The accused, A.M., charged with non-consensual distribution of intimate images under s. 162.1 of the Criminal Code, brought a motion for direction regarding the admissibility of the complainant's prior sexual activity.
The defence argued that neither the statutory regime under s. 276 nor the common law regime from R. v. Seaboyer applied.
The Crown contended that s. 276 applied, or alternatively, Seaboyer.
The court ruled that s. 276 did not apply in the particular circumstances of this case, as the images depicted consensual activity and thus did not implicate an enumerated offence.
However, the court found that the common law Seaboyer regime did apply to the offence of distributing intimate images, requiring the defence to file a written application, supported by affidavit or testimony, detailing and justifying the proposed evidence.