Court File and Parties

COURT FILE NO.: 17-RA19529 DATE: 2019/12/04 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – TYLER FLOYD Applicant – and – AMANDA MAILLOUX Applicant

Counsel: Jason Neubauer, for the Crown Allan Brass and Shira Brass, for the Applicant, Mr. Floyd Kirstin McCrae, for the Applicant, Ms. Mailloux

HEARD: November 27, 2019

Restriction on Publication

An Order was made under section 486.4 of the Criminal Code of Canada that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way. This decision does not refer to the complainant or witnesses by name and may be published.

REASONS FOR decision

ROGER J.

[1] The accused are both charged with the following offences: distribution of child pornography; advertising sexual services; receiving a material benefit from sexual services; procuring a person under the age of 18 to provide sexual services; recruiting for the purpose of exploitation; and recruiting for the purpose of exploitation a person under the age of 18. The accused, Mr. Floyd, is also charged with confining a person, and assault causing bodily harm. These charged offences are respectively under the following sections of the Criminal Code R.S.C. 1985, c. C-46: s. 163.1 (3) ; s. 286.4 ; ss. 286.1 (2) and 286.2 (2); s. 286.3 (2) ; s. 279.01 (1) ; s. 279.011 (1) ; s. 279 (2) ; and s. 267 (b).

[2] During the trial, the accused wished to cross-examine the complainant about certain aspects of her prior sexual activities. The accused had not previously brought an application about this, and such cross-examination of the complainant was adjourned to allow the parties to make submissions on whether this was permissible considering s. 276 of the Criminal Code.

Issue

[3] The issue to be decided on this application is whether the s. 276 regime applies to this proceeding notwithstanding that the offences charged are not offences listed in section 276 (1)?

Analysis

[4] Section 276 (1) of the Criminal Code provides that in proceedings in respect of listed offences (listed offences are ss. 151 , 152 , 153 , 153.1 , 155 or 159 , 160 (2) and (3) , 170 , 171 , 172 , 173 , 271 , 272 , or 273 ), evidence that the complainant has engaged in sexual activity, other than the sexual activity that forms the subject matter of the charges, shall not be adduced unless the judge determines, in accordance with the outlined procedures, that such evidence is admissible.

[5] None of the offences charged are offences listed at s. 276 (1) of the Criminal Code (although the offences charged under ss. 279.01 , 279.011 , 286.1 , 286.2 , and 286.3 are offences listed at s. 278.92 (1) - note that more offences are listed when dealing with records under s. 278.92).

[6] In R. v. Barton, the Supreme Court of Canada dealt with this issue (see: R. v. Barton , 2019 SCC 33 , [2019] S.C.J. No. 33 , at paras. 70 to 78). The Supreme Court, quoting from an earlier decision, indicated that “in respect of” a listed offence incorporate “the widest possible scope” and are “probably the widest of any expression intended to convey some connection between the two related subject matter”. As a result, it stated that “Parliament would not have chosen this exceptionally broad language if it intended to limit the application of the s. 276 regime to proceedings in which a listed offence was expressly charged”.

[7] Consequently, it held that the s. 276 regime applies to any proceeding in which an offence listed in s. 276 (1) has some connection to the offences charged, even if no listed offence was particularize in the charging document. More particularly, it said:

• A broad, generous interpretation that does not unduly restrict the scope of application of the s. 276 regime would best achieve its objectives (including: protecting trial integrity by excluding irrelevant and misleading evidence, protecting the accused’s right to a fair trial, and encouraging the reporting of sexual offences by protecting the security and privacy of complainants).
• Imposing a rigid requirement that a listed offence must be expressly charged for the s. 276 regime to be applicable “would put form over substance…not on whether, in substance, a listed offence is implicated in the proceeding”.
• Therefore, “… the s. 276 regime applies to any proceeding in which an offence listed in s. 276 (1) has some connection to the offence charged, even if no listed offence was particularized in the charging document”.
• This broad relational test would, for example, “be satisfied where the listed offence is the predicate offence for the offence charged or an included offence of the offence charged... However, that will not always be the case. With that in mind, going forward, where there is uncertainty about whether the s. 276 regime applies to the proceeding in question, trial judge should raise that issue with the parties… and… issue a ruling on the matter”.

