R. v. Kinamore, 2025 SCC 19

SUPREME COURT OF CANADA
Citation: R. v. Kinamore, 2025 SCC 19			Appeal Heard: December 5, 2024 Judgment Rendered: June 13, 2025 Docket: 40964
Between:   Dustin Kinamore Appellant   and   His Majesty The King Respondent   - and -   Attorney General of Ontario, Attorney General of Manitoba, Attorney General of Alberta, Criminal Trial Lawyers’ Association, Trial Lawyers Association of British Columbia and Criminal Lawyers’ Association (Ontario) Interveners       Coram: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ.
Reasons for Judgment: (paras. 1 to 96)	Wagner C.J. (Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ. concurring)

 

 

 

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.

 

 

Dustin Kinamore                                                                                            Appellant

v.

His Majesty The King                                                                                 Respondent

and

Attorney General of Ontario,

Attorney General of Manitoba,

Attorney General of Alberta,

Criminal Trial Lawyers’ Association,

Trial Lawyers Association of British Columbia and

Criminal Lawyers’ Association (Ontario)                                                 Interveners

Indexed as: R. v. Kinamore

2025 SCC 19

File No.: 40964.

2024: December 5; 2025: June 13.

Present: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ.

on appeal from the court of appeal for british columbia

                    Criminal law — Evidence — Admissibility — Complainant’s sexual activity — Sexual inactivity evidence — Crown‑led evidence of complainant’s sexual history — Accused charged with sexual assault — Crown leading evidence of complainant’s virginity and disinterest in sexual relationship with accused — Trial judge admitting evidence without holding voir dire — Accused convicted — Whether evidence of complainant’s sexual inactivity constitutes presumptively inadmissible evidence of complainant’s sexual history — Whether trial judge erred in admitting evidence without holding voir dire — Criminal Code, R.S.C. 1985, c. C‑46, s. 276.

                    The accused and the complainant met in May 2020 and exchanged information for their social media accounts, which were used as their primary method of communicating with one another for the months that followed. On August 3, the accused and the complainant met at the accused’s apartment. The events of that day led to the accused being charged with sexually assaulting the complainant. At trial, without a voir dire having first been held, the Crown introduced screenshots of social media messages that were exchanged between the accused and the complainant in May and June 2020. Some of the messages were explicitly sexual in nature. The messages included many conversations in which the complainant indicated disinterest in a sexual relationship with the accused. Some of these discussions referenced the complainant’s virginity, and evidence of the complainant’s virginity was also introduced through the testimony of the complainant and the accused. Both the Crown and the defence relied on this evidence.

                    The trial judge found the accused guilty of sexual assault. The accused appealed his conviction, arguing that the trial judge erred in admitting the Crown‑led evidence of the prior communications between the parties without a voir dire. The Court of Appeal dismissed the appeal, holding that the communications were not presumptively inadmissible because the complainant’s social media messages indicating a disinterest in having sex with the accused fell outside the exclusionary rule governing a complainant’s sexual history.

                    Held: The appeal should be allowed, the conviction quashed and a new trial ordered.

                    Sexual inactivity evidence, 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, forms part of a complainant’s sexual history and is thus presumptively inadmissible. Furthermore, 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 to the accused. In the instant case, 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 their admissibility. Since the trial judge’s assessment of the credibility of the accused and the complainant was inextricably intertwined with this presumptively inadmissible evidence, the evidence played a material role in the trial judge’s reasons. Therefore, her error was not harmless and the curative proviso cannot be applied.

                    The text of s. 276, which encompasses communications whose content is of a sexual nature, includes any communication from the complainant in which sex is a topic of conversation. The scope of the common law exclusionary rule and of s. 276 should be interpreted in a consistent manner, and are equivalent in this respect. While there are relevant purposes for which sexual inactivity evidence can be used, it forms part of a complainant’s sexual history and should thus be treated as presumptively inadmissible. Existing appellate authority that has excluded evidence of a complainant’s sexual inactivity from the scope of s. 276 based on a plain reading of the provision and a narrow understanding of its purpose must therefore be rejected.

                    Presumptive inadmissibility of sexual inactivity evidence furthers the three purposes behind the s. 276 regime. Sexual inactivity evidence may evoke inverse twin‑myth reasoning, inviting 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. This reasoning is legally impermissible because it remains grounded in false assumptions about complainants. These myths and stereotypes about complainants undermine the fairness of a trial by distorting its truth‑seeking function. Screening of sexual inactivity evidence also facilitates the protection of a complainant’s dignity and privacy interests. While sexual inactivity evidence is presumptively inadmissible, it is not categorically excluded; it is only inferences rooted in inverse twin‑myth reasoning or analogous forms of discriminatory reasoning that are prohibited. 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.

