COURT OF APPEAL FOR ONTARIO
OSBORNE A.C.J.O., FINLAYSON and LABROSSE JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN ) Alan N. Young and
) Paul Burstein
(Respondent) ) for the appellant
)
and )
)
)
TERRI-JEAN BEDFORD ) Scott C. Hutchison and
) Thomas Galligan
(Appellant) ) for the respondent
)
) Heard: March 13, 2000
On appeal from the conviction imposed by Bogusky J. dated October
9, 1998.
1On October 9, 1998, the Honourable Judge Bogusky of the
Ontario Court of Justice (Provincial Division) convicted the
appellant of unlawfully keeping a bawdy house, contrary to
subsection 210(1) of the Criminal Code. On October 16, 1998, the
appellant was ordered to pay a fine of $3,000. She appeals from
her conviction alone.
2During the summer of 1994, a City of Vaughan by-law
enforcement officer received a complaint from a resident that an
advertisement had appeared in Now Magazine about a commercial use
of a building located in a residential zone. The commercial use
in question was the operation of a house of domination at 143
Thornridge Drive, called “Madame de Sade’s House of Erotica”.
This information was passed along to the police who conducted an
undercover investigation of the house. On September 15, 1994,
police officers executed a search warrant at the premises and
used two trucks to transport the abundant amount of material
seized.
3On the same date, the appellant was charged that she
“unlawfully did keep a common bawdy house located at 143
Thornridge Drive, contrary to section 210(1) of the Criminal
Code”. Prior to the trial, the charge was particularized to
refer to a bawdy house kept for the purposes of prostitution and
not for indecent purposes. The primary issue at trial was
whether or not money was exchanged for sexual activity on a
frequent and habitual basis at the house.
Overview of the facts relevant to the issues in appeal
4An undercover police officer, who had been taken on a
tour of 143 Thornridge Drive by the appellant, described at trial
various theme rooms that had been constructed in the house. In
the basement, there was a burlesque room with a throne on a
stage. There was a pole on the stage that extended from the
ceiling to the floor. Also in the basement was a dungeon with
suspended chains, ropes, jail cells, a shower and a sink, and a
room with a massage table and chains hanging from the ceiling.
On the main floor, there was a kitchen, a bathroom, a bedroom
with a wooden cross, a coffin and a torture bench. There was
also a parlour, a small office and a schoolroom that had school
desks and a blackboard.
5During the tour, the police officer witnessed
unidentified people participating in various actives. He
observed that these individuals, apparently clients, were not
fully clothed. He also observed other individuals, apparently
employees, acting as mistresses and wearing provocative clothing.
6The appellant conceded from the outset that she was the
keeper of “Madame de Sade’s House of Erotica”, a common house
which offered women for hire for the purposes of sado-
masochistic activities (“S/M”) involving “domination”, “bondage”
and “erotica sessions”. She testified and described each of the
theme rooms at the house. The office was primarily used for
administrative purposes, such as consultations and file keeping,
but it could also be used to service clients under the guise of
being a principal’s office where “students” who misbehaved in the
“classroom” would be sent for a spanking. The “parlour” was a
room where clients could dress up in women’s clothing and role
play by walking in high heels and playing musical instruments.
The cross-dressers would often perform “drag queen” shows on the
stage in the basement and videotape themselves to evaluate their
acts. The mistresses would also perform stripteases and erotic
shows on the basement stage. The appellant described the stage
play as “very innocent”. The “torture chamber” was where clients
were blindfolded and then touched, tickled or spanked with
objects. This room was sometimes called the “erotica room” by
some of the mistresses because they preferred that term, but the
appellant testified in chief: “I never referred to it as the
erotica room. It was a torture chamber”. However, she later
conceded in her testimony that she had referred to it as the
erotica room. The “schoolroom” was used to familiarize novice
clients with the basics of S/M. They were taught how to address
their mistress, what was to be expected of them, the punishment
that they would receive for disobeying instructions, and the
house rules.
7The appellant testified that the house rule for all
rooms was that sex was forbidden; that is, no intercourse, no
oral sex, and no masturbation by a mistress. The appellant
stated that she made it clear to the mistresses that the only
time genitals were to be touched was when they were being tied
up, shaved or waxed. She claimed that any sexualized activity
taking place on the premises was without her knowledge or
permission.
