CITATION: R. v. J. (B.), 2026 ONSC 1622

COURT FILE NO.: CR 21-112

DATE: 2026/03/17

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

B.J.

Defendant

S. Dickson, for the Crown

G. Clark, for the Defendant

D. Baker, for the Complainant

HEARD: February 11 and 18, 2026

PUBLICATION RESTRICTION NOTICE

By court order made under subsection 486.4(1) of the Criminal Code, no information that could identify the person described in this judgment as the complainant may be published, broadcast, or transmitted in any manner. These reasons have been anonymized to permit their publication.

REASONS FOR DECISION ON APPLICATION

Ellies J.

OVERVIEW

1The defendant is charged with seven sexual offences relating to his daughter (“the complainant”). The allegations span a period from 1991, when the complainant was a small child, until 2015, when she was a young adult.

2The defendant applies under s. 276(2) of the Criminal Code, R.S.C. 1985, c. C-46 (“the Code”), for leave to introduce evidence of sexual activity on the part of the complainant other than that which forms the subject matter of the charges. At the same time, the Crown applies using the procedure set out in R. v. Kinamore, 2025 SCC 19, for leave to introduce different evidence of other sexual activity on the complainant's part.

BACKGROUND

3This is the third application by the defendant under s. 276(2) in this case. In the first application (“s. 276 #1”), I ruled that the defendant would be allowed to introduce evidence at trial about a conversation the complainant had with her mother in 2008 in which the complainant talked about being abused by a childhood friend (the “peer abuse statement”) and about being impregnated when she was older by the friend of a friend (the “original pregnancy statement”): R. v. J. (B.), 2022 ONSC 6438.

4In the second application (“s. 276 #2”), I ruled that the defendant could adduce evidence about the complainant making the peer abuse statement to a roommate in 2015, but only for the limited purpose of demonstrating animus on the part of the complainant prior to her making a complaint about the allegations underlying the present charges: R. v. J. (B.), 2026 ONSC 397.

5In this application, the defendant again seeks leave to introduce evidence of statements made by the complainant to her mother in 2008, this time the complainant's own evidence about what she said at the time. In particular, the defendant seeks to introduce evidence that the complainant told the police that she told her mother:

(1) that she had been impregnated by her boyfriend (the “second pregnancy statement”); and

(2) that she had been impregnated by an unnamed individual with whom she was cheating on her boyfriend (the “third pregnancy statement”).

6The Crown concedes that the evidence is relevant, given the issues in the case and my earlier rulings. However, it seeks to restrict the substance of the defence-led evidence to exclude details of the nature of the sexual activity in which the complainant and her boyfriend engaged apart from sexual intercourse.

7In the Kinamore application, the Crown seeks leave to introduce evidence from the complainant:

(1) that she bled when the defendant allegedly first had sexual intercourse with her at age 15;

(2) that she presumes she bled at that time as a result of her hymen breaking, because she was a virgin;

(3) that she was not having sexual intercourse with anyone around the time of the alleged intercourse with the defendant that resulted in her pregnancy at around age 17; and

(4) that, at the time she became pregnant, she was not having sexual intercourse specifically with her boyfriend, an unnamed individual with whom she was cheating on her boyfriend, or with a guy who forced himself on her, as she had told her mother in 2008.

8The defendant concedes that the evidence of sexual inactivity referred to in paras. (3) and (4) above warrants a hearing into its admissibility under s. 278.94 of the Code. He also concedes that the complainant's evidence about bleeding is admissible. However, he disputes the admissibility of the evidence about the complainant bleeding because she was a virgin.

9For her part, the complainant concedes the admissibility of the evidence the defendant seeks to introduce about what she told her mother in 2008 and of the evidence the Crown seeks to introduce. However, she submits that there are two aspects to this evidence which ought not to be admitted, namely:

(1) the fact that there was an age gap between the complainant, who was 17 at the time of the alleged intercourse that resulted in her pregnancy, and the age of her boyfriend, who was only 14 years old at the time; and

(2) the fact that she and her boyfriend were engaging only in oral sex at that time.

