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Céline Dostaler
Supreme Court of Canada Says the Crown Must Follow the Same Sexual History Rules as the Defence: What R. v. Kinamore Means for Sexual Assault Trials
In June 2025, the Supreme Court of Canada released an important sexual assault decision that will affect how evidence is introduced in sexual assault trials across the country. In R. v. Kinamore, the Court held that the Crown must comply with the same procedural safeguards as the defence when seeking to introduce evidence concerning a complainant’s prior sexual history.
The decision is significant because many lawyers and judges traditionally viewed section 276 of the Criminal Code as a restriction aimed primarily at the defence. The Supreme Court made it clear that these protections exist to preserve the fairness and integrity of the trial process and cannot be avoided simply because the Crown seeks to introduce the evidence.
For individuals charged with sexual assault in Ottawa, Ontario, or elsewhere in Canada, the decision reinforces an important principle: evidentiary rules apply equally to both parties, and trial fairness remains at the centre of Canada’s criminal justice system.
What Is Section 276 of the Criminal Code?
Section 276 of the Criminal Code restricts the admission of evidence concerning a complainant’s prior sexual activity.
The provision was enacted to prevent courts from relying upon what are commonly known as the “twin myths.” These myths suggest either that a complainant is more likely to have consented because of previous sexual activity or that a complainant is less worthy of belief because of their sexual history. The Supreme Court of Canada rejected these assumptions decades ago in R. v. Seaboyer, and later reaffirmed the constitutionality of section 276 in R. v. Darrach.
As a result, evidence concerning a complainant’s sexual history is presumptively inadmissible unless a judge determines that it meets the requirements set out in section 276.
Why Is Sexual History Evidence Restricted?
The Supreme Court has repeatedly recognized that sexual assault cases must be decided based on relevant evidence rather than stereotypes or assumptions about sexual behaviour. In R. v. Goldfinch, the Court emphasized that evidence relating to a complainant’s sexual history can be highly prejudicial and may improperly influence the fact-finding process.
Section 276 seeks to ensure that judges and juries focus on the actual allegations before the court rather than irrelevant assumptions concerning a complainant’s sexual conduct.
This protection promotes both fairness and accuracy in sexual assault prosecutions.
What Is a Section 276 Application?
Before evidence relating to a complainant’s prior sexual activity can be admitted, the party seeking to introduce the evidence must generally bring what is commonly referred to as a “section 276 application.”
The application requires a judge to determine whether:
- the evidence is relevant to an issue at trial;
- the evidence has significant probative value;
- the evidence is not being introduced to support prohibited myths or stereotypes; and
- the value of the evidence outweighs the potential prejudice to the proper administration of justice.
These requirements are set out in section 276 of the Criminal Code and have been interpreted by numerous Supreme Court decisions, including Darrach, Goldfinch, and Barton.
Historically, section 276 applications were most often associated with evidence introduced by the defence. The Supreme Court’s decision in Kinamore makes clear that this is no longer an accurate way of viewing the law.
What Happened in R. v. Kinamore?
In R. v. Kinamore, the complainant and accused exchanged communications before meeting in person. The Crown introduced evidence at trial suggesting that the complainant was not interested in a sexual relationship with the accused and included references relating to her sexual experience and sexual inactivity.
The evidence was admitted without a voir dire and without the trial judge conducting the type of admissibility analysis normally associated with section 276 applications.
The accused was convicted, and the conviction was upheld by the British Columbia Court of Appeal.
The matter ultimately reached the Supreme Court of Canada.
Does Sexual Inactivity Count as Sexual History Evidence?
One of the most important aspects of the Supreme Court’s decision is its recognition that sexual inactivity can constitute sexual history evidence.
Chief Justice Wagner held that section 276 is not limited to evidence of prior sexual conduct. Evidence concerning a complainant’s sexual inactivity, lack of sexual experience, or reluctance to engage in sexual activity may also engage the protections found in section.
The Court reasoned that stereotypes can arise from evidence of sexual inactivity just as easily as they can arise from evidence of sexual activity.
For example, a judge or jury may improperly conclude that a complainant is more credible because they appear sexually inexperienced. Such reasoning is no more permissible than assuming that someone is less credible because they have previously engaged in sexual activity.
The Court therefore confirmed that sexual inactivity can fall within the scope of Canada’s rape shield provisions.
Does Section 276 Apply to the Crown?
The short answer is yes.
The Supreme Court held that the Crown cannot bypass the procedural safeguards associated with section 276 simply because it is the party seeking admission of the evidence.
Chief Justice Wagner explained that the admissibility of sexual history evidence should not depend upon who seeks to introduce it. Rather, it should depend upon the nature of the evidence itself and the risks it poses to trial fairness.
The Court emphasized that a consistent approach promotes:
- fairness;
- transparency;
- predictability; and
- public confidence in the administration of justice.
This aspect of the decision may become one of the most frequently cited portions of Kinamore in future sexual assault cases.
Why Did the Supreme Court Order a New Trial?
The Supreme Court concluded that the trial judge erred by admitting the evidence without conducting the necessary admissibility analysis.
The Court found that the evidence played a role in the assessment of credibility and reliability. Because credibility was a central issue at trial, the improper admission of the evidence could not be treated as harmless.
As a result, the Supreme Court set aside the conviction and ordered a new trial.
This outcome demonstrates how seriously appellate courts treat errors involving sexual history evidence.
Why This Decision Matters for People Charged With Sexual Assault
For individuals facing sexual assault allegations, Kinamore confirms that evidentiary safeguards apply equally to the prosecution and the defence.
The decision reinforces several important principles:
- the Crown must comply with procedural safeguards when introducing sexual history evidence;
- trial judges must carefully scrutinize potentially prejudicial evidence;
- credibility assessments must not be influenced by myths or stereotypes; and
- convictions may be overturned where these safeguards are ignored.
These protections are particularly important because many sexual assault trials turn largely on competing accounts of what occurred.
Where credibility is central to the outcome of a case, improperly admitted evidence can significantly affect the fairness of the proceeding.
What Does Kinamore Mean Going Forward?
The Supreme Court’s decision will likely become a leading authority on section 276 applications and the admissibility of sexual history evidence.
Defence lawyers should carefully review Crown evidence involving:
- text messages;
- social media communications;
- discussions of sexual activity;
- evidence of sexual inactivity;
- dating history; and
- prior relationship evidence.
Where such evidence engages section 276 concerns, trial judges must conduct a careful admissibility analysis before permitting the evidence to be used at trial.
The decision represents another example of the Supreme Court’s ongoing effort to ensure that sexual assault trials are conducted fairly while protecting the rights of both complainants and accused persons.
Charged With Sexual Assault in Ottawa?
Sexual assault allegations are among the most serious charges under the Criminal Code. A conviction can result in long terms of imprisonment, even for first-time offenders, mandatory registration under the Sex Offender Information Registration Act, employment consequences, travel restrictions, and lasting reputational harm.
As an Ottawa criminal defence lawyer, I represent individuals charged with sexual assault on a regular basis. Recent decisions such as R. v. Kinamore, demonstrate how rapidly sexual assault law continues to evolve. Effective representation requires a thorough understanding of section 276 applications, Charter rights, consent law, credibility assessments, and the latest Supreme Court of Canada jurisprudence.
If you have been charged with sexual assault, obtaining legal advice as early as possible can help protect your rights, your reputation, and your future.
