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Evidence - 'Propensity Reasoning'. R. v. A.M.
In R. v. A.M. (SCC, 2026) the Supreme Court of Canada dismissed a Crown criminal appeal, here brought against an Ontario Court of Appeal ruling that considered "the test for applying s. 276 [SS: 'Admissibility of Sexual Activity Evidence - Evidence of complainant’s sexual activity'] to offences that are not specifically enumerated in that section".
The court considers the underlying theme of stereotypical or 'myths' (a form of 'propensity' reasoning) that underlies CCC s.276, here were the complainant had engaged in sex work:(1) Reliance on Myths and Stereotypes
[87] Reliance on myths and stereotypes, including those beyond the twin myths, jeopardizes the court’s truth-seeking function (see R. v. A.G., 2000 SCC 17, [2000] 1 S.C.R. 439, at para. 2, per L’Heureux‑Dubé J., concurring) and has “no place in a rational and just system of law” (R. v. Lacombe, 2019 ONCA 938, 383 C.C.C. (3d) 114, at para. 31). This is because myths and stereotypes are predicated on “false logic” (R. v. Boone, 2016 ONCA 227, 347 O.A.C. 250, at para. 37, quoting R. v. W.H., 2015 ONSC 3087, at para. 10). The dangers inherent in reliance on myths and stereotypes were canvassed by Martin J., as a trial judge, in R. v. G. (C.M.), 2016 ABQB 368, 41 Alta. L.R. (6th) 374, at para. 60:Broadly speaking, myths and stereotypes rest on untested and unstated assumptions about how the world works or how certain people behave in particular situations. They often involve an idealized standard of conduct against which particular individuals are measured. [88] Myths and stereotypes remain a pernicious threat to the criminal trial process. Despite the risks associated with impermissible reliance on myths and stereotypes, under Canadian law, evidence of prior sexual history is not categorically irrelevant or inadmissible (see L. Dufraimont, “Myth, Inference and Evidence in Sexual Assault Trials” (2019), 44 Queen’s L.J. 316, at p. 346). Rather, “the law prohibits stereotypical or discriminatory lines of reasoning flowing from th[is] for[m] of evidence, but acknowledges that [it] may be relevant for other, legitimate inferential purposes” (p. 346; see also L. Dufraimont, “Current Complications in the Law on Myths and Stereotypes” (2021), 99 Can. Bar Rev. 536, at p. 550). As this Court stated in Kruk, “just because the evidence happens to align with a myth or stereotype does not necessarily mean that any inferences that can be drawn from that evidence will be prejudicial” (para. 65).
[89] In this case, the evidence the respondents sought to adduce related to the commercial nature of the complainant’s work, not its sexual nature. Contrary to the Crown’s argument that the evidence could lead to impermissible twin-myth reasoning, the evidence of A.K.’s previous sex work was being proffered to suggest that she previously pursued work in the sex trade voluntarily and that the respondents did not lure or exploit her into working in the industry. As the intervener the Criminal Lawyers’ Association (Ontario) points out, the sexual nature of the complainant’s prior sex work does not go to the core of the evidence’s function, which is to provide context for A.K.’s level of autonomy, decision-making, and the power dynamics that shaped her relationship with the respondents.
[90] I agree with the Court of Appeal that “evidence of A.K.’s prior working arrangements was relevant to a proper understanding of the true nature of her relationship” with the respondents (para. 118). This evidence could assist in countering the Crown’s theory that the respondents capitalized on A.K.’s substance abuse issues in coercing her into sex work. The Court of Appeal correctly noted that the proposed cross-examination of A.K. was not intended to be used for impermissible purposes and that, if it crossed permissible bounds, the trial judge would have the authority to intervene.
[91] Undoubtedly, in cases such as this, trial judges must be vigilant in ensuring that evidence is not being proffered to advance improper propensity reasoning. Evidence of a complainant’s prior sex work should not be adduced to show a propensity to engage in sex work or sexual activity generally. Nor does a voluntary decision to engage in sex work at one point logically lead to the inference that a complainant is therefore less susceptible to exploitation, influence, coercion, or control generally. However, it is legitimate for the defence to lead evidence showing how a complainant’s prior experience informs their perspective on the nature and quality of the relationship with the accused. Such evidence is not being proffered to show a propensity to act in a certain way. Rather, it advances an inference about a complainant’s state of mind or the broader contextual or commercial circumstances that may be relevant in evaluating exploitation.