10These reasons explain why I did not allow the evidence about why the complainant thought she was bleeding to proceed to a hearing under s. 278.94 of the Code. They also explain why I agree with the complainant that the evidence about the age difference between her and her boyfriend and the nature of the sexual activity in which they did engage is not admissible.

LEGAL PRINCIPLES

11Section 276 of the Code governs the admission of evidence of sexual activity on the part of the complainant other than the activity that is the subject matter of the charge(s) (“other sexual activity” or “sexual history” evidence) against an accused. For an excellent summary of the history and purpose of this section, see the discussion in Kinamore, at paras. 22-32, which I will not repeat here.

12In its present form, the section reads as follows:

276 (1) In proceedings in respect of an offence under section 151, 152, 153, 153.1 or 155, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant

(a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or

(b) is less worthy of belief.

(2) In proceedings in respect of an offence referred to in subsection (1), evidence shall not be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94, that the evidence

(a) is not being adduced for the purpose of supporting an inference described in subsection (1);

(b) is relevant to an issue at trial; and

(c) is of specific instances of sexual activity; and

(d) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account

(a) the interests of justice, including the right of the accused to make a full answer and defence;

(b) society’s interest in encouraging the reporting of sexual assault offences;

(c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;

(d) the need to remove from the fact-finding process any discriminatory belief or bias;

(e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;

(f) the potential prejudice to the complainant’s personal dignity and right of privacy;

(g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and

(h) any other factor that the judge, provincial court judge or justice considers relevant.

(4) For the purpose of this section, sexual activity includes any communication made for a sexual purpose or whose content is of a sexual nature.

13Section 276 applies to evidence of both consensual and non-consensual sexual activity: R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, at para. 33. It also applies to evidence of sexual inactivity, as well as evidence of sexual activity: Kinamore, at para. 65.

Procedure

14The Code mandates a two-stage process for determining the admissibility of other sexual activity evidence under s. 276(2). At the first stage (“stage one”), the applicant must apply in writing under s. 278.93 of the Code for a hearing to determine whether the evidence “is capable of being admissible”: s. 278.93(4). Thus, at stage one, the test is whether the evidence could be admitted. Where that test is met, the matter proceeds to a hearing under s. 278.94 (“stage two”), at which the complainant has standing. At stage two, the question is whether the evidence should be admitted. The question at both stages must be answered only after considering the requirements of s. 276(2) and the factors set out in s. 276(3), as set out above.

15In Kinamore, the Supreme Court reiterated the point it made in R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 80, that the common law prohibition against other sexual activity evidence that was recognized in R. v. Seaboyer, 1991 76 (SCC), [1991] 2 S.C.R. 577, applies equally to the defence and to the Crown, even though s. 276(2) applies only to the accused. The Court in Kinamore held that, with two exceptions, the Crown is required to apply to the court for leave to introduce other sexual activity evidence on the part of the complainant in the same way that an accused must do so under the Code.

16One of the two exceptions applicable to Crown-led sexual history evidence is procedural; the other is substantive. Procedurally, the complainant is not automatically granted standing at stage two, although the judge hearing the application retains the discretion to grant such standing, especially where the Crown and the complainant differ on the issue of admissibility: Kinamore, at para. 53. Substantively, the prejudice associated with the Crown-led evidence of other sexual activity need not substantially outweigh its probative value to be excluded, as it must in the case of defence-led sexual activity evidence: Kinamore, at para. 38. The Crown-led evidence of other sexual activity will be excluded where its probative value outweighs the potential prejudice of the evidence to any degree.

17Otherwise, the same procedural and substantive requirements apply to Crown-led sexual history evidence as those that apply to defence-led sexual history evidence. These include:

(a) the same two-stage procedure: Kinamore, at para. 43;

(b) a written application that sets out detailed particulars of the evidence the Crown seeks to adduce and the relevance of that evidence to an issue at trial: Kinamore, at para. 45;

(c) at least seven days notice to the accused and the court of the Crown's intention to apply, or such shorter time as the court permits: Kinamore, at para. 46;

(d) an in camera hearing at both stages, except where stage one is conducted in writing at the discretion of the court: Kinamore, at paras. 50 and 52; and

(e) a sealed court record and unpublished reasons for decision at both stages, except where warranted following consideration of the complainant's right to privacy and the interests of justice: Kinamore, at para. 59.

