Character, convictions and sexual-history evidence

Overview

A previous conviction, a description of someone as trustworthy, and an intimate message raise different evidentiary problems. Each may be authentic. Each may also invite a conclusion that the law prohibits. The starting point is the proposed reasoning: what fact does the evidence help establish, and through which inference?

Character evidence (preuve de moralité) requires particular care because a trial determines responsibility for the charged offence. A person does not lose the presumption of innocence because of earlier misconduct. Sexual-history restrictions address further risks, including discriminatory assumptions about complainants and interference with privacy. They apply to evidence offered by either side within the relevant statutory scope.

This lesson distinguishes the accused’s character, convictions used to challenge testimony, sexual-history evidence, and private records already held by the accused. The reorganized sexual-evidence and records scheme described below applies to charges laid on or after July 18, 2026, subject to the precise transition explained below. For earlier charges, consult the applicable former provisions and case law. The hearing date alone does not select the regime.

Learning Objectives

• Identify the proposed inference and select the governing character, sexual-history or records rule.
• Apply the relevant burden and balancing test without treating all prejudicial evidence alike.
• Plan an admissibility application that preserves trial fairness, privacy and the permitted limits of use.

Character and the issue the court must decide

General disposition and specific probative value

Evidence of an accused’s bad character is presumptively inadmissible when offered by the Crown, apart from conduct forming the subject matter of the charge itself. The restriction extends beyond convictions to discreditable conduct before or after the charged event. The danger is that the decision-maker will infer guilt from general propensity (propension): this person has behaved badly, so this person probably committed the present offence.

Two different harms explain the rule. Moral prejudice (préjudice moral) can lead a decision-maker to punish past behaviour or assume guilt from a reprehensible character. Reasoning prejudice (préjudice de raisonnement) can draw the trial into collateral disputes, distract from the actual charge or give vivid allegations disproportionate weight. A limiting instruction (directive restrictive) helps control admitted evidence, but its availability does not make every prejudicial item admissible.

Some other conduct has substantial value on a particular disputed issue. Similar-fact evidence (preuve de faits similaires) may, for example, bear on identity, intent or the explanation for recurring events. Under R. v. Handy, 2002 SCC 56, the Crown must establish on a balance of probabilities that its probative value on the identified issue outweighs its potential prejudice. This exception can permit a specific propensity inference tied to the issue; the prohibited shortcut is guilt from general bad character. Merely giving the evidence an issue label does not satisfy the Crown’s burden.

The judge examines the actual connection. Features shared by many ordinary events add little. A combination of unusual features may add more. The degree and kind of similarity required depend on the inference: proof offered to identify an unknown perpetrator may demand a different connection from proof addressing accident. There is no universal rule that the events must be identical, and no permission to substitute a general picture of wrongdoing for analysis.

Independence also matters. Matching accounts may reflect a shared source or collaboration rather than separate experiences. Where evidence gives an air of reality to actual collusion, beyond a mere opportunity to communicate, Handy requires the Crown to establish on a balance of probabilities that the evidence is untainted. The judge must assess that risk before relying on the apparent similarities.

Worked example: another invoice diversion

Factual Scenario

In this hypothetical fraud prosecution, the disputed issue is who redirected a supplier’s payment. The Crown proposes evidence of an earlier diversion involving the accused. In both events, an account-change email contained the same unusual invented reference, used the same unpublicized intermediary account and followed an identical alteration of an internal approval field. Assume independent business records support those features. The defence disputes authorship and points to another employee’s access to the relevant systems.

Good character and responsive evidence

The defence may introduce admissible evidence of the accused’s good character to support the inference that the accused was unlikely to commit the offence and, if the accused testifies, to support credibility. As explained in R. v. Hussein, 2026 SCC 2, lay character witnesses must speak to community reputation rather than their personal approval or favourable anecdotes. The accused, however, may testify to prior acts of good conduct.

