Sexual inactivity deemed to be part of a person's sexual history in R. v. Kinamore
In a decision released today, the Supreme Court of Canada has issued a crystal-clear directive requiring Crowns to follow the same rules as defence counsel should they wish to introduce evidence of a complainant’s sexual history – or lack thereof. As part of the same judgment, the court also quashed an appellant’s conviction for sexual assault and ordered a new trial to be held.
All nine judges heard the R. v. Kinamore 2025 SCC 19 case and concurred with the decision written by Chief Justice Richard Wagner.
The case came up through the British Columbia courts. The appellant, Dustin Kinamore, was 22 years old when he met the complainant, who was then 16. She was working in a motorcycle shop he visited. Building on a common interest in motorbikes, they exchanged messages over social media, and eventually, he invited the complainant to his apartment. It was during this visit that sexual acts occurred, including Kinamore penetrating the complainant’s vagina with his penis.
The key driver of this appeal was the text messages the two shared before meeting in his apartment. The Crown introduced them into evidence without seeking a voir dire as to their admissibility. The Crown contended that they demonstrated that the complainant repeatedly referenced her virginity and expressed disinterest in having any type of sexual encounter and, by extension, indicated her unlikeliness to have consented to be intimate with Kinamore.
Kinamore’s defence counsel argued that the texts contained evidence of the complainant flirting. But beyond that, they believed that the texts were inadmissible, as the Crown never followed the proper procedures to have them considered evidence.
The court found that not only did the trial judge rely heavily on those messages when considering the matter, creating viva voce evidence about both the complainant and Kinamore, but that the impressions those messages left became so intertwined with issues of Kinamore’s personal credibility that they couldn’t be separated.
When reviewing the lower court’s ruling, the Court of Appeal for British Columbia found no error in the trial judge’s failure to hold a voir dire as the complainant’s expression of disinterest in sex “fell outside the exclusionary rule governing a complainant’s sexual history.”
In explaining his reasoning, Chief Justice Wagner first addressed the issue of whether a lack of prior sexual activity counted as sexual activity, particularly under s. 276 of the Criminal Code. “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,” he wrote.
He also clarified what sexual inactivity means.
“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.”
Having addressed the definition of sexual inactivity, Chief Justice Wagner also laid down the expectations for how the Crown should behave when planning to introduce evidence of past sexual history.
“Sexual inactivity evidence… 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.”
Should the Crown wish to introduce such evidence, Chief Justice Wagner laid out the steps that must be taken to have it approved by the court. In Stage One, the Crown must prepare a written application outlining the evidence and the reasons for its inclusion. This must be done promptly and fairly while providing notice to the accused, preferably before the commencement of the trial. At this point, the judge must decide whether an evidentiary hearing must be held or the application can be dismissed as frivolous.
Stage Two is the hearing to determine if the sexual history is admissible under the “prerequisites articulated in Sherman Estate to justify an exclusion order.” The complainant is not compellable under Stage Two as such action could cause harm to the complainant’s dignity and privacy and “deter the reporting of crimes of sexual violence.”
Both Stage One and Stage Two must be conducted away from the public eye, and the decision will remind judges to exercise their power to issue publication bans.
As to whether or not sexual inactivity evidence can or should be admitted, the Supreme Court reinforced the importance of not allowing any court decisions to be based on myths about the parties involved. Specifically, it addressed the fallacy of the twin-myth reasoning that a complainant with a more sexually active past would likely be more open to consent to the sexual activity in question. In the case of a person without a sexual past, Chief Justice Wagner wrote, “Inverse twin-myth reasoning is fundamentally rooted in discriminatory ideas about the “ideal victim” of sexual assaults… 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. 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. 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.”
But he also didn’t completely preclude an inactive sexual past from being brought up at trial.
“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. Accordingly, the evidence ‘must respond to a specific issue at trial that could not be addressed or resolved in the absence of that evidence,’” he explained.
Matthew Nathanson, a criminal defence lawyer with MN Law who represented Kinamore, believes this ruling provides significant direction for future courts.
“This judgment is nothing short of transformative. It provides helpful, practical guidance to counsel and trial judges about the procedure to be used and the test to be applied when the Crown seeks to tender evidence of a complainant’s sexual history. But the ruling goes much further. It resolves the issue of whether sexual inactivity evidence and evidence of sexual disinterest engages the s.276/Seaboyer regime – it does. It also recognizes the existence of ‘inverse stereotypical reasoning about the credibility of complainants, which can be corrosive to the fair trial rights of the accused, the dignity of complainants, and the truth-seeking function of the trial system.
“While there are other significant aspects of the ruling, these particular developments will, in my respectful view, help restore balance to the law of sexual assault and enhance trial fairness for all justice system participants,” he says.
As for some of the other aspects, he points to the court’s “very helpful analysis of the curative proviso in Section 686 (1)(b)(3) of the Criminal Code” and “reiterated the caution that they articulated in Barton about it being unwise and practically unworkable or appellate courts to essentially try reverse engineer a trial whether the proviso can be applied.”
He also notes that the decision addresses the present intention exceptions to the hearsay rule and temporal limits to that exception.
Nathanson says that comments the decision made referencing other cases are “very helpful statements of law.” In particular, he mentions R. v. Reimer, 2024 ONCA 519 (which the court recently denied leave on) and R. v. Harrer [1995] 3 SCR 562, “which generally talked about the extra-territorial application of the Charter” with regards to trial-fairness considerations in the purely domestic context, such as a sexual assault prosecution.
As to how this ruling will affect Crowns seeking to include complainants’ sexual history as evidence in trials, Nathanson says, “This judgment sends a pretty clear message. And the message is that everybody has to be very careful. Everybody, including the Crown, has to make sure this kind of evidence is only being tendered or only being sought to be tendered for legitimate reasons.”
He also thinks that with Crowns being forced to argue the case for including sexual history ahead of time, this will focus courts’ attention “on their gatekeeping function at the front end, and also in the middle of the trial, because this is an ongoing assessment, and also at the end of the trial. It will assist trial judges because they have to formulate jury instructions.”
Overall, Nathanson is pleased with the ruling.
“This is a very good day for the criminal law.”
