On October 16, 2026, the Supreme Court of Canada released its unanimous decision in R. v. A.M., 2026 SCC 33. Writing for the Court, Justice Moreau held that section 276 of the Criminal Code (the so-called “rape shield” provisions) does not categorically apply to sexual services offences (such as those under ss. 286.2, 286.3, and 286.4) or human trafficking offences.
The decision upholds the Ontario Court of Appeal’s order for new trials on the sexual services offences after the trial judge improperly restricted the accused from questioning the complainant about the commercial aspects of her previous sex work.
If you are facing sexual services, procuring, material benefit, advertising, or related charges in Mississauga, Brampton, or anywhere in the Greater Toronto Area, early and experienced legal advice is critical. Call our office at 905-755-0104 or use the booking link at the top of this page to arrange a consultation.
What Is Section 276 of the Criminal Code?
Section 276 limits the admission and use of evidence of a complainant’s other sexual activity in certain proceedings. Its purpose is to prevent reliance on the “twin myths” — the outdated and prohibited stereotypes that a person who has engaged in prior sexual activity is more likely to have consented, or is less worthy of belief.
The section contains a pre-screening regime that applies to a list of enumerated offences (primarily sexual assault and related offences). The central question in R. v. A.M. was whether that regime automatically extends to sexual services and human trafficking offences that are not listed in s. 276.
The Facts and Procedural History
Two accused were charged with sexual services offences and human trafficking offences arising from commercial sexual services provided by the complainant. They sought to cross-examine her about the commercial aspects of her previous sex work (including financial and advertising arrangements) to support their defence that she had voluntarily engaged in sex work and had not been recruited or exploited by them.
The trial judge applied the s. 276 regime, restricted the proposed questioning, and redacted related evidence. The accused were convicted of the sexual services offences (and acquitted of the trafficking offences). The Ontario Court of Appeal ordered new trials on the sexual services counts, finding that the trial judge erred in applying s. 276 and in limiting the cross-examination. The Crown appealed to the Supreme Court of Canada.
The Supreme Court’s Ruling
In a unanimous judgment, Justice Moreau dismissed the Crown’s appeal and confirmed the order for new trials.
Key points from the decision include:
- Section 276 does not categorically apply to sexual services and human trafficking offences.
- Expanding the application of s. 276 to non-enumerated offences requires a case-by-case analysis. A connection must be shown where an enumerated offence is a predicate or included offence, or where all the elements of an enumerated offence are implicated in the proceeding.
- Evidence concerning the commercial aspects of prior sex work (as opposed to its sexual character) can be relevant to issues of autonomy, decision-making, and power dynamics. Such evidence may be admissible without engaging the twin myths.
- Trial judges retain the ability to control improper or abusive cross-examination through the ordinary rules of evidence.
The Court emphasized that categorically extending s. 276 to these offences would be contrary to Parliament’s intent. (Note: Amendments to s. 276 that came into force on June 30, 2026, under the Protecting Victims Act may affect charges laid after that date. This decision primarily addresses the pre-amendment regime.)
Full reasons are available on CanLII: 2026 SCC 33 and the Supreme Court of Canada website.
What This Means for Accused Persons in Ontario
This decision is significant for anyone charged with sexual services or human trafficking-related offences. It confirms that the defence is not automatically barred from exploring relevant commercial aspects of a complainant’s prior sex work when that evidence goes to issues such as voluntariness, autonomy, or the absence of exploitation.
It reinforces the accused’s right to make full answer and defence while still protecting against improper reliance on the twin myths. The ruling does not open the door to unrestricted sexual history evidence. Relevance, the specific charges, and the proposed purpose of the evidence remain critical.
Practical Implications for Criminal Defence
Defence counsel should carefully assess, early in the case:
- Whether the charged offences engage an enumerated offence under s. 276 in substance.
- Whether proposed evidence is directed at commercial or power-dynamic issues rather than sexual propensity.
- How recent legislative amendments (post-June 30, 2026) may alter the analysis for newer charges.
- The need for timely applications and clear articulation of the relevance and purpose of any proposed evidence.
Aswani K. Datt has extensive experience defending complex criminal matters, including sexual offences, in the Ontario Court of Justice and Superior Court of Justice throughout Peel Region and the GTA. Thorough disclosure review, strategic applications, and focused cross-examination are essential in these cases.
Conclusion
R. v. A.M., 2026 SCC 33 provides important clarity on the scope of section 276 in sexual services and human trafficking prosecutions. It protects the integrity of the rape shield provisions while ensuring that relevant, non-stereotypical evidence can be explored when it is material to the defence.
If you or a loved one is facing charges involving sexual services, procuring, material benefit from sexual services, advertising, or human trafficking, do not delay seeking legal advice.
Call 905-755-0104 now to speak with Aswani K. Datt, or click the link at the top of this page to book a consultation for available times.
Contact Aswani K. Datt to book a consultation to review your legal options.
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Source: R. v. A.M., 2026 SCC 33 (CanLII)