8The trial judge expressly rejected much of the
appellant’s evidence. He accepted in preference the testimony of
one of the mistresses, whose identity is protected under a non-
publication order, and who testified under her performing name of
“Princess”. Princess told the court that, while the neutral
conduct described above was indeed carried on in the various
theme rooms of the house, about 55% of the sessions given were
“erotica sessions” performed in the erotica room or dungeon,
located downstairs. Prices for these sessions ranged from about
$100 per half-hour to $150 per hour. Most clients (about 96%)
got erections during erotica sessions and about 80% achieved
orgasm. Most clients engaged in self-masturbation during such
sessions, which was always an option open to them. Princess
squeezed or pinched the testicles of clients while they
masturbated to help them achieve or maintain an erection or
orgasm. Princess further testified as to the activities of
others who worked in the house. She said that she had seen the
appellant, along with other employees, perform the erotica
session services described above, while acting as mistresses.
9A specific activity conducted in the erotica room, in
which 45-50% of the clients were involved, was called “cock-and-
ball stimulation” or “cock-and-ball torture”. In this activity,
the appellant’s employees would tie up the client’s penis and
scrotum. They would then hit the tip of the penis with a riding
crop. If the clients liked it, they would continue; if not, they
would stop.
10Princess also testified about “ass play”, which was another
part of the erotica sessions offered at the appellant’s
establishment. It saw the appellant’s employee shave the anal
area of the client and then stick her finger (inside a glove) or
a “dildo” sheathed in a condom into the client’s anus. In doing
so, the “attendant” would play around with the rectal area while
slowly inserting the dildo, because “that’s a very sensitive
area”. Like the cock-and-ball stimulation, ass play could be
included in a basic erotica session.
11On the evidence of Princess, the appellant discussed both
the cock-and-ball activities and ass play with clients in a
consultation before the session. Thus, according to Princess, if
a client had not tried ass play before, “we would tell him” about
what it involved.
12The appellant taught Princess how to conduct ass play and
permitted her to watch when the appellant performed with a
client. In terms of her knowledge about the sensitivity of the
anal region during ass play, for instance, Princess said:
That I learned from Terri [the appellant] because I did
not know that that was a very sensitive area and it’s very
dangerous to play around that area. If the client wanted
it, … and if he liked it, we would continue inserting it.
If he didn’t like it we would stop.
13The witness was pressed repeatedly on cross-examination on
the question of the appellant’s participation in these activities
and reiterated that she saw the appellant do them. When it was
suggested that the activities were limited to personal guests
(rather than clients) Princess was clear:
They were clients. It was a business. Whatever they
wanted – if they wanted something like that, it was done.
14The police executed a valid search warrant on the
appellant’s business. They seized anything they believed to be
involved in the operation of the business. Fifteen officers were
involved in the search and the conduct of some of the officers
was unprofessional and demeaning to the appellant. It was
alleged that the officers verbally and physically assaulted the
appellant, unnecessarily strip-searched the female occupants of
the house, and gave $50 of the appellant’s money to one of the
employees. There were also some defects in the post-seizure
return that was filed for the Justice of the Peace. The trial
judge concluded, however, that the problems in the execution of
the warrant and any post-seizure defects were minor. To the
extent they constituted breaches of the [Canadian Charter
of Rights and Freedoms (“Charter”)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html), the trial judge held that they
did not attract the remedy sought by the appellant; namely, a
stay of the proceedings.
15One of the items seized by police pursuant to the search
warrant and tendered in evidence by the Crown was a videotape,
found with other tapes on a coffee table near a television set
and VCR. The tape depicted certain events that the Crown alleged
were illustrative of commercial activities conducted at the
house. The appellant testified and agreed that she was the
person depicted in the videotape, that it was made at her common
house, and that it accurately showed the particular activity in
which she was engaged at the time. This activity appeared to
include both ass play and cock-and-ball stimulation. The only
issue disputed by the appellant was whether the session shown was
part of her commercial operation or was a personal, recreational
undertaking. The learned trial judge found as a fact that it was
a training video.
