the Common Law Exclusionary Rule
[65] The text of s. 276 provides an initial basis for holding that sexual inactivity evidence engages the screening regime. While it is true that the statutory provisions refer to “sexual activity”, Parliament has recently clarified the meaning of the term in s. 276(4), stating that it “includes any communication made for a sexual purpose or whose content is of a sexual nature”. In my view, this provision contemplates that all evidence of a complainant’s sexual history, including sexual inactivity evidence, will be captured. By encompassing communications whose “content is of a sexual nature”, this definition includes any communication from the complainant in which sex is a topic of conversation. This expansive definition is inclusive of prior communications in which a complainant discusses their virginity or indicates their sexual disinterest. If Parliament wanted to limit s. 276(4) to communications about explicit sexual activity in which the complainant indicates sexual interest, it would have limited the definition to communications “made for a sexual purpose”. However, Parliament chose broader language. This language should be given effect in light of the presumption that Parliament “does not speak in vain” (R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3, at para. 89).
[66] To the extent that the plain meaning of other parts of s. 276 suggests that sexual inactivity evidence is excluded from the screening regime, it is important to remember that the text of the provision does not end the interpretive inquiry. As with any exercise of statutory interpretation, the “plain meaning alone is not determinative and a statutory interpretation analysis is incomplete without considering the context, purpose and relevant legal norms” (R. v. Alex, 2017 SCC 37, [2017] 1 S.C.R. 967, at para. 31). This Court has previously resisted an overly rigid reading of the text of s. 276, noting that it must be read in light of the scheme and broader purposes of the regime (Goldfinch, at para. 53). When the purposes of s. 276 are examined, it becomes clear that a complainant’s entire sexual history, including evidence of their sexual inactivity, is captured.
[67] The inclusion of sexual inactivity evidence furthers the three purposes behind the s. 276 regime and the analogous common law rules. As discussed, one of these purposes is to eliminate irrelevant and misleading evidence about sexual assault complainants from the fact-finding process. As this Court recently explained in Kruk, s. 276 fits within a distinct body of evidentiary rules that has been developed for sexual offence trials to prohibit myths and stereotypes about complainants (para. 40). These remedial rules seek to eliminate historically condoned forms of discriminatory legal reasoning that “conceptualize an idealized victim and her features and actions before, during, and after an assault” (para. 37).
[68] Not all myths and stereotypes about sexual assault complainants stem from evidence of their sexual history. The s. 276 regime is therefore only one part of this remedial effort. As I have discussed, twin-myth reasoning was, and remains, the primary target of this regime. Section 276 seeks to eliminate remnants of the common law’s historical view that the complainant’s sexual history could be used as a form of character evidence that invites the trier of fact to infer that, because the complainant was a sexually active 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. It is now understood that the sexual nature of a complainant’s sexual history is irrelevant to the issue of consent and credibility (see Osolin, at p. 670).
[69] The screening of sexual inactivity evidence furthers this objective of eliminating twin-myth reasoning. As a practical matter, one must keep in mind that sexual inactivity evidence is often intrinsically intertwined with evidence of explicit sexual activity. For example, this Court noted in R.V. that, to adduce evidence of sexual inactivity, counsel must often pose questions that risk inviting the complainant to disclose sexual experiences (para. 81). Or, as the case at bar demonstrates, evidence of sexual inactivity can often be bound up with other explicit references to sexual activity to such a degree that distinguishing between the two types of evidence will not be feasible.
[70] In addition, as this Court made clear in Darrach, the Criminal Code “excludes all discriminatory generalizations about a complainant’s disposition to consent or about her credibility based on the sexual nature of her past sexual activity” (para. 34 (emphasis added; emphasis in original deleted)). In other words, the twin myths are not the only myths and stereotypes that can arise from a complainant’s sexual history evidence. For example, while evidence of consensual sexual activity between the complainant and the accused that follows an alleged assault may be relevant to whether the alleged assault occurred, it would be wrong to rely on such evidence to infer necessarily and conclusively that the assault did not occur (see R. v. L.S., 2017 ONCA 685, 354 C.C.C. (3d) 71, at para. 89; see also Kruk, at para. 41).
