COURT FILE NO.: CR-19-30000330-0000
DATE: 20210630
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DORIAN LANGFORD
Applicant
David Steinberg, for the Crown
Ashley Audet, for the Applicant
Dawne Way, for the Complainant
HEARD: June 10, 2021
RESTRICTION ON PUBLICATION
Pursuant to an order of this court,
issued under s. 486.4(1) of the
Criminal Code, no information
that could serve to identify the
complainant in this prosecution shall
be published in any document or
broadcast or transmitted in any way. This
version of the decision has been
edited to comply with this order and may be
published.
RULING ON THE APPLICABILITY OF S. 276 OF THE CRIMINAL CODE
justice s. nakatsuru
A. OVERVIEW
[1] Dorian Langford presently faces several charges stemming from allegations that he “pimped” the complainant: recruit, hold, conceal, harbour or exercise control, direction, influence for the purpose of facilitating an offence under s. 286.1 contrary to s. 286.3(1) of the Criminal Code; advertise sexual services contrary to s. 286.4; receive material benefit from the commodification of sexual services contrary to s. 286.2(1); and utter threats of bodily harm contrary to s. 264.1(1). Except for the threatening, the other charges are oft collectively called sexual services offences.
[2] Originally, Mr. Langford brought an application under s. 276 of the Criminal Code. At the time, Mr. Langford was also charged with sexual assault. The first step of the application under s. 278.93 was allowed by Justice Ducharme on February 19, 2020. On the hearing of the second step under s. 278.94, a new issue arose. The Crown advised that he was going to withdraw the sexual assault charge. This charge has now been withdrawn. As a result, Mr. Langford now submits that the s. 276 regime does not apply to the admission of the sexual activity he seeks to question the complainant on.
[3] The matter was adjourned to provide the Crown and counsel for the complainant an opportunity to respond to this argument.
[4] Given the unique circumstances of how this issue arose, I permitted Ms. Way, counsel acting for the complainant, to make submissions even though before this issue is resolved, the complainant has no right to participate. In doing that, by no means was I prejudging the issue. Nor was I deciding that complainants should usually have such standing if on an application of this nature it is found that s. 276 does not apply. Rather, given how Mr. Langford originally brought this as a s. 276 application, the fact that the first step had already been adjudicated, and that the Crown indication of his intent to withdraw the sexual assault charge came just before the second step hearing, I found that it was in the interests of justice to exercise my discretion and grant standing to the complainant. However, the complainant’s participation at this hearing should not be considered as setting any form of a precedent.
[5] These are my reasons.
B. SECTION 276 DOES NOT APPLY
1. The Authorities I Will Follow
[6] Mr. Langford wishes to cross-examine the complainant about her experience working in the sex trade unrelated to the charges. He submits that the evidence is relevant to credibility in that she has given inconsistent statements about it, in challenging her assertion that Mr. Langford was her pimp at the relevant time, and in establishing an alternative basis for the complainant’s knowledge of how the sex trade operated other than Mr. Langford exerting control and direction over her activities. Mr. Langford disclaims his purpose is to rely on any myths or stereotypes about sex workers. Mr. Langford states he does not intend to pursue any immaterial or salacious details of her sexual activities in the sex trade.
[7] In my opinion, to apply s. 276 to sexual service offences and to protect vulnerable sex trade workers by doing so makes sense in many ways. But the decision I must make in this case is not a matter of policy. It is a matter of statutory interpretation and following the Supreme Court of Canada’s decision in R. v. Barton, 2019 SCC 33, 435 D.L.R. (4th) 191.
[8] Justice Moldaver in Barton called for a broad and generous interpretation to be given to s. 276.
[9] In R. v. Williams, 2020 ONSC 206, Justice Stribopoulos found that s. 276 did not apply to sexual services offences. The same determination was made by Justice Dennison in R. v. M.D., 2020 ONSC 626. Justice Dennison followed the Williams decision. Also, in R. v. Y.S., 2021 ONSC 2836, at paras. 31-32, Justice LeMay accepted the analysis done in these authorities but distinguished them, as Y.S. was also charged with sexual assault.