(2) The Exercise of the Court’s General Discretion
[92] The Crown submits that reliance on the trial judge’s general discretion to halt inappropriate cross-examination is an insufficient safeguard that cannot replace s. 276’s protective function. Moreover, the trial judge’s discretion is insufficient because it is retrospective — trial judges can only intervene once counsel has asked the complainant a question.
[93] The respondents submit that the trial judge’s discretion is sufficient to protect the integrity of the trial. Trial judges are well positioned to ensure that impermissible myths and stereotypes do not impact the truth-seeking function of the trial.
[94] As this Court noted in Goldfinch, trial judges are the “ultimate evidentiary gatekeepers” (para. 75; see also Barton, at para. 68; Kinamore, at paras. 3 and 44). Using their general discretion to safeguard the truth-seeking function of the trial is a foundational tenet of the criminal process. Importantly, there are several discriminatory myths and stereotypes beyond the twin myths that require trial judges to exercise vigilance in their gatekeeping role, for example, that a complainant’s delay in disclosure undermines their credibility (see R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 63), that a complainant’s failure to dress modestly indicates they are more likely to consent to sexual activity (see R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at paras. 82 and 88-89, per L’Heureux-Dubé J., concurring), or that associating with the accused after an alleged sexual assault suggests there was consent (see R. v. A. (A.B.), 2019 ONCA 124, 145 O.R. (3d) 634, at paras. 6-12; for a broader discussion on myths and stereotypes, see Kruk, at paras. 36 and 41).
[95] While several myths and stereotypes do not call for statutory pre-screening, trial judges are required to monitor against impermissible inferences from infecting the reasoning process. The general discretion afforded to trial judges is an important tool to maintain the integrity of the trial process for all participants. If evidence is proffered for the purpose of demeaning the complainant or capitalizing on prejudices against sex workers, trial judges should recognize that evidence of that nature is impermissible and put a stop to such questioning (see Williams #2, at paras. 57-58).
[96] Sex workers are subject to many harmful and discriminatory myths and stereotypes. This Court recognized as much in both the majority and dissent in Barton. For the majority, Moldaver J. recognized several troubling stereotypical assumptions about Indigenous women involved in sex work, including that they:. are not entitled to the same protections the criminal justice system promises other Canadians;
. are not deserving of respect, humanity, and dignity;
. are sexual objects for male gratification;
. need not give consent to sexual activity and are “available for the taking”;
. assume the risk of any harm that befalls them because they engage in a dangerous form of work; and
. are less credible than other people. [para. 201] Justices Abella and Karakatsanis expressed a similar concern in their partial dissent (see paras. 230-31). In addition, like all victims of sexual offences, victims of commercial sex trade offences are vulnerable witnesses, for whom testifying can be deeply traumatizing.
[97] In this regard, s. 276 is not the only tool to protect the trial process from impermissible lines of questioning and inferential reasoning. On the contrary, trial judges have a variety of tools at their disposal to advance protection of vulnerable complainants. For example, it is an important part of the trial judge’s role to set appropriate limits on questioning, to intervene where questioning becomes improper, to provide appropriate limiting instructions to the jury to ensure that its deliberations are not infected by discriminatory myths or stereotypes, and to use their case management powers to ensure the permissible use of evidence (see Langford, at para. 48).
[98] As emphasized in Kinamore, trial judges should adopt a cautious approach when s. 276 is potentially engaged (para. 44). Where uncertainty exists about the application of s. 276, trial judges should follow the process set out in Barton: “. . . raise that issue with the parties at the earliest opportunity and, after giving the parties the opportunity to make submissions, issue a ruling on the matter” (para. 78). As part of that process, it is important for trial judges to consider the defence’s purpose in delving into the complainant’s prior or subsequent sex work.
(3) Conclusion
[99] The Court of Appeal did not rely on impermissible propensity reasoning that engaged the twin myths in determining the ambit of permissible cross-examination of the complainant in this case. . R. v. S.F.
