COURT FILE NO.: CRIMJ(P)1217/18
DATE: 2020 02 11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
M.D.
Julia DeVuono, Counsel for the Crown
Christian Angelini, Counsel for the Accused
HEARD: February 7, 2020
RULING ON APPLICABILITY OF S. 276 OF THE CRIMINAL CODE
DENNISON J.
1. INTRODUCTION
[1] M.D. is charged with trafficking in persons (s. 279.01), advertising sexual services (s. 286.4), withholding or destroying documents (s.279.03), receiving a material benefit from trafficking in persons (s. 279.02), procuring for sexual services (s. 286.3), receiving a material benefit from sexual services (s. 286.2), threatening death (s. 264.1), and assault (s. 266).
[2] It is alleged that M.D. recruited J.L. to become a sex worker and that he exercised control, direction or influence over J.L. for the purpose of exploiting her.
[3] Defence counsel takes the position that J.L. worked in the sex service industry of her own volition. Counsel seeks to introduce evidence that J.L. continued to work in the sex service industry after her relationship with M.D. ended. He submits that this evidence is relevant to demonstrate that M.D. was not controlling, directing or influencing J.L. for the purpose of exploiting her.
[4] The Crown submits that counsel must bring an application pursuant to s. 276 of the Criminal Code. Section 276 requires an accused to bring an application “in proceedings in respect of” several listed offences before evidence of sexual activity is admissible.
[5] Counsel for M.D. submits that s. 276 does not apply because M.D. is not charged with any of the listed offences in s. 276(1).
[6] This preliminary issue must be resolved before the admissibility of the evidence can be determined. If s. 276(1) applies, there is a legislated two-step process that applies. If the evidence is found by the court to be likely relevant, then the complainant has the right to have counsel at the second stage to determine if the evidence is admissible. If s. 276(1) does not apply, arguably a different process and test for admissibility may apply.
[7] The matter was before me previously. On that date, I ordered that counsel file an application so that the court would have a better understanding of the nature of the allegations and evidence sought to be introduced before determining this preliminary issue. Counsel for M.D. filed the application. Both parties filed additional written submissions and made further oral submissions that I considered in deciding this issue.
2. THE RELEVANT CONTEXT
[8] 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 must be considered.
[9] It is alleged that J.L. first met M.D. in the summer of 2015. They dated casually for a few months and their relationship evolved into a serious romantic relationship. J.L was 20 years old at the time and had an infant son from a previous relationship.
[10] Prior to meeting M.D., J.L. had not worked in the sex service industry. After six months of dating, M.D. encouraged her to work as an exotic dancer. She eventually performed extras with her customers at the strip clubs. J.L. stated that on her first day working as an exotic dancer, M.D. demanded that she turn over the money she made, telling her that with him “it is all or nothing.” He told her that if she gave him the money, she would not have to worry, and he would provide anything she needed. She did not want to give him the money but ultimately agreed in part because she believed his promise that they would get a new home and have a better life. Looking back on it, she felt that he “conned” her into giving him the money.
[11] By March 2107, J.L. began supplementing her income from the strip club by engaging in sex work in hotels. M.D. created and posted her escorting advertisements online, handled the money, took her to different hotels and strip clubs in Mississauga, Kitchener, London and Windsor. He purchased her outfits, condoms and paid for the hotels. He hit her when she would not listen or talk back to him or call him names. At one point, he told her that she could not leave him without paying an exit fee. She did not leave him and continued to work in the sex service industry and give M.D. the money she earned. J.L. stated that she was under the control, direction and influence of M.D..
[12] J.L. left M.D. on April 28, 2017, when she finally realized that his promises were empty. She told him that she had to go to the hospital with her son. She never returned. She left numerous personal items in his car.
[13] Within a few weeks of leaving M.D., Halton Regional Police contacted J.L. She was told that empty deposit envelopes were being deposited into her account and real cash was subsequently withdrawn. J.L. denied any wrongdoing. It was eventually determined that M.D. had withdrawn the cash.
