No More Missed Chances: It is Time for the SCC to Clarify Prior Sexual Activity Evidence

Authors- EM et al

Introduction

In every sexual offence trial, the Court must balance two competing principles: protecting the complainant’s dignity and upholding the accused’s presumption of innocence. This tension is often most acutely felt when deciding which evidence to admit. Five years ago, in R v Barton, the Supreme Court of Canada (SCC) stated: “We live in a time where…sexual violence [is] tragically common...Without a doubt, [this] is one of the more pressing challenges we face as a society...Put simply, we can — and must — do better.”[1]

Since that time, the SCC has ruled on several sexual offence cases,[2] yet we remain without a clear framework for how certain types of evidence should be treated. Earlier this year, the SCC agreed to hear an appeal on a case out of British Columbia titled R v Kinamore.[3] We argue that this case offers a renewed opportunity for the SCC to provide conclusive guidance on key issues in sexual offence cases, including a) the correct interpretation of “sexual activity” under section 276(4) of the Criminal Code of Canada (CCC) and b) the process for the Crown to lead evidence on the complainant’s prior sexual activity.

To illustrate this need for clarity and guidance, we will first outline the current state of the law and summarize Kinamore. Next, we will critically analyze the case, identifying challenges in the present legal framework. Finally, we will offer recommendations on how the SCC can address key issues and strike the right balance in its upcoming hearing of Kinamore.

Background and Legal Context

The Current State of the Law

In sexual assault proceedings, both statute[4] and the common law[5] prohibit introducing evidence to advance the “Twin Myths” — that the complainant is 1) “less worthy of belief” or 2) “more likely to have consented”[6] based on their previous sexual history. This is not to say that all evidence relating to previous sexual activity is necessarily inadmissible. Such evidence may be introduced if a judge allows it after it is assessed in a “voir dire” (a mini trial within a trial).[7] Sections 276(2) and 276(3) of the CCC outline the factors judges must consider when a defendant tries to raise this evidence.[8] For Crown-led evidence, the Court held in Barton that a voir dire is required as per the SCC's precedent in R v Seaboyer.[9]

Case Summary

Mr. Kinamore (22) was a patron at the motorcycle shop where the complainant (16) was employed.[10] They went for a motorcycle ride in May of 2020, exchanged text messages for several months, and eventually met in person for a second time in August of 2020.[11] The complainant stated that during the August encounter, Mr. Kinamore sexually assaulted her in his apartment.[12] Mr. Kinamore maintained that they engaged in consensual sex.[13] Ultimately, Mr. Kinamore was convicted of sexual assault and was sentenced to three years in jail.[14]

At trial, both parties submitted prior text message communications into evidence. The trial judge characterized the text messages in the following way: “…There are times when the complainant is flirtatious with Mr. Kinamore…but over a period of time she makes it very clear, sometimes on every instant message, that she is not interested in having a sexually physical relationship with him.”[15] A voir dire was not held to determine the admissibility of either the Crown or the defence’s text message evidence.[16]

Critical Analysis and Reflection

On appeal, Mr. Kinamore raised two key legal issues by arguing that: 1) the trial judge applied uneven scrutiny in assessing the evidence, and 2) the trial judge failed in her gatekeeping role by not subjecting Crown-led evidence of prior sexual activity to a voir dire.[17] The British Columbia Court of Appeal (BCCA) dismissed the appeal.[18] This blog post will only analyze the second issue, as we anticipate it will be the SCC’s primary focus in the upcoming hearing.[19]

Issues with the Current Legal Framework

In upholding the trial judge’s decision not to conduct a voir dire on the Crown-led text messages, the BCCA’s finding in Kinamore seemingly conflicts with the SCC’s jurisprudence on sexual activity evidence, particularly in Barton.[20] The situation is more complex, however, as the BCCA’s reasoning relied on another SCC decision, R v Langan. Langan also turned on Crown-led text message evidence submitted without pre-trial screening.[21] The majority of the BCCA found that the trial judge “failed to analyze the admissibility or proper use of the text messages” by not conducting a voir dire.[22] In a one-paragraph decision, the SCC overturned that finding and adopted the reasoning of the dissent.[23]

In its brevity, the SCC missed an important opportunity to provide much-needed guidance on the treatment of Crown-led evidence regarding prior sexual activity. This is unfortunate as the need for clarity is pressing; since the 2018 amendment to section 276 of the CCC, there have been dozens of appeals launched over its interpretation.[24] These appeals further traumatize complainants and prolong an already lengthy and arduous court process.[25]

