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Criminal - Evidence of Sexual Activity [CCC 276] (7). R. v. A.M.
In R. v. A.M. (SCC, 2026) the Supreme Court of Canada dismissed a Crown criminal appeal, here brought against an Ontario Court of Appeal ruling that considered "the test for applying s. 276 [SS: 'Admissibility of Sexual Activity Evidence - Evidence of complainant’s sexual activity'] to offences that are not specifically enumerated in that section".
The court considers the underlying theme of stereotypical or 'myths' (a form of 'propensity' reasoning) that underlies CCC s.276, here were the complainant had engaged in sex work:(1) Reliance on Myths and Stereotypes
[87] Reliance on myths and stereotypes, including those beyond the twin myths, jeopardizes the court’s truth-seeking function (see R. v. A.G., 2000 SCC 17, [2000] 1 S.C.R. 439, at para. 2, per L’Heureux‑Dubé J., concurring) and has “no place in a rational and just system of law” (R. v. Lacombe, 2019 ONCA 938, 383 C.C.C. (3d) 114, at para. 31). This is because myths and stereotypes are predicated on “false logic” (R. v. Boone, 2016 ONCA 227, 347 O.A.C. 250, at para. 37, quoting R. v. W.H., 2015 ONSC 3087, at para. 10). The dangers inherent in reliance on myths and stereotypes were canvassed by Martin J., as a trial judge, in R. v. G. (C.M.), 2016 ABQB 368, 41 Alta. L.R. (6th) 374, at para. 60:Broadly speaking, myths and stereotypes rest on untested and unstated assumptions about how the world works or how certain people behave in particular situations. They often involve an idealized standard of conduct against which particular individuals are measured. [88] Myths and stereotypes remain a pernicious threat to the criminal trial process. Despite the risks associated with impermissible reliance on myths and stereotypes, under Canadian law, evidence of prior sexual history is not categorically irrelevant or inadmissible (see L. Dufraimont, “Myth, Inference and Evidence in Sexual Assault Trials” (2019), 44 Queen’s L.J. 316, at p. 346). Rather, “the law prohibits stereotypical or discriminatory lines of reasoning flowing from th[is] for[m] of evidence, but acknowledges that [it] may be relevant for other, legitimate inferential purposes” (p. 346; see also L. Dufraimont, “Current Complications in the Law on Myths and Stereotypes” (2021), 99 Can. Bar Rev. 536, at p. 550). As this Court stated in Kruk, “just because the evidence happens to align with a myth or stereotype does not necessarily mean that any inferences that can be drawn from that evidence will be prejudicial” (para. 65).
[89] In this case, the evidence the respondents sought to adduce related to the commercial nature of the complainant’s work, not its sexual nature. Contrary to the Crown’s argument that the evidence could lead to impermissible twin-myth reasoning, the evidence of A.K.’s previous sex work was being proffered to suggest that she previously pursued work in the sex trade voluntarily and that the respondents did not lure or exploit her into working in the industry. As the intervener the Criminal Lawyers’ Association (Ontario) points out, the sexual nature of the complainant’s prior sex work does not go to the core of the evidence’s function, which is to provide context for A.K.’s level of autonomy, decision-making, and the power dynamics that shaped her relationship with the respondents.
[90] I agree with the Court of Appeal that “evidence of A.K.’s prior working arrangements was relevant to a proper understanding of the true nature of her relationship” with the respondents (para. 118). This evidence could assist in countering the Crown’s theory that the respondents capitalized on A.K.’s substance abuse issues in coercing her into sex work. The Court of Appeal correctly noted that the proposed cross-examination of A.K. was not intended to be used for impermissible purposes and that, if it crossed permissible bounds, the trial judge would have the authority to intervene.
[91] Undoubtedly, in cases such as this, trial judges must be vigilant in ensuring that evidence is not being proffered to advance improper propensity reasoning. Evidence of a complainant’s prior sex work should not be adduced to show a propensity to engage in sex work or sexual activity generally. Nor does a voluntary decision to engage in sex work at one point logically lead to the inference that a complainant is therefore less susceptible to exploitation, influence, coercion, or control generally. However, it is legitimate for the defence to lead evidence showing how a complainant’s prior experience informs their perspective on the nature and quality of the relationship with the accused. Such evidence is not being proffered to show a propensity to act in a certain way. Rather, it advances an inference about a complainant’s state of mind or the broader contextual or commercial circumstances that may be relevant in evaluating exploitation.