                    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 common law process for admitting Crown‑led sexual history evidence. 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, providing fair notice to the accused and the court. The Crown should generally bring its application before the trial commences, but mid‑trial applications may be necessary where there is a material change in circumstances. At Stage One, 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. Evidence will be incapable of being admissible where the stated relevance of the evidence engages prohibited reasoning.

                    At Stage Two, 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. In weighing the probative value and prejudicial effect of Crown‑led sexual history evidence, trial judges must consider the non‑exhaustive list of factors set out in s. 276(3) of the Criminal Code. 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, but judges retain the discretion to grant complainants standing as an exercise of their trial management powers. At the conclusion of the Stage Two hearing, the judge must provide reasons for their admissibility determination.

                    During this two‑stage procedure, trial judges must exercise their power to limit court openness in a manner that aligns with ss. 278.93(3), 278.94(1), and 278.95 of the Criminal Code. The jury and the public must be excluded during the Stage One inquiry and the Stage Two hearing. The contents of the Crown’s application, the evidence taken, the information given, and the representations made in a Stage One inquiry and at a Stage Two hearing must not be published, transmitted, or broadcast in any way. 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. 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.

Cases Cited

                    Overruled: R. v. Brothers (1995), 169 A.R. 122; R. v. Pittiman (2005), 198 C.C.C. (3d) 308, aff’d 2006 SCC 9, [2006] 1 S.C.R. 381; distinguished: R. v. Langan, 2020 SCC 33, [2020] 3 S.C.R. 499, rev’g 2019 BCCA 467, 383 C.C.C. (3d) 516; considered: R. v. R.V., 2019 SCC 41, [2019] 3 S.C.R. 237; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443; R. v. Martin, 2013 ONSC 7210; R. v. Martin, 2013 ONSC 6901; referred to: R. v. Arp, [1998] 3 S.C.R. 339; R. v. Corbett, [1988] 1 S.C.R. 670; R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544; R. v. T.J.F., 2024 SCC 38; R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908; R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3; R. v. Arcangioli, [1994] 1 S.C.R. 129; R. v. Osolin, [1993] 4 S.C.R. 595; R. v. Kruk, 2024 SCC 7; R. v. J.J., 2022 SCC 28, [2022] 2 S.C.R. 3; R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475; R. v. Salituro, [1991] 3 S.C.R. 654; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R. 75; R. v. T.W.W., 2024 SCC 19; R. v. Morris, 2024 ONSC 4155, 97 C.R. (7th) 35; R. v. T.A.H., 2019 BCSC 1614, 58 C.R. (7th) 148; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3; R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3; R. v. Alex, 2017 SCC 37, [2017] 1 S.C.R. 967; R. v. L.S., 2017 ONCA 685, 354 C.C.C. (3d) 71; R. v. Mills, [1999] 3 S.C.R. 668; R. v. Harrer, [1995] 3 S.C.R. 562; R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801; R. v. Reimer, 2024 ONCA 519, 173 O.R. (3d) 412; R. v. Ewanchuk, [1999] 1 S.C.R. 330; R. v. Garciacruz, 2015 ONCA 27, 320 C.C.C. (3d) 414; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144; R. v. Tayo Tompouba, 2024 SCC 16; R. v. O’Brien, 2011 SCC 29, [2011] 2 S.C.R. 485; R. v. Leaney, [1989] 2 S.C.R. 393; R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823.

Statutes and Regulations Cited

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).

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.

Canadian Charter of Rights and Freedoms, ss. 7, 11(d).

Criminal Code, R.S.C. 1985, c. C‑46, ss. 276, (4) [ad. 2018, c. 29, s. 21], 278.93, 278.94, 278.95, 686(1)(b)(iii).

Authors Cited

Brown, Daniel, and Jill Witkin. Prosecuting and Defending Sexual Offence Cases, 3rd ed. Toronto: Emond Montgomery, 2024.

Desrosiers, Julie, and Geneviève Beausoleil‑Allard. L’agression sexuelle en droit canadien, 2nd ed. Montréal: Yvon Blais, 2017.