[14] J.L. was asked to give a statement to Peel Regional Police after the file was transferred for Peel Region for jurisdictional reasons. On June 24, 2017, J.L. spoke to the fraud investigators. As a result of the initial statement, J.L. gave a separate videotaped statement where she discussed the allegations that are before the court.
[15] M.D. asserts that J.L. continued to work as a sex worker from when she left him on April 28, 2018 until August 2018.
[16] Counsel for M.D. seeks to cross-examine J.L. about the fact that she advertised her sexual services on her own and continued to work as a sex worker. Counsel submits that this evidence is relevant to demonstrate that J.L was working independently when she was in a relationship with M.D. or to create a reasonable doubt that she was not under his control, direction or influence.
3. ANALYSIS
Issue #1: Is a 276 Application Required?
[17] Section 276(1) of the Criminal Code states:
276 (1) In proceedings in respect of an offence under section 151, 152, 153, 153.1 or 155, 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.
[18] The offences listed in s. 276(1) deal with sexual offences related to young persons and sexual assault offences. The offences include, s. 151 (sexual interference), s.152 (invitation to sexual touching), s.153 (sexual exploitation), s. 153.1 (sexual exploitation of person with disability), s. 155 (incest), s. 160(2) or (3) (bestiality), s. 170 (parent or guardian procuring sexual activity), s. 171 (householder permitting prohibited sexual activity), s. 172 (corrupting children), s. 173 (indecent acts), s. 271 (sexual assault), s. 272 (sexual assault with a weapon), and s. 273 (aggravated sexual assault).
[19] M.D. is not charged with any offences listed in s. 276(1). The issue to be determined is whether s. 276(1) applies in the circumstances of this case.
[20] In interpreting s. 276(1), “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”: E. Driedger Construction of Statutes (2nd ed. 1983) at p. 87 as cited by Re Rizzo & Rizzo Shoes Ltd. (re) 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27 at para. 21.
[21] The Supreme Court of Canada recently considered the interpretation of s. 276(1) in R. v. Barton, 2019 SCC 33, [2019] S.C.J. No. 33. One of the issues the Court determined was whether s. 276(1) applied where the offence charged was not listed in s. 276(1). A review of the facts in Barton assists in understanding how the Court interpreted the scope of s. 276(1).
[22] The allegation in Barton was that the accused was guilty of murder because, during the course of a sexual assault, he cut the victim’s vaginal wall with intent to seriously harm or kill her. In the alternative, the Crown’s position was that he should be convicted of the lesser and included offence of unlawful act manslaughter by causing her death during a sexual assault. Both the Crown and Defence introduced evidence of other sexual activity between the accused and the complainant. Neither party brought a s. 276 application.
[23] The Court held that s. 276(1) applied in the circumstances in that case because there was “some connection” between the offence charged and the listed offences. Sexual assault was a listed offence and sexual assault was an included or predicate offence to the murder given the allegations.
[24] The Court provided guidance on how s. 276(1) should be interpreted at paras 72 to 76:
[72] Beginning with the text, the opening words of s. 276(1) and (2) — proceedings “in respect of” a listed offence — are “of the widest possible scope” and are “probably the widest of any expression intended to convey some connection between two related subject matters” (Nowegijick v. The Queen, 1983 CanLII 18 (SCC), [1983] 1 S.C.R. 29, at p. 39). These words import such meanings as “in relation to”, “with reference to”, or “in connection with” (ibid.).
[73] Parliament would not have chosen this exceptionally broad language if it intended to limit the application of the s. 276 regime to proceedings in which a listed offence was expressly charged. Narrower language such as “in a prosecution for” a listed offence or “where a person is charged with” a listed offence was equally available. Yet Parliament declined to adopt those narrower formulations and instead chose a much broader one. That choice must be given effect.
