COURT FILE NO.: CR 18/0980
DATE: 20201020
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Ms. J. Prenger, for the Crown
- and -
JONATHAN WILLIAMS
Mr. P. Kott & Mr. A. Romain for the Accused
HEARD: August 24, 2020 by Zoom videoconference
RULING ON WHETHER SEABOYER APPLIES TO THE ADMISSION OF EVIDENCE CONCERNING THE COMPLAINANT’S OTHER SEXUAL ACTIVITY
STRIBOPOULOS J. :
Introduction
[1] The accused, Mr. Williams, faces four charges under the Criminal Code, R.S.C., 1985, c. C-46, all involving the same complainant. Three are for "sexual services" offences, including procuring (s. 286.3(1)), advertising (s. 286.4), and receiving a material benefit (s. 286.2(1)). The fourth and final charge is for uttering threats (s. 264.1(1)(a)).
[2] The charges stem from allegations that the accused exploited the complainant in the sex trade. The Crown alleges that the accused and the complainant were initially in a romantic relationship. However, in time, the Crown contends that he persuaded the complainant to work in the sex trade. After that, he allegedly exercised "control, direction, or influence" over her movements for that purpose. While doing so, he is said to have posted advertisements online, offering the complainant's sexual services for sale. Finally, when the complainant was no longer willing to work in the sex trade at the behest of the accused, the Crown alleges he sent her text messages from unknown telephone numbers threatening to harm her and members of her family.
[3] At trial, the defence wants to cross-examine the complainant on topics that it acknowledges will, directly and by implication, elicit evidence regarding sexual activity by her that is not the subject of any of the charges he faces. In seeking to do so, the defence disclaims any reliance on prohibited twin-myths reasoning (i.e. that because of the sexual nature of that activity, the complainant is more likely to have consented to sexual activity or is less worthy of belief). Instead, the defence maintains that the proposed evidence is relevant and critical to the accused's ability to make full answer and defence to the charges.
[4] The defence wants to question the complainant about her experience working in the sex trade before meeting the accused and after their relationship ended. He argues this evidence is relevant to challenging the complainant's allegation that the accused exercised "control, direction or influence" over her involvement in the sex trade, an essential element of the procuring charge.
[5] The accused also wants to cross-examine the complainant about three other romantic relationships he claims she had during the period when, she insists, they were in a committed relationship, and she was working at his behest in the sex trade. The defence submits this is relevant to the complainant's credibility because it refutes her claim that she was under the accused's control during that same period. Exploring how these relationships ended, including any continuing hostility these three individuals might harbour towards the complainant, the defence contends, casts doubt on the allegation that the accused was the person who sent the complainant threatening text messages.
[6] The Crown objected to the accused eliciting the proposed evidence unless he complied with s. 276 of the Criminal Code. In proceedings "in respect of" one of the sexual offences enumerated in s. 276(1), the scheme found in s. 276 establishes procedural and substantive preconditions that must be satisfied before an accused may elicit evidence that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge.
[7] In an earlier ruling, as a case management judge, I concluded that the admissibility scheme in s. 276 of the Criminal Code had no application to this case: see R. v. Williams, 2020 ONSC 206, 64 C.R. (7th) 226. Neither the offences charged nor any of the underlying allegations implicate any of the sexual offences listed in s. 276(1). Without such a connection, in light of the guidance supplied by R. v. Barton, 2019 SCC 33, 376 C.C.C. (3d) 1, I held that the admissibility regime in s. 276 does not apply: see Williams, at paras. 19-37. However, at the end of that decision, I invited further submissions from the parties on "whether existing common law rules need further development to better conform with current realities": Williams, at para. 39.
[8] After releasing my ruling on the applicability of s. 276, my colleague, Dennison J., released her reasons in R. v. M.D., 2020 ONSC 951. After also applying the Supreme Court's decision in Barton, she too held that the s. 276 regime does not reach cases where an accused faces a charge for a sexual services offence that does not implicate one of the sexual offences enumerated in s. 276(1): see M.D., at paras. 17-46.
[9] However, after noting the need to ensure that the common law keeps pace with current realities and the importance of protecting sex workers from the risks of stereotypical "twin myths" reasoning, Dennison J. concluded it was necessary to develop the common law: M.D., at paras. 47-61. She held that the common law must furnish procedural and substantive safeguards, analogous to those provided by s. 276, in cases where an accused charged with a sexual services offence wants to elicit evidence regarding the complainant's sexual activity other than that which is the subject of the charge(s). Dennison J. provided the following rationalization for, and explanation of, the common law requirements she developed in M.D., at paras. 62-66:
[62] All participants in the criminal justice system, including trial judges, have a responsibility to address systemic biases, prejudices and stereotypes faced by sex workers: Barton, at para. 200. Sex workers should not be subject to this risk of twin myth reasoning because s. 276(1) does not encompass certain offences.
[63] Trial judges are gatekeepers and must ensure that biases, prejudice and stereotypes do not enter the courtroom. A voir dire is necessary to ensure that evidence of other sexual activity is not introduced for the purpose of fostering myths and stereotypes.
[64] The accused must provide an application that sets out the evidence of the sexual activity that the accused seeks to introduce and clearly articulates why the evidence is relevant. Just as the probative value of prior sexual conduct in a sexual assault trial "will be exceptional", so to will the probative value of other sexual activities of a sex worker: Seaboyer, at para. 99.