Dufraimont, Lisa. “Myth, Inference and Evidence in Sexual Assault Trials” (2019), 44 Queen’s L.J. 316.

Mazzuca, Samuel. “Regulating the Admissibility & Use of Sexual Inactivity Evidence in Criminal Cases” (2022), 70 C.L.Q. 161.

Paciocco, David M., Palma Paciocco and Lee Stuesser. The Law of Evidence, 8th ed. Toronto: Irwin Law, 2020.

Randall, Melanie. “Sexual Assault Law, Credibility, and ‘Ideal Victims’: Consent, Resistance, and Victim Blaming” (2010), 22 C.J.W.L. 397.

Stewart, Hamish C. Sexual Offences in Canadian Law. Toronto: Thomson Reuters, 2024 (loose‑leaf updated May 2025, release 1).

Vauclair, Martin, Tristan Desjardins and Pauline Lachance. Traité général de preuve et de procédure pénales 2024, 31st ed. Montréal: Yvon Blais, 2024.

                    APPEAL from a judgment of the British Columbia Court of Appeal (Fenlon, Dickson and Skolrood JJ.A.), 2023 BCCA 337, 429 C.C.C. (3d) 365, 91 C.R. (7th) 1, [2023] B.C.J. No. 1650 (Lexis), 2023 CarswellBC 2459 (WL), affirming the conviction entered by Gordon Prov. Ct. J., 2022 BCPC 341, [2023] B.C.J. No. 2499 (Lexis), 2022 CarswellBC 3927 (WL). Appeal allowed.

                    Matthew A. Nathanson and Rachel M. Wood, for the appellant.

                    Crystal Tomusiak and Lara Vizsolyi, for the respondent.

                    Molly Flanagan, for the intervener Attorney General of Ontario.

                    Ashleigh Smith and Rekha Malaviya, K.C., for the intervener Attorney General of Manitoba.

                    Joanne B. Dartana, K.C., for the intervener Attorney General of Alberta.

                    Mona Duckett, K.C., for the intervener Criminal Trial Lawyers’ Association.

                    Sarah Pringle and Daniel J. Song, K.C., for the intervener Trial Lawyers Association of British Columbia.

                    Mark C. Halfyard and Sara Little, for the intervener Criminal Lawyers’ Association (Ontario).

                   The judgment of the Court was delivered by

                   The Chief Justice —

I.               Introduction

[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] 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.

[6]                             I would therefore allow the appeal, quash the conviction, and order a new trial.

II.            Background

[7]                             In May 2020, Mr. Kinamore met the complainant while she was working at a motorcycle shop. At the time, the complainant was 16 years old and Mr. Kinamore was 22 years old. During their initial meeting, the two exchanged information for their social media accounts, which were subsequently used as their primary method of communicating with one another. The two met again in May and went for a motorcycle ride. On July 31, Mr. Kinamore stopped by the motorcycle shop and made plans with the complainant to meet on August 3 at his apartment.

[8]                             At trial, Mr. Kinamore and the complainant provided differing accounts of the events of August 3. The complainant testified that, shortly after arriving at Mr. Kinamore’s apartment, the two went out to his balcony, where he put his arm around her. She explained that, after they moved back indoors, Mr. Kinamore began kissing her neck without her consent and then picked her up and placed her on his bed. She said that Mr. Kinamore then attempted to remove her clothing but that he stopped and left the room after she objected. When he returned, he put a movie on, but not long afterwards Mr. Kinamore started kissing the complainant, removed her underwear, and then proceeded to digitally penetrate her vagina and perform cunnilingus on her. This later transitioned to Mr. Kinamore penetrating the complainant’s vagina with his penis. The complainant testified that during this time she resisted Mr. Kinamore, which eventually led him to stop. Afterwards, the complainant briefly left the apartment to call a friend to disclose what happened. The complainant then returned inside and confronted Mr. Kinamore. Mr. Kinamore later drove the complainant to a SkyTrain station.

[9]                             In contrast, Mr. Kinamore testified that, after returning from the balcony, the two walked together to his bedroom to watch a movie. He explained that the complainant then initiated the kissing, which eventually led to them undressing one another. He performed cunnilingus on her with her consent and then later asked the complainant twice to perform fellatio on him. After her second refusal, Mr. Kinamore began to scroll on his phone, looking for food to order. During this time, the complainant received a phone call from someone at work, who informed her that she had mistakenly taken a pair of work keys. She also received a text from her father inviting her to join him and his friends for dinner that evening. After they decided that neither of them wanted to eat at that time, Mr. Kinamore drove the complainant to a SkyTrain station so she could meet up with her father.