The conflict between the SCC’s decisions in Langan and Barton seems to flow from   ambiguity in interpreting which “sexual activity” content triggers the need for a voir dire. The dissent in Langan (BCCA) and the majority in Kinamore (BCCA) found that the impugned text messages were tendered by the Crown “not as evidence of past sexual history or for the purpose of promoting improper myths or stereotypical generalizations”[26] but rather to demonstrate the complainant had no intention of engaging in a sexual relationship with the defendant. These decisions tell us that “such statements are not caught by section 276 or subject to the requirement of a Seaboyer voir dire.”[27]

Respectfully, we disagree. Even if section 276 of the CCC does not strictly apply to Crown-led evidence, the Court tells us that the common law principles of Seaboyer, which inform much of the 276 regime, are in effect.[28] Consequently, when conceptualizing which Crown-led evidence should be subject to a voir dire, we can look to the spirit of the statute for guidance.

Section 276(4) states: “…sexual activity includes any communication made for a sexual purpose or whose content is of a sexual nature.”[29] We interpret “any” broadly, including even nuanced concepts such as communication indicating a lack of interest or willingness to engage in sexual activity, as was the case in Kinamore.[30] We therefore argue that the trial judge should have subjected the text message evidence to a pre-trial voir dire. We advance these arguments to prioritize fairness, consistency and predictability across the Canadian justice system.[31]

Striking a Respectful Balance: Our Recommendations for the Outcome in R v Kinamore (SCC)

The screening mechanism for Crown-led prior sexual activity evidence does not need to be burdensome to be effective. In their intervener factum, the Attorney General (AG) of Manitoba argues that the admissibility regime could be as simple as “…written notice to the accused and the court of the intent to lead…[other sexual activity], and a brief summary of its nature and the intended use.”[32] Relying on R v Kematch,[33] the Manitoba AG clarified that “[a] voir dire may include an evidentiary hearing, but may also proceed only on a written record, or only on counsel’s submissions.”[34] We argue that adopting this framework would strike the right balance between sufficient consideration of these sensitive materials without subjecting complainants to an unduly onerous process. 

To this point, while we endorse more uniform treatment for sexual activity evidence as a matter of policy, we do not desire this outcome at the expense of the complainant. Research consistently shows that sexual assault is the most widely underreported violent crime, with only an estimated 5% of cases ever being reported.[35] This is largely due to would-be complainants distrusting the justice system to sensitively navigate their disclosure.[36] Parliament’s purpose in strengthening the section 276 regime in 2018 was clearly and unequivocally aimed at combatting this crisis.[37] We do not support Mr. Kinamore’s blatant attempt to invert the Legislature’s intention. However, we believe it is possible for the Court to lay out a workable framework for future matters while leaving Mr. Kinamore’s conviction undisturbed, and we sincerely hope that they do so.[38] 

Conclusion

Following the missed opportunity in Langan (SCC), the SCC has a renewed chance in Kinamore to provide clear guidance on how courts should define and treat Crown-led prior sexual activity evidence. As we have discussed, the current legal framework is marked by ambiguity, leading to inconsistent and improper applications of the law across the country. We call on the SCC to a) offer a clear definition of “sexual activity,” b) require pre-trial judicial screening of both Crown-led and defence-led prior sexual activity evidence, and c) uphold the conviction of Mr. Kinamore.

Given the alarming prevalence of sexual violence in our society[39], it is almost certain that you or someone close to you has been impacted. We cannot afford to repeat past mistakes – the time for clear, decisive action is now.

[1] R v Barton, 2019 SCC 33 at para 1 [Barton] [emphasis in original]. We have intentionally removed gendered language from this quotation to be inclusive of all people who have been affected by sexual violence.

[2] See e.g. Barton; R v Goldfinch, 2019, SCC 38; R v Langan, 2020 SCC 33 [Langan (SCC)].

[3] R v Kinamore, 2023 BCCA 337 [Kinamore]. See also Supreme Court of Canada, “Summary, 40946 Dustin Kinamore v. His Majesty the King” (4 November 2024), online: <scc-csc.ca/case-dossier/info/sum-som-eng.aspx?cas=40964>.

[4] Criminal Code, s 503(1), RSC 1985, c C-46 at s 276 [CCC].

[5] R v Seaboyer, [1991] 2 SCR 577 [Seaboyer].

[6] Ibid.

