Evidence of Other Sexual Activity (ss. 276 and 278.93 and Kinamore applications)

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11.31 Evidence of Other Sexual Activity (ss. 276 and 278.93 and Kinamore applications)

Note[1]

(Last revised October 2025)

Where there is evidence of prior sexual conduct, instruct the jury as follows:

[1] You have heard evidence that (NOC) (describe briefly nature of sexual activity) with (specify name of other party) on (specify date, or otherwise identify occasion).

[2] The law restricts the purposes for which evidence of a person’s prior sexual conduct may be used. You may use this evidence only to help you (specify limited purpose for which the evidence was ruled admissible on the s. 276 or Kinamore application).

[3] You may not use this evidence for any other purpose. Specifically, you must not use this evidence to infer that, because of the sexual nature of what happened, (NOC) is more likely to have consented to the sexual activity with which (NOA) is charged or that (NOC) is less worthy of belief. These inferences are based on myths about sexuality that have no place in our law.

Where there is evidence of prior sexual inactivity or a lack of interest in sexual activity,[2] instruct the jury as follows:

[4] You have heard evidence that (NOC) (describe briefly the nature of sexual inactivity, e.g., before the events giving rise to the charge, (NOC) was a virgin, or (NOC) was not interested in engaging in sexual activity with (NOA) or had never previously engaged in sexual activity).[3]

[5] The law restricts the purposes for which evidence of a person’s (specify prior sexual inactivity, lack of interest, etc) may be used. You may use this evidence only to help you (specify limited purpose for which the evidence was ruled admissible on the s. 276 or Kinamore application).[4]

[6] You may not use this evidence for any other purpose. Specifically, you must not use this evidence to infer that, merely because of (NOC)’s (specify prior sexual inactivity, lack of interest, etc) (NOC) is less likely to have consented to the sexual activity with which (NOA) is charged or that (NOC) is more worthy of belief.[5] These inferences are based on myths about sexuality that have no place in our law.

[1] In R v Kinamore, 2025 SCC 19, the Supreme Court of Canada held that where the Crown leads evidence of the complainant’s previous sexual activity or inactivity, the Crown must bring an application governed by a set of common law principles parallel to the principles laid out in s. 276 of the Criminal Code. For clarity we have referred to the accused’s application as a s. 276 application and the Crown’s application as a Kinamore application.

[2] In R v Kinamore, 2025 SCC 19, the Supreme Court of Canada held that evidence of (NOC)’s sexual inactivity was presumptively inadmissible and that its admissibility was subject to the Kinamore principles (if led by the Crown) and to s. 276 (if led by the defence).

[3] “Sexual inactivity evidence can be understood as 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 certain circumstances …” (Kinamore, above, at para. 64). Sexual inactivity evidence also includes (NOC)’s expressed lack of interest in engaging in sexual activity with (NOA): see para. 65.

[4] Some possible permissible uses of evidence of sexual inactivity are outlined at paras. 81-86 of Kinamore, above. For example, the fact that the complainant had previously been a virgin yet became pregnant around the time of the alleged sexual activity, provided evidence that the accused had committed the actus reus of the offence. A complainant’s expression of a lack of interest in sexual activity could be admitted as an expression of present intention and circumstantial evidence of a lack of consent.

[5] “Sexual inactivity evidence may evoke inverse twin-myth reasoning. A complainant’s sexual inactivity can be used as a form of character evidence that invites the trier of fact to conclude that, because the complainant has been sexually inactive, (1) they have a propensity to not consent and therefore were less likely to have consented to the sexual activity that forms the subject matter of the charge; and (2) they are more worthy of belief” (Kinamore, above, at para. 71).