Putting good character in issue can permit responsive Crown evidence, including previous convictions under Criminal Code s. 666 even if the accused does not testify. That route can permit evidence of the facts underlying a conviction. The response remains tied to rebutting the character claim and, where applicable, challenging the accused’s credibility. Evidence admitted solely for rebuttal cannot support an inference that the accused committed the charged offence. The judge retains control over prejudice and must instruct a jury on the permitted use.

A denial of the allegation should therefore be distinguished from a broader assertion such as never having behaved dishonestly. The latter may create a character issue beyond the disputed facts. Counsel should assess the proposed testimony precisely before opening that issue, rather than assuming that every favourable statement or every denial has identical consequences.

Defence evidence concerning another person

The Crown’s admissibility burden for similar-fact evidence must not be transferred to defence evidence concerning another person. As Hussein explains, ordinary witnesses do not receive the accused’s general protection against bad-character evidence. Questioning still needs a proper evidentiary purpose and remains subject to other rules, including the sexual-history restrictions below. Joint trials require separate attention to each accused’s fair-trial rights.

When the defence identifies another person as the perpetrator, R. v. Grant, 2015 SCC 9, requires a sufficient connection between that person and the charged crime. Evidence of motive, means or propensity may establish that connection; unsupported speculation cannot. Where the suggested perpetrator is unknown, the connection may instead arise from similarities to another crime that the accused could not have committed. The defence must identify evidence capable of supporting its theory, without bearing the Crown’s balance-of-probabilities burden for similar-fact evidence.

Relevance does not end the inquiry. The judge may exclude this defence evidence if its prejudicial effects substantially outweigh its probative value, including the risk of distracting collateral litigation. The purpose is to raise a reasonable doubt about the accused’s responsibility, not to secure a verdict against an absent person. This orientation does not resolve the distinct rules for coaccused testimony or a deceased victim’s character offered in support of self-defence.

Previous convictions and an accused who testifies

The current approach to a Corbett application

Section 12 of the Canada Evidence Act permits questioning a witness about previous convictions, subject to its statutory qualifications. Where the accused testifies, the purpose is credibility. A conviction admitted through this route cannot be used to infer guilt because the accused is the kind of person who would commit the offence.

This route permits questions about the offence, the date and place of conviction and the punishment. It does not permit an examination of the underlying conduct, unrelated misconduct or whether the accused testified at a previous trial. A finding of guilt followed by a discharge is not a conviction for this purpose. These limits distinguish credibility questioning from the character-rebuttal route discussed above.

A Corbett application (demande de type Corbett) asks the judge to exclude all or part of the record from that questioning. The accused is entitled to a ruling at the close of the Crown’s case before deciding whether to testify. Hussein clarifies the analysis. The accused bears the burden, on a balance of probabilities, of establishing that the prejudice to trial fairness outweighs the record’s probative value on credibility. The inquiry concerns the actual convictions and trial context, rather than an undifferentiated label of criminality.

Probative value depends on a meaningful connection to the witness’s capacity or willingness to be dishonest while testifying. Dishonesty offences and some offences against the administration of justice can supply that connection. Many violent offences do not demonstrate it. Where the connection is unclear, the conviction will generally lack sufficient probative value to overcome its prejudice. Remoteness can further reduce value, and youth convictions generally have limited value for adult testimonial credibility. Separate statutory restrictions on youth records must also be respected.

Prejudice may be particularly serious where the earlier conviction resembles the charge being tried. The decision-maker may transfer guilt from one event to another. Serious violence and discriminatory stereotypes can also increase prejudice. The apparent strength of the Crown’s case does not reduce this danger and is not a reason to permit otherwise unfair use of the record.

Social context can affect both sides of the balance. Where a conviction stems partly from disadvantage, including poverty or discrimination, it may say less about testimonial dishonesty. The accused must show some connection between that disadvantage and the conviction; a direct causal link is unnecessary. Membership in a group subject to discriminatory stereotypes can also increase prejudice. The assessment remains individual and does not require a professional report in every case.

