Background
S.G., a former co-worker of the complainant, was convicted by Justice Paul T. O’Marra of the Ontario Court of Justice on August 4, 2023, on two counts of sexual assault and one count of criminal harassment. The case is subject to a publication ban under s. 486.4 of the Criminal Code. S.G. appealed his convictions, represented at the hearing by duty counsel.
The sole ground of appeal argued in oral submissions was that the trial judge erred by improperly relying on the appellant’s own evidence of other, allegedly consensual sexual activity between himself and the complainant — activity that had not been the subject of a s. 276 application — to undermine his credibility at trial. The appellant further contended that the trial judge misapprehended the evidence regarding the timeline of when he first met the complainant.
The Court’s Holding
The Court of Appeal dismissed the appeal unanimously. The court found that the trial judge did not rely on the other sexual activity itself as evidence. Rather, the trial judge expressly held that the other sexual activity was inadmissible, and used the appellant’s reference to it solely to identify an internal inconsistency in the appellant’s own timeline: the alleged prior sexual encounter could not have occurred at the time the appellant claimed, because on his own account the two did not yet know each other at that point.
The court distinguished this case from R. v. Kinamore, 2025 SCC 19, where the Crown had introduced prior sexual activity evidence as part of its case and the trial judge drew on the sexual nature of that evidence to discredit the accused. Here, it was the appellant himself who volunteered the evidence unprompted during cross-examination, and the trial judge’s credibility finding rested entirely on the timeline inconsistency — divorced from any sexual context — without engaging the twin myths or stereotypes prohibited by s. 276. No prejudice arose to the appellant, the complainant, or the integrity of the trial process.
Key Takeaways
- A trial judge may use an accused’s internally inconsistent timeline — revealed incidentally through the accused’s own unsolicited reference to prior sexual activity — as a credibility factor, provided the finding is based on the inconsistency alone and not on the sexual nature of the activity.
- The prohibition on using prior sexual activity evidence to undermine credibility (as articulated in Kinamore) applies most directly where the Crown introduces such evidence; it does not automatically bar a trial judge from drawing any inference when the accused spontaneously raises the activity.
- An appellate court will not intervene in a credibility finding where the trial judge’s reasoning is grounded in the record and does not engage impermissible stereotypes about complainants.
Why It Matters
This decision provides practical guidance on the boundaries of Kinamore and s. 276 of the Criminal Code in sexual assault trials. It confirms that the bar on using prior sexual activity evidence is not absolute in every procedural context: what matters is whether the trial judge’s reasoning engaged prohibited reasoning or stereotypes, not merely whether such activity was mentioned.
For defence counsel, the case is a reminder that an accused who volunteers prior sexual activity evidence during cross-examination may inadvertently open the door to credibility findings based on the internal inconsistencies that evidence reveals — even if the activity itself remains inadmissible for other purposes.