[10] However, there is conflicting Superior Court of Justice caselaw. Accordingly, the requirement of judicial comity holds no sway in my decision.
[11] Having carefully considered the authorities, I find the analysis conducted by Justice Stribopoulos to be sound and persuasive.
[12] After taking account of Justice Moldaver’s broad relational test as explained in Barton, Justice Stribopoulos found two principal reasons why s. 276 did not apply in the circumstances of his case.
[13] First, he found that a listed offence was not implicated or connected to the sexual services offences facing Mr. Williams. In finding so, he rejected the Crown’s argument that the charge of procuring by exercising coercive power over the sex trade worker was tantamount to sexual assault on the ground that in both scenarios there was not effective consent. Rightfully in my view, Justice Stribopoulos held that doctrinal rigour demanded that “consent” and “control” be carefully defined for the offences of sexual assault and procuring when assessing whether there was some connection between the offence charged and a listed offence in s. 276. While there was some theoretical and practical overlap, the two were not the same. In other words, simply because the offences shared some common features, did not mean that the Barton test was met.
[14] Second, Justice Stribopoulos looked at the history of relatively recent amendments to the Criminal Code which evinced Parliamentary intent not to include sexual services offences as listed offences in s. 276. His is a compelling analysis on this point.
[15] I adopt Justice Stribopoulos’ analysis.
[16] I would just add that Justice Stribopoulos’ analysis of the statutory amendments is not conclusive of the question of whether s. 276 applies to sexual services offences. Regardless of Parliament’s intention not to specifically incorporate the sexual services offences within the ambit of s. 276, Barton must still be given effect. Each case must still be scrutinized on its facts to determine whether the proceeding is “in respect of” a listed offence.
[17] That said, it bears emphasizing that Justice Moldaver did not hold that because Parliament chose to use broad language in the opening words of s. 276(1) and (2) – proceedings “in respect of” a listed offence - this means anything goes. Or that it means that any offence involving some sexual activity, a vulnerable complainant, or the prevalence of stereotypes or myths about the complainant, falls within the scope of s. 276. Justice Moldaver was careful to require that a listed offence be “connected” to the proceedings. That connection can be more formal, as in being a predicate or included offence. Or, it could arise from the evidence relied upon by the Crown to prove the non-listed offence. In other words, when a listed offence, though not formally charged, arises on the evidence led at trial, then the s. 276 regime applies. This makes sense since the purpose and rationale behind the s. 276 regime would be engaged in that instance, though the Crown had not charged the offence. As well, if it is the defence that wishes to explore or lead evidence of a listed offence, then s. 276 would also apply.
[18] However, where no listed offence is so implicated in or connected to the case, then s. 276 does not apply. To hold otherwise would ignore the limits Parliament placed on the application of s. 276. It might make good policy to apply it in other circumstances, but that decision remains for Parliament to make. Thus, Parliament did not choose to exhaustively enumerate all the situations that the section could potentially apply to, but nor did it say that the section applies more generally or broadly without any reference to one of the listed offences. The application of the s. 276 regime must still have some connection to a listed offence. Judges should not read into the section circumstances or offences that were not intended, no matter how desirable that might be. Taking this cautious approach respects the constitutional order that has been divided between the legislative body and the judiciary.
[19] There are other trial level courts that have gone the other way. The Crown and the complainant rely upon these decisions. Some can be distinguished. Others I do not agree with.
[20] In some cases, little analysis was done on the issue. In R. v. Desir, 2020 ONSC 1158, the parties had agreed that s. 276 applied given the presence of a sexual assault charge. In R. v. John (December 10, 2019) the defence conceded that s. 276 applied. In R. v. Celestin (June 6, 2019) the justice concluded without analysis that s. 276 applied. The complainant also relies on R. v. Marier et al (June 2, 2021), but written reasons have not yet been released.