[71] This case presents this Court with another form of sexual history evidence that is capable of evoking other myths and stereotypes about sexual assault complainants. Sexual inactivity evidence may evoke inverse twin-myth reasoning. A complainant’s sexual inactivity can be used as a form of character evidence that invites the trier of fact to conclude that, because the complainant has been sexually inactive, (1) they have a propensity to not consent and therefore were less likely to have consented to the sexual activity that forms the subject matter of the charge; and (2) they are more worthy of belief.
[72] What makes this form of myth-based reasoning distinctive is that it has the effect of bolstering a complainant’s testimony at the expense of the accused. Consequently, this reasoning is more likely to be evoked by the Crown rather than the defence. Crown counsel at trial did so in this case. During closing submissions, Crown counsel explicitly referred to the complainant’s virginity as a consideration that suggested that Mr. Kinamore’s version of events was implausible (A.R., at p. 262).
[73] The fact that inverse twin-myth reasoning serves to bolster a complainant’s testimony and undermine the accused does not affect its permissibility. This reasoning is legally impermissible because it remains grounded in false assumptions about sexual assault complainants. As stated in Kruk, “reliance on stereotypes, being rooted in inequality of treatment, is certainly not just a problem for sexual assault complainants alone. Stereotypical reasoning based in the sort of inequality of treatment at the heart of myths and stereotypes against sexual assault complainants has the potential to affect the testimony of all witnesses in all trials” (para. 54 (emphasis added)).
[74] Inverse twin-myth reasoning is fundamentally rooted in discriminatory ideas about the “ideal victim” of sexual assaults (Mazzuca, at p. 170). As L’Heureux-Dubé J. explained in Seaboyer (dissenting, but not on this point), the categorization of women as virgins or “madonnas” has long influenced police, jurors, and judges to perceive those sexual assault complainants as “ideal” victims and thus worthy of belief (pp. 652-56). These notions of the “ideal victim” have the effect of reinforcing the harmful idea that sexually active complainants who fall outside of this paradigm are not entitled to the law’s protection (see M. Randall, “Sexual Assault Law, Credibility, and ‘Ideal Victims’: Consent, Resistance, and Victim Blaming” (2010), 22 C.J.W.L. 397, at p. 414). This Court cannot condone any party evoking myths and stereotypes about sexual assault complainants. Permitting a party to do so would further entrench these discriminatory beliefs in our criminal justice system and, by extension, distort the truth-seeking function of trials.
[75] Because the screening of sexual inactivity evidence assists in the elimination of myths and stereotypes about sexual assault complainants, the second purpose of these exclusionary rules — protecting an accused’s right to a fair trial — is also furthered. Myths and stereotypes about sexual assault complainants undermine the fairness of a trial by distorting its truth-seeking function (R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668, at para. 119; J.J., at para. 162; Kruk, at para. 43). When relied on by the Crown, myths and stereotypes risk undermining an accused’s right “not to be convicted except on evidence directly relevant to the charge in question” (Corbett, at p. 697). Therefore, trial judges must exclude this evidence as part of the “constitutional imperative” to exclude evidence that would result in an unfair trial for the accused (R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562, at para. 24).
[76] As the Attorneys General of Ontario and Manitoba highlight, the screening of sexual inactivity evidence also facilitates the protection of a complainant’s dignity and privacy interests (I.F., Attorney General of Ontario, at para. 7; I.F., Attorney General of Manitoba, at para. 12). Evidence about whether a complainant has ever had sex before, has engaged in certain sexual acts, or has certain sexual preferences is invasive, revealing deeply personal information (Kruk, at para. 55). Moreover, when sexual inactivity evidence is adduced by the Crown, its admission may increase the likelihood that the accused will be able to bring a successful s. 276 application of their own. This dynamic is exemplified by R. v. Martin, 2013 ONSC 7210, where the complainant cited the fact that she never had sex when menstruating as a reason for not consenting (para. 15). To rebut her assertion, the accused successfully brought a s. 276 application to introduce evidence that he previously had sex with the complainant while she was menstruating (R. v. Martin, 2013 ONSC 6901, at para. 20). While this type of sexual inactivity evidence can be used for relevant purposes, it also has the potential to derail the fact-finding process by turning the trial into an examination of whether the complainant’s asserted sexual preferences are true. Screening this evidence ensures that it has sufficient probative value to outweigh its inevitable prejudice to the complainant’s dignity and privacy.
