WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.5(1) or (2) of the Criminal Code. These subsections and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.5(1) or (2), read as follows:
486.5 ORDER RESTRICTING PUBLICATION — VICTIMS AND WITNESSES — (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(2) JUSTICE SYSTEM PARTICIPANTS — On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice.
(2.1) OFFENCES – The offences for the purposes of subsection (2) are
(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;
(b) a terrorism offence;
(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or
(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).
(3) LIMITATION – An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Ontario Court of Justice
Date: 2021 05 08 Court File No.: Toronto 20-55000577
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
A.M.
Before: Justice Peter N. Fraser
Heard on: March 30, 2021 Oral Ruling Released on: April 9, 2021 Reasons for Judgment released on: May 8, 2021
Counsel: V. Culp and K. Rogozinski............................................................... counsel for the Crown N. Jackson.................................................. counsel for the accused Andrew McDermott
P. Fraser J.:
Part I – Overview
[1] The applicant, A.M., stands charged with non-consensual distribution of intimate images, contrary to s. 162.1 of the Criminal Code. This is a ruling on a motion for direction brought by the defence in advance of the trial.
[2] The defence proposes to tender evidence of the complainant’s sexual activity, outside the subject matter of the charge. As the offence charged is not enumerated under s. 276(1) of the Code, the parties seek direction as to the correct procedure.
[3] Relying on R. v. Barton, 2019 SCC 33, the Crown takes the position that s. 276 of the Code does govern the admissibility of the proposed evidence. In the alternative, the Crown submits that the common law regime established in R. v. Seaboyer, [1991] S.C.J. No. 62, applies. The defence submits that neither the statutory regime nor the Seaboyer principles are engaged in this case.
[4] On April 9, 2021, I ruled that s. 276 did not govern the admissibility of this evidence. I ruled, however, that the common law regime in Seaboyer did apply and the defence would be required to file a written application, supported by affidavit or testimony, detailing the proposed evidence and justifying its admission.
[5] These are my reasons.
Part II – Nature of the Allegations
[6] Both counsel agreed that the following circumstances would serve as the factual foundation for this ruling. The applicant and complainant were previously married, but they separated in 2019. At the end of the relationship, the applicant was in possession of several intimate images of the complainant. Some of the images show her engaged in explicit sexual acts, including fellatio, with the applicant. Some images contain close-up shots of her genitalia and others involve nudity and bondage. The sexual acts depicted were consensual in nature. And there is no suggestion the images were obtained surreptitiously or otherwise without consent. However, the complainant contacted the applicant in 2019 and asked him to delete the images. In February 2020 she reported to police that he had posted the images on a website called fetlife.com without her consent.
[7] The applicant declined to specify the nature of the proposed evidence of other sexual activity (reasoning that to do so would defeat the purpose of this motion for direction from the perspective of the defence). This ruling is based on a hypothetical scenario in which the individual depicted in the images consented to the distribution of other intimate images, similar to those forming the subject matter of the charge, on several occasions proximate to the time of the allegations.
Part III – Issues and Law
A. The Statutory Regime Under Section 276
[8] Parliament has created a statutory regime that governs the admissibility of evidence of a complainant’s prior sexual activity in certain cases. Section 276(1) of the Criminal Code provides as follows:
276 (1) In proceedings in respect of an offence under section 151, 152, 153, 153.1, 155 or 159, 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.
[9] This regime applies to “proceedings in respect of an offence” under fourteen enumerated sections of the Code. For ease of reference, the enumerated offences are set out below:
Section 151 - Sexual Interference Section 152 - Invitation to sexual touching Section 153 - Sexual exploitation Section 153.1 - Sexual exploitation of person with disability Section 155 - Incest Section 160(2) - Bestiality Section 160(3) - Bestiality in presence of or by a child Section 170 - Parent or guardian procuring sexual activity Section 171 - Householder permitting sexual activity Section 172 - Corrupting children Section 173 - Indecent acts Section 271 - Sexual Assault Section 272 - Sexual Assault with a weapon Section 273 - Aggravated sexual assault
[10] Where the regime applies, evidence of other sexual activity will not be adduced unless the judge determines it to be admissible pursuant to s. 276(2). The proposed evidence cannot be used to support either of the “twin myths”; namely that, by reason of the sexual activity, the complainant is more likely to have consented to the sexual activity forming the subject matter of the charge or is less worthy of belief. Further, the evidence must be relevant to an issue at trial, be of specific instances of sexual activity, and have significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
[11] This determination is to be made in view of the factors set out in section 276(3). An accused seeking to adduce such evidence must comply with the procedures set out in ss. 278.93 and 278.94 which involve, among other things, a written application setting out detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial. Where a judge deems it appropriate to convene a hearing under s. 278.94, the complainant has the right to participate in the hearing and to be represented by counsel.