[10]                         The social media messages between the parties were key pieces of evidence at trial. The Crown introduced screenshots of the messages that were exchanged between Mr. Kinamore and the complainant in May and June 2020 as a marked exhibit without a voir dire. These screenshots had come from the complainant after the police requested them. In her testimony, the complainant acknowledged that the screenshots did not contain all of the messages exchanged between her and Mr. Kinamore. She had deleted her social media account by the time the police requested that she retrieve all of the messages.

[11]                         Some of the messages were explicitly sexual in nature. For example, in a series of messages, Mr. Kinamore said that he was masturbating to pictures of the complainant and requested a picture of her breasts, to which the complainant replied “Not gonna happen” and “Here tho”, with a link to a pornographic website (A.R., at p. 296). However, the sexual nature of other messages was more implicit. For instance, the complainant stated “God I’d love to put that to the test” and then, after Mr. Kinamore said “I don’t think you could keep up”, she replied “Try me” (p. 288). The complainant and Mr. Kinamore confirmed in their testimony that these messages were sexual in nature yet provided differing accounts as to what had been discussed in the conversation that preceded these messages.

[12]                         The social media messages included many conversations in which the complainant repeatedly indicated a disinterest in a sexual relationship with Mr. Kinamore. Some of these discussions referenced the complainant’s virginity, as demonstrated by the following messages:

[Mr. Kinamore]: But if you still can’t get me off your mind you can come see me soon

 

[Complainant]: You just want sex

 

[Mr. Kinamore]: You never understand

 

[Complainant]: I understand how important it is to you and I don’t want to string you into thinking you’ll get something you won’t

 

[Mr. Kinamore]: It’s since you are a virgin

 

[Mr. Kinamore]: Sex tells me more about someone, like legit in my past I can tell how well I’m going to like someone

 

[Mr. Kinamore]: My past exs, our sex was fantastic and it connected us

 

[Mr. Kinamore]: It just worked

 

[Mr. Kinamore]: It’s hard to fully grasp this when you haven’t done it

 

[Complainant]: Sure I get it. But what’s the point of still talking to me if I’m not going to give you what you want

 

(A.R., at pp. 290-91)

[13]                         Evidence of the complainant’s virginity was also introduced through the testimony of the complainant and Mr. Kinamore. For example, the complainant testified that, following the alleged sexual assault, she was upset with Mr. Kinamore for taking her virginity. She also testified that, when she disclosed the alleged assault to her father, she told him that someone had taken her virginity. During the direct examination of the complainant’s father, he recounted her making this statement. During the cross-examination of Mr. Kinamore, the Crown asked multiple times about whether he knew of the complainant’s virginity.

[14]                         Both the Crown and the defence relied on this evidence for different purposes. During closing submissions, Crown counsel relied on the complainant’s virginity and prior messages showing a disinterest in a sexual relationship to suggest that Mr. Kinamore’s version of events was implausible. In contrast, the defence argued that some of the complainant’s prior messages contradicted the complainant’s testimony that she was not sexually interested in Mr. Kinamore.

III.         Procedural History

A.           Provincial Court of British Columbia, 2022 BCPC 341 (Gordon Prov. Ct. J.)

[15]                         The trial judge found Mr. Kinamore guilty of sexual assault. In her reasons, she stated that she disbelieved Mr. Kinamore and concluded that his evidence was incapable of raising a reasonable doubt because it was “amorphous” and changed over time (para. 10).

[16]                         The trial judge provided various reasons to support this conclusion, which included the following: (1) Mr. Kinamore changed his story about whether the complainant had sent nude photographs to him after Crown counsel suggested that the receipt of such photos may have been a crime (para. 11); (2) Mr. Kinamore’s interpretation of a message from the complainant in which she stated “I will destroy you” evolved, and the complainant’s other messages indicating sexual disinterest contradicted his initial suggestion that the “destroy you” message was sexual (para. 13); and (3) Mr. Kinamore’s assertion that he wanted to have a relationship with the complainant at the time was contradicted by his prior messages, including those in which he suggested that the two be “friends with benefits” (para. 14).

