Sexual Inactivity Evidence

The Supreme Court of Canada has established new rules regarding the use of evidence of a complainant's sexual inactivity in sexual assault trials, making it presumptively inadmissible and outlining a specific procedure for its potential introduction

Questions to inspire discussion

Legal Procedures

🏛️ Q: What new procedure must the Crown follow for sexual history evidence?
A: The Crown must now follow a two-stage procedure for admitting sexual history evidence, including preparing a written application detailing the evidence and its relevance, providing fair notice to the accused at least 7 days before trial.

⚖️ Q: How has the Supreme Court of Canada balanced the scales in sexual assault trials?
A: The Court has established parity between Crown-led and defence-led evidence handling, requiring the Crown to apply the same rigorous procedures previously only imposed on the defence for sexual history evidence.

📝 Q: What must be included in the Crown's application for sexual history evidence?
A: The Crown's application must be supported by an affidavit from someone familiar with the complainant's sexual history, such as a police officer, and must identify with precision how the evidence is relevant to a live issue at trial.

Evidence Admissibility

🚫 Q: What type of sexual history evidence is now presumptively inadmissible?
A: Evidence of sexual inactivity, including virginity, is now presumptively inadmissible in sexual assault trials, as it can lead to inverse twin myth reasoning.

🧑⚖️ Q: How does a trial judge assess the admissibility of sexual history evidence?
A: The judge must assess whether the Crown has complied with procedural obligations, if the evidence is capable of being admissible, and whether its probative value outweighs its prejudicial effect.

🔍 Q: What types of inferences are prohibited in sexual assault trials?
A: Inferences rooted in inverse twin myth reasoning or other forms of discriminatory reasoning are prohibited, such as arguing that a complainant's unwillingness to have sex means they could not have consented.

Impact on Trials

🏆 Q: How might this ruling change sexual assault trials in Canada?
A: This precedent-setting case could significantly alter the landscape of sexual assault trials by bringing consistency and predictability to the management of sexual offense trials.

🔒 Q: What restrictions are placed on the publication of sexual history evidence applications?
A: The contents of the application, evidence taken, information given, and representations made in stage one and stage two hearings must not be published or broadcast.

Legal Principles

📚 Q: How does this ruling contribute to legal precedent?
A: The decision emphasizes the importance of transparency and consistency, aiming to create a history of precedent and ensure the law is coherent across cases.

🛡️ Q: What legal principle does the ruling reinforce regarding sexual history evidence?
A: The ruling reinforces that sexual history evidence, including inactivity, engages Section 276 of the Criminal Code and the common law exclusionary rule.

Practical Implications

⏰ Q: When can the Crown make a mid-trial application for sexual history evidence?
A: The Crown can make a mid-trial application only if there is a material change in circumstances that requires it.

🎯 Q: What must the Crown prove to admit sexual history evidence?
A: The Crown must prove on a balance of probabilities that the evidence is relevant to an issue at trial and its probative value is not outweighed by its prejudicial effect.

Key Insights

Legal Precedent and Admissibility

🚫 The Supreme Court of Canada ruled that evidence of sexual inactivity, including virginity claims, is presumptively inadmissible in sexual assault trials to prevent inverse twin myth reasoning.

⚖️ A two-stage procedure for admitting crown-led sexual history evidence has been established, mirroring the statutory scheme for defense-led evidence.

🔍 Crown-led evidence of sexual inactivity is only admissible if relevant to a live issue at trial and based on permissible inferences, not discriminatory reasoning.

Procedural Changes

📝 The crown must now prepare a written application detailing the evidence and its relevance, with the judge assessing admissibility and relevance at trial.

⏰ Crown applications to admit sexual history evidence must be submitted at least 7 days before trial, potentially leading to trial delays if not done in advance.

👥 The complainant does not have automatic standing to make submissions on crown-led sexual history evidence admissibility but may be granted standing by the judge.