Probative Value

18An application by either the Crown or the defence to admit evidence of a complainant's sexual history requires the court to determine, firstly, the probative value of the evidence. To have any probative value, evidence must be relevant: David Tanovich, Louis Strezos, & The Honourable S. Casey Hill, McWilliams ' Canadian Criminal Evidence, 5th ed. (Toronto: Thomson Reuters, 2013) (Release 2025 — No. 5), § 5:7. A fact is relevant if, as a matter of logic and human experience, its existence or non-existence makes the existence or non-existence of another fact more probable: R. v. Watson (1996), 1996 4008 (ON CA), 30 O.R. (3d) 161 (Ont. C.A.), at para. 33; R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 47. The probative value of a piece of evidence refers to the degree to which that evidence serves to establish the existence or non-existence of a fact in issue: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 26; R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544, at para. 95; R. v. Schneider, 2022 SCC 34, [2022] 2 S.C.R. 619, at para. 60.

19Section 276(2) requires that the probative value of evidence of other sexual activity on the part of a complainant be "significant". That term has been defined in the context of s. 276(2) as meaning evidence of more than "trifling" relevance that is capable of raising a reasonable doubt: Darrach, at para. 41, R. v. J.J., 2022 SCC 28, [2022] 2 S.C.R. 3., at para. 131. The Supreme Court clarified in Kinamore, at para. 39, that the inclusion of the word “significant” in s. 276(2) was not meant to signal a departure from the conventional rules of evidence.

Prejudicial Effect

20Once determined, the probative value of the proposed evidence must be weighed against the potentially prejudicial effect of that evidence. This is true even where no objection is made to the admissibility of the evidence: R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 68.

21Writing on behalf of the majority in Seaboyer, at para. 45, McLachlin J. (as she then was) described a court's common law power to exclude otherwise relevant evidence because of its potentially prejudicial effect:

Professor Charles Tilford McCormick, in McCormick's Handbook of the Law of Evidence, 2d ed. (St. Paul, Minn.: West, 1972), put this principle, sometimes referred to as the concept of "legal relevancy" as follows at pp. 438-440:

Relevant evidence, then, is evidence that in some degree advances the inquiry, and thus has probative value, and is prima facie admissible. But relevance is not always enough. There may remain the question, is its value worth what it costs? There are several counterbalancing factors which may move the court to exclude relevant evidence if they outweigh its probative value. In order of their importance, they are these. First, the danger that the facts offered may unduly arouse the jury's emotions of prejudice, hostility or sympathy. Second, the probability that the proof and the answering evidence that it provokes may create a side issue that will unduly distract the jury from the main issues. Third, the likelihood that the evidence offered and the counter proof will consume an undue amount of time. Fourth, the danger of unfair surprise to the opponent when, having no reasonable ground to anticipate this development of the proof, he would be unprepared to meet it. Often, of course, several of these dangers such as distraction and time consumption, or prejudice and surprise, emerge from a particular offer of evidence. This balancing of intangibles — probative values against probative dangers — is so much a matter where wise judges in particular situations may differ that a leeway of discretion is generally recognized.

22With respect to evidence of other sexual activity on the part of a complainant involved in the offences enumerated in s. 276(1), s. 276(3) of the Code sets out a list of specific factors that the court must consider when weighing the potential prejudice of such evidence against its probative value.

23With this legal backdrop in place, I move now to a discussion of the issues in this application.

ISSUES

24All of the procedural requirements relating to both the defence and the Crown applications have been followed in this case: stages one and two of both applications proceeded together, the complainant was represented at stage two, and the hearings were held in camera.