B.            Court of Appeal for British Columbia, 2023 BCCA 337, 91 C.R. (7th) 1 (Fenlon, Dickson and Skolrood JJ.A.)

[17]                         Mr. Kinamore argued on appeal that the trial judge erred in admitting the Crown-led evidence of the prior communications between the parties without a voir dire. The Court of Appeal unanimously rejected this argument, holding that the previous communications were not presumptively inadmissible. The Court of Appeal cited R. v. Langan, 2020 SCC 33, [2020] 3 S.C.R. 499, rev’g 2019 BCCA 467, 383 C.C.C. (3d) 516, for the proposition that prior communications from the complainant indicating a disinterest in having sex with the accused fall outside the exclusionary rule governing a complainant’s sexual history.

[18]                         The Court of Appeal also rejected Mr. Kinamore’s argument that the trial judge breached the rule against the admission of prior consistent statements by relying on the complainant’s social media messages to determine the issue of consent. The court held that the rule applies only to out-of-court statements made after the event in issue that are consistent with a witness’s in-court testimony. Since the communications preceded the alleged sexual assault, the rule against the admission of prior consistent statements did not apply. In any event, the Court of Appeal concluded that the trial judge did not use the prior communications for an impermissible purpose. The Court of Appeal therefore dismissed the appeal.

IV.         Issues

[19]                         Mr. Kinamore renews both of these arguments on appeal to this Court. The first issue is whether the trial judge erred in admitting, without a voir dire, the parties’ social media messages because they constitute presumptively inadmissible evidence of the complainant’s sexual history. The Crown concedes that the trial judge erred by admitting the messages that involve explicit sexual conversations without a voir dire (R.F., at para. 85). The Crown takes no position on whether evidence of the complainant’s virginity was presumptively inadmissible. However, the parties disagree over whether the messages containing the complainant’s prior indications of disinterest in a sexual relationship were presumptively inadmissible. The Crown argues that the curative proviso can apply with respect to any error committed by the trial judge on this issue (R.F., at para. 120).

[20]                         The second issue is whether the trial judge breached the rule against the admission of prior consistent statements by using the social media messages to decide the issue of consent. Since this appeal can be resolved on the first issue, it is unnecessary to decide the second.

V.           Analysis

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] 3 S.C.R. 339, at para. 39; R. v. Corbett, [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] 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] 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.

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] 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] 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).

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] 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] 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), 169 A.R. 122 (C.A.), at paras. 22-25; see also R. v. Pittiman (2005), 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] 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.).

D.           A New Trial Is Required

[87]                         The social media messages referencing the complainant’s virginity and the complainant’s prior indications of disinterest in a sexual relationship, which were sent months prior to the sexual activity that formed the subject matter of the charge, constituted Crown-led sexual history evidence that is presumptively inadmissible under the common law. The trial judge erred by admitting the messages into evidence without a voir dire and then permitting them to be the subject of questioning by Crown and defence counsel. Both parties should have brought their respective applications for a voir dire to ensure that the evidence was relevant to a live issue and otherwise admissible.

[88]                         The Crown argues that, even if the trial judge erred in failing to hold a voir dire with respect to the sexual inactivity evidence, the curative proviso should apply because Mr. Kinamore was not prejudiced by its admission (R.F., at para. 10). In the Crown’s submission, Mr. Kinamore was not prejudiced by the admission of the complainant’s prior indications of sexual disinterest because the evidence was admissible. The Crown argues that the messages, as statements of present intention, were relevant to the issue of consent (actus reus) and to Mr. Kinamore’s knowledge of non-consent (mens rea) (para. 11) and that those statements were not used for an improper purpose by the trial judge (para. 12). The Crown submits that the evidence about the complainant’s virginity was also admissible and not used for an impermissible purpose (paras. 114-16).

[89]                         The applicable curative proviso is s. 686(1)(b)(iii) of the Criminal Code. As this Court recently discussed in R. v. Tayo Tompouba, 2024 SCC 16, this provision generally applies where there is no reasonable possibility that the verdict would have been different in the absence of the error. This occurs in two cases: first, where the error or irregularity in question is minor or harmless, such that it had no impact on the verdict, or second, where the error or irregularity, despite being serious enough to warrant a new trial, caused no substantial wrong or miscarriage of justice because the evidence against the accused is so overwhelming that a trier of fact would inevitably convict (para. 76). In this case, it is alleged that the trial judge’s error was harmless and had no impact on the verdict.

[90]                         The Crown has the onus of proving, on a balance of probabilities, that the legal error was harmless (Tayo Tompouba, at para. 90).