[77] Accordingly, existing appellate authority that has excluded evidence of a complainant’s virginity from the scope of s. 276 based on a “plain reading” of the provision and a narrow understanding of its purpose must be rejected (see R. v. Brothers (1995), 1995 ABCA 185 (CanLII), 169 A.R. 122 (C.A.), at paras. 22-25; see also R. v. Pittiman (2005), 2005 CanLII 23206 (ON CA), 198 C.C.C. (3d) 308 (Ont. C.A.), at para. 33, aff’d on another point 2006 SCC 9, [2006] 1 S.C.R. 381).
[78] The Crown submits that this Court’s decision in Langan should be interpreted as holding that a complainant’s prior communications indicating sexual disinterest in the accused are not captured by s. 276 or the analogous common law rules (R.F., at paras. 100-102). In that case, this Court adopted the dissenting reasons of Bauman C.J.B.C. One of the three issues in that case was whether the trial judge erred in failing to hold a voir dire with respect to Crown-led evidence consisting of text messages exchanged between the parties prior to the sexual assault. Within these messages was a single prospective statement by the complainant that she was not going to have sex with the accused on the weekend when the assault occurred. Bauman C.J.B.C. held that this statement did not engage the common law exclusionary rule regarding sexual history evidence (para. 125).
[79] I would note that, at the time of Mr. Langan’s trial, Parliament had not yet enacted s. 276(4) to clarify the application of the statutory regime to communications. This Court’s decision in Langan should therefore be read in light of the statutory framework that applied at the time of the trial in that case. As discussed, s. 276(4) clarifies that the regime captures “any communication made for a sexual purpose or whose content is of a sexual nature”. In enacting this provision, Parliament eliminated any ambiguity that previously existed regarding whether a complainant’s sexual communications were captured by the screening regime. It is appropriate to recognize that the common law on this point has since evolved in a manner consistent with the legislative change. As I have said, the common law and statutory regimes must be aligned to ensure the orderly administration of justice.
[80] That being said, in Langan, this Court recognized the importance of reading a trial judge’s decision functionally and contextually during appellate review. As explained in R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 78, in Langan this Court adopted Bauman C.J.B.C.’s conclusion that the trial judge’s ambiguous use of certain text messages should not be viewed as erroneous without clear indications that there was an error. This functional reading gives effect to the presumption that trial judges correctly apply the law (G.F., at para. 74).
(2) Permissible Uses of Sexual Inactivity Evidence
[81] In holding that sexual inactivity evidence is presumptively inadmissible, I reiterate that this evidence is not categorically excluded. The presumption only functions to eliminate discriminatory lines of reasoning. As Professor Lisa Dufraimont emphasizes, “[b]road conclusions that particular forms of evidence are irrelevant should be avoided. . . . [M]yths and stereotypes about sexual assault are properly understood as prohibited inferences” (“Myth, Inference and Evidence in Sexual Assault Trials” (2019), 44 Queen’s L.J. 316, at p. 346).
[82] As this Court made clear in Darrach, “[t]he phrase ‘by reason of the sexual nature of that activity’ in s. 276 is a clarification by Parliament that it is inferences from the sexual nature of the activity, as opposed to inferences from other potentially relevant features of the activity, that are prohibited” (para. 35 (emphasis in original)). A similar principle applies to evidence of sexual inactivity. Some features of sexual inactivity evidence may be relevant and be properly used; it is only inferences rooted in inverse twin-myth reasoning or analogous forms of discriminatory reasoning that are prohibited.
[83] R.V. provides a helpful example of how sexual inactivity evidence can be introduced for permissible purposes. In that case, the Crown adduced medical evidence to show that the complainant became pregnant around the time of the alleged assault. This evidence was introduced to support the complainant’s testimony that the assault was the cause of the pregnancy and to rebut the accused’s assertion that no sexual activity took place. However, because the complainant terminated the pregnancy, a DNA paternity test was impossible, creating an evidentiary gap as to who caused the pregnancy during the relevant time. To assist in filling this gap, the complainant testified that at the time of the assault she was a virgin.