Transparency and Consistency

🔎 The decision emphasizes transparency and consistency in handling sexual history evidence, with applications and decisions to be published after privacy considerations.

🤝 It's ideal for both crown and defense applications to be brought simultaneously to facilitate consistency and predictability in managing sexual offense trials.

Myths and Stereotypes

🙅♀️ The ruling addresses myths and stereotypes surrounding sexual history evidence, including the twin myths about virginity and delayed reporting of sexual assaults.

Practical Implications

📊 The crown's application must be supported by an affidavit from someone familiar with the complainant's sexual history, such as a police officer.

🔄 The decision recognizes that sexual inactivity evidence engages Section 276 and the common law exclusionary rule, applying to both defense and crown.

🧠 Sexual inactivity evidence is not just about the absence of sex but also about the sexual history and motivation of the parties involved.

#Justice

XMentions: @HabitatsDigital @NotOnRecord @JosephNeubergerLaw @DianaDavison

Clips

• 00:00 ⚖ The Supreme Court of Canada now requires a formal application from the crown before introducing evidence of a complainant's sexual inactivity in sexual assault trials.
  • The Supreme Court of Canada's recent decision in RV Kenmore, rendered on June 13, 2025, raises concerns about providing clear guidance on pre-trial applications.
  • The Supreme Court of Canada previously declined to rule on an issue in RVRV (2019) and now has a new opportunity to make a decision in a current case.
  • The Supreme Court of Canada now requires the crown to make a formal application before leading evidence of a complainant's sexual activity or inactivity in sexual assault trials.
  • The Supreme Court often declines to make a decision in certain cases, citing they are not the "right case," which can delay similar appeals from being resolved until a suitable case comes along.
  • The accused and complainant exchanged explicit messages on social media in 2020, with the complainant indicating disinterest in a sexual relationship, before meeting and the accused being charged with sexual assault.
  • The crown and defense relied on evidence of the complainant's sexual inactivity, virginity, and desire for sex, which was allowed despite potential prejudice, as the crown typically aligns with the complainant and claims it won't violate rules, but judges have discretion to exclude prejudicial evidence at common law.
• 06:40 💼 The Supreme Court of Canada rules that evidence of sexual inactivity, including virginity, is presumptively inadmissible in court due to potential perpetuation of false assumptions and stereotypes, but can be used in specific circumstances with proper context.
  • A person's sexual inactivity, including being a virgin, is considered part of their sexual history and is presumptively inadmissible as evidence in a complaint.
  • Evidence of sexual inactivity is presumptively inadmissible in sexual offense trials, requiring a special hearing to determine its admissibility.
  • The Supreme Court of Canada has clarified that evidence of virginity can be used in court, but only if the Crown clearly states what inferences to draw from it, to avoid perpetuating myths that a virgin is less likely to consent.
  • Sexual inactivity claims rely on advanced messages of non-consent, such as stating no intention of having sex, which may not account for potential changes in mind.
  • The Crown can use messages about prior discussions of sexual activity as evidence of consent, as long as they are grounded in evidence and provide proper context to the specific acts in question.
  • Sexual inactivity evidence is presumptively inadmissible in court as it may perpetuate false assumptions and stereotypes about complainants, but is not categorically excluded if presented without inferences rooted in discriminatory reasoning.
• 13:53 💼 The party introducing sexual inactivity evidence must precisely identify its relevance to a live issue at trial, following a two-stage procedure with specific requirements and judicial discretion.
  • The party introducing sexual inactivity evidence must identify with precision how it's relevant to a live issue at trial through permissible inferences.
  • The Supreme Court's rulings often lack clear practical application, leaving lower courts and industry professionals to develop their own procedures and interpretations.
  • The crown's process for admitting sexual history evidence requires a two-stage procedure, where the crown must prepare a written application setting out the evidence and its relevance, and the judge must assess procedural obligations, admissibility, and weigh probative value against prejudicial effect.