B. Statutory Interpretation and R. v. Barton
[12] The offence of distributing intimate images is created by s. 162.1 of the Criminal Code and is not an enumerated offence in s. 276(1). However, this does not end the inquiry. In R. v. Barton, 2019 SCC 33, supra, the Supreme Court considered the application of s. 276 and concluded the regime was not limited to proceedings where the offence charged was listed in the section. In that case, the Court found the section applied to a first-degree murder, committed in the course of a sexual assault. The enumerated offence of sexual assault (s. 271) was implicated by the charge in question because it was the predicate offence, serving to elevate the charged offence from second degree murder to first.
[13] In Barton, the Court found the section 276 regime was to be given a “broad, generous interpretation” that would not unduly restrict the scope of its application. Justice Moldaver observed that the opening words of s. 276(1), “In proceedings in respect of an offence”, were of the widest possible scope and connoted a wider range of cases than merely those in which a listed offence was formally charged: R. v. Barton, 2019 SCC 33, supra, at paras. 70-78. If a listed offence was “implicated” in the proceeding, that would be sufficient to invoke the section. The Court went on to describe the kind of relationship between the listed offences and the charged offence that would cause the regime to become engaged:
[T]he 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.
[14] Trial judges must, therefore, apply a “broad relational test” in order to determine whether a listed offence in s. 276 is “implicated” by or has “some connection” to the proceedings before them.
[15] The Supreme Court heard Barton on October 11, 2018. Parliament enacted Bill C-51 on December 13, 2018. [1] The bill introduced amendments to the section 276 regime (amongst other provisions). [2] The Supreme Court released its judgment in Barton on May 24, 2019, after Bill C-51 had been passed. The Court was clear that the amendments did not apply to the decision. [3] Less than a month later, Parliament removed s. 159 (anal intercourse) from the list of enumerated offences in s. 276(1), as that offence had been repealed. [4] Two points arise out of this chronology. First, the recent amendments should not be interpreted as Parliament’s response to Barton. Second, except as otherwise stated, the changes to s. 276 have no bearing on how Barton applies to my analysis.
[16] I am not aware of any decision dealing with the application of s. 276 to the charge of distributing intimate images under s. 162.1. Counsel have provided me with trial level decisions dealing with the application of s. 276 to certain human trafficking and commodification of sexual activity offences contained in, among others, ss. 279.01 and 286.1 of the Code. In R. v. Floyd, 2019 ONSC 7006 and R. v. Miller, [2020] O.J. No. 1934 (OCJ), s. 276 was found to apply to those offences. In R. v. M.D., 2020 ONSC 951, the Court found that s. 276 did not apply, but the common law regime in Seaboyer did. And in two related decisions, R. v. Williams, 2020 ONSC 206 and R. v. Williams, 2020 ONSC 6347, the Court found that neither s. 276 nor the common law regime applied. [5]
[17] While some of the reasoning in these cases is helpful, they deal with very different offences and fact scenarios and are not dispositive of this application. By way of example, the applicant relies on R. v. Williams, 2020 ONSC 206, and R. v. M.D., 2020 ONSC 951, supra, in which s. 276 was found not to apply to the offences of trafficking in persons (s. 279.01), receiving material benefit from sexual services (s. 286.2), and procuring (s. 286.3). However, those decisions were driven, in large measure, by the fact that Parliament had recently added the very offences at issue to the list of enumerated offences in s. 278.2 (dealing with records) while declining to include them in s. 276. This dissonance was found to represent a legislative intention against the application of s. 276 to those offences. The offence before me is not included in either of sections 278.2 or 276.
