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Criminal - Evidence of Sexual Activity [CCC 276] (8). 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 summarizes this case:I. Overview
[1] Over the past few decades, Canadian law has made concerted efforts to prevent discriminatory myths and stereotypes from infecting the operative reasoning in sexual offence cases. While reliance on impermissible stereotypical and myth-based reasoning remains a subtle threat, it is important for trial judges to avoid conflating such reasoning with legitimate inferences (see R. v. Kruk, 2024 SCC 7, at paras. 64-65). It is the court’s job to balance the elimination of myths and stereotypes in sexual offence cases with the accused’s right to full answer and defence. Doing so requires filtering out impermissible lines of reasoning in accordance with specific legal rules and without blanket exclusion of whole categories of evidence.
[2] This appeal requires the Court to determine whether the pre-screening regime in s. 276 of the Criminal Code, R.S.C. 1985, c. C-46, which governs the admissibility and use of evidence with respect to a complainant’s sexual activity that does not form the subject matter of the charge, applies to non-enumerated sexual services (ss. 286.1 to 286.4) and human trafficking (ss. 279.01 to 279.03) offences.[1] The Crown urges this Court to reach a different result than the Court of Appeal for Ontario and conclude that s. 276 applies categorically to these offences. In the alternative, the Crown argues that the application of the common law rules governing the admission of Crown-led evidence of prior sexual activity should be extended to the impugned offences (see R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577). Finally, the Crown asserts that the Court of Appeal erred by concluding that it was permissible to draw inferences about the complainant’s propensity to voluntarily engage in sex work based on her prior sexual history.
[3] For the reasons that follow, I agree with the respondents, A.M. and M.P., that categorically adding the sexual services and human trafficking offences to the enumerated offences in s. 276(1) would be contrary to Parliament’s intent. Moreover, extending the application of the common law pre-screening rules set out in Seaboyer would be inappropriate given the foregoing conclusion. Instead, using a case-by-case approach to determine whether s. 276 applies in proceedings involving sexual services and human trafficking offences respects Parliamentary intent and adequately guards against discriminatory lines of reasoning operating against complainants. I also disagree with the Crown that the Court of Appeal engaged in impermissible propensity-based reasoning that a complainant is more likely to voluntarily engage in sex work merely because she previously voluntarily engaged in sex work. The Court of Appeal carved out legitimate inferences on which the respondents may rely.
[4] I would dismiss the appeal.
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