COURT FILE NO.: CR-20-50000131 DATE: 20230921

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – JUSTIN EUROPE

Counsel: S. Rothman, for the Crown M. Hayworth, for Mr. Europe

HEARD: September 12, 2023

RULING

SCHRECK J.:

[1] Justin Europe is charged with human trafficking and related offences based on allegations that he coerced a young woman to engage in the sex trade and give him the proceeds of her activities. At his trial, his counsel wishes to ask the complainant about whether she was engaged in the sex trade immediately prior to the time frame set out in the Indictment. The Crown takes the position that he may not do so unless he first successfully brings an application pursuant to s. 276 of the Criminal Code.

[2] Whether s. 276 applies to human trafficking offences is the subject of a number of conflicting authorities from this court. Some judges of this court have concluded that it does. Others have concluded that it does not. There is no appellate authority on the subject.

[3] In my view, while there are good arguments to be made in support of both positions, the determination of this issue depends on an application of the doctrine of horizontal stare decisis. According to this doctrine, once a judge decides a legal issue, other judges of concurrent jurisdiction are bound by the decision subject to certain exceptions. Most of the decisions of this court on the issue that arises in this case were made without regard to that doctrine. Having reviewed the jurisprudence of this court, I have concluded that the issue was first determined in R. v. Williams, 2020 ONSC 206, 64 C.R. (7th) 226, which concluded that s. 276 does not apply to human trafficking offences. None of the exceptions to the doctrine of stare decisis apply with respect to that decision. As a result, it was not open to other judges, nor is it open to me, to come to a different conclusion.

I. Relevant Context

A. The Charges

[4] Justin Europe is charged with: (1) human trafficking, contrary to s. 279.01(1) of the Criminal Code; (2) procuring a person to offer or provide sexual services for consideration, contrary to s. 286.2(1); (3) receiving a material benefit from the commission of an offence under s. 279.01(1), contrary to s. 279.02(1); (4) receiving a material benefit from the commission of an offence under s. 286.1(1), contrary to s. 286.2(1); (5) advertising sexual services for consideration, contrary to s. 286.4(a); (6) assault, contrary to s. 266(a); (7) aggravated assault, contrary to s. 268(2); (8) threatening death, contrary to s. 264.1(2)(a); and (9) threatening to cause death to an animal, contrary to s. 264.1(3)(a). All of the offences are alleged to have been committed between November 1, 2018 and January 20, 2019.

[5] All of the charges are based on the testimony of the complainant, who had known Mr. Europe for several years and became involved in a romantic relationship with him in November 2018. She alleges that once she was involved in a relationship with Mr. Europe, he controlled the amount of time that she spent working providing sexual services at a spa where she was employed and forced her to give him all of the money she earned. When she attempted to leave him, he assaulted her and threatened her and her family.

B. The Proposed Questions

[6] Mr. Europe is being tried in this court without a jury. His counsel wishes to ask the complainant whether she was employed at the spa providing sexual services in the period immediately before she began a relationship with Mr. Europe and whether she continued to do so after she left Mr. Europe and he was charged. He does not intend to ask her about the nature of any sexual acts she engaged in. Counsel submits that the questions are relevant to the issue of whether Mr. Europe procured the complainant into providing sexual services for consideration.

[7] I am advised that the complainant was asked questions of this nature at the preliminary inquiry. At the time, all counsel agreed that s. 276 of the Criminal Code did not apply to any of the offences Mr. Europe was charged with. The Crown has changed its position since that time in light of subsequent decisions from this court.

II. Analysis

A. Section 276 of the Criminal Code

[8] Section 276 of the Criminal Code provides 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.

(2) In proceedings in respect of an offence referred to in subsection (1), evidence shall not be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94, that the evidence

(a) is not being adduced for the purpose of supporting an inference described in subsection (1);

(b) is relevant to an issue at trial; and

(c) is of specific instances of sexual activity; and

(d) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account

(a) the interests of justice, including the right of the accused to make a full answer and defence;

(b) society’s interest in encouraging the reporting of sexual assault offences;

(c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;

(d) the need to remove from the fact-finding process any discriminatory belief or bias;

(e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;

(f) the potential prejudice to the complainant’s personal dignity and right of privacy;

(g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and

(h) any other factor that the judge, provincial court judge or justice considers relevant.