C. Categorical or Case-Specific Approach
[18] The first question is whether the application of s. 276 should be determined categorically (based on the elements of the offence charged) or on the particular facts of the case at bar. A categorical approach would imply that s. 276 is engaged (or not) for every iteration of the charged offence, no matter the circumstances. Under a case-specific approach, the section would only be engaged if the particular circumstances of the case create the necessary connection to an enumerated offence.
[19] The case-specific approach is consistent with Barton itself. In that case, a first-degree murder proceeding engaged s. 276 because the predicate offence of sexual assault was a listed offence. However, the Court did not rule that s. 276 applied categorically to every first-degree murder: R. v. Barton, 2019 SCC 33, supra, at paras. 77-78.
[20] Moreover, if Parliament intended every iteration of a particular offence to trigger s. 276, it stands to reason the offence would simply have been enumerated. The section is structured so as to apply in every case where an enumerated offence is charged, and otherwise only inasmuch as an enumerated offence may be implicated by the particular circumstances of the proceeding. In this way, the section avoids capturing an overly broad range of proceedings.
[21] I agree with Dennison J.’s observation in R. v. M.D., 2020 ONSC 951, supra, at para. 8, that “In considering whether s. 276(1) applies, the nature of the allegations, the charges and the subject areas the accused wishes to cross-examine the complainant [on] must be considered.”
[22] In the case before me, both counsel acknowledge there would be some scenarios where s. 276 would apply to the offence of distributing intimate images and other scenarios where it would not. For the foregoing reasons, I find the case-specific approach to be correct.
D. Application to the Case at Bar
[23] The Crown submits there is “some connection” between the charge of distributing intimate images (s. 162.1) and the enumerated offence of sexual assault (s. 271). According to the Crown, both offences contemplate similar motives and similar harms, and both entail an offender engaging in “sexual activity” without consent and violating the victim’s sexual integrity.
[24] The Crown relies on R. v. Floyd, 2019 ONSC 7006, supra, for the proposition that s. 276 applies where some elements of the offence charged align with elements of an enumerated offence. I am not persuaded the ratio of that case can be so broadly stated. While the Court in Floyd found common elements between the enumerated offences and the offences charged, this was not the only connection noted. The trial judge also observed that both sets of offences involved the exploitation of adults and children. I would observe that one element of the human trafficking offences before the Court in Floyd (ss. 279.01 and 279.011) is that the acts be done for the purpose of exploiting or facilitating the exploitation of another person. Evidence could well be lead that the accused or another person committed the completed offence of sexual exploitation of a young person (s. 153) or sexual exploitation of a person with a disability (s. 153.1) in order to prove the charged offences. In some circumstances, therefore, these enumerated offences could be included offences of the human trafficking charges at issue.
[25] In any case, I do not believe the “broad relational test” proposed in Barton can be satisfied by the mere alignment of “some elements” of the charged offence and an enumerated offence. Taken to its logical end, this line of reasoning reduces to the kind of categorical approach I have declined to engage in. A test that hinges on the commonality of elements of offences will tend to apply to every iteration of the charged offence. And, as stated above, I find Parliament’s decision to exclude s. 162.1 from the list of enumerated offences indicates a legislative intent that s. 276 should not apply to every case where the charge is laid.
[26] The offence of distributing intimate images under s. 162.1 was created in 2015. [6] Since that time, Parliament has had occasion to revisit the scope of s. 276. As noted above, the section was amended in 2018. [7] And the now repealed offence of anal intercourse (s. 159) was removed from the list of enumerated offences in 2019. [8] Despite these changes, Parliament did not see fit to add s. 162.1 to s. 276(1).
[27] 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": Bell ExpressVu Ltd. Partnership v. Rex, 2002 SCC 42, at para. 26; R. v. Barton, 2019 SCC 33, supra, at para. 71. In this case, the operative words are “proceedings in respect of an offence.” This language requires a connection between the proceedings before me and “an offence” listed in the section. I read these words to mean the complete constellation of elements comprising a listed offence, rather than some lesser part of it. The “broad, generous interpretation” described by the Supreme Court in Barton cannot extend so far as to override the ordinary meaning of the words of the section.