[65] The various factors listed in s. 276(3) may also provide assistance to the court in determining whether the probative value of the evidence is not substantially outweighed by the prejudicial effects.
[66] Requiring a voir dire before evidence is admitted of other sexual conduct of a sex worker ensures that the trial is fair. It ensures that irrelevant and misleading evidence is excluded. A voir dire also protects the accused's right to a fair trial and protects the security and privacy of the complainant: Barton, para. 58. It also promotes the important objective of encouraging the reporting of the exploitation of sex workers, just as s. 276 encourages the reporting of sexual assaults.
[10] Finally, relying on the court's inherent jurisdiction to manage and control its process to ensure a fair trial, Dennison J. also appointed counsel to represent the complainant at the admissibility voir dire: M.D., at paras. 68-74. She reasoned that a lawyer representing the interests of the complainant at the admissibility voir dire would help achieve the goal of avoiding myths and stereotypes when dealing with the evidence of sex workers. Dennison J. concluded that the court would benefit from such an appointment because a lawyer for the complainant will "raise her specific concerns with the court, as opposed to the Crown raising more general concerns": M.D., at para. 71.
[11] The principle of judicial comity, which promotes consistency, certainty, and predictability in the law and enhances the legitimacy and repute of the common law, ordinarily requires that judges of coordinate jurisdiction follow each other's judgments: R. v. Chan, 2019 ONSC 783, 428 C.R.R. (2d) 81, at paras. 35-39. Judges should only refrain from doing so for compelling reasons, for example, where (a) the validity of an earlier judgment has been affected by subsequent decisions; (b) the first judge overlooked some binding case law or a relevant statute; or (c) the earlier decision was otherwise made without full consideration: Re Hansard Spruce Mils Ltd., 1954 CanLII 253 (BC SC), [1954] 4 D.L.R. 590 (B.C.S.C.), at p. 592. In other words, an earlier "judgment should be followed unless the subsequent judge is satisfied that it was plainly wrong.": R. v. Scarlett, 2013 ONSC 562, at para. 43, per Strathy J., as he then was; see also R. v. Sullivan, 2020 ONCA 333, 151 O.R. (3d) 353, at para. 38.
[12] The question squarely before me is whether I should follow the decision in M.D.The Crown argues that I should, whereas the accused contends that I should not. With respect, I have concluded that I cannot follow the holding in M.D. There are three principal reasons why I am unable to do so, which I shall explain below.
I. Judges are not free to make significant changes to the common law or changes that circumvent the legislative choices made by Parliament
[13] In M.D., the court's only reference to its authority to make changes to the common law consisted of the following observation: "The court has an obligation to ensure that the common law 'reflects the changing social and moral and economic fabric of the country': R v. Salituro, 1991 CanLII 17 (SCC), [1991] 3 S.C.R. 654, at para. 37.":M.D., at para. 58. Although undoubtedly correct, M.D. neither acknowledged nor addressed the limitations that cabin a judge's discretion to alter established common law rules.
[14] In Watkins v. Olafson, 1989 CanLII 36 (SCC), [1989] 2 S.C.R. 750, writing for a unanimous Supreme Court of Canada, McLachlin J., as she then was, provided essential guidance on when courts should make changes to the common law and the limitations on their authority to do so, writing at pp. 760-761:
... Generally speaking, the judiciary is bound to apply the rules of law found in the legislation and in the precedents. Over time, the law in any given area may change; but the process of change is a slow and incremental one, based largely on the mechanism of extending an existing principle to new circumstances. While it may be that some judges are more activist than others, the courts have generally declined to introduce major and far-reaching changes in the rules hitherto accepted as governing the situation before them.
There are sound reasons supporting this judicial reluctance to dramatically recast established rules of law. The court may not be in the best position to assess the deficiencies of the existing law, much less problems which may be associated with the changes it might make. The court has before it a single case; major changes in the law should be predicated on a wider view of how the rule will operate in the broad generality of cases. Moreover, the court may not be in a position to appreciate fully the economic and policy issues underlying the choice it is asked to make. Major changes to the law often involve devising subsidiary rules and procedures relevant to their implementation, a task which is better accomplished through consultation between courts and practitioners than by judicial decree. Finally, and perhaps most importantly, there is the long-established principle that in a constitutional democracy it is the legislature, as the elected branch of government, which should assume the major responsibility for law reform.
Considerations such as these suggest that major revisions of the law are best left to the legislature. Where the matter is one of a small extension of existing rules to meet the exigencies of a new case and the consequences of the change are readily assessable, judges can and should vary existing principles. But where the revision is major and its ramifications complex, the courts must proceed with great caution.
[15] In Watkins, the Supreme Court declined to endorse a change in the common law that would permit courts to order a plaintiff in a tort action to forego their traditional right to a lump sum judgment for a series of periodic payments. Although the Court acknowledged that there were sound policy reasons to make such a change, it refrained from doing so because it would be more than "the extension of an existing rule, but the adoption of a new principle": Watkins, at p. 761. A change that was "fraught with complex ramifications extending beyond the rights and obligations of the parties": Watkins, at p. 761.