16At trial, the appellant was permitted to adduce evidence of
various “experts” on the S/M community and activities associated
with that sub-culture. The trial judge received evidence from
experts who he found to have an appropriate degree of knowledge
about relevant issues. The trial judge rejected other
purportedly expert evidence on the basis that it was not relevant
or reliable.
Grounds of appeal
17The appellant raises five grounds of appeal:
- The trial judge’s finding that acts of prostitution were
frequent and habitual was unreasonable and not supported by the
evidence.- The finding that the appellant had the requisite knowledge
and control with respect to the alleged acts of prostitution was
also unreasonable and not supported by the evidence.- The trial judge erred in admitting the videotape whose
marginal probative value was outweighed by its prejudicial
effects.- The trial judge erred in excluding the evidence of five of
the expert witnesses tendered by the appellant.- The trial judge erred in ruling that the cumulative effect
of the violations of the appellant’s rights under ss. 2, 8 and
10(b) of the Charter did not warrant a stay of proceedings
pursuant to s. 24(1) of the Charter.
Analysis
18The appellant was determined at trial and on appeal to have
the court deal with the charges as a test case for S/M. The
appellant’s counsel insisted that the sado-masochistic activities
described in this record were not about sex, but about pain and
humiliation, and, as such, beyond the purview of s. 210(1) of the
Code. However, a criminal offence is framed by the indictment in
the particular case, not by the label placed on it by the
accused. The trial judge properly abstained from engaging in a
discussion about the nature of S/M activities and their
popularity in contemporary life, and concentrated instead on the
activities carried on by the mistresses on the premises in
question.
19The issue, as the trial judge saw it, was whether the
activities provided in the House of Erotica were primarily sexual
in nature. I think he was correct in framing the case in this
way. While there is no definition of prostitution in the Code,
it has been accepted for many years that prostitution consists of
lewd acts for payment for the gratification of the purchaser.
The fact that the acts described in this appeal also involve pain
and humiliation does not detract from their sexuality nor the
sexual gratification obtained by the clients. It is obvious from
the testimony of Princess, which the trial judge accepted, that
the pain and humiliation resulted, and was intended to result, in
sexual arousal culminating in orgasm. That the operation was
commercial and the keeper of the house was the appellant was
uncontested.
20Grounds 1 and 2 – unreasonable findings. The first two
grounds of appeal can be conveniently dealt with together. The
appellant asserts that the Crown has not established the
constituent elements of the offence, i.e. that in order to
convict on a charge of keeping a common bawdy house for the
purposes of prostitution, the Crown must prove: (i) that the acts
of prostitution that form the basis of the charge were taking
place on a habitual and frequent basis at the premises (R. v.
Patterson (1967), 1967 22 (SCC), [1968] 2 C.C.C. 247 at 251 (S.C.C.)); and (ii)
that the accused had some degree of control over the premises and
participated in the use of the premises as a common bawdy house
(R v. Corbeil (1991), 1991 96 (SCC), 64 C.C.C. 272 at 275 (S.C.C.)).
21There is no issue that this is the legal test. What the
analysis breaks down to in the case in appeal is:
(a) Whether prostitution is limited to conventional sexual
activities such as sexual intercourse, oral sex and manual
masturbation;
(b) Whether the evidence at trial established that the sado-
masochistic services provided were for the sexual gratification
of the clients; and
(c) Whether the anal and genital contact that did occur during
the services provided at the house was only incidental and
whether the appellant had knowledge of such contact.
22The appellant admits that sado-masochist services were
provided at the premises on a habitual and frequent basis with
her knowledge and participation. She argues that these sado-
masochist services were the essence of her business and that such
services do not fall within the definition of “prostitution”
because sado-masochism is not sexual in nature, focusing instead
on humiliation and degradation. She further submits that
“prostitution” has generally been restricted to sexual
intercourse, oral sex and manual masturbation, and that none of
these were provided at her premises. The witness Princess
confirmed that the appellant interpreted sexual acts to mean
these three activities and that the appellant instructed her not
to provide them as services.