[8] The accused argue that the facts in Barton are different, and that principles of statutory interpretation require, amongst others, that ambiguities in criminal statutes be interpreted in favour of the accused. However, the arguments raised by the accused are not convincing because Barton has already interpreted this provision of the Criminal Code. Barton held that the s. 276 regime should receive a broad and generous interpretation that does not unduly restrict the regime’s scope of application, and that some connection may be sufficient. Barton is also clear that whether a listed offence is the predicate offence, or an included offence is not the only instance of sufficient connection; these were given by way of example. Barton also references “implicated”. Implicated is broader and refers to some involvement, or to a thing implied. Indeed, the Supreme Court refers to “some connection” and to a “broad relational test” (paras. 75 – 76).

[9] “Some” connection, by its ordinary definition, would require at least a small amount of connection. Here, although none of the listed offence is the predicate offence or an included offence of the offences charged (as was the case in Barton), there is nonetheless some degree of connection between some of the listed offences and the offences charged. Some of the elements of the listed offences of sexual exploitation at s. 153 (1) (b) and of occupying premises for an illegal sexual activity at s. 171 are implicated or are connected to some of the elements of the offences charged. For example, s. 153 (1) (b) incorporates the requirement of a young person, counselled or incited to touch for a sexual purpose, and some exploitative relationship. These elements are implicated in the elements of the offences charged at ss. 279.01, 279.011, and 286.3. Moreover, the listed offences and the offences charged are connected by their subject matter: sexual offences, and sexual exploitation of adults and children. The above is more than a small amount of connection.

[10] Consequently, the s. 276 regime applies to this proceeding. I therefore gave the accused time to prepare the necessary application to decide whether the proposed evidence should be admitted.

[11] I did not decide whether the complainant could participate and be represented by a lawyer on this preliminary issue because I was informed that the complainant did not wish to retain legal counsel on this point. The Crown suggested, and the defendants agreed, that this rendered moot the issue of the complainant’s participation and representation on this first issue, as she did not wish to do so. I make a note of this because the impact on the complainant of a decision on the preliminary issue of whether the s. 276 regime applies to a proceeding is not necessarily the same as a decision under s. 278.93 (4). In cases where s. 276 is clearly applicable because some of the offences charged are listed at s. 276 (1) , a dismissal of an application under s. 278.93 (4) results in such evidence not being adduced (as a result of s. 276 (2)). In such cases and instances where s. 278.93 (4) is not met, the complainant would then not be cross-examined about other sexual activity. On the other hand, a finding that the s. 276 regime is not applicable to a proceeding might result in such evidence being admissible and the complainant being cross-examined about some of this. As a result, it seems that deciding whether s. 278.94 (3) requires that complainants be informed of their right to participate and be represented by a lawyer on this preliminary issue of whether the s. 276 regime is applicable involves broader questions than under s. 278.93 (4). In retrospect, I would have preferred that this point be argued. Nonetheless, immediately after I decided this issue the complainant was informed by the Court of her right to participate and be represented by a lawyer in the application to be conducted under s. 278.94.

[12] All parties agreed that the complainant could participate in the s. 278.94 application, and on this point I agree with the analysis and interpretation of Doody J. in R. v. Boyle , 2019 SCC 33 , [2019] S.C.J. No. 33 , [2019] O.J. No. 2085.

Mr. Justice Pierre E. Roger

Released: December 4, 2019

COURT FILE NO.: 17-RA19529 DATE: 2019/12/04 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN – and – TYLER FLOYD – and – AMANDA MAILLOUX Applicants REASONS FOR decision Roger J. Released: December 4, 2019