[16] In contrast, the Supreme Court in Watkinsarrived at the opposite conclusion when it came to grossing-up a lump sum award of damages to account for its tax implications. After noting that there were sound policy reasons to make such a change, and recognizing it was the sort of incremental change that the courts can and should make to the common law, the Supreme Court upheld the gross‑up for taxation the trial judge had ordered.
[17] In Seaboyer, the Supreme Court of Canada again addressed its authority to modify the common law. The majority found an earlier iteration of the "rape-shield" law – at that time, what was then also s. 276 of the Criminal Code –unconstitutional for being inconsistent with ss. 7 and 11(d) of the Charter. Although having perfectly valid objectives, mainly to protect the trial process from outmoded and sexist twin-myths reasoning, the majority held that the provision overshot the mark by also preventing an accused from presenting legitimate defences and hence to a fair trial: Seaboyer, at p. 625.
[18] After striking down the offending legislative provision in Seaboyer, the Supreme Court refused to resurrect the antiquated common law rules of evidence that had operated before Parliament enacted s. 276. In rape prosecutions, those rules had historically permitted "liberal and often inappropriate reception of evidence of the complainant's sexual conduct": Seaboyer, at p. 630. Instead, the Supreme Court recognized the need to develop the common law to safeguard the trial process in sexual assault cases from evidence that invited twin-myths reasoning and only served to distort the truth-seeking function of criminal trials. For the Court, McLachlin J., as she then was, explained, at p. 630:
The rules in question are common law rules. Like other common law rules of evidence, they must be adapted to conform to current reality. As all counsel on these appeals accepted, the reality in 1991 is that evidence of sexual conduct and reputation in itself cannot be regarded as logically probative of either the complainant's credibility or consent. Although they still may inform the thinking of many, the twin myths which s. 276 sought to eradicate are just that – myths – and have no place in a rational and just system of law. It follows that the old rules which permitted evidence of sexual conduct and condoned invalid inferences from it solely for these purposes have no place in our law.
[19] Consequently, the Supreme Court in Seaboyer decided it was necessary to develop the common law to safeguard the trial process from the dangers posed by too readily admitting evidence concerning a complainant's sexual history in sexual assault cases: Seaboyer, at pp. 630-634. The majority’s judgment provided the following helpful summary of the common law rules and procedures the Supreme Court developed in Seaboyer, at pp. 634-636:
- 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.
[Emphasis added]
[20] The year following the Supreme Court's decision in Seaboyer, Parliament enacted a revised version of s. 276: see S.C. 1992, c. 38. It essentially codified the decision in Seaboyer and provided a mechanism for trial judges to determine the admissibility of evidence of a complainant's prior sexual activity in prosecutions "in respect of" one of the sexual offences enumerated in s. 276(1). In time, the Supreme Court upheld the constitutionality of this new legislative scheme: see R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443.
[21] As will be explained more fully below, in the nearly three decades since Seaboyer, courts have declined to extend the rules and procedures established by that decision to cases that do not involve one of the sexual offences enumerated in s. 276(1). That said, the Supreme Court recently decided to extend the reach of Seaboyer just slightly, albeit not to a new category of offences.
[22] In Barton, the Court noted that the prohibition in s. 276(1) on sexual activity evidence to advance twin-myths reasoning is categorical and applies irrespective of which party has led the prior sexual activity evidence. Inexplicably, despite this, s. 276(2) only applies to "evidence . . . adduced by or on behalf of the accused". After acknowledging that the potential risk of twin-myths reasoning exists irrespective of which party adduces the evidence, Barton instructed that trial judges should follow Seaboyer to determine the admissibility of Crown-led prior sexual activity evidence in a voir dire: Barton, at para. 80.
[23] A few months after Seaboyer, the Supreme Court of Canada released its decision in R. v. Salituro, 1991 CanLII 17 (SCC), [1991] 3 S.C.R. 654. The issue in Salituro was whether the Supreme Court should change the common law's spousal incompetency rule to make spouses who are irreconcilably separated competent witnesses for the prosecution. After reviewing the Supreme Court's prior cases addressing when it would be appropriate for courts to make changes to the common law, including Watkins and Seaboyer, Iacobucci J. provided the following summary of the principles that govern that authority, at p. 760:
These cases reflect the flexible approach that this Court has taken to the development of the common law. 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.
[24] In Salituro, after tracing the origins of the spousal incompetency rule, examining its rationales, and noting its tension with Charter values by favouring society's interest in protecting the marital bond over a spouse's choice to testify, the Supreme Court made a slight modification to the rule. In explaining that decision, Iacobucci J. noted, at pp. 677-678:
Absent parliamentary intervention, I would conclude that changing the common law rule to make spouses who are irreconcilably separated competent witnesses for the prosecution would be appropriate. Although the principles upon which this change is based would appear to favour abolishing the rule entirely and making all spouses competent witnesses under all circumstances, policy considerations and uncertainty as to the consequences of such a change suggest that a more cautious approach is appropriate. The parties before us did not argue for such a change, and in my opinion a far-reaching change of this kind is best left to the legislature. However, expanding the exceptions to the common law rule to include irreconcilably separated spouses is precisely the kind of incremental change which the courts can and should make. The courts are the custodians of the common law, and it is their duty to see that the common law reflects the emerging needs and values of our society.