(2) The Exercise of the Court’s General Discretion
[92] The Crown submits that reliance on the trial judge’s general discretion to halt inappropriate cross-examination is an insufficient safeguard that cannot replace s. 276’s protective function. Moreover, the trial judge’s discretion is insufficient because it is retrospective — trial judges can only intervene once counsel has asked the complainant a question.
[93] The respondents submit that the trial judge’s discretion is sufficient to protect the integrity of the trial. Trial judges are well positioned to ensure that impermissible myths and stereotypes do not impact the truth-seeking function of the trial.
[94] As this Court noted in Goldfinch, trial judges are the “ultimate evidentiary gatekeepers” (para. 75; see also Barton, at para. 68; Kinamore, at paras. 3 and 44). Using their general discretion to safeguard the truth-seeking function of the trial is a foundational tenet of the criminal process. Importantly, there are several discriminatory myths and stereotypes beyond the twin myths that require trial judges to exercise vigilance in their gatekeeping role, for example, that a complainant’s delay in disclosure undermines their credibility (see R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 63), that a complainant’s failure to dress modestly indicates they are more likely to consent to sexual activity (see R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at paras. 82 and 88-89, per L’Heureux-Dubé J., concurring), or that associating with the accused after an alleged sexual assault suggests there was consent (see R. v. A. (A.B.), 2019 ONCA 124, 145 O.R. (3d) 634, at paras. 6-12; for a broader discussion on myths and stereotypes, see Kruk, at paras. 36 and 41).
[95] While several myths and stereotypes do not call for statutory pre-screening, trial judges are required to monitor against impermissible inferences from infecting the reasoning process. The general discretion afforded to trial judges is an important tool to maintain the integrity of the trial process for all participants. If evidence is proffered for the purpose of demeaning the complainant or capitalizing on prejudices against sex workers, trial judges should recognize that evidence of that nature is impermissible and put a stop to such questioning (see Williams #2, at paras. 57-58).
[96] Sex workers are subject to many harmful and discriminatory myths and stereotypes. This Court recognized as much in both the majority and dissent in Barton. For the majority, Moldaver J. recognized several troubling stereotypical assumptions about Indigenous women involved in sex work, including that they:. are not entitled to the same protections the criminal justice system promises other Canadians;
. are not deserving of respect, humanity, and dignity;
. are sexual objects for male gratification;
. need not give consent to sexual activity and are “available for the taking”;
. assume the risk of any harm that befalls them because they engage in a dangerous form of work; and
. are less credible than other people. [para. 201] Justices Abella and Karakatsanis expressed a similar concern in their partial dissent (see paras. 230-31). In addition, like all victims of sexual offences, victims of commercial sex trade offences are vulnerable witnesses, for whom testifying can be deeply traumatizing.
[97] In this regard, s. 276 is not the only tool to protect the trial process from impermissible lines of questioning and inferential reasoning. On the contrary, trial judges have a variety of tools at their disposal to advance protection of vulnerable complainants. For example, it is an important part of the trial judge’s role to set appropriate limits on questioning, to intervene where questioning becomes improper, to provide appropriate limiting instructions to the jury to ensure that its deliberations are not infected by discriminatory myths or stereotypes, and to use their case management powers to ensure the permissible use of evidence (see Langford, at para. 48).
[98] As emphasized in Kinamore, trial judges should adopt a cautious approach when s. 276 is potentially engaged (para. 44). Where uncertainty exists about the application of s. 276, trial judges should follow the process set out in Barton: “. . . raise that issue with the parties at the earliest opportunity and, after giving the parties the opportunity to make submissions, issue a ruling on the matter” (para. 78). As part of that process, it is important for trial judges to consider the defence’s purpose in delving into the complainant’s prior or subsequent sex work.
(3) Conclusion
[99] The Court of Appeal did not rely on impermissible propensity reasoning that engaged the twin myths in determining the ambit of permissible cross-examination of the complainant in this case. . R. v. A.M.