23The theory of the Crown was that, although conventional
sexual intercourse was not offered to clients, sexual stimulation
and gratification saturated the activities that took place at
what the appellant’s factum termed her “commercial house of
domination”. Self-masturbation by clients, in conjunction with
stimulation by the inmates of the house, was common. Attendants
employed by the appellant would regularly engage in cock and ball
stimulation and ass play, activities that saw the attendants
engage in a variety of manipulations of their clients’ genitals
and anal area (i.e. pinching testicles, inserting a range of
dildos into clients’ anuses, and other intimacies) that routinely
culminated in masturbation by the clients to the point of orgasm.
24The trial judge specifically declined to deal with the
charge on the basis of whether prostitution can include
commercial sado-masochism generally. Rather, the trial judge,
relying on the evidence of the witness Princess supported by what
was depicted in the videotape, found that the erotica sessions
were primarily sexual in nature and formed the backbone of the
appellant’s business.
25The appellant’s first submission that this court ought to
limit the kinds of services included in the term “prostitution”
to sexual intercourse, oral sex and manual masturbation is not
supported by authority. None of the Canadian cases cited by the
appellant support the submission that some form of genital
contact is necessary to establish prostitution. Although there
is no statutory definition of what constitutes prostitution, the
common law is clear that “prostitution” refers to lewd acts for
payment for the sexual gratification of the purchaser (R. v.
Lantay (1965), 1965 208 (ON CA), [1966] 3 C.C.C 270 at 271-2 (Ont. C.A.); and Ref.
re ss. 193 and 195.1(1)(c) of Criminal Code (Man.) (1990), 56
C.C.C. (3d) 65 at 91 (S.C.C.)).
26The phrase “lewd”, in my opinion, is broad enough to
encompass acts that do not include genital touching but are
intended to be sexually stimulating. Further, the appellant’s
submission in this regard is a bit of a red herring given that
the trial judge accepted Princess’s testimony about the kinds of
services that were provided, particularly the “erotica” sessions
that appear to clearly have involved employees stimulating
clients’ genitals in various ways.
27The appellant’s second submission that the conviction cannot
stand because the sado-masochistic services were not provided for
the sexual gratification of the clients cannot withstand scrutiny
on the facts of this case. It is difficult to accept that the
services offered at the house were not sexual in nature, did not
involve sexual gratification, and were not habitual and frequent
in light of the fact that about 55% of the sessions provided were
“erotica” sessions, during which about 96% of the clients got
erections and about 80% achieved orgasm.
28In R v. Chase (1987), 1987 23 (SCC), 37 C.C.C. (3d) 97 (S.C.C.), relied
upon by both parties on this issue, the Supreme Court of Canada
ruled that the term “sexual” (in the context of “sexual” assault)
is to be interpreted looking at all the circumstances surrounding
the assault. Sexual gratification of the accused is not
determinative nor is contact with specific areas of the human
anatomy. The Court set out the test as follows at 103:
The test to be applied in determining whether the
impugned conduct has the requisite sexual nature is
an objective one: “Viewed in the light of all the
circumstances, is the sexual or carnal context of the
assault visible to a reasonable observer?”
29It is hard to imagine that a reasonable person observing the
erotica sessions as described by Princess would not regard them
as “sexual”, even accepting that such sessions may have been
designed to humiliate or degrade the client. Reliance by the
appellant on Chase is therefore misplaced. It must be apparent
that, in the absence of consent by the adult male customers, the
activities described in this record would constitute a sexual
assault.
30The appellant’s third submission that any genital touching
that occurred during the erotica sessions as part of the cock and
ball or ass play activities were incidental and did not occur on
a frequent and habitual basis. Alternatively, she asserts that
she had no knowledge that genital touching was occurring with
such frequency. The two grounds of appeal are effectively
appeals from the trial judge’s findings of fact regarding the
type and frequency of activity that occurred during the erotica
sessions. While Princess did testify that manual masturbation by
the appellant’s employees was not permitted, she also testified
that: (i) she inserted her finger or a dildo into the client’s
anus; (ii) she squeezed or pinched client’s testicles while they
masturbated in order to help them maintain erection; and (iii)
she had seen the appellant and other employees doing the same.
