Regulators prosecuting sexual abuse cases likely cannot rely on the lack of sexual history on the part of a complainant in order to bolster their credibility. A recent Supreme Court of Canada (“SCC”) decision may be helpful to regulators prosecuting regulated professionals accused of sexually abusing clients. In R v Kinamore, 2025 SCC 19, the SCC clarified that in most cases, a prosecutor in a criminal matter cannot use a complainant’s sexual (in)activity history as evidence in a prosecution for sexual assault. In order for the evidence to be admissible, a prosecutor must satisfy a two-step procedure (derived from certain sections (often referred to as the “rape shield laws”) of the Criminal Code of Canada) to help the judge determine whether to admit the history as evidence:
- Stage One Inquiry – The prosecutor must prepare a written application detailing the evidence and its relevance, with fair notice to the accused and court. If the prosecutor fails to comply or engages in prohibited reasoning, the evidence is inadmissible.
- Stage Two Hearing – The judge must consider factors (in section 276(3) of the Criminal Code) to decide whether the prosecutor has proven, on balance, that the evidence is relevant and that its probative value outweighs its prejudicial effect.
The complainant’s privacy interests are protected and both stages exclude the jury and public. The Stage One Inquiry application, documents, and information must not be published, broadcasted or transmitted. The judge’s reasons for a Stage Two decision will only be published if the evidence is held to be admissible, or in certain circumstances, after considering privacy interests. If the evidence is admissible, then the judge must instruct the jury on how it can/not be used. Moreover, unlike the section 276 regime, complainants do not have automatic standing to make submissions at Stage Two Hearings, although judges have discretion to grant standing.
The SCC’s clarification in Kinamore is significant because prior to this, the section 276 regime only applied to an accused seeking to rely on a complainant’s sexual history. The evidence at issue in Kinamore comprised digital messages between the accused and complainant wherein the latter said she was not sexually active and not interested in a sexual relationship. At trial, the prosecution and defence were permitted to rely on that evidence, and the accused was found guilty.
The SCC’s ruling clarifies that evidence of a lack of sexual activity/history is inadmissible because it is part of a complainant’s sexual history. The SCC defined sexual inactivity evidence as:
“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.”
The SCC ordered a new trial because the prosecutor used the messages (exchanged between the complainant and accused months prior to the alleged sexual assault), without advance admissibility screening, in an attempt to show that there was no consent to the sexual activity. While in some circumstances, messages about the complainant not having previously engaged in (or having previously engaged in) or not wanting (or wanting) to engage in “any sexual activity, certain types of sexual activity, or sexual activity under particular circumstances” can be admissible (if exchanged near the time of the alleged assault, as circumstantial evidence relevant to the issue of consent, and if admissible under the hearsay exception for statements of present intention), the SCC ruled that the messages at issue were inadmissible because they constituted sexual inactivity evidence as defined above. Admitting such messages as evidence (generally, and as they were at the trial level in Kinamore), is troubling because it perpetuates myths and stereotypes about sexual assault complainants’ credibility and leads to unfair trials. The danger in admitting such evidence is that lack of prior sexual activity can colour perception of the complainant as more credible, or worthy of belief (about not consenting), and can lead to bias that the accused is guilty. This is just as dangerous as accused persons historically arguing that a complainant is less credible about consent due to their sexually active past, leading to bias that the accused is innocent.
Regulators can follow the SCC’s lead when prosecuting sexual abuse cases as the evidentiary issues raised are likely applicable. And the SCC provides a worthy reminder about how unfair perceptions can arise about both complainants and respondents when adjudicators do not properly carry out their evidentiary gatekeeping function at discipline hearings. Regulators may consider updating their Discipline Rules of Procedure to require proper screening where a party seeks to use a complainant’s sexual history as evidence at a discipline hearing. Updated training for staff on sexual abuse matters can also provide vital guidance and heightened awareness on the issue for a regulator’s complaints and prosecution teams.
By being astute to the probative value of evidence, proactive about avoiding inferences based on discriminatory reasoning, and engaging in appropriate screening processes, staff, adjudicators, and counsel alike involved in regulatory proceedings can cooperate to ensure that only permissible evidence is admitted in sexual abuse cases, thus safeguarding protections for both complainants and respondents.