[21] In R. v. A.M., 2019 ONSC 7293, the accused brought a s. 276 application. He did not contend that such an application was unnecessary. As a result, it is not surprising that Justice McKelvey devoted little analysis to why the s. 276 regime applied to the sexual services offences before him. He said only that these charges would “strike at the heart” of the necessary consent for the complainant to engage in the sexual services provided by her and thus engage the sexual assault provisions. As noted, I find that Justice Stribopoulos’ analysis on the consent issue more expansive and persuasive.
[22] In some cases, the offences have involved sexual offences against young persons. While the accused in these cases were not charged with a listed offence, the courts have found the requisite connection between the listed offences and the offences charged given how the essential elements were defined when it involved a young person: R. v. Floyd, 2019 ONSC 7006,[^1] at para. 9; R. v. Miller, [2020] O.J. No. 1934 (C.J.) at para. 16. Comments made in these decisions that go further are ones that I do not follow.
[23] While this basis satisfied the jurists in those cases that the threshold for the application of s. 276 had been met, Justice Fraser in R. v. A.M., 2021 ONCJ 266, at paras. 24-31, astutely points out that it is not always appropriate to simply hold that s. 276 applies where some peripheral elements of the offence charged align with the elements of a listed offence. The particular factual allegations must still be assessed before determining whether the broad relational test set out in Barton is met. Sometimes it may. Sometimes it may not. Even when the offence charged may be the same in two different cases. The charge before Justice Fraser involved the offence of the non-consensual distribution of intimate images. In a hypothetical case involving a video of a sexual assault, Justice Fraser held that s. 276 may apply. Where on the facts before him the charge involved a distribution of consensual sexual activity between adults, he held it did not.
[24] In R. v. T.A., 2020 ONSC 6714, Justice Quigley specifically addressed Williams and declined to follow it. With respect, I am not persuaded that his decision is correct. I disagree with his reasoning that for sexual services offences, the fact that the consistent milieu in which the offences occur is sexual provides some connection as required by the broad relational test. Such a conclusion is an amorphous and tenuous tether to the s. 276 regime and is contrary to Parliamentary intent. Moreover, Justice Quigley’s reasoning that the twin myths set out in s. 276(1) apply equally to complainants in sexual services cases, even if one accepts this to be true, is a policy rationale that argues for similar protections being offered to complainants in such cases. However, it does not answer the statutory interpretation question of whether Parliament so intended. His conclusion that Parliament intended s. 276 to apply in any circumstance where the potential exists for twin myth reasoning to prejudice complainants, respectfully, flies in the face of Parliament taking the care to specifically enumerate the offences in s. 276.
[25] In sum, I find Williams to provide the correct analytical framework and I decline to follow the other authorities relied upon by the Crown and the complainant.
2. Application to the Case at Bar
[26] Mr. Langford is charged with sexual services offences and making threats. Each charge he faces, M.D. and Mr. Williams also faced. The allegations in the case before me and in Williams and M.D. are quite similar. Still, I cannot forgo an independent assessment of the factual allegations against Mr. Langford. Important is whether the factual allegations are somehow connected to one of the listed offences.
[27] I find that they are not for the following reasons.
[28] The offences against Mr. Langford are alleged to have been committed in the Toronto Region between January 1, 2017 to April 7, 2017. The complainant, who was 18/19 years of age at the time, allegedly engaged in sex work for Mr. Langford, with whom she initially had a dating relationship. Mr. Langford took most of the money, advertised her sexual services, and exploited her. At the preliminary inquiry, the complainant testified that before working for Mr. Langford, she was working for another pimp who Mr. Langford knew. According to her, Mr. Langford knew she was an escort from his association with that person. As things were not working out with this other pimp and she was desperate for money, the complainant decided to start working with Mr. Langford. The complainant felt that she could not say no to her sex work as she feared Mr. Langford would get angry with her.
[29] The Crown submits that there is more than ample connection to meet the test in Barton. Amongst other factors such as the general vulnerability of sex trade workers and the trauma they suffer, he points to the evidence of violence, the instillation of fear, and the manipulation and deceit perpetrated by Mr. Langford on the complainant.