There was also the fact that a number of dildos were on display
and that there was a protocol for cleaning them after use. The
dildos were sheathed in condoms for health purposes when in use.
This is compelling circumstantial evidence that dildos were part
and parcel of the services rendered on the premises and supports
the conclusion that genital touching was habitual and frequent
and not merely incidental.
31I would not give effect to these two grounds of appeal.
32Ground 3 – the admissibility of the videotape. The
appellant testified that the videotape was personal and unrelated
to her business, but the trial judge did not believe her. I see
no reason why the tape should not have been admitted. The
appellant herself agreed that it was she performing the acts on
the video, that they took place at her House of Erotica, and that
the events were filmed with her consent by her boyfriend. The
content of the video was thus verified under oath by a person
capable of doing so. It was also the evidence of Princess that
the videotape was readily available for all to see and that the
appellant herself told Princess that she could watch it for
instructional purposes. Perhaps most importantly, the videotape
directly corroborated the testimony of Princess that the
appellant performed certain services precisely in the manner
depicted in the videotape for paying clients. All of these
reasons were given by the trial judge in his ruling on the
admissibility of the tape. The submission that the prejudice
created by the admissibility of the tape outweighs its probative
value is untenable. I would not give effect to this ground of
appeal.
33Ground 4 – the expert witnesses. The trial judge did admit
into evidence the testimony of two of seven persons who were
prepared to testify as experts but he did not give much weight,
if any, to their evidence. He appeared to like the witnesses on
a personal basis and described those with formal training as “all
very well disciplined people; very bright, very well informed”.
In his reference to formal training, though, the trial judge
highlighted the fact that the witnesses whose evidence was
excluded, who were otherwise professionals in their chosen
academic fields, did not have any formal training in the subject
of S/M. This is not to demean the witnesses; it is simply to
point out that they were more amateur than expert in their
approach to the subject. Some participated in S/M, some wrote
about it, some did a modest amount of research about it, and one
made a limited investigation of it as a matter of professional
interest. None, however, were experts in the legal sense of the
word.
34I find the trial judge’s evaluation of the witnesses
attractive. He said: “the common thread [among them] was that
they were small ‘e’ experts as they were all having difficulty
obtaining data, for obvious reasons”. The trial judge seemed to
feel that he should accept the evidence of two of them in order
to neutralize his personal distaste for the acts that had been
described in the evidence. As he put it:
. . . if I exclude all of the so-called experts on the basis
of non-relevancy, the court runs a risk of drawing a negative
inference toward the facts or the accused because some of the
evidence presented was, although initially entertaining, it
ultimately began to progress to the bizarre and ultimately
disgusting. To avoid this possibility, I require some assistance
in putting a human face on the participants as they are members
of our community. In other words, I can use all the help I can
get.
35One of the experts whose testimony was admitted was Luc
Granger, a registered psychologist in private practice who has
been a professor of psychology for 28 years. He taught a course
in human sexuality at the University of Montreal, where he was
the head of the psychology department in the 1980s. He has also
been retained since 1994 by Correctional Services of Canada to
study and treat sexual offenders.
36In his testimony, Professor Granger stated that, as part of
a study, he interviewed or observed more than 120 people who
participate in S/M activity, including professional dominatrixes.
He testified that sexual gratification was not necessarily a
component of S/M activity. He described S/M as “role play” and
“theatre” and stated that the literature and his study do not
support the notion that “people who engage in this activity [S/M]
are sexually dysfunctional”. He stated that private S/M sessions
were more likely to be sexual than commercial domination
sessions. The trial judge accepted Professor Granger’s evidence
but noted that his studies were based on poorly collected data.
37The trial judge also admitted the evidence of John Allan
Lee, a professor of sociology at the University of Toronto for 30
years. In terms of subject-matter, the main focus of Professor
Lee’s publishing and lecturing is “relationships”; specifically,
sexual relationships. In addition, Professor Lee has been an
active participant in the S/M community for three decades and has
written a book entitled “Studies in the Sociology of S-M”.