[25] Finally, in Salituro, the Supreme Court acknowledged that it would be inappropriate for the Court to modify a common-law rule where Parliament had made a deliberate choice to retain it in its current form. However, the Court rejected that Parliament's periodic amendments to s. 4 of the Canada Evidence Act, R.S.C., 1985, c. C‑5, which only addresses aspects of the spousal incompetency rule, reflected such a legislative intention. In so concluding, Iacobucci J. wrote, at pp. 678-679:
... I do not propose to recount the history of the amendments to the Canada Evidence Act in detail but prefer to adopt the following excerpt from the reasons of Blair J.A. in the Court of Appeal (at pp. 358-59):
With respect, I cannot agree with my brother Carthy that the amendments made to the Act since 1906 were enacted after careful scrutiny by Parliament acting with full knowledge of the common law rule and its exceptions....
... The amendments were not made as parts of a comprehensive revision of the Act and the common law rule and its exceptions such as that recommended by the law reform reports referred to above. The amendments, on the contrary, were peripheral and largely consequential to amendments to the Code. They were made without any recorded consideration of the scope of the common law rule and the issues raised in this case. It is unrealistic to suggest that, when making these amendments, Parliament directed its mind to all the ramifications of the common law rule and its exceptions. The most that can be deduced from any of the amendments made to the Act is that Parliament was not presented with any other proposals for change at the time they were passed.
[26] The Supreme Court in Salituro thereby rejected the suggestion that Parliament had made a deliberate choice to maintain the spousal incompetency rule as it has existed historically at common law. Accordingly, the path was open for the Court to make the incremental change it did, carving out a narrow exception for irreconcilably separated spouses.
[27] The common law spousal incompetency rule was again before the Supreme Court of Canada in R. v. Hawkins, 1996 CanLII 154 (SCC), [1996] 3 S.C.R. 1043. The case involved a Crown witness who had given evidence against the accused at the preliminary inquiry. Before the trial, the witness and the accused were married. The Crown urged the Supreme Court to carve out further exceptions to the common law rule so that it would not apply if the accused and a witness married after the laying of charges or if the marriage's purpose was to insulate the witness from being called to testify.
[28] For the majority, Lamer C.J.C. and Iacobucci J., writing jointly, acknowledged that the spousal incompetency rule had come under sustained criticism as "arbitrary for excluding other familial relationships, and antiquated, because it is based on outmoded notions of marriage.": Hawkins, at p. 1069. They also acknowledged the tension between the rule and Charter values because it renders "a person incapable of testifying solely on the basis of marital status" and thereby strips that "individual of key aspects of his or her autonomy": Hawkins, at p. 1069. Nevertheless, after canvassing potential alternatives to the existing rule, including modifications made by courts in other common law countries, the majority declined to adopt them, reasoning at pp. 1071-1072:
While such alternative approaches to the rule of spousal incompetency may serve to promote the autonomy and dignity of an individual spouse, it is our opinion that any significant change to the rule should not be made by the courts, but should rather be left to Parliament.
The common law rule of spousal incompetence has remained largely unchanged for some 350 years. The respondent has submitted that there is ample scope for judicial development of the rule. While it is true that this Court has signalled its willingness to adapt and develop common law rules to reflect changing circumstances in society at large (see, e.g., Ares v. Venner, 1970 CanLII 5 (SCC), [1970] S.C.R. 608; Watkins v. Olafson, 1989 CanLII 36 (SCC), [1989] 2 S.C.R. 750; Khan, supra), it is clear that the courts will only make incremental changes to the common law. So, for example, the change implemented in Salituro, did not strike at the original justifications of marital harmony and repugnance which animated the substance of the common law rule. ...
By contrast, complex changes to the law with uncertain ramifications should be left to the legislature.
[Underlining in original]
[29] Returning to the two narrower exceptions urged by the Crown in Hawkins, the majority refused to endorse them, explaining that they would represent "far more than an incremental change in the law," be "unprecedented," have "uncertain consequences," and "would be unworkable": Hawkins, at p. 1074.
[30] Over the intervening years, the Supreme Court has periodically reiterated the constraints it recognized in Watkins, Salituro and Hawkins on the courts' authority to make changes to the common law: see e.g. Friedmann Equity Developments Inc. v. Final Note Ltd., 2000 SCC 34, [2000] 1 S.C.R. 842, at p. 871.
[31] With the benefit of the guidance provided by the Supreme Court's jurisprudence regarding the authority of courts to make changes to the common law, I return to the decision in M.D. As mentioned, M.D.neither acknowledges nor addresses the significant constraints on the authority of courts to make changes to the common law. Mindful of these limitations, which are essential to maintaining the appropriate division of labour between legislatures and courts in our constitutional democracy, I believe that the changes made by M.D. exceed the bounds of the sorts of modifications to common law rules judges are permitted to make. I have come to that conclusion for two main reasons.