The court may consider whether excluding the accused’s record would produce a distorted picture after a particular kind of defence attack on an important Crown witness. Hussein confines that concern: the defence must have directly invited an inference from the witness’s bad character to dishonesty for reasons unrelated to the facts of the case. An ordinary challenge to a witness’s observation or inconsistent account does not engage this factor. Any response must remain proportionate.

Worked example: a remote assault conviction

Factual Scenario

Assume an accused charged with assault wishes to testify. The only previous conviction is an assault conviction from twelve years earlier. The proposed cross-examination of the principal Crown witness concerns poor visibility and a changing description of the incident. No party identifies a feature of the old conviction that bears specifically on truthfulness in court.

Sexual history and prohibited reasoning

Screen the inference before balancing the evidence

Criminal Code s. 276 prohibits the twin myths (deux mythes): reasoning from the sexual nature of a complainant’s other sexual activity to greater likelihood of consent or lesser credibility. The restriction applies whether the activity involved the accused or another person. A relationship label does not establish consent to the activity underlying the charge.

For charges within the current regime, the statutory scope includes the listed offences and other federal offences of a sexual nature or committed for a sexual purpose. Section 276 also encompasses sexual communications. Sexual inactivity (inactivité sexuelle) falls within the screening framework, including accounts of virginity or preferences against particular sexual activity.

In R. v. Kinamore, 2025 SCC 19, the Court explained the corresponding danger of inverse myths: presenting sexual inexperience as a reason to believe the complainant or assume non-consent. The Crown can introduce harmful stereotypical reasoning too. That judgment’s discussion of purpose and discriminatory inference remains instructive; its procedural account must be read with the subsequent statutory amendments.

An expressly prohibited inference cannot be made acceptable by calling the evidence useful background. For other proposed uses, identify the specific instance, the disputed issue and the reasoning that connects them. A bare assertion of context or credibility leaves the judge unable to assess relevance and prejudice. The evidentiary purpose must be concrete enough to distinguish a permissible use from the myths.

Section 277 separately bars sexual-reputation evidence used to challenge or support a complainant’s credibility in the proceedings it lists. Its offence list should be checked independently rather than assuming that every provision in this area has identical scope. Ordinary credibility assessment continues, subject to these restrictions and the other rules governing testimony.

Keep the two statutory balancing tests distinct

Under current s. 276(2), evidence of other sexual activity must avoid the prohibited inferences, concern a trial issue and relate to specific instances. The additional balancing rule depends on who offers it:

The defence test does not require probative value to substantially outweigh prejudice. Reversing those words imposes a materially different burden. Nor is prejudice limited to embarrassment: s. 276(3) directs attention to fair defence, accurate adjudication, reporting of assaults, discriminatory beliefs, dignity, privacy and other stated interests.

At the admissibility hearing, the party seeking admission must establish the applicable requirements on a balance of probabilities. R. v. Darrach, 2000 SCC 46, explains the defence’s admissibility burden; Kinamore confirms the Crown’s burden. This differs from the initial screening question of whether evidence is capable of admission.

These requirements concern permission to introduce evidence for a defined purpose. They do not determine whether consent existed or whether the accused is guilty. If the evidence is admitted, the trier of fact must remain within the authorized use, with appropriate directions where there is a jury.

Applications and private records

Select the route before preparing the hearing

The 2026 transition matters because Parliament reorganized both numbering and procedure. Section 100 of the Protecting Victims Act restricts amended Code s. 276(1)–(2), new ss. 276.01–276.13 and new ss. 278.1–278.38 to offences charged on or after July 18, 2026. An earlier charge cannot enter that scheme simply because the application is heard later. That transition does not encompass every provision discussed here: for example, s. 276(5), confirming that sexual inactivity is included, is outside its list; Kinamore had already required screening of that evidence.

For the accused’s sexual-history application, ss. 276.01–276.02 distinguish initial screening from the admissibility hearing. The written application requires an affidavit giving particulars and relevance; a copy goes to the prosecutor and is filed with the clerk. The statute ordinarily requires that this occur at least sixty days before the screening decision, subject to a shorter interval authorized in the interests of justice. The judge must find that the evidence is capable of admission before granting a hearing.

