RULING ON APPLICABILITY OF SECTION 276 OF THE CRIMINAL CODE

COURT FILE NO.: CR 18/0980 DATE: 2020-01-13 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Ms. J. Prenger, for the Crown

- and -

JONATHAN WILLIAMS Mr. A. Romain, for the Accused

HEARD: January 6, 2020

BEFORE: Stribopoulos J.

Introduction

[1] The accused is charged with four Criminal Code offences, including procuring (s. 286.3(1)), advertising sexual services (s. 286.4), receiving a material benefit (s. 286.2(1)), and uttering threats (s. 264.1(1)(a)).

[2] On December 3, 2019, the accused’s trial on these charges commenced before Harris J. and a jury. After jury selection, but before the Crown’s opening address, it became apparent that the parties disagreed as to whether it would be permissible for the defence to question the complainant about matters involving her past sexual activity. In particular, whether such questioning could proceed without an application under either s. 276 of the Criminal Code or the common law regime established by the Supreme Court of Canada when it invalidated an earlier iteration of the “rape shield” provision: see R. v. Seaboyer, [1991] 2 S.C.R. 577. Given the impracticality of addressing this issue after a jury had already been selected, Harris J. declared a mistrial on December 10, 2019. Shortly afterwards, he issued written reasons for that decision: see R. v. Williams, 2019 ONSC 7525.

[3] The discrete preliminary issue addressed in this decision is whether or not, due to the charges and the nature of the allegations, efforts by the accused to adduce evidence regarding sexual activity by the complainant, other than the sexual activity that forms the subject-matter of the charges, engages s. 276 of the Criminal Code. It is sensible to decide this question at the outset because it has significant procedural implications.

[4] If admissibility turns on s. 276(2), and the court concludes that an application to admit such evidence should proceed to a hearing because the evidence is capable of being admissible under that subsection (s. 278.93(4)); then, the Criminal Code confers certain participatory rights on the complainant. These include the right to appear, to make submissions, and to be represented by counsel: see Criminal Code, s. 278.94(2), s. 278.94(3).

[5] In contrast, if s. 276 is not engaged, the rules of evidence at common law govern. Under existing common law rules, a complainant does not have any standing at a hearing into the admissibility of evidence, even when the evidence relates to her past sexual activity: see Seaboyer, at pp. 630-35.

I. Issue in Context

[6] The question raised must be answered in the context of this particular prosecution, taking into account the charges, the nature of the allegations, and the subjects about which the accused seeks to cross-examine the complainant.

[7] The charges all stem from allegations that the accused exploited the complainant in the sex trade. The Crown says that the accused and the complainant were initially in a romantic relationship. In time, however, he persuaded the complainant to work in the sex trade. After that, he allegedly exercised control, direction, and influence over her for that purpose. While this was taking place, the Crown alleges the accused posted advertisements online, offering the complainant’s sexual services for sale.

[8] Further, the Crown alleges that, although the accused initially took only a portion of the proceeds, he ultimately began keeping all of the money the complainant earned from selling her sexual services.

[9] And, finally, when the complainant was no longer willing to work in the sex trade at the behest of the accused, it is alleged that he sent text messages from unknown telephone numbers threatening to harm her and members of her family.

[10] The Crown does not allege the accused exercised control, direction, or influence by using either violence or threats of violence. Although the accused faces a charge of uttering threats, the Crown alleges that these came after the complainant refused to continue working in the sex trade. The Crown does not suggest that the complainant succumbed to the threats. Instead, the Crown contends that they precipitated the complainant going to the police and reporting the allegations, resulting in the accused being arrested and charged.

[11] The defence seeks to cross-examine the complainant on topics that it acknowledges will, both directly and indirectly, elicit evidence regarding her involvement in sexual activity other than the sexual activity that forms the subject-matter of the charges. The defence disclaims any intention of relying on this evidence to support prohibited twin-myths reasoning (i.e. that by virtue of the sexual nature of that activity, the complainant is more likely to have consented to sexual activity or is less worthy of belief). Rather than advancing pernicious stereotypes, the defence contends the areas of intended questioning are essential to making full answer and defence to the charges.

[12] The defence seeks to cross-examine the complainant regarding her work experience in the sex trade, both before she met the accused and afterwards, including her use of dating websites to advertise her sexual services. The defence says this evidence is relevant for two reasons. First, it bears upon the complainant’s credibility because, at the preliminary inquiry, she gave inaccurate, inconsistent and misleading testimony about her experience in the sex trade and her use of dating websites to advertise her sexual services. Second, it demonstrates that the complainant’s participation in the sex trade had nothing to do with the accused, refuting the allegation that he exercised control, direction or influence over her involvement in that industry.