[28] In my view, the “broad relational test” in Barton applies to the manner in which a listed offence is implicated by this proceeding and not to the kinship or similarity between a listed offence and the charged offence. This interpretation is consistent with the two examples provided by the Supreme Court in Barton; where a listed offence is the predicate offence or the included offence of the charge being prosecuted. In order to engage s. 276, the charge being prosecuted must have some connection to a complete offence listed in the section. I am not satisfied that the presence of common elements as between the charge before me and the listed offence of sexual assault are sufficient to engage the regime.
[29] That being said, the two examples in Barton are not the only ways in which the “broad relational test” can be satisfied. It remains to be determined under what circumstances, if any, the charge of distributing intimate images will engage s. 276. In my view the requirement of “some connection” could be satisfied if the images in question captured the commission of an enumerated offence. If, for example, the accused was alleged to have distributed a video of the complainant being sexually assaulted, the proceeding could well implicate a listed offence (s. 271) in the manner described by the Supreme Court in Barton.
[30] In the instant case, the images forming the subject matter of the charge capture consensual sexual activity. The proposed defence evidence is similar in nature. As a result, the necessary connection to the enumerated offence of sexual assault is not present here.
[31] I find that s. 276 does not apply to this proceeding, given the particular factual circumstances of the case.
E. The Common Law Regime and R. v. Seaboyer
[32] Having found that s. 276 is not engaged, I must decide whether the common law regime established in Seaboyer applies to this case.
[33] In 1991 the Supreme Court decided Seaboyer and struck down, as overbroad, the original version of s. 276. In its place, the Court proposed a set of principles and procedures governing the reception of evidence of a complainant’s sexual activity outside the subject matter of the charge. The main points are summarized at paragraph 101 of the decision:
On a trial for a sexual offence, evidence that the complainant has engaged in consensual sexual conduct on other occasions (including past sexual conduct with the accused) is not admissible solely to support the inference that the complainant is by reason of such conduct: (a) more likely to have consented to the sexual conduct at issue in the trial; (b) less worthy of belief as a witness.
Evidence of consensual sexual conduct on the part of the complainant may be admissible for purposes other than an inference relating to the consent or credibility of the complainant where it possesses probative value on an issue in the trial and where that probative value is not substantially outweighed by the danger of unfair prejudice flowing from the evidence.
Before evidence of consensual sexual conduct on the part of a victim is received, it must be established on a voir dire (which may be held in camera) by affidavit or the testimony of the accused or third parties, that the proposed use of the evidence of other sexual conduct is legitimate.
Where evidence that the complainant has engaged in sexual conduct on other occasions is admitted on a jury trial, the judge should warn the jury against inferring from the evidence of the conduct itself, either that the complainant might have consented to the act alleged, or that the complainant is less worthy of credit.
[34] In 1992, Parliament enacted a revised version of s. 276, which essentially mirrored the common law principles set out in Seaboyer. Those provisions were found to withstand constitutional scrutiny in R. v. Darrach, 2000 SCC 46.
[35] In 2019, the Supreme Court in R. v. Barton, 2019 SCC 33, supra, affirmed the continued function of the common law principles from Seaboyer. Justice Moldaver found that s. 276 did not apply to evidence lead by the Crown. However, he went on to conclude, at para. 80, that the common law regime governed in circumstances where the Crown sought to lead evidence of the complainant’s other sexual activity:
…the common law principles articulated in Seaboyer speak to the general admissibility of prior sexual activity evidence. Given that the reasoning dangers inherent in prior sexual activity evidence are potentially present regardless of which party adduces the evidence, trial judges should follow this Court's guidance in Seaboyer to determine the admissibility of Crown-led prior sexual activity evidence in a voir dire.
[36] As Barton establishes, the common law regime continues to operate alongside the statutory regime contained in s. 276.