In R. v. A.M. (SCC, 2026) the Supreme Court of Canada dismissed a Crown criminal appeal, here brought against an Ontario Court of Appeal ruling that considered "the test for applying s. 276 [SS: 'Admissibility of Sexual Activity Evidence - Evidence of complainant’s sexual activity'] to offences that are not specifically enumerated in that section".
Here the court the operation of CCC 276, focussing on doctrine established in Barton case [R. v. Barton, 2019 SCC 33] and it's application to non-enumerated offences:(1) Section 276 Procedure
[33] Section 276 governs the admissibility and use of evidence that a complainant engaged in sexual activity that does not form the subject matter of the charge. Section 276 engages a balancing act of “a number of trial fairness considerations, seeking to exclude evidence known to distort the fact-finding process while protecting the rights of both the accused and the complainant” (Goldfinch, at para. 28).
[34] Section 276(1) provides that in proceedings “in respect of” one of the enumerated offences, evidence that the complainant has engaged in sexual activity is not admissible to support the twin myths. The twin myths, identified in s. 276(1)(a) and (b), represent the historical myths that unchaste women are more likely to consent to the sexual activity forming the subject matter of the charge or are less worthy of belief (see Barton, at paras. 56 and 60). Section 276(1) gives effect to the principle that the twin myths are irrelevant and can “severely distort the trial process” (R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, at para. 33; see also Barton, at para. 60).
[35] Section 276(2) sets out the conditions for admissibility of evidence that a complainant engaged in sexual activity that does not form the subject matter of the charge. Section 276(3) sets out the factors that a judge must consider in determining whether evidence is admissible under s. 276(2). Section 276(2), informed by the factors listed in s. 276(3), provides a screening mechanism that requires the defence to disclose some aspects of its case because of the potential prejudice that could result from the admission of the evidence (see R. v. J.J., 2022 SCC 28, [2022] 2 S.C.R. 3, at para. 160).
(2) Barton
[36] This Court’s decision in Barton is relevant to this appeal because it introduced the prospect that s. 276 could apply to proceedings in which a non-enumerated offence was charged, so long as an enumerated offence was substantively implicated (see para. 75).
[37] Applying the modern approach to statutory interpretation, Moldaver J. noted that the opening words of s. 276(1) and (2) referred to proceedings “in respect of” an enumerated offence which, he concluded, represented language “of the widest possible scope” akin to “in relation to”, “with reference to”, or “in connection with” (Barton, at para. 72, quoting Nowegijick v. The Queen, 1983 CanLII 18 (SCC), [1983] 1 S.C.R. 29, at p. 39). Accordingly, “Parliament would not have chosen this exceptionally broad language if it intended to limit the application of the s. 276 regime to proceedings in which a listed offence was expressly charged” (Barton, at para. 73).
[38] Justice Moldaver concluded:With these points in mind, I am of the view that the s. 276 regime applies to any proceeding in which an offence listed in s. 276(1) has some connection to the offence charged, even if no listed offence was particularized in the charging document. For example, this broad relational test would be satisfied where the listed offence is the predicate offence for the offence charged or an included offence of the offence charged. [Emphasis added.]
(Barton, at para. 76) [39] Courts in Ontario have reached contrary conclusions regarding the content and application of the “broad relational” or “some connection” test, as described in Barton. On one side of the spectrum, there is a line of authorities that suggests s. 276 applies categorically to sexual services and human trafficking offences because, generally speaking, they involve complainants who face biases similar to those that s. 276 seeks to guard against (see, e.g., R. v. Floyd, 2019 ONSC 7006, at paras. 4-10; R. v. Maldonado Vallejos, 2022 ONSC 2753, at paras. 14-24; R. v. D.A.L., 2023 ONSC 124, at paras. 11-18; R. v. N.G., 2023 ONSC 792, at paras. 7-27). On the other side lies a line of authorities that declines to endorse the categorical inclusion approach, citing Parliament’s intent and distinguishing the required elements of the enumerated offences in s. 276(1) and the sexual services and human trafficking offences (see, e.g., R. v. Williams, 2020 ONSC 206, 64 C.R. (7th) 226 (“Williams #1”), at paras. 26-37; R. v. Langford, 2021 ONSC 4307, 74 C.R. (7th) 147, at paras. 7-25; R. v. M.D., 2020 ONSC 951, at paras. 21-46; R. v. Powell, 2021 ONCJ 708, at paras. 6-11; R. v. Europe, 2023 ONSC 5322, at paras. 10-11 and 21-24).