  • The judge has discretion to grant the complainant standing to make submissions on stage two of the trial, but only if exceptional circumstances arise.
  • The court notes that the Crown's intention to present evidence of a sexual nature may impact the defense's pre-trial application, making it ideal for both applications to be brought simultaneously.
• 18:45 💡 Lawyers and courts navigate challenges with sexual inactivity evidence, including applications, notice periods, and trial schedules, as they work to balance coherence and fairness.
  • The episode is sponsored by EasyDNS, a secure web hosting service with a 30-year track record, and listeners can get it using the promo code "notonrecord" at checkout.
  • Lawyers have been including anticipated Crown-led sexual history evidence in their applications for over 3 years to ensure coherence and prepare for potential evidence.
  • The crown is forced to consider and address potential issues with sexual content due to early application submissions, typically 3-4 months in advance.
  • The crown's application for sexual inactivity evidence requires fair notice to the accused at least 7 days before trial, but this can be impractical in cases with short trial schedules.
  • The proposed requirement for a 7-day notice period for sexual inactivity evidence applications is absurd, as it would disrupt trials and assumes the defense hasn't already considered the issue.
  • Higher courts' decisions on sexual inactivity evidence, though well-intentioned on paper, require practical application and procedure to be worked out.
• 24:22 💼 Court decisions on sexual inactivity evidence emphasize protecting privacy, consistency in rulings, and exceptions for public interest, while also outlining procedures for disclosing a complainant's sexual history.
  • Applications to the crown must usually be in writing, but a judge has discretion to allow oral applications in certain cases.
  • Court decisions and evidence from in-camera hearings have restricted publication to protect privacy, with some exceptions where judges deem it in the interest of justice.
  • Published decisions on evidence admissibility should be made when in the public interest, ensuring consistency in court rulings, even if the complainant is not a compellable witness.
  • A motion to compel disclosure of a complainant's sexual history can be supported by an affidavit from someone familiar with the case, such as a police officer, clerk, or paralegal.
  • Complainants' lawyers often dispute and offer alternative interpretations of their clients' statements to avoid cross-examination.
• 29:42 💼 New Canadian legislation on sexual inactivity evidence in sexual assault cases introduces complexity, allowing evidence to be used by both defense and crown to establish motive and credibility.
  • An affidavit will be required, laying out the messages and relevance, providing a clear position.
  • Judicial pre-trials help parties have meaningful discussions, clarify intentions, and guide the judge's decisions at trial, including jury instructions and evidence admissibility.
  • New legislation on sexual inactivity evidence is making the process more complicated, not streamlining it, with intricate layers and multiple pre-trial motions.
  • In Canada, evidence of sexual inactivity now engages section 276 and the common law exclusionary rule, applicable to both defense and crown, allowing its inclusion in defense narratives to establish motive to fabricate.
  • A delay in reporting a complaint does not affect the credibility of the complainant, but the circumstances surrounding the disclosure may be relevant to motive, fabrication, and reliability.
  • The proposed regime for handling sexual assault evidence would align the procedures for the defense and the crown to ensure consistency and avoid complexity.
• 37:24 📚 The Supreme Court of Canada made a necessary ruling on sexual inactivity evidence in sexual assault cases, addressing its problematic use.
  • The speaker is relieved a decision was finally made, but is unhappy it took so long.
  • Claiming virginity in a sexual assault case can be problematic as it can be challenged by the defense, potentially discrediting the complainant.
  • A crown attorney expressed discomfort with certain evidence, acknowledging it was "fraught with issues" and would require a special application if used in a trial.
  • The Supreme Court of Canada's decision is a well-written, easy-to-understand, and necessary ruling that helps balance the scales in addressing sexual inactivity evidence.
• 40:39 👋 The hosts thank viewers for watching and encourage them to engage with the channel by liking, commenting, subscribing, and suggesting future topics.

-------------------------------------

Duration: 41:22

WatchUrl: https://www.youtube.com/watch?v=6fKGT83GIBM

Publication Date:2025-06-28T22:57:02Z

-------------------------------------