[30] On behalf of Mr. Langford, Ms. Audet concedes that there may be some cases where even though a listed offence is not charged, the allegations may implicate such an offence in a proceeding charging only sexual services offences. An example would be a case where the sex trade worker is underage and thus by law legally incapable of consenting to sexual activity. Another instance may be if the accused provided intoxicants to an adult sex trade worker whereby she became incapable of consent to the sexual activity that took place.
[31] In my opinion, such is not the case here. On this record and the proposed areas of evidence the defence seeks to get into, there is no connection to the listed offences in s. 276.
[32] A closer look at the allegations makes this clear. While the Crown submits that threats or threats of violence are important considerations, there is no support for the finding that the threats vitiated the complainant’s consent to the sexual activity within the meaning of s. 265(3)(b).
[33] First, I find that the complainant’s evidence regarding direct threatening behaviour by Mr. Langford against her is open to differing interpretations. The Crown position on the threatening charge is that Mr. Langford often threatened the complainant by saying things like he could crush or choke the complainant as she was so small. However, according to the complainant, Mr. Langford said this in a joking manner, though she felt fearful. The Crown also points to an occasion where the complainant states that Mr. Langford put something in her purse that was heavy and wrapped in a handkerchief. He was talking about guns at the time and that no one should mess with him. The complainant believed it was a gun though she did not see it. Finally, the complainant alleges that when she decided to leave Mr. Langford and asked for her share of the money, an alleged associate of Mr. Langford took her phone for threatening to call the police and told her that he had a “strap”.
[34] Second, and more importantly, the alleged threats of violence are not connected to the complainant giving her consent to the sexual activities that she had with her clients. The complainant does not say that any of these incidents affected or influenced her in giving consent to the sexual activities with the persons who paid for sex with her. In other words, the threats have no relation to the sexual activity. Thus, these threats do not vitiate the subjective consent that she gave: R. v. G.F., 2021 SCC 20 at para. 35; R. v. Guerrero (1988), 1988 CanLII 9868 (ON CA), 64 C.R. (3d) 65 (Ont. C.A.).
[35] The same can be said about the complainant’s vulnerability. The Crown relies upon the fact that the complainant was young and suffered from mental health challenges, including a learning disability. However, there is nothing to substantiate that any or all of them collectively could have affected her capacity to consent to the sexual activity within the meaning of s. 273.1(2)(b): G.F., at paras. 55-57.
[36] Finally, the Crown submits that Mr. Langford convinced the complainant to enter the sex trade with him based on false promises of a good life together and his sharing the monies earned. This alleged fraud by Mr. Langford that persuaded the complainant to enter into the sexual activities she engaged in does not approach the type of deceit that prevents subjective consent or vitiates consent to an act of a sexual nature. This fraud is not linked to the conditions of subjective consent: the nature and quality of the act and the identity of the partner. While fraud can also vitiate consent, I agree with Ms. Audet that the record does not reveal that the lies were coupled with a significant risk of serious bodily harm. Finally, while other deprivation or risk of deprivation in the form of serious harm other than serious bodily harm can also constitute fraud that vitiates consent, the fraud must entail the “reprehensible character of criminal acts.” These false promises by Mr. Langford do not. Financial deprivation or stress and sadness from the lies are insufficient: G.F., at paras. 29, 38-41; R. v. Cuerrier, 1998 CanLII 796 (SCC), [1998] 2 S.C.R. 371, 162 D.L.R. (4th) 513, at paras. 133-135; R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, at paras. 70-73; R. v. Wilson, 2015 ONSC 7224, at paras. 71-72.
[37] Looking at all the circumstances, there is no reasonable support for the position that sexual assault was committed in this proceeding. There is no reasonable basis to find that the complainant did not consent, was incapable of consenting, or her consent to the sexual activity was vitiated by threats of violence or fraud.
