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 486.4(1) of the Criminal Code. This subsection 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 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

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.

Court and Parties

DATE: December 7, 2021 ONTARIO COURT OF JUSTICE Central West Region Brampton Ontario

B E T W E E N :

HER MAJESTY THE QUEEN

-and-

RAYON POWELL

Reasons for Ruling

Duncan J.

[1] This is an application under section 276 of the Code seeking a ruling on admissibility of evidence that the defence intends to elicit at an upcoming preliminary inquiry into charges of human trafficking (279.01), benefitting from human trafficking (279.02), exercising control direction and influence, and advertising sexual services of another (286.3; 286.4), assault and threats x2.

[2] The underlying allegations, taken almost exclusively from the complainant’s KGB statement to police can be briefly summarized as follows: The complainant J.H. was working at least part time as an escort in the Niagara region. She worked with another woman named Jewel who was more full time in the trade. Around the end of January 2021 the complainant was contacted by the defendant through Instagram and invited to come to join him in Mississauga. He sent an Uber to pick her up. On arrival, the defendant put her to work as an escort. He controlled her, kept all the money, abused her physically and threatened her. In the meantime, Jewel had called the police. But when they initially caught up to her, JH told them that she was not in distress and did not need their intervention. Soon thereafter she changed her tune and gave a KGB statement implicating the defendant. The involvement of JH with the defendant lasted only a few days. The complainant said that during that time she had consensual sex with the defendant on a few occasions.

[3] Counsel for the defendant wants to be able to elicit evidence that the complainant was already working as an escort at the time she was contacted by the defendant and that she advertised her services there on Leo’s list. He also wants to elicit the evidence that she had consensual sex with the defendant during the period in question (January 27-30 2021).

Does section 276 apply?

Evidence of complainant’s sexual activity

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.

276(2) In proceedings in respect of an offence referred to in subsection (1), no evidence shall 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 276.1 and 276.2, that the evidence

(a) is of specific instances of sexual activity;

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

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

[4] The first issue is whether this application is necessary at all. The applicant argues that it is brought out of an abundance of caution but that, properly viewed, this case does not come within the enumerated offences in section 276 or that section’s expanded scope as pronounced in R v Barton 2019 SCC 33. In that case the Court held that the charge of first-degree murder based on killing in the course of a sexual assault came within section 276 even though murder was not one of the listed offences:

76 With these points in mind, I am of the view that the s. 276 regime applies to any proceeding in which an offence listed in s. 276(1) has some [page625] 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.

[5] Before getting into Barton and the debate over its proper interpretation I would observe that sexual services offences are a poor fit with 276. Those offences are all about the complainant’s sexual activity with persons other than the accused and the Crown will necessarily be leading such evidence. [1] But 276 excludes all such evidence, including when tendered by the prosecution [2], subject to exceptional admissibility being determined under subsection 276(2). The exercise under that section is to determine whether sexual activity by the complainant “other than the sexual activity that forms the subject-matter of the charge” can be admissible on the trial. The section contemplates that the subject matter of the charge be allegedly unlawful sexual activity by the accused. But I don’t think the acts that define the sexual services offences – procuring, advertising, receiving a material benefit – can be described as “sexual activity”.

[6] Returning to Barton: Since that decision, there has been no unanimity as to the applicability of section 276 to offences such as those in this case. Counsel have diligently and helpfully presented several Ontario decisions that have divided into two camps – one typified by the endorsement of Quigley J in R v T.A 2020 ONSC 6714. In that case the Court decided that all that was necessary for s 276 to apply is that the offence to be tried occur in a “sexual milieu” which was held to include the sexual services offences on trial in that case (para 20).

[7] The other camp is represented by the pre- T.A. judgment of Stribopolous J in R v Williams 2020 ONSC 206. It has been followed by other judgments of the Superior Court, [3] most recently (June 10 2021) by Nakatsuru J in R v Langford 2021 ONSC 430. In Langford the Court criticized the broad sexual milieu test as being too “amorphous and tenuous” and inconsistent with Parliamentary intent.