[84] This virginity evidence was therefore used to prove that the accused committed an element of the actus reus (sexual touching) by inviting the trier of fact to infer that only the accused could be the cause of the pregnancy. The sexual inactivity evidence was not introduced for inverse twin-myth reasoning. The Crown did not argue that, because the complainant was a virgin, she had a propensity to not consent and therefore was less likely to have consented to the sexual activity in question or was otherwise more worthy of belief. The relevant feature of the sexual inactivity evidence was the timing of the sexual inactivity.
[85] Sexual inactivity evidence can also be used for other admissible purposes. In some circumstances, a complainant’s prior indications of sexual disinterest in the accused that are expressed near the time of the alleged assault can be admissible under the hearsay exception for statements of present intention and can be used as circumstantial evidence relevant to the issue of consent. The same principle applies to a complainant’s prior indications of sexual interest (see R. v. Reimer, 2024 ONCA 519, 173 O.R. (3d) 412, at paras. 75-83; see also R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at para. 29). Similar reasoning may also render a complainant’s prior indications of sexual interest or disinterest admissible as circumstantial evidence of their capacity to consent, including their ability to appreciate the four criteria enumerated in G.F., at para. 57 (see also R. v. Garciacruz, 2015 ONCA 27, 320 C.C.C. (3d) 414, at para. 69). In each of these circumstances, the relevant feature of the sexual history evidence is the statement of intention, not its sexual nature or lack thereof. With that said, the admissibility of this type of evidence must be handled with care, and it should never be given conclusive weight. Trial judges must remain attentive to the probative value of the evidence and to its potentially elevated prejudicial effect. The probative force of prior statements of intention will depend on, among other things, their degree of specificity and their temporal proximity to the alleged assault. As this Court noted in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, a statement of intention can support an inference that the declarant followed through on the intended course of action only if it is “reasonable on the evidence for the trier of fact to infer that the declarant did so” (para. 169).
[86] The permissible purposes for which sexual inactivity evidence can be introduced should be identified with care. As with all other forms of sexual history evidence, it is incumbent on the party seeking to introduce sexual inactivity evidence to identify with precision how the evidence is relevant to a live issue at trial through the use of permissible inferences. When the evidence is relevant to context or credibility, the evidence must go beyond a “general ability” to undermine or bolster the complainant’s credibility or to add helpful context in order for it to have sufficient probative value to outweigh its inherent prejudicial effect (T.W.W., at para. 27). Accordingly, the evidence “must respond to a specific issue at trial that could not be addressed or resolved in the absence of that evidence” (ibid.). . 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 Crown evidentiary procedures applying to the admission of sex history [under CCC 276]:B. Procedural Requirements for Crown-Led Sexual History Evidence
[42] As I have said, this Court held in Barton that the procedure articulated in Seaboyer applies to Crown-led sexual history evidence, without elaborating further. Seaboyer imposes a markedly simple procedure compared with the procedure imposed by the statutory regime applicable to defence-led evidence. It requires only that the admissibility of sexual history evidence be established on a voir dire (which may be held in camera) either by affidavit or by witness testimony. If the sexual history evidence is admitted, the trial judge is then required to issue a limiting instruction on its impermissible uses (pp. 633-36).
[43] To facilitate consistency and predictability in the management of sexual offence trials, the common law procedure governing Crown-led sexual history evidence should mirror the statutory s. 276 scheme that applies only to the accused. This is an appropriate incremental development of the common law that serves the interests of justice in the contemporary sexual assault law context. As this Court stated in R. v. Salituro, 1991 CanLII 17 (SCC), [1991] 3 S.C.R. 654, judges should incrementally adapt the common law to ensure that it is “in step with the dynamic and evolving fabric of our society” (p. 670). Subject only to a single modification, the two-stage procedure set out in ss. 278.93 and 278.94 of the Criminal Code provides the basic structure that should govern the process for admitting Crown-led sexual history evidence.