[37] The question here is whether Seaboyer applies to the charge of distributing intimate images under s. 162.1. I do not have the benefit of any previous decision addressing this issue. However, in R. v. M.D., 2020 ONSC 951, supra, Dennison J. found the common law regime in Seaboyer applied to human trafficking and procuring charges (having concluded that s. 276 did not). In R. v. Williams, 2020 ONSC 6347, Stribopoulos J. declined to follow M.D. and found that Seaboyer did not apply to those same offences. As stated above, the charges in those cases are very different from this one; however, the dialogue generated by the two decisions is instructive.
[38] Seaboyer was a sexual assault case. And the original version of s. 276 it struck down related only to offences of sexual assault (ss. 271, 272 and 273). [9] It could be argued, therefore, that the common law principles relate only to sexual assaults. Interestingly, the majority never uses the term “sexual assaults” to describe the kinds of cases to which the common law principles should apply. Instead, the Court repeatedly and exclusively uses the term “sexual offences”, which connotes a wider range of offences than just sexual assaults. This interpretation is borne out by the version of s. 276 that was enacted one year later in 1992, which applied in respect of fourteen enumerated sexual offences. As the Supreme Court has subsequently observed, this revised version of the statutory regime essentially codified the principles set out in Seaboyer: see R. v. Barton, 2019 SCC 33, supra, at para. 58 and R. v. Darrach, 2000 SCC 46, supra, at para. 20.
[39] It is also significant that Barton alludes to the application of the common law regime in the context of a murder case, further supporting the proposition that the regime applies to a broader range of charged offences and circumstances.
[40] One way to approach the question of whether Seaboyer applies is to determine whether the offence in question is a “sexual offence.” In R. v. Walsh, 2021 ONCA 43 at para. 64, the Ontario Court of Appeal characterized the charge of distributing intimate images in precisely those terms. This follows logically from the definition of “intimate image” contained in s. 162.1(2), which involves recordings of a complainant engaged in explicit sexual activity or the exposure of parts of the body typically associated with sexual activity. I would also observe that this offence appears in Part V of the Criminal Code, which is entitled “Sexual Offences, Public Morals and Disorderly Conduct”, under the sub-heading, “Sexual Offences”.
[41] Since Seaboyer applies to a class of offences, the question of its application turns on the nature of the offence charged, as opposed to the particular circumstances of the case. Unlike the analysis of the s. 276 above, this analysis favours a categorical approach over a case-specific approach.
[42] The elements of the instant offence bear important similarities to the offence of sexual assault, to which the common law regime is known to apply. Both involve a violation of the sexual integrity of the complainant. Both occasion some of the same harms. In R. v. Walsh, 2021 ONCA 43, supra, at para. 61 the Court of Appeal described the present offence as, “an attack on the victim's privacy, basic human dignity, and sense of self-worth.” The Court went on, at para 63, to explain the genesis of the offence and the kinds of harms contemplated by it:
Section 162.1 is a relatively new offence. It came into effect as part of Bill C-13, Protecting Canadians from Online Crime, enacted in 2014 and proclaimed into force on March 9, 2015. The bill – part of the federal government's initiative against cyber-bullying – was introduced when two young women tragically took their lives after intimate images of them had been shared online without their consent. These cases and others highlighted the growing trend to use technology as a tool of harassment and sexual exploitation, and the justice system's inability to respond because no offence existed at that time which addressed that type of conduct.
[43] In my view, the sexual nature of this offence, the harms contemplated by it, and the commonalities it shares with other sexual offences, militate toward the application of the Seaboyer principles.
F. Purposes of the Common Law Regime
[44] The purposes of the common law regime are to protect the integrity of the trial by excluding irrelevant and misleading evidence, to protect the accused's right to a fair trial, and to encourage the reporting of sexual offences by protecting the security and privacy of complainants: R. v. Barton, 2019 SCC 33, supra, at paras. 58 & 74, R. v. Seaboyer, [1991] S.C.J. No. 62, supra, at paras. 23-27; R. v. Darrach, 2000 SCC 46, supra, at para. 19.
[45] I find the application of the common law principles to the offence of distributing intimate images is consistent with these purposes. There is a clear potential for the kinds of prejudicial reasoning which have infected sexual assault trials for decades to surface here. I do not wish to be taken as suggesting that the applicant would engage in improper reasoning; however, it is appropriate to consider the potential misuse of the evidence in deciding whether the common law regime applies.