[7] Brandon Trask, LAW-2602-A01 - Evidence, 9 September 2024 Lecture (Faculty of Law, University of Manitoba, 2024) at slide 22. See also John A Yogis et al, Barron’s Canadian Law Dictionary, (Barron’s Educational Series, 2009) sub verbo “voir dire.” “A voir dire examination during a trial refers to a hearing out of the presence of the jury by the court upon some issue or fact or law that requires an initial determination by the court upon which the court must rule as a matter of law alone.”

[8] CCC, supra note 4 at s 276(2)–(3). The conditions for admissibility under s 276(2) are that the evidence: a) is not being submitted to advance one of the Twin Myths; b) is relevant to a live issue; c) relates to a specific instance of sexual activity; and d) has significant importance in determining the truth such that it is not outweighed by the danger of prejudice to the proper administration of justice. Section 276(3) then outlines eight factors that judges must consider when determining whether the criteria set out in 276(2) is satisfied.

[9] Barton, supra note 1 at para 80. The wording of this paragraph is confusing as to the applicability of s 276 of the CCC in a strict sense to Crown-led evidence, but it is clear that some form of pre-trial screening regime is judicially required.

[10] Kinamore, supra note 3 at para 3.

[11] Ibid at paras 7–8.

[12] Ibid at para 9.

[13] Ibid at para 10. See also R v Kinamore, 2022 BCPC 341 at paras 2, 8 [Kinamore (BCPC)].

[14] Kinamore, supra note 3 at para 1.

[15] Ibid at para 6.

[16] Ibid at para 17.

[17] Ibid at para 17.

[18] Ibid at para 64.

[19] Supreme Court of Canada, “Summary, 40946 Dustin Kinamore v. His Majesty the King” (4 November 2024), online: <scc-csc.ca/case-dossier/info/sum-som-eng.aspx?cas=40964>.

[20] Barton, supra note 1 at para 80.

[21] Langan (SCC), supra note 2.

[22] R v Langan, 2019 BCCA 467 at para 2 [Langan (BCCA)].

[23] Langan (SCC), supra note 2.

[24] A Westlaw search from December 13, 2018 (the date Bill C-51 was given royal assent ushering in section 276 as it currently stands) to November 6, 2024 of the following Boolean terms (“section 276” AND “voir dire”) shows 49 cases were heard in appellate courts.

[25] This lack of clarity also threatens to undermine the very purpose of section 276: to protect the integrity of the trial, uphold the accused’s right to a fair trial, and encourage the reporting of sexual offences by protecting the security and privacy of complainants. Barton, supra note 1 at para 58. For a full history of s 276 of the CCC, see Barton, supra note 1 at paras 55-58.

[26] Kinamore, supra note 3 at para 58. See also Langan (BCCA), supra note 22 at para 125.

[27] Kinamore, supra note 3 at para 60.

[28] Barton, supra note 1 at para 80.

[29] CCC, supra note 4 at s 276(4) [emphasis added].

[30] R v Kinamore, 2023 BCCA 337 (Factum of the Intervener, Attorney General of Manitoba at para 3) [Factum of the Intervener, Attorney General of Manitoba].

[31] Samuel Mazzuca, “A Missed Opportunity in R v Langan: Appellate Review of Prior Consistent Statements Post-Khan” (2024) 102:2 Can Bar Rev at 512.

[32] Factum of the Intervener, Attorney General of Manitoba, supra note 30 at para 19.

[33] R v Kematch, 2010 MBCA 18 [Kematch].

[34] Factum of the Intervener, Attorney General of Manitoba, supra note 30 at para 20.

[35] Lauren E Thompson & Joanna Pozzulo, “How Length of and Reason for Delayed Reporting Influence Mock-Jurors’ Judgements in a Sexual Assault Trial” (2024) J Police Crim Psychology at 1.

[36] Sophie Stewart et al, “‘I thought I’m better off just trying to put this behind me’ – a contemporary approach to understanding why women decide not to report sexual violence” (2024) 35:1 J Forensic Psychiatry & Psychology 85 at 86, 91–92.

[37] Lyne Casavant et al, “Legislative Summary, Bill C-51: An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act” (18 December 2018) at 12, online (pdf): <lop.parl.ca/staticfiles/PublicWebsite/Home/ResearchPublications/LegislativeSummaries/PDF/42-1/c51-e.pdf> (“[t]he equality and privacy rights of sexual offence complainants must be considered and protected” at 12).

[38] For example, the SCC in Barton did not require a wholly new trial on all charges even though they concluded that there were errors on the part of the Crown: “I simply cannot accept that a complainant’s dignity, equality, and privacy rights, which the s. 276 regime is meant to protect, may be waived by mere Crown inadvertence” (para 68).

[39] Thompson & Pozzulo, supra note 35 at 1.