In R. v. S.F. (Ont CA, 2026) the Ontario Court of Appeal allowed a criminal appeal, here brought against convictions on "three counts of sexual assault".
Here the court considered tendency evidence, here characterized as 'propensity reasoning':[4] The appellant contends that this constitutes prohibited propensity reasoning. We agree.
[5] Evidence of prior discreditable conduct cannot be used to prove that the accused generally has a bad character and is therefore more likely to have committed the offences for which they are being tried: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 31. People are to be tried for what they did, not who they are.
[6] Although the trial judge stated that he did not treat the appellant’s infidelity as general evidence of bad character, we are of the view that his reasoning could only be seen as such. The appellant’s disrespect for the complainant’s feelings or the betrayal of her expectation of monogamy could not properly be used as evidence that the appellant was predisposed to disregard her rule about condom use and thus was more likely to have sexually assaulted her.
[7] The appellant furthermore had no notice that his admission of infidelity might be used to assess his overall credibility and to find that he was more likely to have sexually assaulted the complainant.
[8] The appellant’s infidelity was first mentioned during the complainant’s testimony, in the context of her explanation of why they broke up. The appellant also testified about the complainant’s discovery of his infidelity and, in closing submissions, implied that it gave the complainant a motive to fabricate the sexual assault allegations. The appellant was not cross-examined about whether his cheating implied a general disregard for the complainant’s wishes and expectations, and in particular her expectation that he would not penetrate her without a condom. The Crown did not suggest in its closing argument that the evidence could be used for this purpose nor did the trial judge ask the parties for submissions on this point.
[9] Citing R. v. Kruk, 2024 SCC 7, 489 D.L.R. (4th) 385, at paras. 121-22, the Crown contends that it was open to the trial judge to find, based on the admitted infidelity, that the appellant was generally disinclined to respect the complainant’s wishes. This argument mischaracterizes the Supreme Court’s reasoning in the passage in Kruk relied on by the Crown. The Court found that a trial judge did not err in rejecting an accused’s account of his interactions with a complainant on a specific evening because the account was inconsistent with the judge’s other findings about what occurred that same evening. It did not endorse reasoning that, because an accused previously engaged in a morally reprehensible act, he had a greater propensity to commit an unrelated criminal offence months later. . R. v. Henderson
In R. v. Henderson (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal, here concerning "the propriety of joining charges for aggravated assault and failing to provide necessaries of life in an indictment charging second degree murder" [under CCC 589].
Here the court considers jury charging on the issue of 'propensity' evidence:[75] This court has dismissed appeals based on the failure of a trial judge to instruct the jury on propensity reasoning, where such a failure did not prejudice the accused but in fact spared the accused from the reciprocal need for the judge to recite the available and damaging uses of such evidence: R. v. MRS, 2020 ONCA 667, 396 C.C.C. (3d) 172, at para. 101; R. v. Sandhu, 2009 ONCA 102, 242 C.C.C. (3d) 262, at paras. 12-18; R. v. N.T., 2011 ONCA 114, at paras. 20-22; R. v. Batte (2000), 49 O.R. (2d) 321 (C.A.), at paras. 113-114. I would reject this ground of appeal on this basis. . R. v. A.V.
In R. v. A.V. (Ont CA, 2025) the Ontario Court of Appeal allowed a defendant's criminal appeal from a jury trial.
Here the court notes that if there is a risk of propensity reasoning occuring, the jury should be cautioned:[11] In addition, and regardless of whether similar act evidence has been admitted to permit the cross-count application of evidence, if there remains a risk that a jury could engage in prohibited propensity reasoning, a limiting instruction is required. That instruction involves telling the jury that they must not rely on the cross-count evidence as proof that the accused is the type of person who would have committed the offence(s): R. v. M. (B.) (1998), 1998 CanLII 13326 (ON CA), 42 O.R. (3d) 1 (C.A.), at para. 42; R. v. M.R.S., 2020 ONCA 667, 396 C.C.C. (3d) 172, at para. 68. . R. v. Jahangiri
In R. v. Jahangiri (Ont CA, 2022) the Court of Appeal considered 'propensity reasoning', which appears to be a recent term for character or similar fact evidence:[30] Evidence that takes its probative effect from propensity reasoning is presumptively inadmissible, although relevant. The presumption is rebutted when the Crown, on a balance of probabilities, proves that the probative value of the evidence outweighs its prejudicial effect: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 55.