[32] First, in my view, extending the rules and procedures established in Seaboyer to an entirely new category of offences involves more than an “incremental change” or “small extension” to an existing common law rule. The consequences of such a change are considerable. It will mean that whenever an accused charged with a sexual services offence wants to cross-examine a complainant on matters that would elicit evidence regarding sexual activity that is not the subject of the charge(s), a formal pre-trial application will be necessary. The notice of application will need to identify the proposed evidence and explain why the accused contends it is relevant and why it has significant probative value that is not substantially outweighed by any potential prejudicial effect. A supporting affidavit will be necessary, most likely from the accused, to provide an evidentiary foundation for the application. In M.D., the court appointed counsel for the complainant, a decision that will occasion some expense for the Crown, and in many cases, a fair degree of delay. Finally, a voir dire will be required to address the admissibility of the proposed evidence.
[33] Considered collectively, the changes endorsed by M.D. are significant. They involve much more than just an incremental change to an existing common law rule. The potential ramifications are no small matter. Adding yet another potential pre-trial application to criminal proceedings does not come without a cost. Judicial resources are already stretched thin, and there are ever-increasing concerns about delays in the criminal justice system that have only been exacerbated by the Covid-19 pandemic. Mindful of all of that, I believe the rules and procedures developed in M.D. go beyond the sort of incremental changes to the common law that judges are permitted to make.
[34] Second, it is apparent that Parliament's decision not to list the sexual services offences in s. 276(1) was deliberate. By not including the sexual services offences in that subsection, Parliament chose to exempt those offences from the substantive rules and procedures in s. 276 that control the admissibility of evidence concerning other sexual activity by a complainant. In Williams, after carefully reviewing the legislative scheme and its history, including the comprehensive amendments Parliament made to these provisions in 2018, I concluded that the decision not to include the sexual services offences in s. 276(1) was deliberate: see Williams, at paras. 31-37. After undertaking a similar analysis of the legislative scheme in M.D., Dennison J. arrived at that very same conclusion: see M.D., at paras. 41-46.
[35] In my view, it would be inappropriate for the court to effectively use its authority to develop the common law to circumvent a deliberate legislative choice made by Parliament. Even if the failure to include the sexual services offences in s. 276(1) was somehow inadvertent, courts "have no jurisdiction to cure gaps in a legislative scheme": Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed., (Markham: LexisNexis, 2014), at §12.14. Instead, it is the role of Parliament, not the courts, to correct legislative deficiencies: Colet v. The Queen, 1981 CanLII 11 (SCC), [1981] 1 S.C.R. 2, at p. 11.
[36] In any event, for reasons that I shall explain in the next section, I am less than convinced that the failure to list the sexual services offences in s. 276(1) was a legislative oversight.
II. "Sexual Services" cases do not pose the same risk of "twin-myths" reasoning endemic to "Sexual Offences" cases
[37] The most likely explanation for why Parliament chose not to list the sexual services offences in s. 276(1) of the Criminal Code, and thereby make them subject to the s. 276 regime, is because prosecutions involving sexual services offences do not raise the same "twin-myths" reasoning concerns that are endemic to sexual offences prosecutions.
[38] In Seaboyer, the Supreme Court of Canada's focus was squarely on sexual offences. For the most part, crimes for which a complainant's lack of consent to sexual activity, or an inability to consent (i.e. due to age), are essential elements of the offence. Historically, it was offences of that nature that attracted sexist, misogynistic, outdated, and illogical twin-myths reasoning that interfered with the criminal trial's truth-seeking function. In addressing the constitutionality of s. 276 in Seaboyer, for the majority, McLachlin J., as she then was, described the primary purpose of that scheme in these terms, at p. 604:
The main purpose of the legislation is to abolish the old common law rules which permitted evidence of the complainant's sexual conduct which was of little probative value and calculated to mislead the jury. The common law permitted questioning on the prior sexual conduct of a complainant without proof of relevance to a specific issue in the trial. Evidence that the complainant had relations with the accused and others was routinely presented (and accepted by judges and juries) as tending to make it more likely that the complainant had consented to the alleged assault and as undermining her credibility generally. These inferences were based not on facts, but on the myths that unchaste women were more likely to consent to intercourse and in any event, were less worthy of belief. These twin myths are now discredited. The fact that a woman has had intercourse on other occasions does not in itself increase the logical probability that she consented to intercourse with the accused. Nor does it make her a liar. In an effort to rid the criminal law of these outmoded and illegitimate notions, legislatures throughout the United States and in England, Australia and Canada passed "rape-shield" laws. (I note that the term "rape shield" is less than fortunate; the legislation offers protection not against rape, but against the questioning of complainants in trials for sexual offences.)
[Emphasis added]
[39] The Supreme Court recently recounted this unfortunate history and the dangers posed by twin-myths reasoning in sexual offences cases: see Barton, at paras. 55, 212, and 222.
[40] Although the Supreme Court in Seaboyer described the goals of s. 276 as "laudable" (at p. 606), as noted above, it found the provision unconstitutional because it went too far by preventing an accused from presenting legitimate defences and thereby having a fair trial: Seaboyer, at p. 625. To fill the void left by its decision, the Supreme Court in Seaboyer developed common law rules and procedures to prevent a return to the same outdated and harmful practices that had marred rape trials in the past and invited twin-myths reasoning. From a practical standpoint, the significance of the common law scheme developed in Seaboyer was relatively short-lived.
