SCC: R. v. A.M. Sexual History Evidence Admissible in Pre-Act Cases

• The Supreme Court of Canada unanimously ruled in R. v. A.M. that a complainant's past sexual activity can be admissible in human trafficking and sexual services offence trials.
• This decision specifically applies to charges laid before the Protecting Victims Act was enacted this summer.
• Justice Mary Moreau, writing for the Court, clarified that Canada's s. 276 rape shield rules do not explicitly cover human trafficking or sexual services offences.
• The ruling allows two men accused of pimping an Ontario woman to present evidence of her sex work history at their trial.
• For charges laid after its enactment, the Protecting Victims Act broadens s. 276 to include offences of a sexual nature or committed for a sexual purpose.

For charges initiated prior to the recent legislative changes, the Supreme Court of Canada has affirmed that evidence of a complainant's past sexual activity may be admissible in trials concerning human trafficking and sexual services offences.

The Supreme Court of Canada (SCC) has issued a unanimous decision in R. v. A.M., clarifying the admissibility of a complainant's sexual history in specific criminal proceedings. The ruling, delivered on a Friday, establishes that an accuser's past sexual activity can be presented as evidence in trials for human trafficking and sexual services offences. Crucially, this determination by the Supreme Court of Canada R. v. A.M. applies exclusively to charges that were laid before the Protecting Victims Act was enacted by Parliament earlier this summer.

This significant judgment directly impacts a pending case involving two men accused of acting as pimps for an Ontario woman. As a direct consequence of the SCC's decision, these individuals are now permitted to introduce evidence concerning the woman's history of sex work during their trial. The core finding is that for these particular categories of offences, the standard protections against the use of sexual history evidence do not automatically apply, thereby allowing for its potential introduction.

Canada's legal framework includes what are commonly known as rape shield rules, primarily outlined in s. 276 of the Criminal Code. These provisions were originally designed to prevent courts from relying on prejudicial stereotypes about sexual assault complainants, which could undermine their credibility. Under these rules, evidence pertaining to a complainant's history of sexual activity is generally inadmissible in proceedings involving 14 specific offences, such as sexual interference, aggravated sexual assault, and indecent acts. However, the original text of s. 276 did not explicitly include human trafficking or sexual services offences within this protected list.

A prior SCC decision in 2019, R. v. Barton, had expanded the scope of these protections, ruling that in certain circumstances, courts could not admit sexual history evidence even for crimes not explicitly listed under s. 276. This applied if the crime had an "obvious or informal" connection to one of the enumerated offences. However, in R. v. A.M., Justice Mary Moreau, writing for the high court, explicitly stated that Canada's rape shield rules do not extend to human trafficking or sexual services offences, and that the Barton precedent should not be used to infer such an extension.

Justice Moreau's reasoning in R. v. A.M. underscored that applying the Barton precedent to human trafficking or sexual services offences, based on their potential connection to s. 276 listed crimes, would contradict Parliament's original legislative intent. She emphasized that while the risks associated with relying on myths and stereotypes are present, Canadian law does not categorically deem evidence of prior sexual history irrelevant or inadmissible. This nuanced position highlights the careful balance the court must strike.

In her decision, Justice Moreau cited R. v. Kruk, reiterating that "just because the evidence happens to align with a myth or stereotype does not necessarily mean that any inferences that can be drawn from that evidence will be prejudicial." This perspective suggests that the mere possibility of a stereotype being invoked does not automatically render sexual history evidence inadmissible, provided its probative value outweighs its prejudicial effect. This ruling clarifies the s. 276 Criminal Code admissibility standards for these specific charges.

The ruling has drawn commentary from legal professionals. Jeffery Couse, a partner at Lockyer Zaduk Zeeh who represented A.M., noted that the decision "helpfully illustrates the distinction between inferences that arise from evidence of other sexual activity that are legitimate versus illegitimate." He further suggested that in the context of sex work, evidence of prior sex could illuminate the nature of the relationship between the accused and the complainant. Conversely, Angela Marinos, representing the Raoul Wallenberg Centre for Human Rights, expressed surprise at Justice Moreau's characterization of reliance on stereotypes as a "subtle threat," arguing it minimizes victims' experiences and contributes to low reporting and conviction rates.

Both Couse and Marinos, however, acknowledged the significant impact of the Protecting Victims Act, which Parliament enacted this summer. This new legislation has broadened the scope of s. 276, extending its protections beyond the original 14 listed offences to now include any offence "of a sexual nature" or "committed for a sexual purpose." This means that while the SCC R. v. A.M. sexual history evidence ruling applies to older charges, the landscape for human trafficking sexual history evidence and sexual services offences evidence has fundamentally changed for charges laid after the Act's implementation, reflecting a legislative intent to expand rape shield rules Canada.

Criminal defense lawyers and prosecutors in Canada must understand that for human trafficking and sexual services charges laid *before* the enactment of the Protecting Victims Act, evidence of a complainant's past sexual activity may be admissible, as per the SCC's ruling in R. v. A.M. This necessitates a careful review of evidentiary strategies and the specific date charges were laid to determine the applicable 'rape shield' rules.

Source: Original reporting via Canadian Lawyer