[74] Turning to purpose, the s. 276 regime’s objects — which include protecting the integrity of the trial by excluding irrelevant and misleading evidence, protecting the accused’s right to a fair trial, and encouraging the reporting of sexual offences by protecting the security and privacy of complainants (see Seaboyer, at pp. 605-6; Darrach, at paras. 19 and 25) — are fundamental. Giving the s. 276 regime a broad, generous interpretation that does not unduly restrict the regime’s scope of application would best achieve these objects.
[75] Moreover, imposing a rigid requirement that a listed offence must be expressly charged before the s. 276 regime can apply would put form over substance. The regime’s applicability would turn on the way in which the prosecutor drafts the charging document, not on whether, in substance, a listed offence is implicated in the proceeding. If a listed offence is implicated in the proceeding, surely it makes no difference that the Crown did not particularize that offence in the charging document.
[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 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.
[77] In Mr. Barton’s case, the s. 276 regime was engaged because the offence charged, first degree murder under ss. 231(5)(c) and 235(1), was premised on sexual assault with a weapon contrary to s. 272, which is an offence listed in s. 276(1). That alone was sufficient to engage the s. 276 regime.
[25] The Crown does not suggest that sexual assault would be an included offence given the facts in this case. The Crown submits that the “some connection” test in Barton is not limited to included or predicate offences but should be broadly interpreted to capture the purpose of the legislation.
[26] The Crown submits that the requirement the Crown prove that the trafficking of a person was “for the purpose of exploiting” the complainant creates “some connection” with the listed offences. Exploitation is defined in s. 279.04 as a threat to the physical or psychological well being of the complainant.
[27] The Crown also submits that where there the Crown’s theory of the case is based on an allegation that the accused “exercised control, direction or influence” over the complainant there is “some connection” to the listed offences. The connection arises because the complainant has no control over whether she engages in the sexual activity: see s. 279.01 and s. 286.3(1).
[28] The Crown stresses that s. 276(1) should apply because the purpose of the s. 276 regime is to prevent the introduction of evidence based on myths and stereotypes and the evidence sought to be introduced in this case runs the same risk of twin myth reasoning. I agree that the purpose of the legislation must be considered in interpreting the provision, but that is not the only factor. The language of the provision and Parliament’s intention must also be considered.
[29] Defence counsel submits that Parliament had ample opportunity to include sex service offences in s. 276(1) when it amended s. 276 to 278 of the Criminal Code in 2018. Parliament did not do so. In the amendments, Parliament created a new provision that included sexual service offences and added language to s. 276(2)(a) but Parliament did not add sexual service offences to s. 276(1).This demonstrates that Parliament did not intend to include sex service offences in s. 276(1).
[30] Defence counsel also submits that there is no connection between the listed offences and the offences that M.D. is charged with. The listed offences involve sexual assault or sexual activities involving young persons. Most of the offences involve a sexual act committed by the accused against the complainant with the exception of ss. 153, 170 and 171, which involve the exploitation of children. Counsel for M.D. submits that the offences M.D. is charged with are more akin to a fraud or extortion. It is not the sexual acts themselves that are illegal but the exploitation of a sex worker that makes the conduct criminal.
[31] I do not find that there is “some connection” between the listed offences in s. 276(1) and the offences charged in this case as contemplated by the Supreme Court in Barton for the following reasons.
[32] I do not find that R. v. Floyd 2019 ONSC 7006 assists the Crown in demonstrating that there is some connection between the offences charged and the listed offences in s. 276(1). While virtually no facts are included in that decision, it is clear that the complainant was under the age of 18 years of age. One of the offences the accused was charged with was recruiting for the purpose of exploitation of a person under the age of 18 (s. 279.011). It is in that context, that Roger J. held:
[9] “Some” connection, by its ordinary definition, would require at least a small amount of connection. Here, although none of the listed offence is the predicate offence or an included offence of the offences charged (as was the case in Barton), there is nonetheless some degree of connection between some of the listed offences and the offences charged. Some of the elements of the listed offences of sexual exploitation at s. 153 (1) (b) and of occupying premises for an illegal sexual activity at s. 171 are implicated or are connected to some of the elements of the offences charged. For example, s. 153 (1) (b) incorporates the requirement of a young person, counselled or incited to touch for a sexual purpose, and some exploitative relationship. These elements are implicated in the elements of the offences charged at ss. 279.01, 279.011, and 286.3. Moreover, the listed offences and the offences charged are connected by their subject matter: sexual offences, and sexual exploitation of adults and children. The above is more than a small amount of connection.