[41] The very next year, Parliament enacted a revised version of s. 276 that essentially codified the decision in Seaboyer, providing a legislated mechanism for trial judges to determine the admissibility of evidence of a complainant's prior sexual activity in prosecutions "in respect of" one of the sexual offences enumerated in s. 276(1). As the Supreme Court of Canada recognized in Barton: "The animating purposes behind this new regime, aligned with those of its predecessor, were to protect the integrity of the trial by excluding irrelevant and misleading evidence, protect the accused’s right to a fair trial, and encourage the reporting of sexual offences by protecting the security and privacy of complainants": Barton, at para. 58.
[42] The sexual services offences are a relatively recent addition to the Criminal Code, enacted by Parliament in response to the Supreme Court of Canada's decision in (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101: see Protection of Communities and Exploited Persons Act, S.C. 2014, c. 25. In Bedford, the Supreme Court invalided some of the prostitution offences that had long been part of the Criminal Code, including the bawdy-house prohibition (s. 210), the living off the avails of prostitution prohibition (s. 212(1)(j), and the communicating prohibition (s. 213(1)(c)). Although the purpose of each was to redress some of the harms associated with sex work, the Supreme Court concluded that the prohibitions each had the effect of making the situation of sex workers more dangerous, thereby violating their s. 7 Charter rights.
[43] Unfortunately, the vulnerability of sex workers is not limited to their work. There can be little doubt that when a sex worker is a complainant in a sexual assault case, the risk of pernicious twin-myths reasoning is especially acute because of the social stigma that has long accompanied such work. In such cases, some jurors' prejudices may prime them to be especially prone to prohibited twin-myths reasoning. The Supreme Court of Canada has expressly acknowledged this heightened danger in sexual assault cases involving sex workers: see Barton, at paras. 1, 230-231.
[44] That said, I am less than persuaded that the danger of twin-myths reasoning, the concern behind s. 276 and the common law scheme developed in Seaboyer, is of the same nature in prosecutions that only involve sexual services charges. Critically, the first myth – that unchaste women are more likely to consent to sexual activity – has no real potential to infect the jury's reasoning in sexual services prosecutions because consent is not a live issue in such cases.
[45] The second myth, which s. 276 and Seaboyer seek to redress – that unchaste women are less deserving of belief – is unquestionably a pervasive concern in all sexual services cases. However, extending the rules and procedures from Seaboyer to sexual services cases will do little to ameliorate this myth's potential influence. After all, sexual services prosecutions necessarily entail evidence that the complainant exchanged sexual services for money. Therefore, in all sexual services prosecutions there is an inherent risk that some jurors may be prone to unfairly and illogically discount the complainant's credibility because she worked in the sex trade. Accordingly, the trial judge's standard instruction to jurors to decide the case without prejudice and based only on the evidence is especially important in these cases.
[46] There are significant differences between sexual offences and sexual services prosecutions when it comes to the risk of twin-myths reasoning. These differences may help to explain why Parliament decided not to include the sexual services offences in s. 276(1) and thereby exempted them from the substantive and procedural requirements found in s. 276.
[47] Nevertheless, it does not follow that because s. 276 does not apply to prosecutions for sexual services offences, that accused facing such charges are free to elicit evidence that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge(s).
[48] With respect, M.D. appears to overlook a critical analytical step, moving quickly from the inapplicability of s. 276 to a conclusion that the common law needs to provide analogous rules and procedures to safeguard complainants and the trial process from irrelevant and prejudicial evidence.
[49] Judges are only free to make incremental changes to existing common law rules when experience reveals them inadequate to the task of meeting contemporary challenges. In making that assessment, it is essential to consider the efficacy of existing safeguards and examine whether they fail to protect the trial process from irrelevant and prejudicial evidence. That brings us to the rules of evidence at present.
III. Existing rules of evidence protect against the admission of irrelevant and prejudicial evidence in cases not involving s. 276(1) offences
[50] It is noteworthy that since the Supreme Court of Canada's decision in Seaboyer, courts have never found it necessary to extend the reach of that holding to prosecutions for charges that lack a connection to one of the sexual offences listed in s. 276(1). That includes sexual services offences and the analogous prostitution offences that pre-dated the Supreme Court of Canada's decision in Bedford.
[51] Of course, that could be because the possibility of extending the reach of Seaboyer to other types of charges has just not arisen for consideration. However, that possibility seems rather unlikely, given that nearly three decades have passed since the Supreme Court's decision in Seaboyer. At least one relatively recent decision from this court, which does not appear to have come to the court's attention in M.D., suggests that the failure to extend Seaboyer is not just happenstance.
[52] In R. v. Thomas, 2017 ONSC 7023, the accused faced a charge of simple assault. After referencing both the accused's failure to bring a s. 276 application and the Supreme Court’s decision in Seaboyer, the trial judge refused to permit cross-examination of the complainant or the accused's testimony regarding the complainant's prior sexual activity. The defence had not proffered the evidence to suggest that the complainant consented to the alleged assault or that she was less credible as a witness because of her prior sexual experience. In the context of the case, the evidence had nothing to do with twin-myths reasoning. Instead, the evidence was relevant to the complainant's motive to fabricate the assault allegation.
[53] In Thomas, sitting as a summary conviction appeal court, Hill J. allowed the accused's appeal because the trial judge erred in excluding the evidence regarding the complainant's sexual activity. He held that in a prosecution for simple assault, which is not an offence listed in s. 276(1), the rules and procedures contained in s. 276 have no application: Thomas, at para. 86.