[44] As a preliminary observation, caution should be the starting point for judges when deciding whether to instruct parties to commence the procedure set out below. When a trial judge is uncertain whether a piece of evidence is presumptively inadmissible sexual history evidence, they should require the party seeking to adduce the evidence to bring the appropriate application under which a determination of whether the screening regime applies can be made (see Barton, at para. 78). A similar approach was endorsed by this Court in J.J. with respect to decisions on whether a proposed piece of evidence constitutes a “record” pursuant to s. 278.1 of the Criminal Code (para. 104). This cautious approach is consistent with this Court’s emphasis on the fact that judges are the “evidentiary gatekeepers” in a criminal trial and are ultimately responsible for enforcing compliance with evidentiary rules (Goldfinch, at para. 75; see also Barton, at para. 68; R.V., at para. 71). A diligent gatekeeper minimizes the risk of error and promotes predictability and efficiency by avoiding protracted arguments about the precise scope of the various screening regimes that apply to sexual offence trials.
(1) Stage One
[45] To start with, the Crown must prepare a written application that sets out detailed particulars of the evidence that it seeks to adduce and the relevance of that evidence to an issue at trial (see s. 278.93(2)). As under the s. 276 regime, the affidavit attached to the written application can be an “information and belief affidavit” in the Stage One inquiry (Darrach, at para. 53; D. Brown and J. Witkin, Prosecuting and Defending Sexual Offence Cases (3rd ed. 2024), at p. 412).
[46] The Crown must provide fair notice to the accused and the court if it seeks to bring an application. While this generally will be at least seven days’ notice, judges can exercise their trial management powers in the interests of justice to shorten this notice requirement (see s. 278.93(4)). This notice assists in allowing the accused to prepare, particularly in circumstances where they wish to bring their own s. 276 application. Such an application will be necessary only when the defence wishes to adduce details beyond what the Crown is seeking to adduce (see Brown and Witkin, at p. 399).
[47] As this Court recognized in R.V., it is best practice for the parties’ applications to be considered at the same time. Not only does this approach mitigate delay, but it also ensures that a judge has a complete understanding of how all of the evidence of the complainant’s sexual history will be used, which is necessary to properly weigh its probative value and prejudicial effect (para. 79). For example, when considering both applications, a judge may observe that granting one application will result in the other party’s application regarding further particulars of the complainant’s sexual history also being granted. In these circumstances, the judge may then conclude that the overall prejudice caused by granting both applications would be too significant for any of the proposed evidence to be admitted.
[48] In keeping with this Court’s guidance on when s. 276 applications should be brought, the Crown should generally bring its application before the trial commences (J.J., at para. 85; Goldfinch, at para. 145). This practice is preferable to mid-trial applications that lead to adjournments, delay, and scheduling difficulties, which serve the interests of no one (J.J., at para. 86). Mid-trial applications may, however, be necessary where there is a material change in circumstances (Barton, at para. 65; R.V., at para. 75; J.J., at para. 86).
[49] The purpose of the Stage One inquiry is to decide whether an evidentiary hearing should be held and to facilitate the dismissal of frivolous applications. The judge must assess whether the Crown has complied with its procedural obligations and whether the evidence sought to be adduced is capable of being admissible (see s. 278.93(4)). If these requirements are not met, the judge has no obligation to hold an evidentiary hearing. Evidence will be incapable of being admissible where the stated relevance of the evidence engages prohibited myth-based reasoning. The judge may also use the Stage One inquiry to make a final determination on whether the evidence in question constitutes sexual history evidence that is presumptively inadmissible under s. 276 and the common law (see J.J., at para. 28).
[50] In accordance with their trial management powers, judges have discretion to decide whether the Stage One inquiry is conducted in writing, as an oral hearing, or both (J.J., at para. 27). Regardless of the approach taken, the jury and the public must be excluded (see s. 278.93(3)). Trial judges are authorized under the common law to make orders limiting court openness in exceptional circumstances (see Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835, at pp. 857-58; see also Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R. 75, at paras. 38 and 63; R. v. T.W.W., 2024 SCC 19, at paras. 68-70).
[51] Sexual history evidence admissibility proceedings will invariably satisfy the prerequisites articulated in Sherman Estate to justify an exclusion order. Court openness during the admissibility inquiry poses a serious risk to the important public interest of protecting a complainant’s privacy and dignity interests (T.W.W., at para. 74). This is particularly true since the admissibility proceedings may expose irrelevant information about the complainant’s sexual history that is profoundly personal. Given the nature of the information that may be exposed, there are no reasonable alternatives to an exclusion order that would prevent this risk to the complainant’s interests. Likewise, the beneficial effects of the order, such as promoting the reporting of sexual offences, outweigh the limit on court openness that will be temporary if the proposed evidence is ultimately admitted.