[33] I agree that it was open to the trial judge to find some connection between the facts of that case and the listed offences and in particular s. 153 of the Criminal Code. Section 153(b) has an element of exploitation and the accused must invite counsel or incite a young person to touch any person. Section. 153(b) states:
153 (1) Every person commits an offence who is in a position of trust or authority towards a young person, who is a person with whom the young person is in a relationship of dependency or who is in a relationship with a young person that is exploitative of the young person, and who
(b) for a sexual purpose, invites, counsels or incites a young person to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the young person.
[34] Similarly, s. 279.011 creates an offence where an accused,
Recruits, transports, transfers, receives, holds, conceals or harbours a person under the age of eighteen, or excises control, direction or influence over the movements of a person under the age of 18 years may deal with a complainant in a number of difference ways for the purpose of exploiting them or facilitating their exploitation.
[35] While there appears to be some connection between s. 153 and s. 279.011 where the complainant is a young person, there is no similar listed offence to s. 153 that deals with an exploitive relationship between adults and the touching of any person for a sexual purpose.
[36] I should also note that there might also have been other facts that led the trial judge to find a connection to s. 171. This offence prohibits a householder from permitting prohibited sexual activity involving a person under the age of eighteen.
[37] The Crown also referred the court to R. v. Celestin, unreported, 2019 0606, Gibson J. and R. v. John unreported, 2019 12 10, Katzsch J. because the trial judges applied s. 276(1) where the offences involved sexual service offences. Unfortunately, these cases are of little assistance because there is no analysis of why the court found s. 276(1) applied.
[38] Stribopoulos J. recently decided in R. v. Williams, 2020 ONSC 206 that s. 276(1) did not apply to offences of procuring (s. 286.3(1)), adverting for sexual services (s. 286.2(1)), receiving a material benefit (s. 286.2(1)) and utter threats (s. 264.1(1)(a). The allegations in that case are similar to those levelled in this case. In Williams, it is alleged that the accused and the complainant were initially in a romantic relationship. The accused eventually persuaded the complainant to work in the sex service industry. The accused allegedly exercised control, direction and influence over the complainant for that purpose. He also kept all of the money that the complainant earned and threatened her after complainant refused to continue working in the sex service industry: Williams, at paras. 8 and 9.
[39] I agree with Stribopoulos J.’s analysis in Williams, at paras. 27 to 31 that the requirement that the Crown prove that an accused “exercised control influence or direction” is not the same as saying the complainant did not consent. Therefore, there is not “some connection” between sexual assault and the offences charged: see also R. v. Gallone, 2019 ONCA 663, at paras. 42 to 50 where the Court of Appeal discussed the various degrees of coercion that can result in a conviction for trafficking in persons.
[40] Similarly, there is no connection between the Crown having to prove that the accused acted for purpose of exploiting the complainant in s. 279.01 and a sexual assault. The Crown submits that it is the exploitive nature of the accused conduct that creates “some connection” to the listed offences, however actual exploitation is not required to be prove the offence of trafficking in persons: Gallone at para. 54.
[41] Parliament’s recent amendments to s. 276 and other related provisions also supports a finding that Parliament never intended the scope of s. 276(1) to be as broadly interpreted as the Crown suggests.
[42] In December 2018, Parliament made significant amendments to the Criminal Code: 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 (“Bill C-51). These amendments predated the Supreme Court’s ruling in Barton.
