ONTARIO COURT OF JUSTICE

CITATION: R. v. Dixon, 2022 ONCJ 619

DATE: 2022 03 16

COURT FILE No.: Brampton 3111 998 19 2492

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

D’ANDRE DIXON

Before Justice G.P. Renwick

Heard on 15 March 2022

Reasons for Judgment released on 16 March 2022

N. Sohail............................................................................................... counsel for the Crown

K. Sharma......................................................... counsel for the Defendant D’Andre Dixon

RULING ON SEABOYER[^1] APPLICATION

RENWICK J.:

INTRODUCTION

[1] At the start of the Defendant’s trial on a single count of robbery, the prosecution brought a written Application regarding, “Admissibility of the complainant’s sexual history evidence.” The prosecutor styled this as a Seaboyer Application, named after the Supreme Court of Canada case. The Defendant filed no written response or materials.

[2] The prosecutor wishes to adduce evidence from the complainant respecting her occupation as a “sex-worker,” how she met the Defendant using sex-for-money advertising, the sexual service performed,[^2] and how the Defendant stole her money when the complainant was distracted, before using force to complete the alleged robbery.

[3] The Defendant did not oppose the Application. In fact, the Defendant also intends to ask questions of the complainant respecting her occupation and the alleged presence of the Defendant’s DNA on her face. The Defendant suggests that it is not necessary for him to bring a separate Application to adduce the evidence he seeks to adduce in light of the prosecutor’s Application and the opening of the door to this type of questioning.

GOVERNING LAW

[4] The Supreme Court of Canada has recently recognized the prevalence of violence against women, and the particular vulnerabilities of sex workers:

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.[^3]

[5] It is trite to note that courts must, to the extent that they can do so without jeopardizing the fair trial rights of all parties, keep pace with evolving social values including the recognition of privacy interests and the dignity of all persons, regardless of their occupation or sexual histories.

[6] In general, evidence is admissible if it is logically probative of a matter in issue, unless its exclusion is justified on some basis.[^4]

[7] Trial judges perform a gatekeeping function to ensure that only admissible evidence is used by the trier of fact.[^5]

[8] The Criminal Code includes a complete regime to govern the admissibility of evidence of a complainant’s other sexual activity (“OSA”), to avoid the introduction of unhelpful myth-based reasoning or prevent a generic bias against a complainant’s credibility in certain cases.[^6]

[9] The statutory regime to introduce OSA evidence applies to enumerated offences and other offences with a connection to those found in s. 276(1).[^7]

[10] Where the prosecutor seeks to introduce OSA evidence that is not governed by the statutory regime, the court must follow the guidance of Seaboyer to determine the admissibility of the evidence.[^8]

[11] Not all OSA evidence will be captured by either the statutory regime or the common law. This is not necessarily fatal to trial fairness, because the prevailing rules of relevance, materiality, and admissibility still apply.[^9]

ANALYSIS

The Statutory Regime Governing OSA Evidence Does Not Apply

[12] The offence of robbery is not an enumerated offence within the legislative scheme which regulates the admissibility of OSA evidence for sexual offences. However, the court in Barton has made it clear that if the broad relational test connects the alleged offence with an enumerated offence, the legislation will apply.[^10]

[13] For the reasons provided by my colleague Fraser J. in R. v. A.M., I am persuaded that a case-specific approach is appropriate to decide the applicability of the s. 276 regime for non-enumerated offences.[^11]

[14] After applying such an approach, I am satisfied that the s. 276 regime is not applicable to the case at bar for several reasons.

[15] First, both parties submit that the offence of robbery is neither an enumerated offence, nor in the circumstances of this alleged offence does it implicate a listed offence. If, for example, the violence of an alleged robbery included a sexual assault, the opposite would likely be true and the statutory regime to introduce OSA evidence might apply.

[16] Second, the general dangers associated with the admission of OSA evidence (twin-myth reasoning or a challenge to the complainant’s credibility on the basis of her occupation) are absent. The Defendant has made it abundantly clear that he will not seek the court to engage in impermissible reasoning or credibility assassination on the basis of the complainant’s engagement as a sex-worker.

[17] Third, even prostitution-related offences do not necessarily engage the statutory regime. In two recent cases, R. v. M.D. and R. v. Williams, courts have held that sexual services offences do not necessarily implicate sexual offences or engage the s. 276 regime.[^12] The reasoning from these cases applies with even greater force to a robbery that occurs in the context of a sexual service encounter that does not involve non-consensual sexual activity.

The Principles of Seaboyer Do Not Apply

[18] The prosecution has brought this application out of an abundance of caution. The prosecutor submits that the introduction of the complainant’s occupation and the circumstances of the meeting with the Defendant, that allegedly ended in a robbery, are critical pieces of the narrative that must be introduced into evidence. Without the proper context, the prosecutor reasons, the trier of fact will not be in a position to understand the allegations, the presence of the Defendant’s DNA on the complainant, or the vulnerable position of the complainant during the alleged robbery.