25Substantively, none of the parties argues that any of the proposed evidence seeks to invoke either of the “twin myths” referred to in s. 276(2). The issues, therefore, are:

(1) whether the proposed evidence has probative value;

(2) if so, whether the probative value is significant;

(3) if so, whether the probative value of the proposed evidence is outweighed by the potential prejudice of the evidence to the proper administration of justice; and

(4) if so, whether the probative value of the proposed defence-led evidence is substantially outweighed its potential prejudice.

26I turn now to these issues. I will discuss them as I address the various pieces of evidence each side seeks leave to introduce.

ANALYSIS

The Defendant's Section 276 Application

27As indicated earlier, the defendant seeks to admit evidence of two previous inconsistent statements made by the complainant to her mother about the identity of the person who impregnated her, which I have called the second and the third pregnancy statements. Because both pieces of evidence constitute allegedly inconsistent previous statements about the same subject matter, they can be dealt with together.

Do the Second and Third Pregnancy Statements Have Probative Value?

28None of the parties contest the probative value of statements by the complainant identifying individuals other than the defendant as the perpetrator of the offence of sexual assault causing bodily harm, and rightly so, in my view.

29The application in s. 276 #1 centred around an undated statement written by the complainant's mother in which she related a conversation she had with the complainant in 2008, after the mother returned home from a trip away. According to the mother, the complainant told her that she was uncomfortable with the way in which the defendant looked at her girlfriends when they stayed over while the mother was not home. The mother also stated that the complainant told her that she had been afraid to go to the basement alone with the defendant when she was three or four years of age.

30When the mother asked the complainant if she could remember anything the defendant had done to make her feel afraid, the complainant told her mother about two incidents in which she alleged she had been abused by individuals other than the defendant. In the first incident (the peer abuse statement), which happened when the complainant was about nine years old, she was allegedly sexually abused by a childhood friend. In the second incident (the original pregnancy statement), which happened at an unidentified age, the complainant was allegedly impregnated by a “friend of some of her friends”, who forced himself on the complainant. According to the complainant, she later miscarried the baby.

31The second and third pregnancy statements were made much later, on September 8, 2020, during an interview between the complainant and the police. During that interview, the complainant told the police that, at the time she had the discussion with her mother in 2008, she told her mother that the baby she miscarried was that of her boyfriend at the time. However, the complainant also told the police during that same interview that she told her mother that the baby was someone other than her boyfriend's; that of an unnamed male with whom she had cheated on her boyfriend.

32In s. 276 #1, the Crown conceded the admissibility of the original pregnancy statement, given its obvious relevance to the charge of sexual assault causing bodily harm, in which it is alleged that it was the defendant who impregnated the complainant. The second and third pregnancy statements share the same probative value as the original pregnancy statement.

Is the probative value significant?

33As I pointed out in s. 276 #1, at paras. 22 and 23, the Supreme Court has held that, in cases where a complainant's credibility is central to the issues to be determined at trial, as it is in this case, a previous inconsistent statement by the complainant about a material issue can be “highly” relevant: R. v. Crosby, 1995 107 (SCC), [1995] 2 S.C.R. 912, at para. 12. I interpret this to mean that a previous inconsistent statement about such an issue can be significantly probative.

34One of the charges on the present indictment alleges sexual assault causing bodily harm (count #6). As I understand the Crown's case, the bodily harm alleged in this count is the pregnancy. The identity of the father of the miscarried baby is central to that charge. Therefore, any previous statement by the complainant identifying someone other than the defendant as the father is significantly probative.

Is the probative value substantially outweighed by its prejudicial effect?

35Because it is the defendant who seeks to introduce the second and third pregnancy statements, to be excluded, the potential prejudice to the proper administration of justice associated with admitting them must substantially outweigh their probative value, as I have explained.

36I have considered the provisions of s. 276(3) that focus on the rights of the complainant. In particular, I have considered the potential prejudice to the complainant's personal dignity and right of privacy (s. 276(3)(f)) and the right of the complainant to personal security and the full protection and benefit of the law (s. 276(3)(g)). I have also considered the other relevant factors listed in s. 276(3), including:

(a) the interests of justice, including the right of the accused to make a full answer and defence;

(b) society’s interest in encouraging the reporting of sexual assault offences;

(c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;

(d) the need to remove from the fact-finding process any discriminatory belief or bias; and

(e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury.