[54] At the same time, Hill J. emphasized that in cases where s. 276 does not apply; the existing rules of evidence only permit the admission of relevant evidence and already work to exclude defence evidence that is substantially more prejudicial than probative. He provided the following comprehensive summary of our pertinent trial procedures and rules of evidence, at paras. 65-75, which is worth reproducing in entirety:
[65] Not infrequently in a criminal trial, in response to objection from an opposing party, or in answer to inquiry by the court acting on its own motion to control the process, a cross-examiner may be called upon to identify the relevance of a line of questioning: John, at para. 59 ("... where a proper foundation has been laid, the cross-examination may be permitted"); R. v. McDonald, 2017 ONCA 568, at para. 68 ("... the importance that the proponent identify the issue(s) to which the evidence is relevant"); R. v. Savojipour (2006), 2006 CanLII 3458 (ON CA), 205 C.C.C. (3d) 533 (Ont. C.A.), at para. 25 ("Absent any evidence to relate the incidents to some relevant theory, they could not meet the test of relevance or materiality").
[66] Accordingly, when called upon to do so, counsel is obliged to justify a proposed course of cross-examination (R. v. Osman, [1996] O.J. No. 3540 (C.A.), at para. 1; 681210 Alberta Ltd. v. Hunter, 2012 ABCA 83, at para. 30), failing which the court has authority to direct counsel to "get on with some other subject": Osman, at para. 1.
[67] Section 276(1) of the Criminal Code prescribes, in very particular circumstances, an exclusionary rule of evidence relating to a complainant's prior sexual history:
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.
The legislation does not purport to preclude admission of evidence touching upon the prior sexual conduct of a complainant in a s. 266 common assault prosecution: R. v. M.T., 2012 ONCA 511, at paras. 29-30. That said, the illegitimate and discredited stereotypical twin myths targeted by s. 276 as irrelevant in sex crime cases will generally be equally irrelevant in other prosecutions where the traditional common law rules of evidence govern: see R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, at paras. 32, 37; R. v. L.S., 2017 ONCA 685, at para. 45.
[68] Justice fundamentally includes "society's interest in getting to the truth of the charges as well as the interest of both society and the accused in a fair process": R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 150; R. v. Seaboyer (1991), 1991 CanLII 76 (SCC), 66 C.C.C. (3d) 321 (S.C.C.), at p. 389. Wrongful convictions and acquittals both stand as miscarriages of justice.
[69] "It is fundamental to our system of justice that the rules of evidence should permit the judge and jury to get at the truth and properly determine the issues": Seaboyer, at p. 389.
[70] Evidence is generally admissible where it advances in some degree the inquiry, in the sense of logical connection to a material issue in the trial. This may involve evidence "logically relevant to an available defence": R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475, at para. 45.
[71] Logical relevance arises where the proffered evidence, as a matter of logic, common sense and human experience, has some tendency to make the proposition for which it is advanced more likely than that proposition would appear to be in the absence of that evidence: R. v. J. (J.L.) (2000), 2000 SCC 51, 148 C.C.C. (3d) 487 (S.C.C.), at p. 507; McDonald, at para. 66; M.T., at para. 37; R. v. Arp (1998), 1998 CanLII 769 (SCC), 129 C.C.C. (3d) 321 (S.C.C.), at para. 27; R. v. Pilon, 2009 ONCA 248, at paras. 32-33; R. v. Watson (1996), 1996 CanLII 4008 (ON CA), 108 C.C.C. (3d) 310 (Ont. C.A.), at para. 33.
[72] Relevance must, of course, be assessed, not in a vacuum or "in the abstract" (R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 73), but in the context of the entirety of the evidence in a criminal trial, known and anticipated, as well the issues in the case, and the respective positions of the prosecution and the defence: R. v. Clarke (1998), 1998 CanLII 14604 (ON CA), 129 C.C.C. (3d) 1 (Ont. C.A.), at pp. 12-13; Watson, at para. 30; Arp, at para. 38; R. v. Morin (1988), 1988 CanLII 8 (SCC), 44 C.C.C. (3d) 193 (S.C.C.), at p. 218.
[73] "[E]verything which is probative should be received, unless its exclusion can be justified on some other ground": Seaboyer, at pp. 389-390. While there is no minimum probative value required for evidence to be logically relevant (R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, at p. 715 per La Forest J. dissenting in the result; R. v. Morris, 1983 CanLII 28 (SCC), [1983] 2 S.C.R. 190, pp. 191-2; Clarke, at p. 12), it must be recognized that probative value "will depend in part on the strength of the connection or nexus" between the proffered evidence and the factual matter to which it is said to relate -- the evidence must have a sufficient connection beyond mere conjecture or speculation: Grant, at paras. 38, 41.
[74] Not all evidence which may be said to be logically relevant at a threshold level is admissible (Grant, at para. 19) as such evidence, where not otherwise subject to an exclusionary rule, falls to be assessed as well on a legal relevance standard engaging the court's discretionary, and highly fact-driven, gatekeeper role to consider applicable counter-balancing factors such as (1) danger of arousing the triers' emotions of prejudice, hostility or sympathy, (2) the prospect of the admitted evidence and responding evidence creating a side issue or satellite litigation unduly distracting the jury from the main issues for its determination, (3) the risk that the evidence and any counter proof will consume an undue amount of time unduly protracting the trial, and (4) the danger of unfair surprise of the opposite party unprepared to meet the evidence in question: Seaboyer, at p. 390; Grant, at para. 61.
