Evidence concerning previous sex work cannot be assessed solely by attaching the label “sexual history.” Its proposed use matters.
In R. v. A.M., 2026 SCC 33, the Supreme Court of Canada unanimously dismissed the Crown’s appeal, preserving an order for new trials on sexual-services offences. The Court concluded that the trial judge improperly prevented questioning about the commercial aspects of the complainant’s previous sex work.
The outcome is new trials - not acquittals or unrestricted permission to introduce sexual-history evidence.
What the Court clarified
Justice Moreau explained that section 276 of the Criminal Code does not categorically apply to sexual-services and human-trafficking prosecutions.
The provision addresses prohibited reasoning associated with sexual-history evidence, including the myths that previous sexual activity makes a complainant more likely to have consented or less worthy of belief. However, the Court distinguished that reasoning from the commercial evidence proposed in this case.
The distinction requires precision about both relevance and purpose.
Why the evidence’s purpose matters
A proposed question may concern previous sex work without inviting the same inference as a question directed at sexual conduct.
For practitioners, identifying that difference requires more than describing evidence as “background.” Counsel should explain the issue it addresses, the inference sought and why that inference is legitimate.
The opposing analysis must be equally specific. A concern about stereotypical reasoning should identify how the proposed evidence risks introducing it.
That approach helps the court assess the actual evidentiary dispute rather than resolve it through broad categories.
What the disposition leaves open
The Supreme Court upheld the order for new trials on the sexual-services offences. It did not resolve those charges in the accused’s favour.
Nor does the decision establish that a complainant’s earlier choices determine whether later conduct was exploitative. Evidence must be assessed in relation to the allegations and issues before the trial court.
The practical lesson
Counsel preparing an evidentiary application should separate the subject matter from the proposed reasoning.
What does the evidence establish? Which contested issue does it address? What limits are necessary to keep its use within that purpose?
The central discipline is to identify the inference - not simply the history.
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Sources: Supreme Court of Canada: R. v. A.M., Case in Brief · Reasons for judgment, 2026 SCC 33 .