After the hearing is granted, the accused must arrange delivery of the application to the complainant by someone other than the accused. The public and jury are excluded from both stages. At the admissibility hearing the complainant cannot be compelled to testify, may appear and make submissions, and must be informed of the right to representation by counsel. A reasoned ruling identifies the admissible parts and their use.

The prosecutor has a distinct application route under s. 276.06. It requires written particulars and relevance, with the application given to the accused and filed at least sixty days before the hearing unless the court shortens the interval in the interests of justice. An affidavit or oral complainant testimony is not required for that application. Do not transfer every procedural detail of the accused’s application into the Crown’s route.

Section 276.1 also permits a joint written application signed by the prosecutor, accused and complainant. It must be filed at least sixty days before trial; the judge must make a reasoned determination within thirty days of the application, initially without a hearing. If not satisfied of admissibility, the judge must hold a hearing. The complainant retains the right to counsel. Agreement does not replace judicial scrutiny. Whatever the route, the applicable publication restrictions and conditions on use must be checked.

Possession does not settle admissibility

A protected record (dossier protégé) can include a diary, medical file, personal message or other document containing personal information for which there is a reasonable expectation of privacy. The definition in s. 278.1 excludes records made by investigators or prosecutors in relation to the offence. Not every document concerning a complainant is automatically within the definition; identify the actual privacy interest and statutory category.

A therapeutic record (dossier thérapeutique) has a separate definition: a record, whatever its content, produced in psychiatric treatment, therapy or counselling provided by a health professional authorized under provincial or foreign law to provide it. Labelling a document a medical record does not complete that classification. The circumstances in which it was produced matter.

For covered proceedings, s. 278.29 governs complainant records in the accused’s possession or control that the accused intends to adduce. An ordinary record must be relevant and have significant probative value not substantially outweighed by prejudice to the proper administration of justice. Therapeutic material faces the distinct statutory requirement that it contain evidence likely to raise a reasonable doubt and that no other evidence capable of raising a reasonable doubt exist. Where s. 276 also applies, its requirements must be satisfied as well.

Sections 278.3–278.31 provide the screening and hearing procedure, including affidavit particulars, the ordinary sixty-day interval subject to authorized shortening, complainant delivery after a hearing is granted, participation rights and reasons. Current s. 278.3 is an admissibility provision; older authorities use that number for a different stage. The joint-record application in s. 278.35 excludes therapeutic records. Like the joint sexual-history route, it requires filing at least sixty days before trial and a reasoned determination within thirty days, with a hearing if the judge is not satisfied. These joint routes contain no express power to shorten their filing interval.

Obtaining a record from the Crown or a third party is a separate question, explained in disclosure and third-party records. Access does not confer permission to read its contents to the trier of fact. Conversely, resolving a sexual-history objection does not dispense with a record application or another applicable evidentiary rule.

Worked example: messages already on the accused’s phone

Factual Scenario

In this hypothetical, an adult sexual-assault charge was laid in August 2026. The accused holds intimate messages exchanged with the complainant about an earlier encounter. The defence proposes to show previous willingness to have sex as proof of consent during the charged incident. It also identifies a separate message fixing the time of a meeting, which it says contradicts a material part of the prosecution chronology. Assume the messages engage the statutory privacy definition.

Practice Checklist

• Identify whose character or private information is involved, who offers it and the exact inference sought.
• Distinguish guilt-related similar-fact reasoning, character rebuttal and credibility-only use of convictions.
• Apply Hussein to each proposed conviction, including its age, relevance to testimonial honesty and prejudicial similarity.
• For sexual-history or records applications, verify the charge date and governing legislative version.
• Exclude prohibited myths before applying the correct proponent-specific balancing test.
• Classify any record, check overlapping restrictions and plan the required application, service and hearing stages.
• Record the permitted passages, purposes, directions and publication restrictions after the ruling.