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The Supreme Court of Canada (“SCC”) recently released its decision in R v Kinamore, 2025 SCC 19 [Kinamore (SCC)], clarifying that a complainant's sexual inactivity amounts to sexual history under s. 276 of the Criminal Code, RSC 1985, c C-46 [Code]. Evidence of one’s sexual inactivity is therefore presumptively inadmissible unless first vetted through a voir dire, a pre-trial hearing to determine admissibility. The Court further clarified that this requirement applies regardless of which party introduces the evidence.
This decision follows an earlier Appeal Watch on this case where the potential for "uneven scrutiny" was noted as a ground for appeal that might benefit from appellate guidance. The SCC, however, did not take on that doctrine, and instead focused its findings on the evidentiary applicability of s. 276.
Facts
In June 2022, Dustin Kinamore (“Mr. Kinamore”) was convicted of sexual assault following a trial in the British Columbia Provincial Court. The complainant, G.L. met Mr. Kinamore at a motorcycle shop in 2020 (Kinamore (SCC), para 7). The two exchanged social media information during this encounter and subsequently began corresponding with each other through online messages. A number of the messages from Mr. Kinamore were flirtatious and sexual in nature. Importantly, during these exchanges, G.L. told Mr. Kinamore that she was not interested in engaging in sexual conduct with him and mentioned that she was a virgin.
The alleged sexual assault took place on August 3, 2020, when G.L. visited Mr. Kinamore’s apartment. G.L. testified that upon moving to the bedroom, Mr. Kinamore forced sexual acts upon her despite her objections. Conversely, Mr. Kinamore contended that G.L. initiated and consented to their sexual activity, until he requested her to perform fellatio on him twice, at which point she refused, and he stopped all activity (Kinamore (SCC), para 9).
British Columbia Provincial Court (“Trial”) Decision
At trial, the Crown sought to introduce G.L.’s messages where she expressed her disinterest in having sex with Mr. Kinamore as evidence of her story’s credibility. The trial judge admitted them without holding a voir dire, concluding that they did not amount to sexual-history evidence under s. 276.
Section 276 of the Code establishes a presumption that evidence of a complainant's prior sexual history is not admissible unless the party seeking admission can establish proper relevance that is unrelated to the perpetuation of twin myths. These "twin myths" refer to the stereotype that (1) a complainant who consensually engaged in sexual activities before is more likely to have consented again, and (2) a complainant who is sexually promiscuous is less credible (R v Seaboyer, 1991 SCC 76 at pg. 604). The voir dire requirement therefore vets any evidence relating to a complainant's sexual history to avoid improperly influencing the fact-finding, and credibility analysis. This process, however, was absent when addressing G.L.’s history of sexual inactivity.
In assessing credibility, the trial judge additionally pointed to the “significant fluidity” in Mr. Kinamore’s testimony to find that his testimony was not credible (R v Kinamore, 2022 BCPC 341, paras 17–18). Based on this finding, the trial judge concluded that G.L. “did not consent and [Mr. Kinamore] did not do anything to find out if she was consenting,” therefore ultimately finding Mr. Kinamore guilty of sexual assault.
British Columbia Court of Appeal (“BCCA”) Decision
On appeal, Mr. Kinamore argued that the trial judge both (1) engaged in "uneven scrutiny" by considering his evidence more critically than G.L.’s and (2) failed to discharge her gatekeeping function by admitting Crown-led evidence of the complainant’s prior sexual history without first holding a voir dire under s. 276 of the Code. The BCCA dismissed both grounds, finding that the trial judge’s credibility assessment sufficiently scrutinized G.L.'s testimony, and there was “no inconsistency or contradiction to resolve” (R v Kinamore, 2023 BCCA 337, para 30 [Kinamore (BCCA)]).
While the BCCA responded to the “uneven scrutiny” claim in a cursory manner, the Court ultimately found no indication that the trial judge assessed the defence's testimony to a more stringent threshold and declined to intervene on this basis.
Turning to the admission of sexual history evidence, the BCCA held that the messages sought to be entered into evidence were not “historical sexual activity”. Instead, they were future promises where G.L. asserted her intentions to not have sex with Mr. Kinamore, and therefore fell outside of s. 276 of the Code. Drawing on R v Langan, the Court reasoned that messages about a complainant’s future sexual intentions do not constitute “sexual history” under s. 276 of the Code. Because the messages did not constitute “sexual history,” there was no need for a voir dire to guard against twin myths regarding the sexual proclivities of the complainant.
Supreme Court of Canada Decision
Issues
The appellants raised two issues before the SCC:
1. Does evidence of a complainant’s sexual inactivity constitute a form of presumptively inadmissible evidence under s. 276 of the Criminal Code?
2. What substantive and procedural requirements apply to Crown-led evidence of a complainant’s sexual history?
However, as the appeal was decided solely on the first issue, the second issue was left unconsidered by the SCC.
Holding
Writing for a unanimous court, Wagner C.J. allowed the appeal, quashed the conviction and ordered a new trial.