37In my view, given the high probative value of the second and third pregnancy statements, it cannot be said that their probative value is substantially outweighed by their potential prejudice to either the complainant or the interests of justice. The evidence is, therefore, admissible.

38I turn now to the Crown’s application.

The Kinamore Application

39As outlined earlier, the Crown seeks leave to introduce evidence from the complainant: that:

(1) she bled when the defendant first had sexual intercourse with her at age 15;

(2) that she presumes she bled at that time as a result of her hymen breaking, because she was a virgin;

(3) that she was not having sexual intercourse with anyone around the time of the intercourse with the defendant that resulted in her pregnancy at around age 17; and

(4) that, at the time she was impregnated, she was not having sexual intercourse specifically with her boyfriend, an unnamed individual with whom she was cheating on her boyfriend, or with a guy who forced himself on her, as she had told her mother in 2008.

40I will address the proposed evidence in the order listed above.

Evidence of Bleeding

41In its application, the Crown has lumped together all of the evidence relating to bleeding. However, for the purpose of my analysis, I have separated the evidence into two parts: what happened, and why. I have done this because I believe that the evidence about what happened is admissible, but that the complainant's evidence about why it happened is not, as I will explain.

42With respect to what happened, evidence that the complainant bled during or as a result the first act of sexual intercourse she allegedly had with the defendant forms part of the subject matter of the charges and, for that reason, is not caught by the prohibition contained in s. 276(2) of the Code. Therefore, no further analysis of this part of the evidence is required.

Evidence of the Cause of the Bleeding

43The evidence about why the complainant bled, however, is another matter.

Does evidence of the cause of the bleeding have any probative value?

44The proposed evidence about why the complainant bled can be broken down further into two parts: (1) evidence that the cause of the bleeding was a ruptured hymen, and (2) evidence that the complainant was a virgin at the time of the alleged first sexual intercourse. As I will explain, the complainant is not competent to express an opinion that the cause of the bleeding was a ruptured hymen. Therefore, the virginity evidence is irrelevant and, as I will also explain, potentially prejudicial.

45The complainant is not competent to give an opinion that the cause of the bleeding was a ruptured hymen. I say this for two reasons. For one, there is no evidence that the complainant's hymen was still present or intact at the time of the alleged intercourse. I do not believe that I can take judicial notice that a female's hymen remains intact until the first time sexual intercourse takes place: R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 48. Nor is there any evidence from the complainant confirming that it was.

46More importantly, even if there was evidence that the complainant's hymen was still intact, I do not accept the Crown's submission that the complainant is entitled to give her opinion that its rupture was the cause of the bleeding.

47Generally speaking, witnesses are not permitted to express an opinion, but should testify only about facts within their knowledge, observation or experience: Sidney N. Lederman, Michelle K. Fuerst, & Harnish C. Stewart, The Law of Evidence in Canada, 6th ed. (Toronto: LexisNexis Canada, 2022), at § 12.12. Two exceptions exist to this rule. One permits a properly qualified expert witness to provide opinion evidence where it assists the trier of fact. The other permits a lay witness to give an opinion, in certain circumstances. The Crown contends that this proposed evidence fits within the lay-opinion exception. I am unable to agree.

48The Crown does not contend that the complainant's proposed opinion evidence fits within any recognized lay-opinion exception, the way evidence of a vehicle's speed or a person's sobriety would, for example. Nor, however, can the proposed evidence be justified on the basis of first principles, in my view. As the authors of The Law of Evidence in Canada write, at § 12.15:

Courts now have greater freedom to receive lay witnesses’ opinions if: (1) the witness has personal knowledge of observed facts; (2) the witness is in a better position than the trier of fact to draw the inference; (3) the witness has the necessary experiential capacity to draw the inference, that is, form the opinion; and (4) the opinion is a compendious mode of speaking and the witness could not as accurately, adequately and with reasonable facility describe the facts she or he is testifying about. [Citations omitted.]

