Case in Brief

A Case in Brief is a short summary of a written decision of the Court, drafted in plain language. These summaries are prepared by communications staff of the Supreme Court of Canada. They do not form part of the Court’s reasons for judgment and are not for use in legal proceedings.

R. v. Kinamore

Case summary

The Supreme Court confirms that evidence about a complainant’s sexual inactivity is presumptively inadmissible and cannot be admitted without first being reviewed in a hearing.

This is an appeal about whether social media messages between the accused and the complainant were evidence of the complainant’s sexual history and therefore presumptively inadmissible. The messages contained references to the complainant’s virginity as well as prior indications of sexual disinterest in the accused. The Court was also asked to clarify the rules for when the Crown, rather than the accused, uses evidence of a complainant’s sexual history.

The accused, Dustin Kinamore, and the complainant met at a motorcycle shop and they exchanged messages for a few months. They later met at Mr. Kinamore’s apartment. Afterwards, Mr. Kinamore was charged with sexual assault. Both the complainant and Mr. Kinamore testified at trial. The complainant described a sexual assault. Mr. Kinamore described a consensual sexual encounter. The Crown tendered evidence of prior messages between the complainant and Mr. Kinamore. In many messages, the complainant repeatedly stated that she did not intend to have a sexual relationship with Mr. Kinamore.

The trial judge found the accused guilty of sexual assault. The accused appealed his conviction, arguing that the trial judge erred in admitting the Crown-led evidence of the prior communications between the parties without a voir dire (i.e. a hearing on the admissibility of this evidence). The Court of Appeal dismissed the appeal, holding that the communications were not presumptively inadmissible because the complainant’s social media messages indicating a disinterest in sexual activity with the accused fell outside the exclusionary rule governing a complainant’s sexual history during sexual offence trials. Mr. Kinamore then appealed his conviction to the Supreme Court.

The Supreme Court has allowed the appeal, quashed the conviction and ordered a new trial.

In Mr. Kinamore’s case, the social media messages that included discussions of the complainant’s sexual activity and inactivity were presumptively inadmissible sexual history evidence. Accordingly, the trial judge erred in failing to hold a voir dire to determine their admissibility.

Writing for a unanimous Court, Chief Justice Wagner said that sexual inactivity evidence – encompassing 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 – forms part of a complainant’s sexual history and is thus presumptively inadmissible.

Moreover, Chief Justice Wagner indicated that to facilitate consistency and predictability in the management of sexual offence trials, the common law procedure governing Crown-led sexual history evidence should generally follow the two-step process set out in sections 278.93 and 278.94 of the Criminal Code, including the requirement for a hearing to assess admissibility.

Since the trial judge’s assessment of the credibility of the accused and the complainant was inextricably intertwined with this presumptively inadmissible evidence, the evidence played a material role in the trial judge’s reasons. Therefore, her error was not harmless and a new trial was ordered.