[75] Where the legal relevance balancing is undertaken in the context of defence-led evidence, the court asks itself whether any prejudicial effects of the proffered evidence substantially outweigh the potential probative value of the evidence: Grant, at para. 41.
[76] In the context of defence-led evidence having logical relevance, bearing in mind the presumption of innocence and the importance to full answer and defence of letting an accused "confirm and strengthen the case for his innocence" (R. v. Bishop, 2013 NUCA 3, at para. 48 (notice of discontinuance filed [2013] S.C.C.A. No. 76)), courts have understandably been cautious in restricting the power of an accused to call evidence in his or her defence and reluctant to exclude even tenuous defence evidence: Seaboyer, at pp. 388-391; R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129, at p. 141; Bishop, at para. 51.
[55] There could be a case for extending the reach of Seaboyer's procedural and substantive preconditions on the admission of evidence concerning other sexual activity by the complainant to an entirely new category of cases. It would depend on experience revealing that our existing rules are inadequate to the task of protecting the trial process from irrelevant and prejudicial evidence in certain types of cases.
[56] In the context of sexual services prosecutions, I have no reason to believe that to be the case. In such prosecutions, especially in this day and age, attempts to elicit evidence concerning the complainant's sexual activity, other than that which is the subject of the charge(s), will undoubtedly attract notice. An objection by the Crown or the court's intervention will almost immediately require the accused to explain the relevance of the evidence.
[57] Should the apparent purpose of the questioning be nothing more than a misguided effort to embarrass the complainant, to demean her because of her experience in the sex trade, or to exploit prejudices against sex workers more generally, then the evidence will be inadmissible. Evidence proffered for such improper ends has no probative value and is irrelevant. At that point, the trial judge will sustain the objection and halt the impermissible questioning.
[58] Even if the area of proposed questioning is relevant, that will not end the admissibility analysis. Admissibility will also depend on the court being satisfied that the evidence's potential prejudicial effects do not substantially outweigh its probative value.
[59] Take one of the examples of the evidence the accused wants to proffer in this case. Given the charge of procuring and the allegation that the accused exercised control, direction, or influence over the complainant's movements for the purpose of facilitating the sale of her sexual services, evidence of her involvement in the sex trade before the complainant became involved with the accused, or after their relationship ended, appears relevant. If true, it makes it slightly less probable, as a matter of logic and common sense, that the complainant's involvement in that industry during the period charged in the indictment was due to the accused's actions and by implication, much more significantly, that he exerted influence over her for that purpose.
[60] I recognize that the complainant's prior involvement in the sex trade or her continuing in that industry after their relationship ended does not necessarily foreclose the accused having encouraged her participation while they were also together. However, that possibility does not render the evidence irrelevant. As Doherty J. observed in R. v. L.S., 2017 ONCA 685, 40 C.R. (7th) 351, at para. 89:
Evidence does not have to establish or refute a fact in issue to be relevant; it need only, as a matter of common sense and human experience, have some tendency to make the existence or non-existence of that material fact more or less likely. There is a big difference between evidence that is relevant and evidence that is determinative: see R. v. A. (No. 2), [2001] 2 W.L.R. 1546, at para. 31 (H.C.).
[61] Of course, a determination that the evidence is relevant does not end the admissibility analysis. The trial judge will still need to consider whether the evidence is substantially more prejudicial than probative. After all, such evidence could exacerbate potential prejudices that some jurors might harbour towards sex workers. The trial judge will need to balance the probative value of the evidence against its potential prejudicial effects to decide whether the evidence is admissible.
[62] It may be that the trial judge will place limits on the evidence to minimize any prejudicial effects. For example, the trial judge may decide to allow the accused to ask about the complainant's involvement in the sex trade and its timing while prohibiting any questioning about the salacious details. That would permit the jury to hear the relevant evidence, with its probative value left undiminished, while minimizing any potential prejudicial effects.
[63] This example illustrates how our existing trial procedures and rules of evidence are already well-suited to weeding out irrelevant or prejudicial evidence concerning a complainant's other sexual activity in sexual services cases. As a result, I am less than convinced of the need to extend Seaboyer's holding concerning the admission of such evidence to sexual services cases.
Conclusion
[64] For all of these reasons, I decline to follow M.D.'s holding that the common law furnishes procedural and substantive safeguards, analogous to those provided by s. 276, in cases where an accused charged with a sexual services offence wants to elicit evidence regarding the complainant's sexual activity other than that which is the subject of the charge(s).
[65] At the accused's trial, the admissibility of any evidence concerning other sexual activity by the complainant should turn on the trial judge's application of the existing rules of evidence. Those rules are already well-calibrated to exclude irrelevant and misleading evidence.
Signed: Justice J. Stribopoulos
Released: October 20, 2020
COURT FILE NO.: CR 18/0980
DATE: 20201020
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
JONATHAN WILLIAMS
RULING ON APPLICABILITY OF SEABOYER
Justice J. Stribopoulos
Released: October 20, 2020