(4) For the purpose of this section, sexual activity includes any communication made for a sexual purpose or whose content is of a sexual nature.

[9] In R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at paras. 70-77, Moldaver J. explained the meaning of the term “in respect of an offence” in s. 276(1) and concluded that the section was not restricted to only cases where the accused is charged with one of the offences enumerated in that subsection:

The first substantive issue is one of scope: Can the s. 276 regime apply in a case where the offence charged — here, murder under ss. 231(5)(c) and 235(1) — is not one of the offences listed in s. 276(1)?

This issue raises a question of statutory interpretation. The modern approach to statutory interpretation provides that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (E. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87, as cited in Rizzo & Rizzo Shoes Ltd. (Re), 1998 SCC 837, [1998] 1 S.C.R. 27, at para. 21).

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 SCC 18, [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.).

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.

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.

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.

B. Ontario Superior Court Caselaw

[10] As noted, the applicability of s. 276 to human trafficking offences is the subject of several decisions of this court. Human trafficking offences are not among the offences enumerated in s. 276(1), so the determination of the issue depends on whether prosecutions for such offences can be said to be “proceedings in relation to” one or more of the enumerated offences, as that term was explained in Barton.

[11] The decisions in which it was concluded that s. 276 does not apply are, in chronological order: Williams; R. v. M.D., 2020 ONSC 951; R. v. Langford, 2021 ONSC 4307, 74 C.R. (7th) 147; R. v. Galastica, 2023 ONSC 791; R. v. R.G., 2023 ONSC 5064. The decisions in which it was concluded that s. 276 does apply are, in chronological order: R. v. Celestin, 2019 ONSC 3409; R. v. Floyd, 2019 ONSC 7006; R. v. T.A., 2020 ONSC 6714; R. v. MacMillan, 2021 ONSC 3952; R. v. Maldonado Vallejos, 2022 ONSC 2753; R. v. Campbell, 2022 ONSC 10; R. v. Ryckman, 2022 ONSC 20; R. v. Hamblett, 2022 ONSC 2754; R. v. Lees, 2023 ONSC 124; R. v. N.G., 2023 ONSC 792. In R. v. S.M., 2023 ONCA 417, at para. 15, the Ontario Court of Appeal acknowledged the conflicting caselaw but declined to resolve the issue based on the record in that case.

C. Horizontal Stare Decisis

[12] All of the decisions referred to above are from the Ontario Superior Court of Justice. As a result, the doctrine of vertical stare decisis, that is, the requirement that courts be bound by decisions made by courts that are higher in the judicial hierarchy, does not apply. However, the doctrine of horizontal stare decisis does. That doctrine and its limits were recently explained in R. v. Sullivan, 2022 SCC 19, 472 D.L.R. (4th) 521, at paras. 73-75, applying the principles set out in Re Hansard Spruce Mills, 1954 BCSC 253, [1954] 4 D.L.R. 590 (B.C.S.C.):

Horizontal stare decisis applies to decisions of the same level of court. The framework that guides the application of horizontal stare decisis for superior courts at first instance is found in Spruce Mills, described by Wilson J. as follows (at p. 592):

. . . I will only go against a judgment of another Judge of this Court if:

(a) Subsequent decisions have affected the validity of the impugned judgment;

(b) it is demonstrated that some binding authority in case law, or some relevant statute was not considered;

(c) the judgment was unconsidered, a nisi prius judgment given in circumstances familiar to all trial Judges, where the exigencies of the trial require an immediate decision without opportunity to fully consult authority.