[43] The Crown submits that the introduction of s. 278.92 does assist in determining Parliament’s intention. Parliament introduced s. 278.92, which requires the accused to bring an application if the accused wishes to introduce records relating to the complaint that the accused has possession or control over. This provision includes sexual service offences. Crown counsel submits that this section simply mirrors the offences listed in s. 278.92 which sets out when the accused may seek third party disclosure of a record in respect of the complainant.
[44] These were not the only amendments. Parliament made significant amendments “to ensure victims of sexual assault and gender-based violence are treated with the utmost compassion and respect”. Parliament not only added s. 278.92 but also amended the form and procedure for applications brought pursuant to s. 276 and for the introduction of evidence in possession of the accused (s. 279.92). These new provisions created participatory rights for complainants at the admissibility hearing for both types of applications.
[45] Parliament also amended the language in s. 276. Language was added to s. s. 276(2)(a) stating that the evidence shall not be introduced unless the judge is satisfied that the evidence is not being introduced to support an inference that the complainant is more likely to have consented to the sexual activity that forms the subject-matter of the charge or is less worthy of belief. Parliament also extended the definition of “sexual activity in s. 276(4). Parliament did not however add any other listed offences to the scope of s. 276(1).
[46] I agree with Stibopoulos J. that the legislative record provides a strong basis to conclude that for whatever reason Parliament deliberately chose not to include the sexual service offences within the list of offences found in s. 276(1): Williams, at para. 36.
Issue #2: Is an Application Required under the Common Law?
[47] Because s. 276(1) of the Criminal Code does not apply the court must turn to the common law. Relevant evidence is admissible provided that its probative value is not substantially outweighed by its prejudicial effect. The issue to be determined is whether an accused person should be required to bring a written application when the accused seeks to admit evidence of other sexual conduct of sex workers where the accused is charged with sexual service offences.
[48] The starting point in considering this issue begins with considering the Supreme Court of Canada’s decision in R v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577. In that case, the Supreme Court held that the former s. 276 provisions were unconstitutional. Given the statutory vacuum this created, the Court also considered how the common law should be applied where an accused seeks to introduce evidence of the other sexual activity involving the complainant in a sexual assault trial.
[49] McLachlin J. speaking for the majority, held that the striking down of s. 276 did not revive the old common law rules of evidence that permitted liberal and often inappropriate reception of evidence regarding the complainant’s sexual conduct. Rather, the Court held that the common law must adapt to the current realities. The court recognized that “in 1991 evidence of sexual conduct and reputation in itself cannot be regarded as logically probative of either the complainant’s credibility or consent”. The twin myths that a complainant is more likely to have consented to the sexual activity that forms the subject matter of the charge and that the complainant is less worthy of believed because the complainant engaged in other sexual activity has no place in the criminal justice system: Seaboyer, at paras. 90-91.
[50] The majority then considered how the common law should be applied where an accused seeks to introduce evidence of the complainant’s other sexual conduct at a sexual assault trial.
[51] McLachlin J. started from the basic principle that “relevant evidence should be admitted, and irrelevant evidence excluded, subject to the qualification that the value of the evidence must outweigh its potential prejudice to the conduct of a fair trial”: Seaboyer, at para. 92.
[52] It is essential to determine the purpose for which the evidence is being introduced. Evidence of other sexual activity is not admissible to support the twin myths, but it may have other legitimate uses in a trial. For example, the evidence may tend to prove that someone other than the accused caused the physical consequences of the sexual assault. The evidence may prove bias or a motive for the complainant to fabricate the allegations or it may be relevant to the defence of an honest but mistaken belief that the complainant consented: Seaboyer, paras. 92, 101.
[53] The majority of the court determined that holding a voir dire before evidence of other sexual activity is introduced at a sexual assault trial is the best way to ensure that relevant evidence is admitted, and irrelevant and prejudicial evidence excluded. The voir dire may be held in camera. The accused must establish by way or affidavit or testimony that the proposed use of the evidence of other sexual conduct is legitimate: Seaboyer, at para. 101.