[13] The defence also anticipates the possibility of cross-examining the complainant about relationships she had with three other men. The defence claims that one of these relationships overlapped in time with when the complainant says she was in a committed and serious relationship with the accused and working at his behest in the sex trade. The defence submits this is relevant to the complainant’s credibility and refutes her claim of being controlled by the accused during that same period.

[14] The other two relationships preceded the complainant’s involvement with the accused. The defence submits that exploring how these relationships ended, including any continuing hostility these individuals might harbour towards the complainant, assists in challenging the allegation that the accused was responsible for authoring the threatening text messages sent to the complainant from unknown telephone numbers.

II. Positions of the Parties on the Applicability of Section 276

[15] The Crown acknowledges that none of the charges the accused faces include an offence listed in s. 276(1) of the Criminal Code. Nevertheless, relying on the Supreme Court's recent decision in Barton, interpreting that subsection and explaining when it is engaged, the Crown submits the s. 276 regime applies in this case: see R. v. Barton, 2019 SCC 33.

[16] The Crown argues that s. 276 applies because of the combination of the charge of procuring (s. 286.3(1)), and the specific allegations made by the complainant. As noted, the accused faces a charge of exercising “control, direction or influence” over the complainant for the purpose of having her exchange sexual services for money. At the preliminary inquiry, the complainant testified that the accused told her she "had to" provide such services.

[17] Given this, the Crown argues the complainant did not truly consent to the sale of her sexual services due to pressure exerted by the accused. Under s. 273.1(1) of the Criminal Code, "consent means … the voluntary agreement of the complainant to engage in the sexual activity in question" (emphasis in original). Without valid consent, every time the complainant provided sexual services in exchange for money, she was, in effect, sexually assaulted. Sexual assault (s. 271) is one of the offences enumerated in s. 276(1). Accordingly, the Crown submits that the s. 276 regime applies in the circumstances of this case.

[18] In contrast, the defence submits that nothing about this case engages the s. 276 regime. It emphasizes that none of the four offences charged are amongst those listed in s. 276(1) of the Criminal Code. Additionally, the complainant is not alleging that the accused sexually assaulted her, or that anyone else sexually assaulted her. The defence argues that extending the reach of the s. 276 regime to the circumstances of this case would be unprecedented. The defence contests that Barton dictates such an outcome. For all of these reasons, the defence submits that s. 276 is not applicable in the circumstances of this case.

III. Analysis

[19] The analysis of the issue sensibly begins with the text of the current iteration [^1] of s. 276(1) of the Criminal Code, which provides:

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.

[20] The accused does not face any charge that includes an offence listed in s. 276(1). If plain meaning were alone the decisive principle of statutory interpretation, that would seem to be determinative. However, under the modern approach, plain meaning is no longer the only interpretative consideration. Instead, legislation must be interpreted in context with due regard to the scheme of the enactment, its object, and the intention of the legislature: see Re Rizzo & Rizzo Shoes, [1998] 1 S.C.R. 27, p. 41; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26.

[21] In Barton, the modern approach informed the Supreme Court's interpretation of s. 276(1): see Barton, at para. 71. Before turning to the Court’s analysis, it is helpful to have some appreciation of how the issue arose in that case.

[22] In Barton, the jury found the accused not guilty of first-degree murder in the death of a sex worker. The cause of death was determined to be a loss of blood due to a laceration to the deceased's vaginal wall. The Crown's theory was that the accused was guilty of first-degree murder because, during a sexual assault, he cut the victim's vaginal wall with intent to seriously harm or kill her. Alternatively, the Crown took the position that if the accused did not murder the deceased, he committed the lesser and included offence of unlawful act manslaughter by causing her death during a sexual assault.

[23] In its opening to the jury, the Crown noted that the accused had hired the deceased to provide sexual services not only on the night before her death but also the preceding evening. Without bringing an application under s. 276(1) and (what was then) s. 276.1(2)) of the Criminal Code, the accused testified about sexual activity between him and the deceased both on the night leading up to her death and the preceding evening. Amongst the issues the Supreme Court addressed in Barton, was whether it was proper for the accused to lead this evidence without first bringing an application.