The Spruce Mills criteria have been followed in numerous cases across Canada. However, the analytical framework has, at times, been blurred and the criteria have occasionally been of difficult application. Varying standards have been invoked to define when departure from prior precedent is appropriate. For example, some have held that a prior decision can be ignored if it is “plainly wrong” (R. v. Green, 2021 ONSC 2826, at paras. 9 and 24), when there is “good reason” for doing so (R. v. Kehler, 2009 MBPC 29, 242 Man. R. (2d) 4, at para. 42), or in “extraordinary circumstances” (R. v. Wolverine and Bernard (1987), 1987 SKQB 4603, 59 Sask. R. 22 (Q.B.), at para. 6). The standards of “plainly wrong”, “good reason”, and “extraordinary circumstances” are qualitative tags susceptible of extending to almost any circumstance and do not provide the same precise guidance that Spruce Mills does (see S. Kerwin, “Stare Decisis in the B.C. Supreme Court: Revisiting Hansard Spruce Mills” (2004), 62 Advocate 541, at p. 543, fn. 33). These terms should no longer be used. In particular, the phrase “plainly wrong” is a subjective term and suggests that a judge may depart from binding precedent if they disagree with it — mere personal disagreement between two judges is not a sufficient basis to depart from binding precedent. The institutional consistency and predictability rationales of stare decisis are undermined by standards that enable difference in a single judge’s opinion to determine whether precedent should be followed. It is also not the case that a court can decide a question of law afresh where there are conflicting decisions.

The principle of judicial comity — that judges treat fellow judges’ decisions with courtesy and consideration — as well as the rule of law principles supporting stare decisis mean that prior decisions should be followed unless the Spruce Mills criteria are met. Correctly stated and applied, the Spruce Mills criteria strike the appropriate balance between the competing demands of certainty, correctness and the even-handed development of the law. Trial courts should only depart from binding decisions issued by a court of coordinate jurisdiction in three narrow circumstances:

1. The rationale of an earlier decision has been undermined by subsequent appellate decisions;
2. The earlier decision was reached per incuriam (“through carelessness” or “by inadvertence”); or
3. The earlier decision was not fully considered, e.g. taken in exigent circumstances.

[13] After elaborating on the three exceptions, the Court stated (at para. 79):

These criteria define when a superior court at first instance may depart from binding judgment issued by a court of coordinate jurisdiction and apply equally to a prior ruling on the constitutionality of legislation. Where, as here, a judge is faced with conflicting authority on the constitutionality of legislation, the judge must follow the most recent authority unless the criteria above are met. In such a situation, the judge must, in determining whether the prior decision was taken per incuriam, consider whether the analysis failed to consider a binding authority or statute relevant to the legal question.

[14] The proper approach to the doctrine of horizontal stare decisis was illustrated in Sullivan, at paras. 82-84. The issue in that case was the constitutionality of s. 33.1 of the Criminal Code, which restricted the defence of extreme intoxication akin to automatism. The Court stated that the trial judge should have considered the most recent decision on the issue, R. v. Fleming, 2010 ONSC 8022, which concluded that s. 33.1 was unconstitutional. That case relied on an earlier case, R. v. Dunn (1999), 1999 ONCJ 36525, 28 C.R. (5th) 295 (Ont. S.C.J.), which came to the same conclusion. However, Dunn failed to consider the even earlier decision in R. v. Decaire, [1998] O.J. No. 6339 (Gen. Div.), which concluded that the section was not unconstitutional. The failure of the court in Dunn to consider Decaire meant that Dunn had been decided per incuriam. As a result, the trial judge should have followed Decaire. It is noteworthy that the Supreme Court of Canada came to this conclusion notwithstanding its view that s. 33.1 was in fact unconstitutional.

D. Application of the Doctrine

(i) The Most Recent Decisions

[15] In this case, the most recent decision is R.G. That case involved a complainant under the age of 18, which London-Weinstein J. concluded created a sufficient connection between the offences charged and the offence of sexual exploitation in s. 153 of the Code, which is enumerated in s. 276: R.G., at paras. 27-31. In doing so, she followed the decision in Floyd, which also involved a complainant under the age of 18: R.G., at para. 29; Floyd, at para. 9. She declined to follow the most recent decision on the issue, Galastica, because it did not involve a complainant under the age of 18: R.G., at para. 40. In this case, the complainant is not under the age of 18. As a result, the reasoning in R.G. does not apply.