[46] The Crown’s case deals with images of explicit sexual acts. According to the hypothetical that underpins this ruling, the defence seeks to adduce evidence that several other images, similar in nature, were distributed consensually. The twin myths, now prohibited by statutory and common law rules, could be engaged here. The discredited notion could arise that complainants who engage in these activities are less worthy of belief. And the voluntary posting of intimate images on the internet could insinuate sexual promiscuity and amplify the danger of prohibited reasoning.
[47] The applicant has alluded to the argument he would advance to justify the admission of the proposed evidence in a pre-trial application. He would argue that, because the complainant consented to the distribution of intimate images on other occasions, she is more likely to have consented to the distribution of the images at issue in this case. Counsel submits this argument resembles a similar fact analysis, rather than a prohibited line of reasoning. I have not heard full submissions on this argument and reserve judgment on it. However, this comes close enough to the kind of reasoning contained in the twin myths as to also favour a pre-trial application.
[48] In my view, victims would be discouraged from reporting this kind of sexual offence absent special common law protections surrounding their prior sexual activity. In R. v. Jarvis, 2019 SCC 10, at para. 82, the Supreme Court emphasized the heightened privacy expectations that apply to sexual activity and sexualized parts of the body in the context of the related offence of voyeurism (s. 162(1)):
While our society places a high value on all forms of personal and informational privacy, privacy with respect to intimate parts of our bodies and information about our sexual selves is particularly sacrosanct. Individuals are understood to have heightened privacy expectations with respect to intimate or sexualized parts of the body, including genital areas and breasts.
[49] The hypothetical scenario in this case involves additional intimate images, depicting explicit sexual acts, which are alleged to have been distributed with the complainant’s consent. Even if true, confronting a complainant in open court with this kind of evidence would represent a further and profound intrusion into the sacrosanct sphere of her sexual identity.
G. Inadequacy of the Conventional Rules of Evidence
[50] The applicant argues the conventional rules of evidence provide sufficient safeguards against the admission of unduly prejudicial evidence and, therefore, the procedures in Seaboyer are unnecessary. [10] In my view, this argument fails for four reasons.
[51] First, a written application sets out the full scope of the proposed evidence, allowing the trial judge to evaluate the cumulative impact of all such evidence, rather than having to rule on each question or piece of evidence individually as it arises. Second, a pre-trial application minimizes disruption to the trial and affords trial judges the appropriate time and written materials to decide what are often difficult questions of admissibility. Third, the voir dire can be held in camera, such that highly sensitive evidence of the complainant’s sexual activity can be considered with the public excluded, thereby better protecting her right to privacy and personal dignity. Fourth, an application forces all justice participants to focus on identifying the proper uses and potential dangers posed by this kind of evidence. Experience has shown why particular caution is necessary in this context. In Barton itself, at para. 9, Justice Moldaver observed how damaging the absence of a pre-trial motion became to the trial process in that instance:
In particular, non-compliance with the s. 276 regime, which serves a crucial screening function where an accused relies on the complainant's prior sexual activities in support of his defence, translated into a failure to expose and properly address misleading evidence and mistakes of law arising from Mr. Barton's defence. This in turn resulted in reversible error warranting a new trial.
H. Incrementalism and the Common Law
[52] In Seaboyer, [1991] S.C.J. No. 62, supra, at para. 91, the Supreme Court reasserted the well-known proposition that common law principles must be adapted to conform to current realities. That being said, there are important limits to how the common law can evolve: Watkins v. Olafson, [1989] 2 S.C.R. 750 at paras. 13-15. The Supreme Court expressed this tension in R. v. Salituro, [1991] 3 S.C.R. 654 at para. 37, in the following terms:
Judges can and should adapt the common law to reflect the changing social, moral and economic fabric of the country. Judges should not be quick to perpetuate rules whose social foundation has long since disappeared. Nonetheless, there are significant constraints on the power of the judiciary to change the law. As McLachlin J. indicated in Watkins, supra, in a constitutional democracy such as ours it is the legislature and not the courts which has the major responsibility for law reform; and for any changes to the law which may have complex ramifications, however necessary or desirable such changes may be, they should be left to the legislature. The judiciary should confine itself to those incremental changes which are necessary to keep the common law in step with the dynamic and evolving fabric of our society.
