Sexual Assault: The Twin Myths

Criminal Law

The “Twin Myths”, or “Myths and Stereotypes”

For a long time, Canadian law allowed the defence to question the complainant about her entire sexual history, on the premise, which the undersigned considers wrong, that a woman who had previously consented to sexual relations would have been more likely to consent again. Her testimony was thus “less worthy of belief” because of morals that were alleged to be looser. In 1991, in Seaboyer, the Supreme Court described these lines of reasoning as the “twin myths” and concluded that they had no place in a rational system of justice. Parliament responded in 1992 by enacting section 276 of the Criminal Code, the first subsection of which reads as follows:

“276 (1) In proceedings in respect of an offence under section 151, 152, 153, 153.1 or 155, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant

(a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or

(b) is less worthy of belief.”

In other words, a complainant’s sexual history, whether it involves a prior relationship with the accused or with any other person, says nothing about the question of consent that is the subject of the trial, nor about the credibility of the alleged victim.

The Barton Decision: Beyond the Twin Myths

R. v. Barton, 2019 SCC 33, concerns the death of Cindy Gladue, an Indigenous woman and sex worker who was found dead in the accused’s hotel room in Edmonton. At the jury trial, Mr. Barton testified about commercial sexual activity that had taken place with Ms. Gladue the night before, without any application having been made under section 276. The jury acquitted him. The Supreme Court confirmed that a new trial had to be held.

Justice Moldaver, writing for the majority, opens his analysis with the following observation:

[1] We live in a time where myths, stereotypes, and sexual violence against women — particularly Indigenous women and sex workers — are tragically common. […] Without a doubt, eliminating myths, stereotypes, and sexual violence against women is one of the more pressing challenges we face as a society.

On section 276, the Court recalls that the twin myths are prohibited not only out of concern for social justice, but because they are simply false as a matter of logic:

[60] This section gives effect to the holding in Seaboyer that the “twin myths”, identified in paras. (a) and (b) respectively, “are simply not relevant at trial” and “can severely distort the trial process” […] and it confirms that the twin myths simply “have no place in a rational and just system of law” […]. These myths are “prohibited not only as a matter of social policy but also as a matter of ‘false logic’”.

The Court adds that these efforts must not, however, come at the expense of the accused. Balance is at the heart of the decision:

[203] With regard to trial fairness, it is worth emphasizing that any instruction given must not privilege the rights of the complainant over those of the accused.

It is precisely this balance that is at stake when the defence seeks to challenge the complainant’s account where that account indirectly refers to prior sexual activity.

Since Barton, the courts have sought to avoid expecting every complainant to have behaved as a “perfect victim” would. Not having fought back, having delayed reporting, not having fled, having continued to see the accused or having “frozen” during the assault, for example, must not discredit a testimony.

A judge cannot reject a complainant’s testimony because she did not react the way one might expect of a “perfect victim”. But neither can the judge, in the name of the “myths and stereotypes” principle, refuse to consider a genuine contradiction in the evidence.

The S.M. v. R. Decision

S.M. v. R., 2026 QCCA 1237, rendered by Justices Baudouin, Bachand and Weitzman, helps to better delineate the boundary between the prohibition of myths and stereotypes and the accused’s right to make full answer and defence.

The accused had been convicted of sexual assault by the Court of Québec in January 2025 and sentenced, in April 2026, to 27 months of imprisonment. The complainant, aged 18, was his wife’s grandniece and was staying at his home. After drinking alcohol over the course of the evening, she fell asleep in the basement, where she said she woke up to the accused touching her and then penetrating her. She testified that she was scared and that she “froze”, while also recalling that she tried to push him away. Six photographs of the complainant, showing her naked and in erotic poses, were taken with the accused’s phone between 2:46 a.m. and 2:48 a.m. that night. The accused, for his part, maintained that the encounter was consensual, that the complainant had initiated it, and that it was she who suggested the photographs because he was unable to get an erection.

At trial, the defence argued that a specific contradiction in the complainant’s testimony should affect her credibility. Although she said she had been unable to move or speak, the photographs showed her posing for the camera. The trial judge acknowledged that, in some of the photos, the complainant appeared less drowsy than she had described, but he concluded that no conclusion could be drawn from the photographs.

The Court of Appeal held that the judge had erred:

Here, the judge misunderstood a key part of the appellant’s submission, which asserted that there was a contradiction between the complainant’s testimony that “she froze”, and what the photos depicted, namely that the complainant was not frozen, but rather seemed to be posing for the camera. (p. 5)

The Court then draws the line between a stereotype and a legitimate credibility argument:

While the judge is correct in stating that it would be wrong for him to find the complainant unworthy of credit based on an allegation of the unlikelihood of a victim “freezing” in such circumstances, it was open to the appellant — without resorting to myths and stereotypes about expected behaviour of victims of sexual assault — to suggest that the complainant’s testimony was incompatible with the depiction of her in the photos. (p. 6)

Arguing that a “perfect victim” would not have frozen, that she would have fought back or screamed, would have been prohibited. However, pointing out that the complainant testified she was unable to move while photographs taken at that very moment show her posing is confronting her testimony with physical evidence. A judge has a duty to consider this kind of contradiction:

The judge made a reversible error here, in failing to take account of a substantial argument raised by the appellant concerning a contradiction between the complainant’s testimony about what she was feeling at the time of the alleged assault, and the material evidence. […] Given the fact that the complainant’s credibility was the central issue at trial, and that the alleged contradiction concerns the very essence of her testimony about her absence of consent, a new trial will be necessary. (p. 6)

Confronting a complainant’s testimony with photographs, text messages or any other objective evidence is neither a myth nor a stereotype: it is a question of credibility that must be argued.

What This Means for the Accused

For a person accused of sexual assault, the S.M. decision shows that the prohibition of myths and stereotypes does not make the prosecution’s evidence untouchable. The following table summarizes the arguments that remain permitted and those that do not:

The job of defence counsel is therefore to frame arguments with precision. A poorly framed argument, resting on what a victim “should have” done, will be rejected and may harm the credibility of the defence. The same argument, anchored in objective evidence and presented as a contradiction, obliges the judge to consider it.

The line between a prohibited stereotype and a legitimate contradiction often comes down to how the argument is framed and the evidence that supports it.

A free information session with Me Alexandre Lacroix

A sexual assault charge is one of the most serious a person can face: the offence is punishable by up to ten years of imprisonment and, upon conviction, results in a criminal record with lasting consequences. The Barton and S.M. decisions show that these cases are won or lost on the assessment of credibility and on counsel’s ability to distinguish a legitimate argument from a prohibited stereotype. Me Alexandre Lacroix offers a free, no-obligation information session to analyze the disclosed evidence, identify the contradictions that can be raised and prepare your defence.

This blog post is provided for general informational purposes only and does not constitute legal advice. Every situation is unique — consult a legal professional for advice tailored to your case.