49None of the four prerequisites referred to above have been met. There is no evidence that the complainant knew her hymen was intact; the complainant is in no better position than the jury to draw the inference; there is no evidence the complainant has any experience beyond this single incident from which to draw the inference; and the opinion is not a compendious mode of speaking nor is it necessary to accurately or easily describe the facts. The complainant, therefore, is not permitted in law to give an opinion as to the cause of the bleeding. This brings me to the second aspect of the proposed cause of bleeding evidence; i.e. the virginity evidence.

50The Crown submits that the virginity evidence “supports the complainant's conclusion that her hymen was broken and that it is the cause of the bleeding as a result of the assault”: Crown factum, at para. 3. Simply put, because the complainant is not entitled to give her opinion about why she bled, as I have explained, support for her conclusion is unnecessary.

Is the probative value outweighed by the potential prejudicial effect?

51Even if the virginity evidence had any probative value, I would exclude it because of its potentially prejudicial effect.

52As the defendant points out in his factum, at para. 24, evidence of a complainant's virginity may impact her credibility as a witness and require that the jury be cautioned not to let it generate feelings of sympathy or result in the jury giving the complainant's evidence less scrutiny than it might otherwise deserve: R. v. Brothers, 1995 ABCA 185, at para. 38; R. v. Pittiman (2005), 2005 23206 (ON CA), 198 C.C.C. (3d) 308 (Ont. C.A.), aff’d 2006 SCC 9, [2006] 1 S.C.R. 381, on a different point, at para. 33. While a caution might be sufficient to avoid the potential prejudice arising from the proposed evidence of the complainant's virginity, I see no reason to take the risk, given the questionable probative value of that evidence.

53For the foregoing reasons, the Crown will not be permitted to adduce the complainant's opinion evidence about the cause of the bleeding. Nor will the Crown be permitted to introduce evidence that the complainant was a virgin.

General Evidence of Sexual Inactivity

54It is not clear to me from my reading of the decision in Kinamore that the “specific instances” requirement in s. 276(2) applies to Crown-led sexual history evidence. Assuming that it does, this requirement is met where the evidence relates to a specific time period in a case such as this where the date of the activity (or inactivity) is tied to a specific period: R.V., at para. 55.

Does the evidence of general sexual inactivity have probative value?

55The parties agree on the admissibility of the proposed evidence that the complainant was not having sexual intercourse with anyone at the time that she was allegedly impregnated by the defendant, as do I.

56I agree with the parties that the evidence has probative value and that the probative value is significant. As I mentioned, the Crown relies on the evidence of the pregnancy to satisfy the essential element of bodily harm in the charge of sexual assault causing bodily harm. Evidence that the complainant was not having sexual intercourse with anyone at the time she was impregnated amounts to evidence of exclusive opportunity on the part of the defendant which, if accepted, is significantly probative of the identity of the person who impregnated her.

Is the probative value of the evidence outweighed by its prejudicial effect?

57While there is obviously some prejudice to the complainant’s right to privacy and to society’s interest in encouraging the reporting of sexual offences arising from this evidence, that prejudice does not outweigh the significant probative value of it, in my view. This is especially so where the complainant does not oppose the introduction of the evidence.

Specific Evidence of Sexual Inactivity

58As set out earlier, in addition to seeking leave to introduce evidence that the complainant was not having sexual intercourse with anyone (other than the defendant) at the time she became pregnant, the Crown seeks leave to introduce evidence that the complainant was specifically not having sexual intercourse with any of the individuals that she previously identified as impregnating her in her statement to her mother, namely: (a) a guy who forced himself on her, (b) her boyfriend at the time, and (c) a person with whom she cheated on her boyfriend.

59The parties agree that this evidence is admissible on the same basis that the evidence of general sexual inactivity is admissible, as do I. However, the normal rules of evidence continue to apply to sexual history evidence, and two of those rules affect the admissibility of this evidence.

60One of the rules of evidence affecting the introduction of this evidence is the rule that prevents a questioner from repeatedly asking the same question. The complainant will already have testified that she did not have sexual intercourse with any of the particular individuals if she answers in the negative a question about whether she had sexual intercourse with anyone at the time she became pregnant. Therefore, the proper way for the Crown to proceed is to begin by questioning the complainant about whether she had sexual intercourse with any of the specified individuals and to then ask if she had sexual intercourse with anyone other than the defendant.