(2) Stage Two
[52] At the Stage Two hearing, the judge determines whether the sexual history evidence is admissible. The judge must decide whether the Crown has proven, on a balance of probabilities, that the evidence is relevant to an issue at trial and that its probative value is not outweighed by its prejudicial effect. As discussed, the factors enumerated in s. 276(3) must be used as a guide to structure this analysis. As in the Stage One inquiry, the jury and the public must be excluded during the hearing (see s. 278.94(1)). For the same reasons as above, these circumstances will invariably meet the Sherman Estate prerequisites to justify an exclusion order.
[53] Unlike under the s. 276 regime, a complainant does not have automatic standing to make submissions at a Stage Two hearing regarding the admissibility of Crown-led sexual history evidence. Given that the views of the Crown and the complainant will often align, there is a risk of unnecessary expense and delay in permitting the complainant to make submissions at every evidentiary hearing (see I.F., Attorney General of Alberta, at para. 26). With that said, judges retain the discretion to grant complainants standing as an exercise of their trial management powers (J.J., at para. 105). Where the complainant and the Crown differ on the issue of admissibility, it may be particularly important to ensure that the complainant has an opportunity to be heard (see J.J., at para. 178). Likewise, where a Crown application is being heard at the same time as a s. 276 application, the complainant should be granted standing for both applications.
[54] The complainant is not compellable at the Stage Two hearing. As explained in Darrach, some of the purposes of this regime would be undermined if complainants were compelled to be examined on their sexual history before the admissibility of that evidence was determined (para. 68). Such a procedure would unnecessarily harm a complainant’s dignity and privacy interests and deter the reporting of crimes of sexual violence (ibid.).
[55] As a result, it is not necessary for a personal affidavit from the complainant to be filed. Even so, the Crown still has the burden of providing a sufficient evidentiary basis on which the judge can determine the admissibility of the sexual history evidence. Evidence can be introduced through affidavit or viva voce testimony from another individual with personal knowledge of a complainant’s sexual history, or through other means, such as preliminary inquiry transcripts or sworn police statements (R. v. Morris, 2024 ONSC 4155, 97 C.R. (7th) 35, at paras. 73-74). Although these alternative avenues are available, the absence of a personal affidavit from the complainant will often undermine the judge’s ability to assess the relevance and the probative value of the proposed evidence (see R. v. T.A.H., 2019 BCSC 1614, 58 C.R. (7th) 148, at para. 37).
[56] At the conclusion of the Stage Two hearing, the judge must provide reasons for their admissibility determination (see s. 278.94(4); R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 10 and 14). If some or all of the evidence is to be admitted, the judge must explain precisely how the evidence is relevant to an issue at trial and how they assessed the probative value and prejudicial effect of the evidence in light of the factors enumerated under s. 276(3).
[57] The judge may, either on their own initiative or at the request of either party, revisit this admissibility ruling when there is a material change in circumstances, such as when a witness’s testimony evolves during the course of a trial (T.W.W., at para. 51).
(3) Additional Considerations
[58] During the aforementioned procedure, trial judges must exercise their power to issue publication bans in a manner that aligns with s. 278.95 of the Criminal Code. As under ss. 278.93(3) and 278.94(1), a judge who exercises their common law powers to limit court openness in accordance with this legislative enactment respects the requirements outlined in Sherman Estate.
[59] Accordingly, the contents of the Crown’s application must not be published, transmitted, or broadcast in any way. The same applies to the evidence taken, the information given, and the representations made in a Stage One inquiry and at a Stage Two hearing. The decision of the judge in a Stage One inquiry may be published after consideration of the complainant’s right to privacy and the interests of justice. The judge’s determination and reasons following a Stage Two hearing should not be published unless some of the evidence is held to be admissible or in circumstances where the judge determines that the reasons should be public after considering the complainant’s right to privacy and the interests of justice.
[60] Finally, as outlined in Seaboyer, if the judge holds that any of the Crown-led sexual history evidence is admissible in a jury trial, a limiting instruction must be given to the jury outlining its permissible and impermissible uses (p. 636).
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