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Canadian sexual assault law has evolved rapidly over the past decade, influenced by shifting social awareness, legislative reform, and major appellate decisions. Yet many of the most significant developments may still lie ahead. As new appeals move through provincial courts and toward the Supreme Court of Canada (SCC), several key issues are emerging that could redefine how evidence is treated in sexual assault prosecutions.
Below are areas of law that defence lawyers, legal professionals, and anyone facing sexual assault charges should be watching closely.
While section 276 of the Criminal Code strictly limits how the defence may use a complainant’s sexual history, less attention has been given to when the Crown relies on similar evidence. The emerging Kinamore appeal is expected to test whether the same procedural safeguards that apply to the defence should also apply to the Crown when introducing a complainant’s prior sexual conduct for “context” or credibility.
Defence counsel argue that allowing the Crown to reference sexual history without a proper 276 application creates an unfair double standard. The SCC’s eventual guidance on this issue could reinforce the principle of trial fairness and ensure parity between prosecution and defence obligations.
For context, the Court’s earlier decision in R. v. Goldfinch (2019 SCC 38) emphasized that sexual history evidence, no matter who introduces it, must be scrutinized to prevent myths and stereotypes from influencing the jury. Kinamore is poised to extend that discussion to the Crown’s role, potentially closing a significant procedural gap.
As technology becomes central to criminal investigations, courts are grappling with how to handle text messages, social media posts, and other digital records in multi-complainant sexual assault trials. The DeSutter case highlights the growing debate over whether similar fact evidence from one complainant can be used to support another’s credibility within a single proceeding.
While similar fact evidence can sometimes establish a pattern of conduct, it also carries a significant risk of prejudice, potentially leading juries to assume guilt based on character or prior allegations.
The Supreme Court’s decisions in R. v. Handy (2002 SCC 56) and R. v. R.V. (2019 SCC 41) remain the leading authorities, emphasizing that such evidence must only be admitted where its probative value clearly outweighs its prejudicial effect.
DeSutter is expected to test how those principles apply to digital contexts, where evidence can be fragmented, informal, or ambiguous. Its outcome could influence how courts across Canada approach electronic communications in sexual assault prosecutions for years to come.
Each of these cases reflects a broader challenge in modern criminal law: balancing fairness for the accused with evolving expectations around the treatment of complainants and digital evidence. As the SCC continues to refine these principles, defence lawyers must adapt their strategies to preserve procedural fairness and the right to a full answer and defence.
We don’t just watch these changes, we anticipate them, prepare for them, and incorporate them into the strategic defence of our clients. When the legal landscape shifts, experience and foresight matter more than ever.
Charged with a sexual offence or concerned about upcoming legal reforms? Don’t wait.
Contact Neuberger & Partnersat 416-364-3111 to schedule a confidential consultation.