[16] The next most recent case is Galastica, which involved an adult complainant. In that case, Nakonechny J. concluded that s. 276 did not apply to human trafficking. In doing so, she relied on Williams and Langford, although it does not appear that she did so because of horizontal stare decisis, but rather because she found them to be persuasive: Galastica, at paras. 21-23, 34-36. As it turns out, however, Williams is the earliest decision on this issue in the context of an adult complainant. [1]

[17] In keeping with the analysis conducted in Sullivan, I must consider whether any of the Spruce Mills exceptions apply to Galastica. It has not been undermined by subsequent appellate authority and there is no suggestion that it was not fully considered or taken in exigent circumstances. I must therefore consider whether it was decided per incuriam or failed to consider prior binding authority.

[18] Nakonechny J. considered T.A. and Hamblett, but does not appear to have considered other earlier cases which concluded that s. 276 applies to human trafficking: Galastica, at paras. 29-32. This could lead to the conclusion that Galastica was decided per incuriam, but only if any of those earlier decisions were binding. In my view, they were not because they were all also bound by Williams.

(ii) R. v. Williams

[19] In Williams, Stribopoulos J. began his analysis by noting that none of the human trafficking offences are enumerated in s. 276(1). In accordance with Barton, he then considered whether the proceedings could be said to be “in respect of” any of the enumerated offences and concluded as follows (at paras. 25-27):

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.

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.

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).

[20] Although Williams did not involve a charge under s. 279.01, Stribopoulos J.’s reasoning was adopted in the s. 279.01 context by Dennison J. in M.D., at paras. 38-40.

(iii) Cases That Failed to Follow Williams

[21] Most of the decisions which declined to follow Williams predate Sullivan. While they considered Williams, they did not decline to follow it because any of the Spruce Mills criteria applied. Rather, they declined to follow it because they disagreed with it for various reasons: T.A., at para. 21; MacMillan, at para. 26; Maldonado Vallejos, at para. 22; Campbell, at para. 23; Ryckman, at para. 13; Hamblett, at paras. 17-25; Lees, at para. 5; N.G., at paras. 10-12. However, as was made clear in Sullivan, at para. 74, “mere personal disagreement between two judges is not a sufficient basis to depart from binding precedent.”

[22] Based on the foregoing, Nakonechny J. in Galastica was not bound by any of those decisions and was bound by Williams. I am also bound by it. Although this would be the case regardless of my views respecting its correctness, I am also of the view that it was correctly decided.

[23] The current state of the law in Ontario with respect to this issue demonstrates the importance of the doctrine of horizontal stare decisis and its promotion of “rule of law values such as consistency, certainty, fairness, predictability, and sound judicial administration”: Sullivan, at para. 64. As things stand now, accused persons, complainants and counsel involved in human trafficking prosecutions do not know whether s. 276 applies or not. The law applied at the preliminary inquiry may be different than the law applied at trial. Two accused in similar circumstances may have very different trials because the trial judges disagree about whether s. 276 applies. This type of uncertainty and lack of consistency does not engender confidence in the administration of justice.

[24] Of course, it will ultimately be for an appellate court to determine whether Williams was correctly decided. However, as things stand now, it represents the law in Ontario and I am bound by it.

E. Is There a Common Law Requirement for a Voir Dire?

[25] As noted earlier, in M.D., Dennison J. adopted Williams and concluded that s. 276 does not apply to human trafficking. However, Dennison J. went on to conclude that it was necessary to modify the common law so as to create a requirement that where the defence wishes to cross-examine a complainant on her prior sexual history in a human trafficking case, it must first bring an application such as the one described in R. v. Seaboyer, 1991 SCC 76, [1991] 2 S.C.R. 577, at pp. 631-636, and there must be a voir dire during which the trial judge would determine whether the evidence was admissible: M.D., at paras. 57-66.