[24] In deciding that issue, the Supreme Court of Canada provided helpful guidance on when s. 276 is engaged. Writing for the majority, Moldaver J. explained, at paragraphs 72 through 77:

[72] Beginning with the text, the opening words of s. 276(1) and (2) — proceedings “in respect of” a listed offence — are “of the widest possible scope” and are “probably the widest of any expression intended to convey some connection between two related subject matters” (Nowegijick v. The Queen, [1983] 1 S.C.R. 29, at p. 39). These words import such meanings as “in relation to”, “with reference to”, or “in connection with” (ibid.).

[73] 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. Narrower language such as “in a prosecution for” a listed offence or “where a person is charged with” a listed offence was equally available. Yet Parliament declined to adopt those narrower formulations and instead chose a much broader one. That choice must be given effect.

[74] Turning to purpose, the s. 276 regime’s objects — which include protecting the integrity of the trial 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 (see Seaboyer, at pp. 605-6; Darrach, at paras. 19 and 25) — are fundamental. Giving the s. 276 regime a broad, generous interpretation that does not unduly restrict the regime’s scope of application would best achieve these objects.

[75] Moreover, imposing a rigid requirement that a listed offence must be expressly charged before the s. 276 regime can apply would put form over substance. The regime’s applicability would turn on the way in which the prosecutor drafts the charging document, not on whether, in substance, a listed offence is implicated in the proceeding. If a listed offence is implicated in the proceeding, surely it makes no difference that the Crown did not particularize that offence in the charging document.

[76] With these points in mind, I am of the view that 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. For example, this broad relational test would be satisfied where the listed offence is the predicate offence for the offence charged or an included offence of the offence charged.

[77] In Mr. Barton’s case, the s. 276 regime was engaged because the offence charged, first degree murder under ss. 231(5)(c) and 235(1), was premised on sexual assault with a weapon contrary to s. 272, which is an offence listed in s. 276(1). That alone was sufficient to engage the s. 276 regime.

[25] With the benefit of the Supreme Court of Canada’s decision in Barton, after giving careful consideration to both the charges and specific allegations, for two principal reasons, I have concluded that s. 276 is not applicable in the circumstances of this case.

[26] First, the accused is not charged with an offence listed in s. 276(1). Additionally, a listed offence is neither a predicate nor included offence for any of the charges the accused faces. In short, a listed offence is not implicated in this proceeding.

[27] In coming to that conclusion, it should be apparent that I have rejected the Crown’s suggestion that the requisite connection to a listed offence exists because the accused faces a charge of procuring by exercising “control, influence or direction” (s. 286.3(1)). The Crown suggests that in such circumstances, any resulting sexual activity takes place without “consent.” Acceding to this argument would conflate the more stringent requirement for concluding that consent to sexual activity has not been genuinely and freely given, with the less exacting demands for the actus reus of the procuring offence found in s. 286.3(1).

[28] There is no consent to sexual activity where a complainant concludes that she has no choice in the matter, for example, because of violence, threats of violence or extortion: see Criminal Code, ss. 265(3)(a), (b), and (d), s. 273.1(1), ss. 273.1(2)(c), and s. 273.1(3); R. v. Ewanchuk, [1999] 1 S.C.R. 330, at paras. 36-39; R. v. Stender (2004), 72 O.R. (3d) 223 (C.A.), at paras. 54, 57, affirmed 2005 SCC 36, [2005] 1 S.C.R. 914.

[29] In contrast, a coercive exertion of power by an accused over a complainant that leaves her some degree of choice in whether or not to sell her sexual services can still result in an accused being culpable for exercising "control, influence or direction" under s. 286.3(1). As the Quebec Court of Appeal explained, in Perreault c. R., [1997] R.J.Q. 4 (Q.C.C.A.), at p. 6:

The element of control refers to invasive conduct, a power that leaves the controlled person with little choice. This conduct therefore includes acts of direction and influence. Direction is exercised over the movements of a person when rules or behaviours are imposed. The exercise of direction does not preclude the possibility that the directed person has latitude or a measure of discretion. The exercise of influence includes less constraining conduct. Any action exercised over a person for the purpose of aiding, abetting or compelling that person to engage in prostitution would be considered an influence.

[Emphasis added]

See R. v. Gallone, 2019 ONCA 663, at para. 45, which quotes this excerpt with approval and reproduces it from an unofficial English translation of the judgment.

[30] There is a difference, albeit a matter of degree, between no choice and little choice. An accused may be guilty of exercising control under s. 286.3(1), despite the complainant having a fair degree of autonomy over the ultimate decision whether or not to engage in sexual activity. Culpability under s. 286.3(1) for procuring by exercising control, does not require that the complainant’s will be entirely overborne by the accused. In other words, “consent” to sexual activity is not necessarily vitiated whenever an accused has exercised “control” over a complainant’s involvement in the sex trade. It follows that the offence of sexual assault, listed in s. 276(1), is not an included offence to procuring (s. 286.3(1)), even where the accused has committed that offence by exercising control over a complainant’s movements.

