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| John L. Hill |
Dustin Kinamore was convicted of sexual assault after a trial in which both he and the complainant testified — she alleged assault, while he claimed the encounter was consensual. The Crown introduced prior messages in which the complainant stated she had never engaged in sexual intercourse and did not intend to engage in a sexual relationship with him. The Crown persuaded the
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Kinamore appealed, arguing that these messages should not have been admitted without a voir dire, as they related to her sexual history.
The Court of Appeal upheld the conviction (R. v. Kinamore, 2023 BCCA 337), ruling that the exclusionary rule did not cover the messages for sexual history evidence. However, the Supreme Court of Canada disagreed. It found that the messages were presumptively inadmissible as sexual history evidence, necessitating a voir dire. As no such hearing was held, the Supreme Court allowed the appeal, quashed the conviction and ordered a new trial.
The unanimous decision of this Supreme Court, written by Chief Justice Richard Wagner, clarifies two unresolved issues:
(a) Sexual Inactivity Evidence: Evidence of a complainant’s lack of sexual activity is now confirmed to be presumptively inadmissible under s. 276 of the Criminal Code and common law. This evidence constitutes part of the complainant’s sexual history and can trigger harmful myths and stereotypes. This determination of inadmissibility without a voir dire would seemingly overrule the Supreme Court’s earlier holding that communications indicating disinterest in having sex fell outside the exclusionary rule governing a complainant’s sexual history (R. v. Langan, 2020 SCC 33). The 1982 amendments to the Criminal Code barring admission of a complainant’s prior sexual history as “character evidence” were enacted to eliminate the “twin myths” that the complainant had a propensity to consent and that being “unchaste,” the complainant was less worthy of belief.
(b) Crown-led Sexual History Evidence: The court affirmed that the same principles and procedures that govern defence-led evidence under s. 276 and R. v. Seaboyer, [1991] 2 S.C.R. 577 also apply to Crown-led evidence. This creates a harmonized approach for both sides, reducing confusion and ensuring consistent evidentiary standards.
(b) Crown-led Sexual History Evidence: The court affirmed that the same principles and procedures that govern defence-led evidence under s. 276 and R. v. Seaboyer, [1991] 2 S.C.R. 577 also apply to Crown-led evidence. This creates a harmonized approach for both sides, reducing confusion and ensuring consistent evidentiary standards.
The court noted there are instances where it would be acceptable to include evidence of sexual inactivity. Some aspects of sexual inactivity evidence may be pertinent unless they invoke inferences based on the inverse twin myth or similar forms of discriminatory reasoning. For example, in R. v R.V., 2019 SCC 41, the Crown introduced medical evidence of the complainant’s pregnancy to counter the accused’s claim that no sexual activity occurred. The complainant testified that she was a virgin at the time of the assault. A complainant’s prior expression of sexual disinterest in an accused conveyed close to the time of an alleged assault may also be admissible under the hearsay exception for statements of present intention and can serve as circumstantial evidence relevant to the issue of consent (R. v. Reimer, 2024 ONCA 519; R. v. Ewanchuk, [1999] 1 S.C.R. 330).
In all cases, care must be taken, and judges must remain attentive to the probative value of the evidence sought to be admitted.
In Kinamore, the trial judge mistakenly admitted the Crown’s evidence regarding the complainant’s virginity and sexual disinterest, which was sent months before the sexual activity that led to the charge, without conducting a voir dire. Both the Crown and the defence subsequently questioned it. Both parties should have submitted their respective applications for a voir dire to ensure that the evidence was relevant to a live issue and otherwise admissible. A new trial was ordered.
Overall, the ruling seeks to streamline trial procedures while safeguarding protections for complainants. The playing field has been levelled.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the [True Crime] Story (AOS Publishing). The Rest of the [True Crime] Story has been shortlisted for a prestigious Brass Knuckles Award, which is the Crime Writers’ of Canada’s prize for best nonfiction crime book of the year. Contact him at johnlornehill@hotmail.com.
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