Behind Closed Doors and Locked Phones? Navigating the Admissibility of Past Sexual History as Evidence in R v Kinamore

By: Izzy H.

Introduction

In a digital age where text messages and screenshots can sometimes speak to the case at hand, more so than testimony, R v Kinamore^[i] tests and challenges the extent to which digital interactions may be used as evidence when the content may be prejudicial. R v Kinamore dives into the unclear waters of evidentiary admissibility when assessing messages, sexual history—and, most importantly, the lack thereof, and whether such evidence should be placed before the trier of fact.

At its core, Kinamore deals with the inherent tension that is the essence of criminal law. It balances the pursuit of truth with honouring one’s dignity and right to a fair trial, as reflected in the rules of evidence. The Supreme Court of Canada (SCC) has consistently held that, depending on what party is initiating the argument (i.e., either the Crown or defense), sexual history demands careful gatekeeping and monitoring of the proper evidentiary rules; and this burden falls to the judge who must act as the gatekeeper.^[ii] If a judge fails to act as the gatekeeper, the integrity of the judicial system may be called into question because it fails to properly protect parties from stereotypes and fabricated myths.^[iii] 

Kinamore makes it clear that not all evidence that may appear to further the pursuit of justice can be admitted, particularly when a voir dire and other procedural policies are ignored. The trial judge found Mr. Kinamore guilty of sexual assault, basing the decision largely on the evidence in question— a screenshot of a digital message. This left the SCC with the following question: “[w]hether 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.^[iv] Chief Justice Wagner wrote for a unanimous court, which allowed the appeal, quashed the conviction, and ordered a new trial.^[v]

R v Kinamore: Factual Background

The following facts are undisputed: the accused Mr. Kinamore, aged twenty-two, met the complainant, aged sixteen, while she was working at a motorcycle shop.^[vi] They exchanged social media accounts and began communicating through these platforms where they arranged to meet at the accused’s apartment.^[vii] This meeting was arranged to take place after the two had previously met when they went for a motorcycle ride.^[viii] Both the defense and the Crown conceded that both parties were in the accused’s bedroom where the accused performed cunnilingus on the complainant.^[ix] The accused stated that it was consensual but due to the complainant’s unwillingness to perform fellatio upon him, the accused stopped and began looking for food on his phone to order.^[x] The complainant asserts the accused picked her up and took her to his bedroom, where he sexually assaulted her.^[xi]

The Crown’s Evidence          

The social media messages between the parties were a key piece of evidence that was admitted by the Crown, without a voir dire.^[xii] On its face, the text messages indicated that the complainant did not want to have sex with the accused and that she had not had sex in the past.^[xiii] These text messages discussed the complainant’s previous sexual history and suggested that she had no prior sexual history.^[xiv] While both parties relied on this text conversation, the Crown, in particular, relied on this evidence to demonstrate the complainant’s disinterest in a sexual relationship because of her lack of sexual history.^[xv] After the trial court deemed the accused guilty, the British Columbia Court of Appeal denied the defence argument holding that the “previous communications were not presumptively inadmissible."^[xvi]

The Crown attempted to paint a picture of a “perfect victim” that was worthy of belief.^[xvii] In R v Seaboyer, Justice L’Heureux-Dubé J., explained that: “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."^[xviii] The SCC has identified this attempt as a reverse twin-myth method. This, then, requires the Crown, with respect to Section 276(1) of the Criminal Code, ^[xix] to bring an application before a trial judge to determine its admissibility through a voir dire.^[xx] The common law has deemed sexual history presumably inadmissible for the purpose of excluding “irrelevant or misleading evidence, to protect an accused’s right to a fair trial, and safeguard the dignity, privacy, and equality interests of complainants.”^[xxi] The SCC notes that the risk of admitting sexual activity would negatively impact the fact-finding process, filling it with a potential twin-myth analysis thus going against the purpose of Section 276 of the Criminal Code.^[xxii] However, the SCC also noted that the legislation does not explicitly indicate sexual inactivity. ^[xxiii] The Court relied on its interpretation of Section 276(4) to conclude that sexual inactivity is also a thing of a sexual nature.^[xxiv] In enacting Section 276(4), Parliament removed “any ambiguity that may have previously existed,”^[xxv] giving space for the common law to become aligned with the legislation. 