[31] Therefore, the accused does not face a charge for an offence connected to any of those listed in s. 276(1). Although this alone is determinative of the issue that I must decide, this conclusion also appears to be more in keeping with the intention of Parliament. Recent amendments to the Criminal Code suggest that Parliament made a deliberate choice not to include the “sexual services” offences in the list of offences found in s. 276(1).

[32] In December of 2018, Parliament made a host of amendments to the Criminal Code: see An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, S.C. 2018, c. 29 (“Bill C-51”). These amendments included changes to the s. 276 regime: see Bill C-51, ss. 22 through 25. Including repealing s. 276.1, s. 276.2, and s. 276.3, the provisions that previously addressed matters of form and procedure concerning applications by an accused to introduce sexual history evidence about the complainant.

[33] Bill C-51 also added s. 278.92 to the Criminal Code, which requires the accused to bring an application before seeking to admit into evidence a “record relating to the complainant” that is in the possession or control of the accused “in any proceedings in respect of any” listed offences: s. 278.92(1). The offences listed include the same sexual offences found in s. 276(1), as well as various “sexual services” offences. For example, trafficking in persons (s. 279.01), trafficking in persons under the age of eighteen years (s. 279.011), material benefit - trafficking (s. 279.02), withholding or destroying documents – trafficking (s. 279.03), obtaining sexual services for consideration (s. 286.1), material benefit from sexual services (s. 286.2), and procuring (s. 286.3). Section 278.92(2) sets out preconditions that must be satisfied before the record may be admitted, including where the evidence is also subject to s. 276, compliance with s. 276(1).

[34] Finally, the amendments added s. 278.93 and s. 278.94 to the Criminal Code. These provisions apply to applications brought under either s. 276(2) (sexual history evidence regarding the complainant) or s. 279.92(2) (records relating to the complainant possessed by the accused). These two sections address both matters of form (s. 279.93) and procedure (s. 278.94) when it comes to either type of application. Including, as mentioned above, the participatory rights of complainants at any hearing into admissibility the court decides to conduct.

[35] The combined effect of these various amendments provides a strong indication of Parliament’s intention concerning the offences listed in s. 276(1). Parliament recently turned its attention to that section. In doing so, it did not choose to expand the list found in s. 276(1) to include the sexual services offences. Its attention was undoubtedly focussed on those offences, given its decision to list them in s. 279.92(1)(a). That decision is not mere happenstance, given that Parliament also chose to merge the operation of the two provisions when it came to matters of form (s. 279.93) and procedure (s. 278.94) concerning both types of applications.

[36] The legislative record provides a strong basis to conclude, based on the principle of implied exclusion, that Parliament deliberately chose not to include the sexual services offences within the list of offences found in s. 276(1): see Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed (Markham: LexisNexis, 2008) at p. 244.

[37] In such circumstances, I am of the view that it would be inappropriate for this court to read any of the sexual services offences, including procuring, into section 276(1).

Conclusion

[38] For all of these reasons, I have concluded that the accused’s ability to adduce evidence regarding sexual activity by the complainant, other than the sexual activity that forms the subject-matter of the charges, does not engage s. 276 of the Criminal Code.

[39] That said, this court invites submissions from the parties as to whether or not such evidence engages the common law regime developed in Seaboyer. And, if it does not, whether existing common law rules need further development to better conform with current realities: see Seaboyer, at p. 630; R. v. Salituro, [1991] 3 S.C.R. 654, at pp. 665-66.

Signed: Justice J. Stribopoulos Released: January 13, 2020

[^1]: Effective on June 21, 2019, Parliament amended subsection 276(1). With the repeal of the offence of anal intercourse (s. 159) from the Code, that offence was also removed from the list of offences in ss. 276(1): see An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, S.C. 2019, c. 25, s. 100. Before that, the list of offences had been unchanged since 2002: see Criminal Law Amendment Act, 2001, S.C. 2002, c. 13, s. 13. And, before that, the list remained unchanged from the time that Parliament enacted the current iteration of s. 276, after the Supreme Court of Canada invalidated the predecessor provision as unconstitutional in Seaboyer: see An Act to amend the Criminal Code (sexual assault), S.C. 1992, c. 38, s. 2.