[53] The defence argues that to apply the Seaboyer regime to a charge of distributing intimate images would represent an unwarranted expansion of the common law. In my view, to regard this as an expansion of the common law is an over-simplification. In 1991, the Supreme Court created a procedure that covers a sphere of criminal offences it chose to define as “sexual offences.” The present offence was created in 2015 and was, thereby, inserted into the existing landscape of the common law. It must, therefore, fall either within the sphere delineated by Seaboyer or outside it.
[54] The defence relies on R. v. Williams, 2020 ONSC 6347, where Stribopoulos J. observed that, with the exception of Barton, courts have not applied Seaboyer to cases outside the reach of s. 276. He found the decision in R. v. M.D., 2020 ONSC 951, supra, where the common law procedure was applied in such circumstances, exceeded the kind of incremental change to which common law developments should be confined. Williams is, however, distinguishable on this point. Stribopoulos J. found that Parliament did not intend s. 276 to apply to the charges at issue in that case at all. As a result, he reasoned that the application of the Seaboyer regime would circumvent a legislative intent to the contrary. For the reasons set out at paragraph 17 above, that finding does not apply to this case.
[55] The decision in Williams also turns on the question of the complainant’s right to participate in the hearing and be represented by counsel. In R. v. M.D., 2020 ONSC 951, supra, at paras. 67-74, Dennison J. found the complainant had these participatory rights at common law. [11] In Williams, supra, at paras. 10, 31-33, this issue factored into Stribopoulos J.’s conclusion that the decision in M.D. exceeded the proper scope for developments under the common law. He opined that, “[c]onsidered collectively, the changes endorsed by M.D. are significant.”
[56] In this case, the Crown advised that the complainant was not seeking to participate in the hearing. Consequently, I consider this question only insofar as it bears on whether the application of the Seaboyer procedures represents an incremental development of the common law or a more dramatic departure.
[57] I note that Seaboyer itself creates no rights of participation for the complainant. These rights emerged for the first time in 2018 with the enactment of Bill C-51, which introduced a consolidated procedure for applications under ss. 276 and 278. The rights of the complainant to appear, make submissions and be represented by counsel are contained in ss. 278.94(2) and (3). They are of statutory, rather than common law, origin.
[58] In R. v. Reddick, 2020 ONSC 7156, Akhtar J. found these sections of the Code to be unconstitutional. In R. v. A.M, 2020 ONSC 8061, Christie J. found the sections could only survive constitutional scrutiny if they were employed after the complainant had testified in chief. These decisions were released after M.D. and Williams were decided. Other decisions have found the sections to be constitutionally valid: see, for example, R. v. Green, 2021 ONSC 2826; R. v. B.G., 2021 ONSC 2299; and R. v. A.C., 2019 ONSC 4270. Leave has been granted to appeal the ruling in Reddick directly to the Supreme Court and the matter is expected to be heard (along with R. v. J.J., 2020 BCSC 29) later this year. [12]
[59] This jurisprudence reveals that, whether they are ultimately upheld or not, the procedures contained in ss. 278.94(2) and (3) carry significant implications for the conduct of the defence. Though disagreeing in their conclusions, both Justice Akhtar in Reddick and Justice Christie in A.M. identify real concerns arising out of the complainant’s participation in a voir dire of this nature. The principal concerns are that the complainant may tailor her evidence to account for the defence evidence revealed by the hearing or gain a tactical advantage from advanced notice of the nature of the defence’s cross-examination. Cross-examination is a fundamental part of the truth-seeking function of the court and of the fair trial interests of the accused: R. v. Osolin, [1993] 4 S.C.R. 595 at para. 157. And the cross-examination of Crown witnesses is a constitutional right protected by ss. 7 and 11(d) of the Charter: R. v. John, 2017 ONCA 662 at para. 52.
