APPEAL WATCH: Uneven Scrutiny and Twin Myth Safeguards – A Cry for Clarity 

Earlier in February of 2024, the Supreme Court of Canada (“SCC”) granted leave to hear the appeal of British Columbia Court of Appeal (“BCCA”) case R v Kinamore, 2023 BCCA 337 [Kinamore]. The appeal concerns the uneven scrutiny of competing evidence and the application of the s. 276 of Criminal Code, RSC 1985, c C-46 [Code] to Crown-led evidence concerning a complainant’s prior sexual conduct (Kinamore, para 17). The BCCA dismissed Mr. Kinamore’s appeal and upheld his conviction (Kinamore, para 64). 

Background 

The accused, Dustin Kinamore, met complainant G.L. at a motorcycle shop in May 2020. The accused was 22 at the time, and the complainant was 16. Upon discovering shared interests, the two struck up a friendship and exchanged contact information (Kinamore, paras 3–4). In the following months, the two routinely exchanged messages over social media. The messages were playful and flirtatious in nature, however, G.L. had communicated that she was not interested in a sexual relationship with the accused (Kinamore, paras 5–6). 

In August of 2020, G.L. went to Mr. Kinamore’s apartment to watch a movie and have dinner. The pair spent some time on the apartment’s balcony, and then moved indoors to the bedroom (Kinamore, paras 7, 9). This is where the two testimonies diverged. G.L. testified that at this point, the accused sexually assaulted her despite her protest (Kinamore, para 9). Mr. Kinamore testified that G.L. initiated, and further consented to the sexual activity that took place. He testified that G.L. refused to fellate him; at which point he stopped the activity (Kinamore, para 10).

British Columbia Provincial Court (“Trial”) Decision 

In a brief 18-paragraph oral decision immediately following closing submissions, the trial judge convicted Mr. Kinamore. She found that the complainant had previously communicated to Mr. Kinamore an absolute lack of interest in having a sexual relationship with him. She also found several inconsistencies between Mr. Kinamore’s examination-in-chief and his cross-examination, which effectively rendered his evidence not credible (Kinamore, para 14). Accordingly, the trial judge found the totality of Mr. Kinamore’s testimony did not raise a reasonable doubt as to his guilt (Kinamore, para 16). 

BCCA Decision

On appeal, Mr. Kinamore first alleged that the trial judge applied “uneven scrutiny” in the assessment of his evidence versus that of the Crown’s evidence. In so doing, he claimed the trial judge approached his testimony far more critically than she did the complainant’s evidence. Second, he argued that the trial judge failed to fulfil her gatekeeping function by allowing the Crown to advance evidence of the complainant’s prior sexual history without subjecting the evidence to a voir dire pursuant to s. 276 of the Code (Kinamore, para 17). 

On the first issue, Mr. Kinamore argued that the trial judge’s credibility assessment of the two conflicting testimonies was uneven for three reasons. First, he contended, the trial judge failed to consider the inconsistencies in G.L.’s evidence. Second, the trial judge misunderstood Mr. Kinamore’s evidence about his work status and used this to diminish his credibility. Third, the trial judge’s reasoning was rooted in speculated generalizations and stereotypes about how a teenage girl would behave in the shoes of the complainant (Kinamore, para 26). 

The BCCA found that this notion of “uneven scrutiny’’ as the standard of review for appellate intervention is not firmly supported by the existing jurisprudence. While subjecting defence evidence to heavier scrutiny than Crown evidence is an error in law, the SCC has implicitly expressed reservations about indoctrinating “uneven scrutiny” as a standard of review (Kinamore, paras 19–24). Accordingly, the BCCA held that the more appropriate standard of review asks whether the trial judge erred in their credibility assessment in a way that warrants appellate intervention (Kinamore, para 25). 

According to this standard of review, the BCCA held that the trial judge’s reasoning was not erroneous such that it required appellate intervention. First, the BCCA found that the trial judge accounted for inconsistencies in G.L.’s evidence by acknowledging its flirtatious nature (Kinamore, para 30). Second, the BCCA found that while the judge likely did misapprehend Mr. Kinamore’s evidence concerning his employment, this misapprehension was not material to the trial judge’s final decision to convict Mr. Kinamore (Kinamore, paras 37–39). Finally, the BCCA held that when the decision of the trial judge is read as a whole, there is no reason to conclude that predisposed stereotypes and generalizations influenced her reasoning (Kinamore, para 43). 

With respect to the second issue, Mr. Kinamore argued that the trial judge erred by admitting evidence of the complainant’s previous messages whereby she had expressed a lack of interest in having a sexual relations with the accused. He argued that these communications fell within the scope of the complainant’s past sexual activity, and were therefore, subject to a voir dire pursuant to s. 276 of the Code (Kinamore, para 46). The voir dire requirement of the Code’s s. 276 asks whether evidence of past sexual conduct is introduced to advance gendered stereotypes surrounding sexual activity. Evidence of past sexual conduct is presumptively inadmissible, and the burden is on the party looking to introduce the evidence to prove that evidence is not introduced to advance the twin myths.

Mr. Kinamore submitted that “sexual activity” includes “communications made for a sexual purpose or whose contents are sexual in nature” (Kinamore, para 52). Accordingly, Mr. Kinamore contended that all such communications – even insofar as they express G.L.’s lack of interest in a sexual relationship – ought to go through a s. 276 voir dire (Kinamore, para 54). Further, Mr. Kinamore submitted that the trial judge erred by considering the communications that express a lack of interest but failing to consider communications that express sexual interest (Kinamore, para 54). 