38Professor Lee testified that sexual gratification is not
necessarily the objective of S/M. Although sexual arousal and
orgasm can be part of S/M scenarios and the activities can cause
arousal, reaching orgasm is not the focus of S/M. Further,
Professor Lee gave evidence that, during commercial slave/master
situations and “fetish nights”, sexual gratification is uncommon:
“You would very rarely see actual ejaculation in that context.
And there are very strict, formal rules which people have to read
and agree to in term – when you enter that context, and they’re
often on paper, about no meaning no”.
39However, as the Crown points out, even the evidence from
these two experts was damaging to the defence. As with all the
appellant’s experts, defence counsel never asked any hypothetical
questions based on the facts of this case. The evidence was of
consistently tenuous relevance. However, on cross-examination
the Crown presented each of the proposed experts with
hypotheticals based on the facts at hand. In the case of the
accepted experts, Granger and Lee, there was no doubt in their
mind that the facts described by the witnesses and depicted in
the videotape constituted sexual acts.
40One of the rejected experts was Trevor Jacques who described
himself as a physicist and a systems analyst by trade. He had no
formal training in psychology or sociology, two branches of the
social sciences that might have a contribution to make on the
subject. Also, he was not in fact a physicist and his training
in research methodology was obtained only as part of his basic
Bachelor of Science degree. Rather, his source of expertise
stemmed from his personal experience as an active member of the
S/M community for more than ten years. He has also led seminars
for thousands of people all over the world on S/M practices, and
is the principal author of a book entitled “On the Safe Edge: A
Manual for SM Play”.
41In his testimony, on direct examination, Mr. Jacques
presented the results of an ad hoc, anonymous internet survey he
conducted. However, on cross-examination, he conceded that a
great deal of his evidence was based on an internet survey he
conducted the night before he testified by searching the number
of hits on different web pages. With respect to the individual
web surfers who had generated the hits in question, Mr. Jacques
had no idea who they were, their sex, ages, religious beliefs or
racial makeup. Also, he did not know what the term “social
research technique” meant as it might apply to his particular
survey. Nonetheless, he admitted that 75% of sadomasochistic
play involves sexual activity, that dildo play would be
considered sexual in nature, and that a scenario involving cock-
and-ball play and masturbation could be a sexual experience for
the client.
42Another witness proffered was Dr. Roy Baumeister, a
professor of social psychology at Case Western Reserve
University. He is the author of 178 publications, including
“Masochism and the Self” and “Escaping the Self: Alcoholism,
Spirituality, Masochism and Other Flights from the Burden of
Selfhood”. Dr. Baumeister provided the court with a history of
S/M and testified that pain and escapism are the central aspects
of S/M behaviour. On cross-examination, Dr. Baumeister described
the original research that had formed the basis of some of his
scholarly writing. He conceded that his data sample was small.
He also stated that although masochism can be “sexual” it is not
“tantamount to having sex with a person”.
43Professor Darryl Hill is a lecturer in the psychology
department at the University of Windsor. He teaches a course
entitled “Psychology of Sex and Gender”. The focus of Professor
Hill’s studies is “cross-dressing” and transgenderism, areas in
which he has published extensively and conducted empirical
studies. He testified that his research has shown that many
people have enlisted the professional services of other people to
help them with their cross-dressing. In his testimony, Professor
Hill stated that although some cross-dressers find the activity
erotic, more find “psychological meaning” in the activity.
44Shannon Bell is a professor of political science at York
University, with a specialty in the political philosophy of sex.
She has acted as a dominatrix in private settings and had become
a client of a dominatrix in order to be able to write about her
experiences. Over the years, she has interviewed more than 500
people in the S/M community, some as sources for her book, “Whore
Carnival”. She is also the author of such articles as,
“Performing Theory: Socrates, Sam, Kate and Scarlot”, an article
on cross-dressing that begins with Socrates and ends with two
female-to-male cross-dressers; “Finding the Male Within and
Taking Him Cruising: Drag King for a Day”, an account of her
experiences dressing up as a male for the day; and “Kate
Bornstein: A Transgender, Transsexual Post-Modern Tiresias” (a
male-to-female transsexual and performance artist and expert on
cross-dressing). She has also taken part in several S/M seminars
and performances.
45Professor Bell testified that S/M is first about “the
sharing of power” and secondly about the “subculture of
fetishism” which includes leather, bondage and cross-dressing.