[54] During this voir dire, “the trial judge must assess with a high degree of sensitivity whether the evidence proffered by the defence meets the test of demonstrating a degree of relevance which outweighs the damages and disadvantages presented by the admission of such evidence”. In other words, the admission of the evidence must be for a legitimate purpose. The Court also recognized that while there are situations where such evidence would be sufficiently probative, those situations “will be exceptional”: Seaboyer, at para. 99
[55] If the evidence is admitted, the trial judge must also ensure that the jury is fully and properly instructed as to the appropriate use of the evidence and must be cautioned that they should not draw impermissible inferences from evidence of other sexual conduct: Seaboyer, at para. 100.
[56] The new s. 276 provisions introduced by Parliament “essentially codified the principles set out by the court in Seaboyer”: R. v. Darrach 2000 SCC 46, [2000] 2 S.C.R 443 at paras. 19 and 20. However, s. 276(1) only applies to evidence that the accused seeks to introduce in proceedings in respect of the listed offences. As a result, where the Crown seeks to introduce evidence of other sexual activity, the common law principles established in Seaboyer apply: Barton at para. 80; Goldfinch at para. 75.
[57] I recognize that the common law that applies pursuant to Seaboyer is in relation to sexual assault complainants. However, the purpose and rationale for the common law applies with at least equal force when considering the admission of evidence of other sexual conduct by sex workers.
[58] 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, [1992] 3 S.C.R. 654, at para. 37.
[59] The risk of twin myth reasoning is extremely high when dealing with sex workers. There is a risk that a sex worker will be considered less worthy of belief because of her occupation. There is also a risk that the trier of fact will find that the complainant was more likely to engage in sexual activity without coercion, direction or control given that she repeatedly engaged in sexual activity for money. Justice L’Heureux Dube recognized these risks in the context of sexual assault trials in Seaboyer at para. 220:
Evidence of prior acts of prostitution or allegations of prostitution are properly excluded by the provision. In my opinion, this evidence is never relevant and, besides its irrelevance, is hugely prejudicial. I vehemently disagree with the assertion of the appellant Seaboyer that "a prostitute is generally more willing to consent to sexual intercourse and is less credible as a witness because of that mode of life" (at p. 21 of his factum, quoting the Federal/Provincial Task Force,). Nor do I particularly understand the phenomenon whereby many complainants in sexual assault cases are asked if they are prostitutes. (See for example, Z. Adler, "The Relevance of Sexual History Evidence in Rape: Problems of Subjective Interpretation", [1985] 769, at p. 778.)
[60] Despite the passage of nearly 30 years, the risk of impermissible reasoning where the complainant is a sex worker still exists. In Barton, Abella and Karakatsansi JJ. (dissenting but not on this point) recognized that there is a substantial risk of twin myth reasoning being applied to the evidence of sex workers,
Based on studies that found that “jurors were more likely to convict a defendant accused of raping a woman with a chaste reputation than an identical defendant charged with assaulting a prostitute.” This Court in Seaboyer expressly warned against the use of the word “prostitute” because the use of this term is intrinsically linked to “twin myths” reasoning and can lead to substantial prejudice in the way the jury assesses the evidence (Seaboyer at pp. 661-65 (emphasis deleted), per L’Heureux Dubé J., dissenting (but not on this point); see also Yasmin Jiwani and Mary Lynn Young, “Missing and Murdered Women: Reproducing Marginality in News Discourse” (2006), 31 Can. J. Communic. at p. 902).
[61] Moldaver J. also held that “society has yet to come to grips with just how deep-rooted” the myths and stereotypes surrounding sexual violence against women and sex workers are and how devastating the consequences of these myths can be, particularly as they relate to Indigenous women and sex workers: Barton, at para. 1.
[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.
Issue #3: Should Counsel be Appointed to Assist the Complainant on the Voir Dire?
[67] Defence counsel submits that the complainant is not a party to the proceedings and does not have the right to have counsel present at the voir dire absent legislation. He submits that the Crown is more than capable of protecting the interests of the complainant.