[60] In light of the foregoing, I do not consider the application of the common law regime to necessitate standing for complainants. Given the serious implications, I would not have been inclined to extend these participatory rights to the complainant without the express direction of Parliament. Interpreted in this way, the common law principles would provide a basic level of protection against the misuse of sexual activity evidence for all cases under s. 162.1. Section 276 would offer a more robust set of protections (including participatory rights for the complainant) where the specific conditions of that section are met.
[61] In the 30 years since Seaboyer was decided, the concerns expressed by the Supreme Court have not been extinguished. The first paragraph of the Supreme Court’s decision in Barton, supra, contains this admonition:
We live in a time where myths, stereotypes, and sexual violence against women – particularly Indigenous women and sex workers – are tragically common. Our society has yet to come to grips with just how deep-rooted these issues truly are and just how devastating their consequences can be. Without a doubt, eliminating myths, stereotypes, and sexual violence against women is one of the more pressing challenges we face as a society. While serious efforts are being made by a range of actors to address and remedy these failings both within the criminal justice system and throughout Canadian society more broadly, this case attests to the fact that more needs to be done. Put simply, we can – and must – do better.
[62] The common law is not a static creation. It evolves incrementally, in step with the changing values of Canadian society. The lived experiences of Canadians are now subject to the enormous reach of the internet and the proliferation of social media activity across the globe. There is a camera in almost every phone. Images and videos posted on-line can remain there indefinitely, with a reach that is incalculable. All this makes the non-consensual distribution of intimate images a particularly insidious, and potentially devastating, sexual offence. In this context, further intrusions into the sexual activity of complainants should be approached with the utmost care.
[63] For the reasons set out above, I find the charge of distributing intimate images under s. 162.1 is subject to the common law regime established in Seaboyer. In my view, this finding does not overstep the kind of incremental change by which the common law is properly refined and developed over time.
Part IV – Conclusions
[64] There may be circumstances in which the charge of distributing intimate images under s. 162.1 would engage the statutory regime set out in s. 276 of the Code; for example, where the images capture the commission of an enumerated offence such as sexual assault. However, I find the section does not apply in the particular circumstances of this case, where the activity captured in the images is consensual in nature.
[65] I do, however, find that the common law regime set out in R. v. Seaboyer applies to this proceeding. In order to adduce evidence of the complainant’s sexual activity, outside the subject matter of the charge, the defence will be required to file a written application, supported by affidavit or testimony, detailing the proposed evidence and justifying its admission.
Released: May 8, 2021 Signed: Justice Peter N. Fraser
Footnotes
[1] See Bill C-51, 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, which received royal assent on December 13, 2018.
[2] Parliament added, as a component of the test for admissibility in section 276(2), that the proposed evidence must not be adduced for the purpose of supporting one of the twin myths prohibited by section 276(1). An expanded definition of “sexual activity” was added under section 276(4). And sections 276.1 and 276.2 were repealed and replaced by sections 278.93 to 278.97, governing the procedure for the hearing of the applications under ss. 276 and 278.
[3] See R. v. Barton, 2019 SCC 33, supra, at footnote 9.
[4] See Bill C-75, 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, which received royal assent on June 21, 2019.
[5] I have also reviewed the unreported decisions in R. v. John, released December 20, 2019 (per Katzsch J.), R. v. Celestin, released June 6, 2019 (per Gibson J.) and R. v. Desir, 2020 ONSC 1158 released February 21, 2020 (per Monahan J.). In these cases, the section 276 regime was applied to those same offences either on consent or without reported reasons.
[6] See Bill C-13, Protecting Canadians from Online Crime, S.C. 2014, c. 31, which received royal assent on December 9, 2014. Section 162.1 was proclaimed into force on March 9, 2015.
[7] See Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, SC 2018, c. 29, which received royal assent on December 13, 2018.
[8] See Bill C-75, 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, which received royal assent on June 21, 2019.
[9] These provisions create the offences of sexual assault, sexual assault with a weapon, sexual assault causing bodily harm or accompanied by threats to a third party, and aggravated sexual assault.
[10] See, for example, R. v. Williams, 2020 ONSC 6347 at paras. 52-58; R. v. Thomas, 2017 ONSC 7023 at paras. 65-75.
[11] See also, R. v. Boyle, 2019 ONCJ 516, at para. 3.