[31] Doherty J.A. explained in R. v. Batte (2000), 2000 CanLII 5751 (ON CA), 49 O.R. (3d) 321 (C.A.), that propensity reasoning involves two inferences: first, one infers from conduct on occasions other than the occasion in issue, that a person has a certain disposition; and second, one infers from the existence of that disposition that a person acted in a certain way on the occasion in issue: “Viewed in this way, the evidence of the accused’s discreditable conduct is a form of circumstantial evidence and meets the legal relevance criterion”: at para. 97.
[32] The reasons for exclusion of discreditable conduct evidence were described by Doherty J.A. in Batte, at paras. 99 and 100, as follows:Even where the discreditable conduct is such as to reasonably permit the inferences necessary to give propensity reasoning probative value, that evidence can still be misused by the jury. Often, evidence which can support propensity reasoning will have a much greater potential to improperly prejudice the jury against the accused. As Sopinka J. observed in R. v. D.(L.E.), 1989 CanLII 74 (SCC), [1989] 2 S.C.R. 111 at 127-28, a jury may assume from the evidence of discreditable conduct that the accused is a bad person and convict on that basis, or they may convict in order to punish the accused for the discreditable conduct, or they may become embroiled in a determination of whether the accused committed the alleged discreditable acts and lose sight of the real question – did he commit the acts alleged in the indictment?...
Propensity reasoning also imperils the overall fairness of the criminal trial process. It is a fundamental tenet of our criminal justice system that persons are charged and tried based on specific allegations of misconduct. If an accused is to be convicted, it must be because the Crown has proved that allegation beyond a reasonable doubt and not because of the way the accused has lived the rest of his or her life. An accused must be tried for what he or she did and not for who he or she is…. [33] In R. v. B.(L.), Charron J.A. referred to the “forbidden line of reasoning” in respect of discreditable conduct evidence as “that which leads to the conclusion that the accused committed the offence with which he is charged based, not on the strength of the evidence which has a connection to the issues in the case, but rather, on the strength of the evidence that he is ‘a bad person’ who would have a tendency to commit this offence”: at para. 48. She stated, at para. 43, that the relevance of this kind of evidence “usually depends on the proposition that persons tend to act consistently with their character, or, in other words, that persons have the propensity to act in the manner in which they have acted previously. This underlying proposition is all about propensity” (emphasis added).
[34] Contrary to the appellant’s submission, the probative force of the cash seizure evidence did not depend on propensity reasoning, and therefore cannot be properly considered discreditable conduct evidence.
[35] In a recent decision, R. v. Baksh, 2022 ONCA 481, this court was dealing with what was alleged to have been cross-count similar act evidence in a drug trafficking case where the only issue was the identity of the trafficker. The appellant argued that the trial judge was not permitted to rely on similar act evidence – evidence by an undercover officer that he had purchased cocaine from the same person on all four occasions − without first conducting an inquiry pursuant to r. 30 of the Criminal Proceedings Rules. At para. 23, Favreau J.A. identified as the “threshold issue”, whether the evidence the trial judge relied on across the four drug trafficking counts was properly characterized as similar act evidence (and therefore presumptively inadmissible). In concluding that it was not, she observed that, while the trial judge relied on some of the same evidence across the different counts, “he did not do so for the purpose of embarking on impermissible propensity reasoning … that, because the appellant was the drug trafficker on one occasion, he was more likely to be the drug trafficker on other occasions”: at para. 24. She explained at para. 26:Not all instances of reliance on evidence across counts amounts to impermissible similar act evidence or evidence that raises a risk of propensity reasoning: see e.g., R. v. Settle, 2021 ABCA 221, at paras. 34-36; R. v. Giesbrecht, 2019 MBCA 35, 373 C.C.C. (3d) 70, at paras. 73-77. Whether the evidence is properly characterized as similar act evidence depends on the use to which the evidence is put: see e.g. R. v. Graham, 2015 ONCA 113, 330 O.A.C. 394, at paras. 29, 33; R. v. deKock, 2009 ABCA 225, 454 A.R. 102, at para. 36.
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