The Supreme Court of Canada released its decision in R. v. A.M., 2026 SCC 33 on October 16, 2026. The case asks whether the rape shield provisions in section 276 of the Criminal Code apply when a person is charged with sexual services or human trafficking offences rather than sexual assault. A unanimous nine-judge panel held that they do not apply automatically. The Court dismissed the Crown’s appeal and upheld the order for new trials.
What Section 276 Does
Section 276 limits the use of evidence that a complainant engaged in sexual activity other than the activity that forms the subject of the charge. That evidence cannot be used to suggest that the complainant was more likely to have consented or is less worthy of belief. These two lines of reasoning are known as the twin myths. Where the defence wants to use evidence of other sexual activity for a different purpose, it must bring an application and the judge decides whether the evidence can be admitted.
The section applies to proceedings “in respect of” a list of specific offences. Sexual assault is on that list. Procuring, receiving a material benefit from sexual services, advertising sexual services and the human trafficking offences are not.
In R. v. Barton, 2019 SCC 33, the Supreme Court held that section 276 can apply even where no listed offence is charged, as long as a listed offence has “some connection” to the offence charged. Ontario courts then split on what that meant for sex work and human trafficking cases. Some judges held that section 276 always applied to those offences. Others held that it did not.
The Facts
The two accused were charged with offences arising from sexual services provided by the complainant, A.K., between 2015 and 2017. The charges included procuring, receiving a material benefit from sexual services, advertising sexual services, human trafficking and receiving a material benefit from trafficking.
A.K. had worked in the sex trade since she was about 18. She had worked independently and for agencies before she met the accused. She testified about that earlier work at the preliminary inquiry and nobody objected.
Before trial, the accused applied under section 276 to cross-examine A.K. about her earlier sex work. They wanted to ask how she entered the trade, how her earnings were split, whether she made more money working independently, and how she had posted her own ads on Backpage.com. They said the focus would be on the financial and advertising side of her work and not its sexual nature.
The trial judge held that section 276 applied.
He reasoned that the charges went to the heart of the complainant’s consent to the sexual services she provided, which engaged the offence of sexual assault. The judge barred most of the proposed questions as irrelevant or as inviting twin-myth reasoning. He also ordered the preliminary inquiry transcript redacted to match his ruling. The accused were convicted of the three sexual services offences and acquitted of the human trafficking offences.
The Court of Appeal for Ontario held that the trial judge erred in applying section 276 and in restricting the cross-examination. It quashed the convictions and ordered new trials. The Crown appealed to the Supreme Court of Canada.
The Court noted that section 276 has since been amended by the Protecting Victims Act, S.C. 2026, c. 19. Those amendments were not in force at the time of this case and the Court did not consider them.
No Categorical Rule
Justice Moreau wrote for the Court. She held that section 276 does not apply to every sexual services or human trafficking prosecution as a category.
The wording of the section points that way. Parliament set out a specific list of offences. If it had intended section 276 to cover sexual services and human trafficking offences, it could have listed them. The Court inferred that leaving them out was a deliberate choice.
The wider legislative scheme confirms it. Parliament added the sexual services and human trafficking offences to the third-party records regime in section 278.2 in 2014. It included them in the private records admissibility regime in section 278.92 when it created that regime in 2018. In that same 2018 legislation, Parliament made substantive changes to section 276 and still did not add these offences to its list. The Court found that Parliament had made a conscious decision to treat section 276 differently from the records regimes.
The purpose of section 276 points the same way. The section is aimed at inferences drawn from the sexual nature of prior activity. The sexual services and human trafficking offences turn on the nature of the relationship between the complainant and the accused. They do not turn on consent to a specific sexual act. Non-consent is not an element of these offences. The Court accepted that complainants in these cases can face the second twin myth, that they are less worthy of belief. It held that this concern alone could not justify extending the section, because the question was one of statutory interpretation and “not of policy making.”
How the Barton Test Works Now
The Court clarified what “some connection” means.
Section 276 applies where a listed offence is a predicate offence for the charge, or an included offence of the charge. In those cases, the defence brings a section 276 application in the usual way and there is no need for a separate ruling on whether the section applies.
Outside those formal connections, section 276 applies only where the proceeding implicates all the elements of a listed offence. The judge looks at the whole case to decide this. That includes the charges, the Crown’s theory, the evidence each side proposes to lead or elicit, the information or indictment, and the evidence from the preliminary inquiry or trial. Overlap between some of the elements of the charged offence and a listed offence is not enough. The Court adopted the Court of Appeal’s phrase that “mere alignment” falls short.
This means the same charge can produce different results in different cases. The Court gave the example of a human trafficking prosecution where the Crown alleges sexual assault or coerced sexual activity as a means of control. Section 276 would be engaged in that case. The focus is on the individual proceeding and not on the category of offence.
Applying that test, the Court held the trial judge was wrong to find a connection to sexual assault through the issue of consent. Proving procuring requires proof that the accused exercised control, direction or influence over the complainant’s movements. That is a different question from whether the complainant consented to a sexual act. Consent was not a live issue at this trial.
The Court also said that counsel should raise any possible section 276 issue as early as possible, ideally before trial, so that the judge can address it before the parties begin presenting evidence.
No Common Law Screening Either
The Crown argued in the alternative that the common law screening rules from R. v. Seaboyer, [1991] 2 S.C.R. 577 should apply to evidence of prior sexual activity in these prosecutions. The Court refused.
In Barton, the Court applied the Seaboyer rules to Crown-led evidence in cases involving a listed offence. That was because the twin myths are a risk no matter which party leads the evidence. Justice Moreau held that this reasoning does not carry over to offences Parliament chose to leave off the list. Prosecutions involving only sexual services or human trafficking offences generally do not raise the same twin-myth concerns found in sexual assault cases.
The Court also pointed to the practical cost. A screening regime would require a formal pre-trial application, disclosure of part of the defence case, a supporting affidavit, counsel for the complainant and a voir dire. The Court noted the pressure this would put on prosecutions that must be completed within the Jordan ceilings.
Finally, the Court held that importing Seaboyer would get around the distinction Parliament drew between section 276 and the records regimes. Courts cannot read in procedural protections that Parliament deliberately left out. The Court found there was no legislative gap to fill.
Commercial Inferences Are Not Twin Myths
The Crown argued that the Court of Appeal had revived prohibited reasoning by accepting that the complainant was more likely to have engaged in sex work voluntarily because she had done so before. The Court disagreed.
The evidence the defence wanted to use related to the commercial nature of A.K.’s work. It was offered to show that she had entered the sex trade voluntarily and that the accused did not lure her into it or exploit her. The Court agreed with the Court of Appeal that her earlier working arrangements were relevant to understanding the true nature of her relationship with the accused. That evidence could help answer the Crown’s theory that the accused used her substance abuse to coerce her into sex work.
The Court set limits on that kind of evidence. It cannot be used to show a propensity to engage in sex work or sexual activity in general. A voluntary decision to do sex work at one point does not mean a complainant is less vulnerable to exploitation or control. But the defence can lead evidence showing how a complainant’s prior experience shapes her view of her relationship with the accused. The Court described that as an inference about her state of mind or about the commercial circumstances that bear on whether she was exploited.
Where section 276 does not apply, trial judges still act as gatekeepers.
They can set limits on questioning and give the jury limiting instructions. The Court said that questions meant to demean a complainant or play on prejudice against sex workers should be stopped. It repeated the concerns raised in Barton about stereotypes directed at Indigenous women who do sex work.
The Supreme Court upheld the Court of Appeal’s decision. The convictions on the sexual services offences remain quashed and the case goes back for new trials on those charges.
