Editorâs Note: This post was written as a preview of an upcoming Supreme Court of Canada decision for the Fantasy Courts website and newsletter. Photo by Tsvetoslav Hristov on Unsplash.
đ On Friday, October 16, 2026, the Supreme Court of Canada will release its decision in R. v. A.M. and M.P. At issue is whether the Criminal Codeâs sexual history screening rules apply to prosecutions for human trafficking and sexual services offences, and whether the trial judge wrongly restricted the accusedsâ cross-examination of the complainant.
đŻ On October 9, 2026, the SCC released its decision in R. v. Cope, 2026 SCC 32. In a 5-4 split decision, the Court dismissed the Crownâs appeal, leaving in place a reduced three-year sentence for an Indigenous man convicted of aggravated assault against his Indigenous intimate partner.
đ€ Only 18% of Fantasy Courts players correctly predicted the result. SCCbot got it wrong too.
đź Head over to Fantasy Courts to lock in your predictions for this weekâs decision. Scroll down for details on this weekâs case and a recap of the last decision predicted.
Case to Predict: When Can the Defence Question a Complainant About Previous Sex Work?
Appeal by leave from R. v. A.M., 2024 ONCA 661
SCC webcast đ„ | factums đ
What Happened?
A.M. and M.P. were charged with human trafficking, procuring A.K.âs sexual services, receiving a material benefit from those services, advertising them, and other offences. The Crown alleged that they exploited A.K.âs drug dependency to control her involvement in the sex trade. Before trial, the defence sought permission to question A.K. about her previous sex work. They said they wanted to explore the business aspects of her work, rather than details of sexual activity. The trial judge applied s. 276 of the Criminal Code, permitted some questioning, and excluded much of the proposed cross-examination.
Both accused were convicted of procuring, receiving a material benefit, and advertising sexual services, but acquitted of human trafficking. A.M. was also convicted of trafficking a controlled substance. The Ontario Court of Appeal ordered a new trial on the sexual services counts. It held that s. 276 did not apply in these circumstances and that the excluded evidence was relevant to the defence. A.M.âs drug-trafficking conviction remained in place. The Crown appealed.
What Was Argued at the SCC?
Appellant: The Crown argues that s. 276 must apply broadly to human trafficking and sexual services prosecutions. In R. v. Barton, the SCC held that the provision can apply where a prosecution has âsome connectionâ to a listed sexual offence. The Crown says the Court of Appeal imposed an unduly narrow test, leaving complainants exposed to invasive questioning and stereotypes about sex workers. Alternatively, the common law should require screening even if s. 276 does not apply. The Crown also challenges the proposed inference that A.K.âs previous voluntary sex work made her less likely to have been exploited.
Respondents: A.M. and M.P. argue that Parliament deliberately omitted human trafficking and sexual services offences from s. 276âs list, while expressly including them in other screening provisions. Whether s. 276 applies therefore depends on the facts of the particular prosecution. They say their proposed questions concerned A.K.âs business experience, who posted the advertisements, and the nature of their relationship. Excluding that evidence impaired their defence.
What Else Should You Know Before Making a Prediction?
Section 276 prohibits the âtwin mythsâ: that a complainantâs other sexual activity makes them more likely to have consented to the sexual activity at issue, or less worthy of belief. Barton gives the Crown a strong starting point because the provision can apply even when no listed offence is charged. But the respondents have a substantial statutory argument: Parliament included these offences in related screening provisions and left them out of s. 276.
Iâm leaning towards appeal allowed, given Bartonâs broad approach and the risks of stereotypical reasoning identified by the Crown. The harder question is whether the Court will agree that the excluded evidence served a legitimate defence purpose. Even a broader approach to screening would not necessarily resolve that issue in the Crownâs favour.
SCCbot
This season, weâre also asking the SCCbot, an AI tool that predicts Supreme Court of Canada decisions, what it thinks the Court will do. This week, the SCCbot predicts the appeal will be allowed (with ~65% confidence). It expects the Court to reject the Court of Appealâs narrow reading of Barton and hold that evidence of a complainantâs other sexual activity must be screened in sexual services and sex trafficking prosecutions, building on its recent decisions in Kinamore and Kloubakov, and to rule that a complainantâs past voluntary sex work cannot, by itself, establish that she acted voluntarily with the accused. The main risk to that call is the excluded evidence about who wrote the online ads, which could lead the Court to correct the law but still leave the new trial in place. SCCbot is 1 for 2 in its predictions this season, getting last week’s 5:4 split decision wrong.
Previous Case Recap: R. v. Cope
R. v. Cope, 2026 SCC 32
Held (5:4): Appeal dismissed. The Court upheld the Nova Scotia Court of Appealâs reduction of Copeâs sentence from five years to three yearsâ imprisonment.
Key points:
- Justice OâBonsawinâs majority reasons require meaningful consideration of both the Indigenous offenderâs circumstances and the Indigenous victimâs vulnerability.
- A three-step approach guides sentencing: Assess the offenceâs gravity and the offenderâs responsibility; identify the relevant sentencing objectives, giving denunciation and deterrence priority; then select a proportionate sentence informed by appropriate procedures, sanctions, and community perspectives.
- Sentencing circles require meaningful engagement. Their recommendations do not bind the judge, but their perspectives must receive serious consideration.
- The majority found inadequate consideration of how Copeâs mental illness contributed to his offending and affected the appropriate sentence, particularly in light of the sentencing circle.
- The dissent, Justices Rowe and Jamal, joined by Chief Justice Wagner and Justice CÎté, considered the original sentence fit and emphasized the deference owed to the sentencing judge.
đ 18% of Fantasy Courts players predicted correctly. SCCbot missed this one!
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