61Another rule of evidence prevents the questioner from leading a witness on contentious matters during examination-in-chief. In my view, it would be leading if the Crown were to ask the witness whether she had sexual intercourse with any particular individual during the time at which she alleges she was impregnated: see Earl J. Levy, Q.C., Examination of Witnesses in Criminal Cases, 6thed. (Toronto: Carswell, 2011), at p. 44. Nonetheless, I believe the Crown should be permitted to ask these questions for two reasons.

62First, some courts have held that it is permissible to question a witness during examination-in-chief about previous inconsistent statements. This was the ruling in R. v. Durant, 2012 ONSC 6792, rev’d, but on other grounds, 2019 ONCA 74, in which Ramsay J. canvased the competing caselaw, including the decisions in R. v. Pinkus (1999), 1999 15054 (ON SC), 140 C.C.C. (3d) 309, [1999] O.J. No. 4063 (Ont. S.C.J.) and R. v. Abeywardene, [2008] O.J. No. 5753 (Ont. S.C.J.). Justice Ramsay agreed with the decision in R. v. Lawrence (1989), 1989 7235 (ON CA), 52 C.C.C. (3d) 452, [1989] O.J. No. 2060 (Ont. S.C.J.) that the Crown could bring out the fact of a previous inconsistent statement during examination-in-chief, but not the explanation for it. He held that doing so did not amount to impermissible oath-helping and was “perfectly legitimate advocacy”: Durant, at para. 8.

63Second, in R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, the Supreme Court held that it is permissible, even advisable in some cases, for trial judges to permit counsel to lead the complainant through sexual history evidence to ensure that only the evidence concerning which leave has been granted is elicited: Goldfinch, at para. 98.

64For the foregoing reasons, the Crown will be permitted to ask the complainant about her previous statement to her mother and if she had sexual intercourse with any of the particular individuals she identified as the father of the baby she miscarried. The Crown will then be allowed to ask the complainant if she had sexual intercourse with anyone else during that period of time. The Crown will not be permitted to ask the complainant during her examination-in-chief to explain why she made the previous inconsistent statements. That may be done by the Crown in re-examination.

Evidence of the Nature of the Sexual Activity in which the Complainant Did Engage and of the Age Gap Between the Complainant and Her Boyfriend:

65The parties agree, as do I, that no evidence should be elicited about the particular sexual practices of the complainant with her boyfriend outside of vaginal sexual intercourse.

66The defendant contends, however, that evidence of the age gap between the complainant and her boyfriend is relevant and is not caught by s. 276. I disagree, at least with respect to relevance. The defendant has not shown how the evidence is probative of any of the issues at trial. Further, I see potential prejudice arising from the evidence, in at least two ways. First, the evidence may engender some animosity towards the complainant for dating someone three years her junior, which is a significant age gap during the teenage years. Second, the jury may be left wondering whether a 14-year-old male is capable of fathering a child, which would be an unnecessary distraction.

67Therefore, neither party will be allowed to elicit evidence of the age of the boyfriend at the time the complainant alleges she became pregnant.

CONCLUSION

68For the foregoing reasons, the defence application under s. 276(2) is allowed. The Crown's Kinamore application is allowed in part. The Crown will be permitted to adduce evidence that the complainant bled during or following the alleged first act of sexual intercourse with the defendant, and that she did not have sexual intercourse with anyone at the time she became pregnant, including the individuals she has previously named as the father of the baby.

69I have considered the provisions of s. 278.95(1)(c) and (d), as well as the direction in Kinamore, at para. 59, regarding the publication of these reasons. Given my ruling that most of the evidence is admissible, the reasons should be published. However, to respect the privacy rights of the complainant, the decision will be anonymized, as were my reasons in previous applications in this case.

M.G. Ellies J.

Released: March 17, 2026

CITATION: R. v. J. (B.), 2026 ONSC 1622