[8] It cannot be ignored that Parliament chose to include certain offences and not others and that choice must be respected by the courts: Langford at paragraph 18:

[18] However, where no listed offence is so implicated in or connected to the case, then s. 276 does not apply. To hold otherwise would ignore the limits Parliament placed on the application of s. 276. It might make good policy to apply it in other circumstances, but that decision remains for Parliament to make. Thus, Parliament did not choose to exhaustively enumerate all the situations that the section could potentially apply to, but nor did it say that the section applies more generally or broadly without any reference to one of the listed offences. The application of the s. 276 regime must still have some connection to a listed offence. Judges should not read into the section circumstances or offences that were not intended, no matter how desirable that might be. Taking this cautious approach respects the constitutional order that has been divided between the legislative body and the judiciary. (bolding added)

[9] Accordingly, for 276 to apply, one of the listed offences must be implicated in or connected to the case at hand. The connection can be “more formal”, as where the listed offence is a predicate or included offence as it was in Barton. Or it could arise from the evidence to be presented in proof of the non-listed offence being tried. (Langford paragraph 17).

[10] With respect to the contrary view, it is my opinion that the Williams/ Langford reasoning is to be preferred over the wider “anything goes” approach favoured by the other camp.

[11] Applied to the facts of this case, it is my view that the required connection is not present. None of the listed offences in 276 are implicated in the factual scenario alleged. The section therefore does not apply in this case.

Does Seaboyer apply?

[12] Alternatively, the Crown submits that if 276 is not engaged, then the common law Seaboyer regime and procedures apply and impose almost identical tests and procedures to those contained in 276: R v M.D. 2020 ONSC 951.

[13] Once again Justice Stribopoulos has taken an opposing view: R v Williams (No2) [2020 OJ No 4567. The respective positions are summarized in Langford paragraphs 43 and 44:

[43] In M.D., Justice Dennison recognized that the voir dire required by Seaboyer was in relation to sexual assault complainants. However, she found that the purpose and rationale for this common law regime applied with at least equal force when considering the admission of evidence of other sexual conduct by sex trade workers. She reasoned that the common law should reflect the changing social, moral, and economic fabric of the country. The risk of twin myth reasoning was extremely high when dealing with sex trade workers and there was a risk that the trier of fact would wrongfully find that, given other sexual activity unrelated to the charge, the complainant would be more likely to engage in sexual services without coercion, direction or control by the accused. The common law should therefore be changed to counter this. Trial judges, as gatekeepers tasked with the duty to ensure biases, prejudices, and stereotypes do not enter the courtroom, must hold a voir dire to ensure there are legitimate reasons for admitting evidence of other sexual activity. The following procedure was outlined by Justice Dennison: the accused must bring a written application; the various factors listed in s. 276(3) can be of assistance in determining whether the probative value of the evidence is not substantially outweighed by the prejudicial effects; and the court can grant standing and representation to the complainant.

[44] In Williams, Justice Stribopoulos, while mindful of the principle of judicial comity, declined to follow M.D. He gave a number of reasons for deciding the issue differently: (1) judges are restrained from making significant changes to the common law and should only make them cautiously and incrementally; (2) applying the rules and procedures established in Seaboyer to an entirely new category of offences involves more than incremental change and carries with it significant potential ramifications; (3) the change in the common law would circumvent Parliament’s decision not to list the sexual services offences in s. 276(1); (4) sexual services cases do not pose the same risk of twin myth reasoning endemic to sexual offences cases; (5) existing rules of evidence sufficiently protect against the admission of irrelevant and prejudicial evidence in cases not involving s. 276(1) offences.

[14] While both positions are well expressed and well reasoned, I find the Williams position to be more persuasive for the reasons enumerated in para 44 of Langford above. In particular, I agree that defaulting to Seaboyer would obliterate the choices that Parliament has made and further, that the existing rules of evidence offer sufficient protection to complainants. I adopt the discussion of these issues and the reasoning in Williams found respectively at paras 30-36 at para 50-63

[15] Finally I would also endorse Justice Nakatsuru’s comment in Langford (para 51) to the effect that, absent compelling reason, courts should avoid adding to the proliferation of pre-trial hearings which impose significant burdens on the criminal justice system and increase time to trial to the prejudice of all concerned, including complainants.

Conclusion:

[16] Neither section 276 nor the Seaboyer regime apply in this case. Any issues respecting the admission/exclusion of evidence at the preliminary will be governed by the usual rules of evidence.

Released: December 7 2021 B Duncan J.

Counsel: T Kim for the Crown M Forte for the defendant

Footnotes:

[1] See R v Williams #2 infra para 45 [2] Barton paragraph 80. [3] R v M.D. infra