[40] This appeal provides an opportunity for this Court to clarify the application of the Barton test. I discuss this further in “The Barton Test” section. At paras 41-64 the court usefully walks through a statutory interpretation analysis (text, context and purpose) - including the recent history - of CCC s.276, concluding it at para 75 (quoted below).
It then continues with the 'Barton test':(d) The Barton Test
[65] Barton described the phrase “in respect of” in s. 276(1) as “exceptionally broad language” that expanded the application of s. 276 to non-enumerated offences bearing “some connection” to the offences enumerated in s. 276(1) (paras. 72-73).
[66] The Crown maintains that sexual services and human trafficking offences always bear “some connection” to the sexual offences enumerated in s. 276(1). The connection is found through four main avenues: the sexual nature of the offences, the implication of some required elements of the enumerated offences in s. 276(1), the risk of misuse of evidence of the complainant’s sexual history, and the vulnerability of sex workers as witnesses.
[67] According to the respondents, in Barton, Moldaver J. implicitly acknowledged a case-by-case purposive approach to determining the scope and application of s. 276. They submit that the Court of Appeal correctly interpreted Barton’s “some connection” test and concluded that the allegations they faced did not have the necessary connection to an enumerated offence to satisfy that test.
[68] To satisfy the “some connection” test from Barton, the commission of an enumerated offence must substantively arise on the facts, such that it is implicated in the proceeding. As the Court of Appeal pointed out, to engage s. 276 on a case-by-case basis, there must be more than “mere alignment” between some requisite elements of the charged offence and the enumerated one (para. 98, quoting R. v. A.M., 2021 ONCJ 266, at para. 25). If mere alignment were the standard, taken to its logical extreme, it would emulate the categorical approach that the Crown is endorsing. To properly engage s. 276, “the complete constellation of elements comprising a listed offence, rather than some lesser part of it”, is required (A.M., at para. 27).
[69] Barton requires a case-by-case approach in which “[e]ach case must still be scrutinized on its facts to determine whether the proceeding is ‘in respect of’ a listed offence” (Langford, at para. 16). It follows that the factual allegations in a given case may lead to different results under the Barton test even where the offence charged is the same (see Langford, at para. 23). For example, as M.P. acknowledges, some human trafficking charges involve allegations of sexual assault or coerced sexual activity as a method of control and exploitation, thereby engaging s. 276. A case-by-case analysis should adequately identify such cases. But ultimately, “[t]he focus is on the individual proceeding, and not the category of offence” (C.A. reasons, at para. 89).
[70] Showing “some connection” between an enumerated offence and the proceeding may come in different forms. The connection may be obvious or formal, such as where the enumerated offence is the predicate offence for, or an included offence of, the offence charged. In Barton, the predicate offence was enumerated in s. 276(1), although it was not specifically charged (see Barton, at paras. 76-77; Langford, at para. 17). In these circumstances, a s. 276 application should be brought and handled in the usual manner; a preliminary ruling on the applicability of s. 276 is unnecessary.
[71] Additionally, s. 276 is engaged where the context of the proceeding implicates an enumerated offence (see Barton, at para. 76; Langford, at para. 17). This is a case-by-case assessment that considers whether all of the elements of an enumerated offence are implicated, having regard to the entire circumstances of the proceeding, including: the charges, the Crown’s theory of the case, the evidence that the Crown or defence proposes to lead or elicit, the information or indictment, and the evidence from the preliminary inquiry or trial (see C.A. reasons, at para. 91; Barton, at para. 76; Langford, at para. 17; R. v. J.C. and D.B., 2023 ONSC 6093).