[91]                         I do not believe the Crown has met its persuasive burden. The Crown’s argument that the trial judge’s error was harmless because this evidence would have been found to be admissible effectively asks this Court to speculate about which aspects of this evidence would have been admitted and for what purposes. As this Court stated in Barton, this would be “both unwise and practically unworkable” (para. 84). When an appeal arises from a judge-alone trial, the Crown must show that the presumptively inadmissible sexual history evidence played no material role in the trial judge’s reasons for convicting the accused in order for such an error to be treated as harmless (R. v. O’Brien, 2011 SCC 29, [2011] 2 S.C.R. 485, at paras. 15-19; R. v. Leaney, [1989] 2 S.C.R. 393, at pp. 415-16; see also R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 30). In this case, the trial judge’s reasons were replete with references to the presumptively inadmissible evidence.

[92]                         The trial judge found that Mr. Kinamore’s evidence was incapable of raising a reasonable doubt because it was “amorphous in that it changed each time he was confronted with a fact which did not make sense” (para. 10). To support this characterization, the trial judge relied heavily on the presumptively inadmissible social media messages and the viva voce evidence about them. For example, one inconsistency relied on by the trial judge related to Mr. Kinamore’s testimony about the complainant sending him photographs. During his examination-in-chief, Mr. Kinamore was questioned about the message exchange where he requested that the complainant send him a picture of her breasts (A.R., at p. 158). This transitioned to Mr. Kinamore suggesting that he and the complainant had sent nude photographs to one another (p. 161). On cross-examination, the Crown brought Mr. Kinamore back to this testimony and asked him whether he knew the definition of child pornography (p. 195). This subsequently prompted Mr. Kinamore to state that the only nude photographs sent were those he sent of himself (ibid.).

[93]                         Another example is the trial judge’s reliance on Mr. Kinamore’s shifting testimony regarding his interpretation of a message from the complainant in which she stated “I will destroy you”. In his examination-in-chief, Mr. Kinamore interpreted the complainant’s message as sexual (A.R., at p. 151). On cross-examination, Mr. Kinamore explained that during this conversation the two of them were talking about naked wrestling (p. 207). After highlighting the evolving nature of Mr. Kinamore’s testimony, the trial judge found his characterization of the message implausible in light of the complainant’s various indications of sexual disinterest within the messages (para. 13).

[94]                         In sum, the trial judge’s assessment of the credibility of Mr. Kinamore and the complainant was inextricably intertwined with the presumptively inadmissible evidence of sexual history. Given the material role of that evidence in the trial judge’s reasons for convicting the accused, the Crown has not proven that the evidentiary error was harmless. A new trial must be ordered.

VI.         Conclusion

[95]                         All parties in the criminal justice system have an obligation to assist in minimizing unnecessary costs and delay, which currently affect sexual offence trials in this country. These reasons have sought to facilitate this objective by resolving some of the uncertainty that has remained about the evidentiary rules governing a complainant’s sexual history. First, sexual inactivity evidence is presumptively inadmissible under s. 276 and the common law because it forms part of a complainant’s sexual history and can evoke distinct myths and stereotypes that these rules seek to eliminate. Second, save for two modifications, Crown applications are subject to the same substantive admissibility and procedural requirements that apply to defence-led evidence under the s. 276 regime.

[96]                         Since these principles were not adhered to in the trial below, I would allow the appeal, quash the conviction, and order a new trial.

                    Appeal allowed.

                    Solicitors for the appellant: MN Law, Vancouver; Harper Grey, Vancouver.

                    Solicitor for the respondent: Ministry of the Attorney General, Crown Counsel – Criminal Appeals, Vancouver.

                    Solicitor for the intervener Attorney General of Ontario: Attorney General of Ontario, Crown Law Office – Criminal, Toronto.

                    Solicitor for the intervener Attorney General of Manitoba: Manitoba Justice, Prosecution Service, Winnipeg.

                    Solicitor for the intervener Attorney General of Alberta: Alberta Crown Prosecution Service, Appeals and Specialized Prosecutions Office, Edmonton.

                    Solicitors for the intervener Criminal Trial Lawyers’ Association: Dawson Duckett Garcia & Johnson, Edmonton.

                    Solicitors for the intervener Trial Lawyers Association of British Columbia: Peck and Company, Vancouver; Pringle Law, Vancouver.

                    Solicitors for the intervener Criminal Lawyers’ Association (Ontario): Daniel Brown Law, Toronto; Little Legal, Toronto.