COURT OF APPEAL FOR ONTARIO

DATE: 20000323

DOCKET: C30721

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.

FINLAYSON J.A.:

[1] On 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.

[2] During 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.

[3] On 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

[4] An 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.

[5] During 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.

[6] The 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.

[7] The 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.

[8] The 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.

[9] A 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.

[10] Princess 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.

[11] On 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.

[12] The 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.

[13] The 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.

[14] The 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.

[15] One 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.

[16] At 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

[17] The appellant raises five grounds of appeal:

1. The trial judge’s finding that acts of prostitution were
   frequent and habitual was unreasonable and not supported by the
   evidence.
2. 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.
3. The trial judge erred in admitting the videotape whose
   marginal probative value was outweighed by its prejudicial
   effects.
4. The trial judge erred in excluding the evidence of five of
   the expert witnesses tendered by the appellant.
5. 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

[18] The 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.

[19] The 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.

[20] Grounds 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.)).

[21] There 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.

[22] The 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.

[23] The 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.

[24] The 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.

[25] The 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.)).

[26] The 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.

[27] The 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.

[28] In 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?”

[29] It 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.

[30] The 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.

[31] I would not give effect to these two grounds of appeal.

[32] Ground 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.

[33] Ground 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.

[34] I 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.

[35] One 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.

[36] In 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.

[37] The 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”.

[38] Professor 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”.

[39] However, 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.

[40] One 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”.

[41] In 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.

[42] Another 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”.

[43] Professor 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.

[44] Shannon 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.

[45] Professor 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.

[46] Despite 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.

[47] Robert 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.

[48] In 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.

[49] The 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.

[50] The 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.

[51] Necessity 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.

[52] More 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.

[53] Moreover, 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.

[54] Additionally, 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.

[55] Ground 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”.

[56] As 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.

[57] While 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.

[58] Accordingly, 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.”