[72] To summarize, the Barton test will be satisfied, and s. 276 engaged, in three circumstances: (1) where an enumerated offence is a predicate offence for the offence charged; (2) where an enumerated offence is an included offence of the offence charged; or (3) where, given the charges, the Crown’s theory of the case, the evidence that the Crown or defence proposes to lead or elicit, the information or indictment, and the evidence from the preliminary inquiry or trial, all the elements of an enumerated offence are implicated in the proceeding.
[73] In that vein, I also agree with the Court of Appeal that the trial judge erred in applying s. 276 on the basis that the impugned offences strike at the heart of the consent necessary for the complainant to provide sexual services, thus finding “some connection” with the sexual assault offence enumerated in s. 276(1). There may be some theoretical and practical overlap between the sexual assault and procuring offences given their sexually exploitative nature. However, proving the necessary elements of the latter offence, which include the exercise of control, direction or influence over a complainant’s movements, is different from suggesting that the complainant did not consent to the sexual act — these are two distinct conceptual inquiries (see Williams #1, at paras. 27-30).
[74] As a practical matter, while Barton contemplates that where there is uncertainty as to the applicability of the s. 276 regime to a proceeding, the trial judge should raise the issue with the parties at the earliest opportunity (see para. 78), the preferable practice is for counsel to identify any potential engagement of s. 276 as early as possible in the proceeding. Prior to trial, the parties are ordinarily best positioned to assess whether the anticipated evidence may give rise to a threshold question concerning the applicability of s. 276. As part of the pre-trial process, it may also be advisable for the pre-trial judge to canvass with counsel whether s. 276 is likely to be engaged. Early identification enables the issue to be addressed in advance, facilitates effective case management, and promotes the efficient use of resources by minimizing interruptions once the evidentiary phase of the trial is underway.
(2) Conclusion
[75] A textual, contextual, and purposive statutory analysis does not support the Crown’s position that a categorical approach to including sexual services and human trafficking offences under the ambit of s. 276(1) is warranted. It is not the role of the courts to amend legislation when Parliament made the conscious choice to exclude these offences. . R. v. A.M.
In R. v. A.M. (SCC, 2026) the Supreme Court of Canada dismissed a Crown criminal appeal, here brought against an Ontario Court of Appeal ruling that considered "the test for applying s. 276 [SS: 'Admissibility of Sexual Activity Evidence - Evidence of complainant’s sexual activity'] to offences that are not specifically enumerated in that section".
Here the court considered the appellate SOR applying to issues of CCC s.276:A. Standard of Review
[30] As set out in s. 278.97 of the Criminal Code, the determination to admit or refuse evidence of other sexual activity is a question of law.[2] However, s. 278.97 “only delimits the nature of the issues that can be raised on appeal; it does not prescribe a standard of review” (R. v. T.W.W., 2024 SCC 19, at para. 19). Correctness review applies only to whether “the trial judge applied the correct legal principles, considered all the evidence they should have, did not admit irrelevant evidence, and did not otherwise err in law” (para. 22). Where an appeal raises these issues, no deference is owed. Where the issue concerns the trial judge’s assessment of the probative value and prejudicial effects of the evidence, the trial judge’s conclusion is owed deference (see paras. 21-22).
[31] Since this appeal turns on the interpretation of s. 276, the operative standard of review is correctness (see Telus Communications Inc. v. Federation of Canadian Municipalities, 2025 SCC 15, at para. 25). . R. v. Desir
In R. v. Desir (Ont CA, 2026) the Ontario Court of Appeal considered a CCC s.276 ['Admissibility of Sexual Activity Evidence'] issue, and the applicable SOR:[3] The appellant submits that the application judge (who did not conduct the trial) erred by dismissing his pre-trial application under s. 276 of the Criminal Code, R.S.C. 1985, c. C-46. The appellant sought to adduce evidence that the complainant previously worked as a sex worker on her own initiative. It was the defence theory that this evidence would undermine the credibility of the complainant’s evidence that she had been coerced and exploited by the appellant.