[19] The prosecutor relies on the following dicta in Barton to justify this Application:

Moving to s. 276(2), while it is true that this provision applies only in respect of “evidence . . . adduced by or on behalf of the accused”, 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.[^13]

[20] Although I agree that the s. 276 regime does not apply in the circumstances of this case, there are at least two reasons why I cannot agree that the prosecutor is thus bound to comply with the requirements of Seaboyer in order to lead the evidence sought to be introduced by the prosecution.

[21] First, the comments in Barton, relied upon by the prosecutor, involved a situation where s. 276 ought to have been engaged: sexual assault was “implicated” as a predicate offence to first degree murder. At issue was whether the Defendant or the prosecutor ought to have brought an application to permit the admissibility of OSA evidence of the deceased in the circumstances of that trial. The court in Barton made it clear that trial fairness was affected where the requirements of s. 276 were triggered, but they had not been followed.

[22] Second, the parties have not brought to my attention any binding authority suggesting that where s. 276 does not apply, a Seaboyer application must always be brought before any mention of sexual activity can be admissible in the trial of a non-enumerated offence.

[23] On the basis of the law cited during the hearing of this Application, I am aware of at least one court, of co-ordinate jurisdiction, which has held that the common law required a Seaboyer application where the proof of the alleged offence (distributing intimate images) involved the introduction of photographs depicting OSA.[^14]

[24] However, the facts of that case are readily distinguishable from this one. That case involved issues of consent that are noticeably absent here. As well, the alleged offence in that case was more closely related to a sexual offence. The circumstances of this alleged offence involve a robbery during a commercial transaction, which happened to involve sexual activity.

[25] Last, I am satisfied that the ordinary rules of relevance, materiality, and admissibility (probative value that is not outweighed by prejudice) will protect the privacy interests of the complainant and the fair trial interests of the Defendant without the need to trigger the principles discussed in Seaboyer.

[26] I disagree with the prosecutor’s assumption that the court will be unable to make sense of the allegations or the presence of the Defendant’s DNA without hearing OSA evidence. In fact, if the parties agreed that the complainant and her assailant were strangers who met for an exchange of sex for money and during the sexual activity a robbery took place, I cannot imagine how the details of the precise sexual activity are relevant, material, or more probative than prejudicial. I would also query whether the details themselves, should they need to be explored, actually require the hearing of other sexual activity evidence.

[27] I disagree with the characterization that these allegations involve OSA evidence. To my thinking, OSA generally involves hearing evidence of sexual activity which occurred at times beyond the allegation before the court. By implication, the prosecutor likely accepts this description, because the prosecutor has made it clear that she does not intend to adduce any evidence involving other sexual activity (i.e., evidence beyond the timeframe of the robbery allegation), because it is irrelevant and immaterial.

[28] The Defendant has indicated that he may want to examine the complainant to the effect that this alleged incident was not her first sexual fee for service encounter. I have not ruled on the admissibility of this question in the abstract. Given the presence of DNA of an unknown third-party also involved, and the claim that identification is the main issue for the trial, there may be relevance, materiality, and probative value which is not significantly outweighed by the prejudice in asking about this. However, that does not necessarily mean that either s. 276 or the common law principles from Seaboyer must be extended to this situation.

CONCLUSION

[29] I am not satisfied that either s. 276 or Seaboyer requires an Application to vet the admissibility of the mention of sexual activity that informs the circumstances of the alleged robbery before the court.

[30] For these reasons, the prosecutor’s Application is dismissed.

Released: 16 March 2022

Justice G. Paul Renwick

[^1]: R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] S.C.J. No. 62. [^2]: Both parties submitted that the specific sexual act (fellatio and ejaculation on the complainant) will explain the presence of the Defendant’s deoxyribonucleic acid (“DNA”) on the complainant’s face. [^3]: R. v. Barton, 2019 SCC 33, at para. 1. [^4]: Seaboyer, supra, at para. 42. [^5]: Barton, supra, at para. 68. [^6]: See ss. 276(1)-(4) of the Criminal Code. [^7]: Barton, supra, at para. 76. [^8]: Barton, supra, at para. 80. [^9]: See the discussion in R. v. Williams, 2020 ONSC 6347 at paras. 50-63. [^10]: Barton, supra, at paras. 70-76. [^11]: R. v. A.M., 2021 ONCJ 266 at paras. 18-22. [^12]: See R. v. M.D., 2020 ONSC 951 at paras. 17-46, and Williams, supra, at paras. 19-31. [^13]: Barton, supra, at para. 80. [^14]: R. v. A.M., supra.```