[68] The court has the inherent jurisdiction to manage and control the court process to ensure that the trial is fair. I am exercising my inherent jurisdiction and ordering that counsel be appointed to assist the complainant on the voir dire in this case for the following reasons.
[69] In Seaboyer, the Court held that trial fairness included encouraging the reporting of sexual violence and protecting “the security and privacy of the witnesses”: at para. 27: R. v. Mills, [1993] 3 S.C.R. 668 at para. 72. In this case, there is a serious issue as to whether the evidence the accused seeks to introduce is for the purpose of supporting one of the twin myths or for a legitimate purpose. In other cases, the relevancy of the evidence may be more obvious such as where it is being tendered to demonstrate a motive to fabricate and the complainant’s input would not be as important. (See for example, a list of relevant purposes for the introduction of this type of evidence in Seaboyer at para. 100). I am of the view that the complaint’s position on the relevancy of the evidence should be heard in this case.
[70] Second, trial judges have exercised their discretion and ordered that counsel assist the complainant in Seaboyer applications brought by the Crown: R. v. Boyle, [2019] O.J. No. 3792 (C.J.).
[71] Third, the concern about the improper use of myths and stereotypes when dealing with the evidence of sex workers remains a serious concern in the criminal justice system. Serious efforts need to be made to address these failings: Barton, at para. 1. One way to address these failings is to permit the complainant to have counsel raise her specific concerns with the court, as opposed to the Crown raising more general concerns.
[72] Fourth, in this case, the complainant already has counsel ready, willing and able to assist with a motion to determine the admissibility of the complainant’s other sexual conduct. The Crown and defence have already agreed that if s. 276(1) applied, the evidence was likely relevant and the second-step under that proceeding would take place on February 24, 2020. The complainant’s counsel is available on that date.
[73] Finally, it seems unfair to deny the complainant in this case, who is a sex worker, the opportunity to have counsel present her position on the voir dire when she would have had the opportunity if she had been sexually assaulted instead of exploited. The denial of counsel in these circumstances seems to perpetuate the stereotype that sex workers are less worthy of protection than other witnesses in the criminal justice system. This is a stereotype that the court has an obligation to correct.
[74] For all of these reasons, I order that counsel be appointed to represent the complainant on the voir dire on February 24, 2020. Given that submissions from the complainant’s counsel have not been heard, the trial judge will determine whether the evidence should be admitted.
[75] As requested by Crown counsel, I am ordering that the application record filed by the applicant be sealed pending the hearing on February 24, 2020. This application record contains sensitive information relating to the complainant’s privacy interests. Neither counsel addressed this issue. The complainant’s counsel may have submissions on this issue as well.
[76] Crown counsel also requested a publication ban pursuant to s 278.95(1) of the Criminal Code. As I have found that s. 276(1) does not apply, it does not appear that s. 278.95(1) applies. Nonetheless, I am also ordering that a publication ban be issued with respect to this decision pending the hearing on February 24, 2020 because neither party addressed this issue before me.
4. Addendum
[77] After I had written my decision, but before it was released, Crown counsel emailed the trial coordinator and defence counsel advising that she misstated the elements of the offence s. 286.3 by including transport. She also indicated that she misstated her position that s. 276 would only apply where the allegations include the “exercise of control, direction or influence”. Counsel submits that the conduct listed in s. 286.3 all include an element of control so depending on the facts s. s. 276 would apply.
[78] The trial coordinator contacted M.D.’s counsel to inquire if he wished to make further submissions. He did not.
[79] The change in the Crown’s position does not alter my decision for the reasons already stated.
[80] The emails sent by counsel will be made letter exhibits at the next court appearance on February 14, 2020 at 10:00 a.m.
Dennison J.
Released: February 11, 2020
COURT FILE NO.: CRIMJ(P)1217/18
DATE: 2020 02 11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
M.D.
REASONS FOR JUDGMENT
Dennison J.
Released: February 11, 2020