[26] Stribopoulos J. considered M.D. in R. v. Williams, 2020 ONSC 6347, 396 C.C.C. (3d) 267 (“Williams No. 2”). He concluded, at paras. 13-35, that Dennison J. had failed to consider the well-established line of authority which held that changes to the common law must be incremental, approached with caution, and respectful of the principle that the major responsibility for law reform lies with the legislature, not the courts: Watkins v. Olafson, 1989 SCC 36, [1989] 2 S.C.R. 750, at pp. 760-761; R. v. Salituro, 1991 SCC 17, [1991] 3 S.C.R. 654, at pp. 677-678, 760; R. v. Hawkins, 1996 SCC 154, [1996] 3 S.C.R. 1043, at pp.1071-1072; Friedman Equity Developments Inc. v. Final Note, 2000 SCC 34, [2000] 1 S.C.R. 842, at para. 43.

[27] Williams No. 2 predated Sullivan in the Supreme Court of Canada. However, at para. 11, Stribopoulos J. cited Spruce Mills and Sullivan in the Ontario Court of Appeal (2020 ONCA 333, 151 O.R. (3d) 353) and part of his reason for declining to follow M.D. was the failure to consider the cases outlined above about restraints on a court’s ability to modify the common law: Williams No. 2, at para. 31. I agree with that conclusion. In my view, I am not bound by M.D. and I decline to apply its requirement for an application and a voir dire before I can consider whether to allow evidence of the complainant’s prior sexual activity.

F. The Admissibility of the Evidence

[28] While I have concluded that s. 276 of the Criminal Code does not apply and there is no common law requirement for a similar application, this does not mean that the evidence of the complainant’s prior sexual activity is necessarily admissible. All evidence must be relevant to be admissible and the court retains a discretion to exclude evidence where its prejudicial effect substantially outweighs its probative value: Williams No. 2, at paras. 52-56. Where the evidence is being introduced to support inferences that require resort to myths or stereotypes, it will not be admissible.

[29] In this case, the evidence that the complainant was involved in the sex trade before beginning a relationship with Mr. Europe has some relevance to the issue of whether Mr. Europe “procured” the complainant to offer or provide sexual services. “Procured” has been defined as “to cause, or to induce, or to have a persuasive effect upon the conduct that is alleged”: R. v. Gallone, 2019 ONCA 663, 147 O.R. (3d) 225, at para. 61; R. v. Deutsch, 1986 SCC 21, [1986] 2 S.C.R. 2, at pp. 26-27. In my view, the fact that the complainant was already engaged in the conduct may have some relevance to the issue of whether she engaged in that conduct as a result of anything done by Mr. Europe: R. v. Amdurski, 2022 ONSC 1337, at para. 20. This is not by virtue of any reliance on a myth or stereotype, but, rather, logical inferences about cause and effect. The fact that a certain state of affairs existed prior to an event may be evidence that the event did not cause or influence that state of affairs.

[30] Crown counsel is correct that the fact that the complainant was already engaged in the sex trade does not necessarily mean that Mr. Europe did not procure her. However, evidence need not be dispositive of an issue to be relevant: R. v. Evans, 2019 ONCA 715, 147 O.R. (3d) 577, at paras. 184-185.

[31] I accept that there is some danger that the evidence could give rise to impermissible reasoning based on stereotypes about women involved in the sex trade. However, this is a judge alone trial and I am alive to this danger and will take steps to ensure that it does not infect my reasoning process. This is not a situation where the prejudicial effect of the evidence substantially outweighs its probative value.

[32] I take a different view with respect to evidence that the complainant continued to engage in the sex trade after her relationship with Mr. Europe ended. This evidence has marginal, if any relevance. The fact that the complainant was no longer in a relationship with Mr. Europe tells us nothing about whether Mr. Europe’s actions continued to influence her in some way.

[33] For these reasons, counsel for Mr. Europe will be permitted to ask the complainant about her involvement in the sex trade in the period immediately before the time frame in the Indictment, but not the period after it.

Justice P.A. Schreck

Released: September 21, 2023

COURT FILE NO.: CR-20-50000131 DATE: 20230921 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – JUSTIN EUROPE RULING P.A. Schreck J. Released: September 21, 2023

[1] Celestin predates Williams, however, the decision contains no analysis of the issue. Rather, it appears that Gibson J. had concluded on an earlier occasion that s. 276 applies: Celestin, at para. 10. Neither counsel nor I have been able to determine whether reasons exist in relation to that earlier decision.