In reaching this decision, the SCC held that evidence of a complainant’s sexual inactivity falls within the scope of “sexual activity” under s. 276 and is therefore presumptively inadmissible unless the Court establishes its admissibility through a voir dire. One of the purposes behind the s. 276 regime is to “eliminate irrelevant and misleading evidence about sexual assault complainants from the fact-finding process.” (Kinamore (SCC), para 67). This ensures that prior sexual proclivities do not perpetuate myths or stereotypes against sexual assault complainants. The SCC highlighted that differentiating historical sexual inactivity from sexual activity under s. 276 would effectively “conceptualize an idealized victim and her features and actions before, during, and after an assault” (R v Kruk, 2024 SCC 7, para 37, [Kruk], cited in Kinamore (SCC), para 67). In the SCC’s reasoning, admitting a complainant's prior comments regarding abstinence or virginity only strengthens the idea that there exists a “certain kind” of woman: a sexually inexperienced, modest, and proper woman, one who is less interested in sex than men are, and therefore, deserves to be believed. The resulting effect would invoke an “inverse twin myth” which still allows stereotypes of sexual assault complainants to influence fact finding.
While s. 276(2) of the Code governs only the admissibility of defence-led sexual history evidence the SCC confirmed that common law principles extend the presumption of inadmissibility to Crown-led sexual history evidence because it is inherently prejudicial to the “twin-myths” stereotype (Kinamore (SCC), para 33). This presumption requires trial judges to conduct a voir dire before admitting such evidence, regardless of which party leads this evidence. Trial judges assume the role of “evidentiary gatekeeper,” thus determining whether the probative value of evidence outweighs its prejudicial danger, including its potential to induce stereotype-based reasoning (Kinamore (SCC), paras 36–40, 44). In this case, the trial judge erred in admitting text messages between the accused and complainant without a voir dire. By failing to conduct a voir dire, the trial judge neglected her gatekeeping function of balancing the probative values of evidence with the prejudicial danger of examining a complainant's sexual history.
Analysis
By confirming that a voir dire is required regardless of whether sexual history evidence deals with sexual activity or inactivity, and regardless of whether the evidence is Crown or defence led, the SCC creates a consistent and uniform evidentiary framework. However, this framework raises questions of what is lost when courts aim for procedural symmetry in sexual assault law.
The Doctrinal Cost
The restriction in s. 276 of the Code was never established with the intention to be applied symmetrically, but rather, to “protect the rights of women and children given their particular vulnerability to sexual violence” (Kruk, para 40). The regime was additionally introduced to remedy historical concerns over sexual history evidence being used to invoke discriminatory myths about consent and credibility. The regime of s. 276 of the Code intentionally established this asymmetry to protect complainants from reasoning that had long undermined the fairness of sexual assault proceedings, and perpetuated myths about the relationship between sexual proclivities and complainant credibility. By extending the same procedural requirements to Crown-led evidence, Kinamore effectively reframes a remedial provision as a neutral evidentiary rule. This shift towards symmetry in sexual history evidence can risk obscuring the intended purpose behind the s. 276 scheme.
By overlooking the distinct context surrounding s. 276 of the Code, Kinamore advances doctrinal consistency, but neglects the inherent asymmetry in sexual assault trials. As Justice Martin noted in R v Kruk, “the impulse towards symmetry and formally identical treatment is unwarranted. It reflects a misunderstanding of the distinct body of law associated with myths and stereotypes in sexual assault cases, which developed in a particular historical context to protect complainants alone” (Kruk, para 30). While the Kinamore approach is fair and procedurally sound, and does not inherently discredit s. 276, taken at face value it risks rebalancing a legal structure that was purposefully unbalanced to protect complainants.
The Practical Cost
A symmetrical approach to sexual assault evidence also introduces practical, and human challenges. Imposing a requirement for a voir dire for Crown and defence-led evidence alike adds procedural steps to trials. The added necessity of advance notice, additional written submissions, and judicial balancing of probative values against prejudice raises administrative burdens in an already demanding process. The voir dire regime which once functioned as a narrow protection against evidence misuse now must apply in a far broader capacity, thus extending the scope and depth of sexual assault litigation.
Moreover, these proceedings can extend trials and create further emotional strain on complainants who may be forced to reveal intimate information, and revisit traumatizing memories. Although fairness in the administration of justice outweighs concerns of efficiency, the human cost of such procedural demands deserves careful consideration. The practical implications of this shift are not just abstract burdens—they have real consequences. In Kinamore, the SCC’s expansion of the voir dire requirement to Crown-led evidence means that G.L. must now relive her traumatic experiences in a new trial, a harsh outcome that the trial and appeal decisions avoided through their interpretation of s. 276. This illustrates how the push for procedural symmetry directly imposes human costs.
Concluding Thoughts
Sexual assault trials are institutionally asymmetrical. The Crown, the accused and complainant play different roles with varying stakes and experience different dimensions of harm. Deferring to doctrinal symmetry in evidentiary rules cannot fully account for, or mitigate, these differences. In the case of the twin myths, asymmetry was established via s. 276 of the Code to prevent the defence from invoking sexual history to lessen the credibility of the complainant. Kinamore's outlook suggests a shift towards a neutral standard in evidentiary expectations, thus leaving uncertain whether a symmetrical approach can meaningfully address the asymmetrical reality of sexual assault law and trials. The danger is not that Kinamore weakens s. 276 safeguards, but that applying perfect symmetry to both Crown and defence evidence risks conflicting with s. 276’s intended purpose: protecting complainants from bias and stereotypes.
In all, R v Kinamore shows the SCC moving toward formal procedural symmetry—prioritizing fairness in trial processes—while leaving open the question of whether this approach diminishes s. 276’s protective purpose for complainants. Only time, and the cases that follow will tell whether this adjustment away from asymmetry will truly allow for more just outcomes.