She described S/M as “something that is happening in your head”.
She stated, “In a sense I find S/M very, very therapeutic in
terms of people taking something which is not within their power,
turning it around and controlling it for the duration of that
scene”. Professor Bell also testified that she has seen people
masturbate themselves in an S/M scene, but has never seen anyone
having sex. However, on cross-examination, she admitted that she
was:
somebody who doesn’t support things like bawdy-house law or
things like the obscenities section in the Criminal Code ... I
mean I teach this, and my opinion is fairly well known … It’s
backed up by facts, but the other side can back the same thing up
by different facts. Facts are always fit to one’s belief systems
or concept of truth … there are very many different truths. We
find truths that we live with and then we support those truths.
46Despite the colourful views of this witness on a variety of
subjects, most of which were off-target to the defence, Professor
Bell readily agreed that the acts described by the witnesses and
shown in the videotape could be sexual acts.
47Robert Dante, another witness with close connections to the
S/M community, is a journalist who has written articles and a
book about the “S/M scene”. He has produced an instructional S/M
video about the use of the bullwhip. In 1993, he started
publishing an S/M magazine called Boudoir Noir. He has been a
“dom” and his wife is a professional dominatrix. Mr. Dante has
given lessons to hundreds of people in the S/M community about
the bullwhip, master/slave relationships, power dynamics,
flogging and whipping.
48In his testimony, Mr. Dante referred to whipping and being
whipped as “emotional catharsis”. He stated that he has visited
a number of commercial dungeons and that these establishments
“almost never or never” offer manual masturbation, oral sex or
intercourse to their clients. When asked about when such
activities might occur at these establishments, he said: “I have
heard of it occurring very infrequently, usually with a person
who is not as experienced. It’s usually seen as being extremely
inappropriate. It is not standard practice. It is not something
most people do”. On cross-examination, Mr. Dante testified that
he is an active opponent of Canada’s bawdy house laws and that he
has helped to raise money for the appellant’s defence.
49The trial judge properly excluded the testimony of the last
five witnesses because their evidence was irrelevant, lacking in
objectivity and in the case of two of them, Bell and Dante,
clearly biased. The test for the admission of expert opinion
evidence is set out in R. v. Mohan (1994), 1994 80 (SCC), 89 C.C.C. (3d) 402
(S.C.C.). It provides (at p. 411) that the admission of such
evidence depends upon the following criteria: (a) relevance; (b)
necessity in assisting the trier of fact; (c) the absence of any
exclusionary rule; and (d) a properly qualified expert. In my
opinion, none of the so-called expert testimony was admissible in
that it falls short of the criteria of relevance, necessity and
the need for a properly qualified witness.
50The most obvious objection is relevance. As I have stated,
S/M is not on trial: the activities that occurred in the
appellant’s premises are on trial. The appellant is obsessed
with the notion that S/M between consenting adults is not
criminal. But sexual activities that can be acts of
prostitution, when not provided for payment, rarely are criminal.
The most that these witnesses could say is that what we might
term “classic” S/M does not have to be sexual. Given the
concession by all of them that what took place in the House of
Erotica was sexual in nature, these witnesses really had nothing
relevant to say. Their testimony merely confused the issue to be
tried.
51Necessity is very much a problem. What was put forward as
expert opinion had none of the indicia of scientific knowledge.
This of course overlaps into the absence of a qualified expert.
Here, in explaining the nature of S/M, the witnesses were simply
giving their personal opinions based on their own experience, the
reading of some literature, anecdotal material, some interviews,
and very little else. As stated by Sopinka J. for the Court in
Mohan at 423:
The trial judge should consider the opinion of the expert
and whether the expert is merely expressing a personal opinion or
whether the behavioural profile which the expert is putting
forward is in common use as a reliable indicator of membership in
a distinctive group.
52More specific to the facts of this case are my own
observations in R. v. McIntosh (1997), 1997 3862 (ON CA), 117 C.C.C. (3d) 385 at 392
(Ont. C.A.):
… it seems to me that before a witness can be permitted to
testify as an expert, the court must be satisfied that the
subject-matter of his or her expertise is a branch of study in
psychology concerned with a connected body of demonstrated truths
or with observed facts systematically classified and more or less
connected together by a common hypothesis operating under general
laws.