The BCCA disagreed with Mr. Kinamore and found that communications between parties where the complainant expresses her lack of interest in sexual activity need not be subject to a s. 276 voir dire. Citing Chief Justice Bauman’s dissent in R v Langan, 2019 BCCA 467 [Langan], the BCCA found that the communication evidence advanced by the Crown was not captured under the s. 276 regime because it was not introduced for the purpose of advancing the twin myths. The twin myths are the false stereotypes that first, if a complainant has consented to sexual activity in the past, she is likely to consent again; and second, that if a complainant is sexually active, she is less credible as a complainant (R v. Seaboyer, 1991 SCC 76 at pg. 604) Rather, the BCCA found, the Crown’s evidence was introduced to show the complainant had no intention of engaging in a sexual relationship with the accused (Kinamore, para 60). Accordingly, G.L.’s lack of interest was relevant to both parties’ credibility and therefore was not wrongfully considered by the trial judge (Kinamore, para 63). 

Uneven Scrutiny and Weighing of ‘He-Said She-Said’ Evidence in Appellate Courts

The BCCA refrained from examining the trial judge’s reasoning for “uneven scrutiny” (Kinamore, 25). This was because the SCC has expressed reservations about adopting “uneven scrutiny” as an independent ground for appeal. Specifically, in R v G.F., 2021 SCC 20 [G.F.], Karakatsanis J. wrote that uneven scrutiny appears to focus on symmetrically weighing conflicting pieces of evidence, where the focus ought to be on whether there is an error in the trial judge’s credibility assessment (G.F., para 100). However, without formal submissions regarding the uneven scrutiny’s utility as an independent ground for appeal, Karakatsanis J. refused to comment on this doctrine’s status in Canadian law (G.F., para 101). 

In my view, the SCC needs to take this case as a chance to clarify whether “uneven scrutiny” is an adequate ground for appeal. Establishing “uneven scrutiny” is a significantly lighter burden than establishing an error in the trial judge’s credibility assessment for appellants. Interchangeably referencing the two leads lower courts to conduct guesswork when deciding which standard of review to employ. Kinamore is a case where the BCCA opted out of the “uneven scrutiny” analysis, and assessed the trial judge’s decision for an error in the credibility assessment (Kinamore, para 25). 

Conversely, R v Howe, 2005 ONCA 253 [Howe] is an example of an appeal court reasoning through a successful “uneven scrutiny” claim. Here, the Ontario Court of Appeal (“ONCA”) found that “uneven scrutiny” ought to clearly establish that the trial judge applied different standards to his or her consideration of the evidence (Howe, para 59). That is, in Kinamore, the review was limited to the trial judge’s individual finding of credibility. On the other hand, in Howe, the review was focused on the trial judge’s weighing of conflicting credibility. The former focuses on whether each testimony is credible in and of itself, while the latter is not too concerned with individual credibility, rather which of two conflicting testimonies is more credible than the other. This diversion in lower courts’ assessment signals the need for the SCC to step in and determine whether “uneven scrutiny” is an adequate and independent ground for appeal. 

The Rape Myth Safeguards May Not Be All That Safe

The voir dire requirement of the Code’s s. 276 requires evidence of past sexual conduct to undergo a rigorous test before being introduced in trial. Past sexual conduct is only admissible, insofar as it does not advance the twin myths. To this end, the SCC has characterized trial judges as the evidentiary gatekeepers, who safekeep and apply the mandates of the s. 276 regime (Kinamore, para 50). 

The BCCA’s dissent in Langan grounds the conclusion that communications explicitly expressing a lack of interest in sexual activity are not captured by the s. 276 regime because, presumptively, such evidence is not introduced for the purpose of advancing the twin myths (Kinamore, para 60). This Langan position is flawed because it relies on its own conclusion for its reasoning. It effectively argues that we ought not ask whether evidence is being introduced to advance the twin myths, because that evidence presumably will not advance the twin myths. The Langan reasoning then, is circular. Adopting it seems to defeat the purpose of the existing s. 276 regime by deeming an entire class of evidence as presumptively having passed the s. 276 test. 

Courts have rigidly upheld that evidence introduced by the Crown regarding a complainant’s past sexual conduct, even absent objections from defence counsel, does not absolve the trial judge of their gatekeeping function (R v Barton, 2019 SCC 33, paras 68, 80; R v Goldfinch, 2019 SCC 38, para 75). The existing jurisprudence requires that any and all evidence – even evidence adduced by the Crown – concerning past sexual conduct go through the s. 276 regime. Even absent the above-mentioned circular reasoning, the Langan dissent suggests that certain evidence of prior sexual disposition is exempt from this requirement. 

Personally, I do not see the merit in deeming an entire class of evidence exempt from this mandate. If a given class of evidence is sure to pass the s. 276 test, there is no reason to exempt it from the test altogether. In any event, the BCCA’s Langan dissent was affirmed by the SCC in a one-paragraph decision (R v Langan, 2020 SCC 33). Should the SCC intend to endorse this evidence exemption and its implications on the s. 276 regime, it ought to expand on its position through its upcoming Kinamore decision. 

In all, Kinamore is a significant case for both the standards of appellate review and the current state of s. 276 safeguards. The SCC should take this opportunity to first, determine whether “uneven scrutiny” has a place in Canadian appellate review; and second, to opine on the Langan exemption’s consistency with the existing sexual assault jurisprudence.