[4] The decision whether to admit evidence of other sexual activity of a complainant is a question of law: Criminal Code, s. 276.05.[2] In R. v. T.W.W., 2024 SCC 19, 437 C.C.C. (3d) 1, the Supreme Court of Canada addressed the standard of review, at para. 22:An appellate court must ensure that the trial judge applied the correct legal principles, considered all the evidence they should have, did not admit irrelevant evidence, and did not otherwise err in law; no deference is owed in this regard. However, as to the trial judge’s determination that the evidence’s prejudicial effect substantially outweighed its probative value, appellate courts should defer. [5] The application judge gave careful reasons for his decision: R. v. Desir, 2020 ONSC 1158. We see no error in his application of the legal principles. The fact that a person has voluntarily engaged in sex work in the past does not make future exploitation less likely. The admission of this evidence would have invited impermissible propensity reasoning – once a voluntary sex worker, always a voluntary sex worker. The application judge was right to exclude this evidence, noting that its trifling relevance was clearly outweighed by its prejudicial effect.
[6] There is another reason why we would reject this ground of appeal. Although it was not identified as an issue before the application judge, the application was in any event based on an improper foundation. The appellant relied on the complainant’s testimony at the preliminary inquiry about her past experience as a sex worker. However, no s. 276 application had been brought at the preliminary inquiry that would have permitted the admission of this evidence. It is of no moment that it was the Crown who adduced this evidence: see R. v. Kinamore, 2025 SCC 19, 503 D.L.R. (4th) 385, at para. 33; R. v. J.J., 2022 SCC 28, [2022] 2 S.C.R. 3, at para. 74; and R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at paras. 68, 80. As such, it should not have been used as the foundation for the s. 276 application at trial: see R. v. Kuzmich, 2020 ONCA 359, 388 C.C.C. (3d) 243, at paras. 59-60; R. v. Mwanz, 2026 ONCA 318, at para. 7. . R. v. B.B.
In R. v. B.B. (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, this brought against convictions for "incest and sexual interference" where the defendant was "sentenced to six years’ imprisonment and subjected to various ancillary orders, including a lifetime Sex Offender Information Registration Act, S.C. 2004, c. 10 (“SOIRA”) registration order".
The court considered CCC s.276 ['Evidence of complainant’s sexual activity'] issues, here intertwined with the 'collateral fact rule':a. The s. 276 voir dire
[22] The proposed defence evidence was previewed during a voir dire, as part of an omnibus defence application under s. 276 of the Criminal Code.[5]
....
[28] The trial judge relied on R. v. Riley (1992), 1992 CanLII 7448 (ON CA), 11 O.R. (3d) 151 (C.A.), at p. 154, leave to appeal refused, [1993] S.C.C.A. No. 26, where in a brief oral decision this court held that cross-examination directed at establishing “a pattern of fabrication by the complainant of similar allegations of sexual assault against other men” was something that “should not be encouraged unless the defence is in a position to establish that the complainant has recanted her earlier accusations or that they are demonstrably false.” The trial judge concluded that the evidence adduced on the voir dire did not establish that S.B.’s account of the October 2018 incident was “demonstrably false”, in the sense of being “undeniably untrue”.
[29] The appellant contends that the trial judge erred by reaching this conclusion. Specifically, he argues that the requirement in Riley that the defence be “in a position” to establish the demonstrable falsity of a complainant’s other allegation can be satisfied by the defence showing that it intends to adduce evidence that could lead the trier of fact to find that the other allegation is false. He distinguishes the situation here from that in R. v. M.T., 2012 ONCA 511, 289 C.C.C. (3d) 115 on the basis that the accused in M.T. did not intend to call any witnesses who might establish the falsity of the other allegations. As the appellant argues in his factum:[B]ecause defence counsel was in a position to establish the falsity of the October 2018 allegation through the proposed cross-examination and evidence, she should have been permitted to do so. Unlike M.T., this was not a case where the defence had no intention of demonstrating falsity. It would be a misreading of Riley and subsequent case law to hold that defence counsel had to prove that the October 2018 allegation was false at the voir dire, rather than simply that she was in a position to do so at trial. [Emphasis in original.] [30] The appellant also emphasizes that unlike in Riley, and in most of the subsequent cases where this court has applied Riley, he was seeking to establish that S.B. had made a false allegation against him, rather than against a third party.