According to the Court, sexual activity and sexual inactivity shall both fall within the scope of Section 276, generally. Presumptively inadmissible, essentially, refers to the fact that a piece of evidence initially begins as excluded.^[xxvi] The party asserting this evidence must bear the burden of proof by demonstrating that the evidence is crucial for the trier of fact through a means of procedure.^[xxvii] However, there are times in which the Court may deem sexual history admissible. In the case of Crown-led sexual history evidence being submitted to the court, the Crown must prepare a written application that outlines the parameters and intent of the evidence to assist the judge in better understanding the full picture of the Crown’s intent.^[xxviii] Stage one entails that if, on its face, a trial judge is content that the application demonstrates the evidence as being capable of being admitted, the trial judge will proceed to the second stage.^[xxix] At stage two, the judge will determine whether the sexual history evidence is admissible and whether the Crown has proven that the necessity of the evidence outweighs any prejudicial effect using the factors set out in Section 276(3).^[xxx] This two-step process is crucial to determining the admissibility of sexual history evidence; therefore, a voir dire is essential.

Evidence in the form of messages and online conversations can be difficult to interpret  for many reasons. For example, if the tone is unclear, it may be easy to take a message out of context and apply a different meaning to it – which, as proven in Kinamore, can lead to a prejudicial result. The trial judge relied heavily on the messages that disclosed prior sexual history to deem the accused’s testimony inconsistent.^[xxxi] Therefore, the trial judge’s assessment was “inextricably intertwined” with the evidence that should have been deemed inadmissible.^[xxxii]

Conclusion         

R v Kinamore serves as a reminder that procedure means far more than formality; it has a foundation of fairness. The absence of a voir dire in this case awakened an analysis that expanded beyond this error as a procedural oversight. Rather, Kinamore emphasized that without procedure, it can be easy to perpetuate stereotypes that can be harmful, such as the belief that a woman who refrains from sex should be viewed as an ideal witness.^[xxxiii] The SCC’s firm stance that a voir dire in the context of a Crown-led sexual history being admissible as evidence is intended to protect the accused’s constitutional rights to a fair trial. As Kinamore was decided in 2025, this case will likely impact future cases by reinforcing that Section 276 of the Criminal Code remains consistent and strict; thereby further preventing reliance on twin-myths. This decision strengthens the integrity of the judicial system while requiring the Crown to balance the pursuit of truth and procedural safeguards.

Description of Image: A modern courtroom setup with a laptop highlighting the integration of technology in legal proceedings, flanked by a wooden gavel and national flags.

Endnotes

^[i] R v Kinamore, 2025 SCC 19 [Kinamore] <https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21096/index.do>

^[ii] Ibid at para 21.

^[iii] Ibid at para 2.

^[iv] Ibid at para 19

^[v] Ibid at para 6.

^[vi] Ibid at para 7.

^[vii] Ibid.

^[viii] Ibid.

^[ix] Ibid at para 9.

^[x] Ibid.

^[xi] Ibid at para 8.

^[xii] Ibid at para 10.

^[xiii] Ibid at para 12.

^[xiv] Ibid.

^[xv] Ibid at para 14.

^[xvi] Ibid at para 17.

^[xvii] Ibid at para 74.

^[xviii] Ibid at para 74, quoting R v Seaboyer, [1991] 2 SCR 577 at 652-56

^[xix] Criminal Code, RSC 1985, c C-46, s 276.

^[xx] Kinamore, supra note i at para 33.

^[xxi] Ibid at para 35.

^[xxii] Criminal Code, supra note xix.

^[xxiii] Kinamore, supra note i at para 32.

^[xxiv] Ibid.

^[xxv] Ibid at para 79.

^[xxvi] David M. Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence, 8^th ed (Toronto: Irwin Law, 2020) at 119.

^[xxvii] Kinamore, supra note i at para 90.

^[xxviii] Ibid at para 45.

^[xxix] Paciocco, Paciocco & Lee, supra note xxv at 121.

^[xxx] Kinamore, supra note i at para 52.

^[xxxi] Ibid at para 88.

^[xxxii] Ibid at para 94.

^[xxxiii] Ibid at para 74.