53Moreover, even if the views expressed by the witnesses in
this case could be classified as the subject of expert opinion,
the field of expertise would have to be treated by the court as
novel, which calls for a higher threshold of reliability. As
Sopinka J. put it in Mohan at 415:
In summary, therefore, it appears from the foregoing that
expert evidence which advances a novel scientific theory or
technique is subjected to special scrutiny to determine whether
it meets a basic threshold of reliability and whether it is
essential in the sense that the trier of fact will be unable to
come to a satisfactory conclusion without the assistance of the
expert. The closer the evidence approaches an opinion on an
ultimate issue, the stricter the application of this principle.
54Additionally, the appellant suffered no prejudice from the
trial judge’s ruling as to the five excluded witnesses. Because
of the inculpatory testimony that all seven of the “experts” gave
as to the proper characterization of the acts being performed at
the House of Erotica, the expert testimony was not at all helpful
to the defence. This is a risk that the defence took in calling
this evidence. The refusal of the trial judge to formally admit
and consider the evidence of the five excluded witnesses could
only enure to the benefit the appellant. Accordingly, I would
not give effect to this ground of appeal.
55Ground 5 – the execution of the search warrant. The most
serious aspect of the appellant’s complaint respecting
overseizure under the search warrant was that the large number of
police officers descending on her premises, which was also her
home, and seizing and carrying off furniture and fixtures in
large vans, was intended to put her out of business and make it
impossible for her to continue to live there. However, while
critical of some of the actions of the police officers, the trial
judge was not prepared to make such a finding. He said that
while “in retrospect it does appear that there was overkill”,
there was a basis for involving 15 officers in the execution of
the warrant. There was a “technical breach” arising from the
manner in which the things were described in the Return to the
Justice of the Peace. However, the overwhelming majority of
things seized (excluding some of the unmodified furniture) was
justified as affording evidence of the offence under
investigation. As the trial judge stated: “The bulk of the
things taken had a strong possibility of being relevant in the
Court proceeding”.
56As to the conduct of some of the police officers, the trial
judge found that the “rowdyism” in the basement involved “hooting
and howling” and “rude” behaviour which was ultimately controlled
by the officer in charge. The appellant was not improperly
“rough-housed” during the search and arrest and the strip-search
by a female police officer of the appellant was justified as
related to the reason for arrest based on the officers’
experience in bawdy house arrests. There was some evidence, the
significance of which was not clearly explained to me, that a
police officer had given $50 to Princess, but the trial judge
found that this did not happen, and that, if it did, it was not
an egregious breach of the appellant’s rights. In short, the
trial judge found that the conduct of the officers might have
been “shabby”, but it was not outrageous and did not justify a
stay of the prosecution.
57While the appellant’s factum submits that there were
breaches of the appellant’s ss.2, 8 and 10(b) Charter rights, the
only reliance in this court was on s. 8. There appear to be no
findings that would support other breaches. It is clear on
authority that a judicial stay of proceedings is a heavy club and
will only be resorted to in the clearest of cases: see R. v.
O’Connor (1995), 1995 51 (SCC), 103 C.C.C. (3d) 1 at 37-8 (S.C.C.). While the
breaches of the appellant’s s. 8 Charter rights go beyond the
trivial, as submitted by the Crown, they cannot be elevated to
anything approaching the clearest of cases. Moreover, the
exercise by the trial judge of his considered discretion in this
particular case is entitled to our deference and cannot be
interfered with unless there has been a wrongful exercise of that
discretion in that no weight or little weight has been accorded
relevant considerations: see R. v. Carosella (1997), 112 C.C.C.
(3d) 289 at 309-10 (S.C.C.). There was no error in principle in
this case. I would not give effect to this ground of appeal.
58Accordingly, for the reasons given, I would dismiss the
appeal.
Released: March 23, 2000 Signed: “G.D. Finlayson J.A.”
G.D.F. “I agree, C.A. Osborne A.C.J.O.”
“I agree M.J. Moldaver J.A.”