[31] Riley was recently considered by the Newfoundland and Labrador Court of Appeal in R. v. Regular, 2026 NLCA 1. The majority allowed the Crown’s appeal from the accused’s acquittal, finding that the evidence of the complainant’s allegations against a third party should not have been admitted. Writing for the majority, Knickle J.A. interpreted the “demonstrably false” standard in Riley as requiring the accused to positively establish the falsity of the allegations on the admissibility voir dire. She observed at para. 58:In the absence of evidence like a recantation, it may be very difficult to prove that allegations are false. If it is only necessary to establish that allegations “may” be false because of inconsistencies to be admissible, this will result in a complainant being subjected to having the veracity of the allegations tested as if she were at trial for those allegations. Evidence that only illustrates that a complainant is incorrect on certain details, such as timing or location, is not evidence that a complainant fabricated allegations. [32] Noel J.A. dissented, in part because he disagreed with the majority’s interpretation of the “demonstrably false” standard in Riley. Citing the Supreme Court of Canada’s decision in R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, he stated, at para. 236:The “demonstrably false” standard must … be consistent with the Supreme Court of Canada’s statement in Arp that “an item of evidence does not have to firmly establish, on any standard, the truth or falsity of a fact in issue. The evidence must simply tend to ‘increase or diminish the probability of the existence of a fact in issue’”. [Citations omitted; emphasis in original.] [33] However, Noel J.A. agreed with the majority that the “demonstrably false” standard sets a “high bar” and that “the indicia of falsity must be compelling and significant”: Regular, at paras. 234-35, per Noel J.A. (dissenting).
[34] The Newfoundland and Labrador Court of Appeal’s decision in Regular has been appealed as of right to the Supreme Court of Canada, and the appeal is scheduled to be heard on November 2, 2026.
[35] Until the Supreme Court provides further guidance on this issue, I continue to be bound by this court’s prior decisions that have interpreted and applied Riley. This court has explained the rule in Riley as rooted in the collateral fact rule: Riley, at pp. 152-154; R. v. B. (A.R.) (1998), 1998 CanLII 14603 (ON CA), 41 O.R. (3d) 361 (C.A.), at p. 367, aff’d 2000 SCC 30, [2000] 1 S.C.R. 781; R. v. C.F., 2017 ONCA 480, 349 C.C.C. (3d) 521, at para. 63. As Rosenberg J.A. explained in R. v. Pargelen (1996), 1996 CanLII 420 (ON CA), 31 O.R. (3d) 504 (C.A.), at p. 516:The effect of the collateral fact rule is that, subject to certain exceptions, a party is not entitled to introduce extrinsic evidence to contradict the testimony of an adversary’s witness unless that extrinsic evidence is relevant to some issue in the case other than merely to contradict the witness. [36] Applications of the collateral fact rule involve “the general discretion of a trial judge to exclude evidence where its probative value is outweighed by its prejudicial effect”: B. (A.R.), at p. 367. As Trotter J.A. observed in R. v. D.K., 2020 ONCA 79, 384 C.C.C. (3d) 405, at para. 72, leave to appeal refused, [2020] S.C.C.A. No. 87:Because the collateral facts rule is intertwined with trial management considerations, trial judges exercise considerable discretion in its application, which is entitled to deference. [Citation omitted]. [37] The collateral fact rule is a rule of general application, not one limited to sexual offence prosecutions or sexual assault allegations: see e.g. R. v. Strojny, 2019 ONCA 329, at paras. 61-67. However, Riley is most often cited and relied on cases where, as here, an accused person charged with sexual offences seeks to prove that the complainant made false sexual assault allegations on other occasions. In this context, the accused’s ability to adduce evidence of other sexual activity by the complainant is regulated by s. 276 of the Criminal Code, which also requires trial judges to balance the probative value of evidence against its prejudicial effect: see s. 276(2).
[38] Riley was not decided under s. 276, and this court has previously held that “resort to s. 276 is not necessary” in situations where Riley applies: see B. (A.R.), at p. 365. However, in cases where s. 276 does apply there is no need for trial judges to conduct a separate Riley analysis, since the relevant factors under Riley must also be considered in the s. 276 analysis, along with the other factors listed in s. 276(3).
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