[38] I appreciate that there are threats, vulnerabilities, and deceit allegedly involved in this proceeding. But they do not provide the degree of connection to the listed offence of sexual assault or any other listed offence as required by Barton. These factors cannot simply be viewed abstractly without reference to the legal requirements for consent and the vitiation of consent found in the Criminal Code. The mere existence of these factors without meaningful connection to a listed offence cannot establish “some connection” requirement. To conclude otherwise would be go far beyond what Barton holds. It would lead into the realm of judge-made policy.
[39] As a result, s. 276 does not apply in this case.
C. THE COMMON LAW REGIME IN SEABOYER DOES NOT APPLY
[40] In the alternative, the Crown and the complainant submit that the common law regime outlined in R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577 should apply to sexual services offences. They rely on Justice Dennison’s decision in M.D.
[41] Mr. Langford relies upon the second decision of Justice Stribopoulos in R. v. Williams, 2020 ONSC 6347. In that decision, Justice Stribopoulos disagreed with Justice Dennison and held that the common law regime did not apply.
[42] Again, I am faced with conflicting decisions.
[43] In M.D., Justice Dennison recognized that the voir dire required by Seaboyer was in relation to sexual assault complainants. However, she found that the purpose and rationale for this common law regime applied with at least equal force when considering the admission of evidence of other sexual conduct by sex trade workers. She reasoned that the common law should reflect the changing social, moral, and economic fabric of the country. The risk of twin myth reasoning was extremely high when dealing with sex trade workers and there was a risk that the trier of fact would wrongfully find that, given other sexual activity unrelated to the charge, the complainant would be more likely to engage in sexual services without coercion, direction or control by the accused. The common law should therefore be changed to counter this. Trial judges, as gatekeepers tasked with the duty to ensure biases, prejudices, and stereotypes do not enter the courtroom, must hold a voir dire to ensure there are legitimate reasons for admitting evidence of other sexual activity. The following procedure was outlined by Justice Dennison: the accused must bring a written application; the various factors listed in s. 276(3) can be of assistance in determining whether the probative value of the evidence is not substantially outweighed by the prejudicial effects; and the court can grant standing and representation to the complainant.
[44] In Williams, Justice Stribopoulos, while mindful of the principle of judicial comity, declined to follow M.D. He gave a number of reasons for deciding the issue differently: (1) judges are restrained from making significant changes to the common law and should only make them cautiously and incrementally; (2) applying the rules and procedures established in Seaboyer to an entirely new category of offences involves more than incremental change and carries with it significant potential ramifications; (3) the change in the common law would circumvent Parliament’s decision not to list the sexual services offences in s. 276(1); (4) sexual services cases do not pose the same risk of twin myth reasoning endemic to sexual offences cases; (5) existing rules of evidence sufficiently protect against the admission of irrelevant and prejudicial evidence in cases not involving s. 276(1) offences.
[45] I will not elaborate at length on Justice Stribopoulos’ extensive decision. It is well reasoned, principled, and solidly based upon past governing precedents. I agree with it. While Justice Dennison’s decision is also thoughtful and well-reasoned, the points made by Justice Stribopoulos appear not to have been considered in M.D.
[46] I agree that a good case can be made for extending greater protections to sex trade workers. But I find that when all the factors pointed to by Justice Stribopoulos are considered collectively, this change in the common law as proposed by the Crown and complainant is not appropriate.
[47] In coming to this conclusion, I feel compelled to emphasize that I wholeheartedly agree with Justice Stribopoulos that this does not mean that the trial judge is powerless when a sex trade worker is questioned about unrelated sexual activity. Great vigilance is also required. When a trial judge properly exercises their gatekeeping role, I foresee these issues being resolved efficiently and fairly at trial. Fairly for the complainant. Fairly for the accused. We have come a long way from an era where the trial judge remains mainly a passive observer at a trial. Equally, we have come a long way from a time where myths and stereotypes informed notions of relevance and probative value. Regardless of the criminal offence being prosecuted, as stated by Justice McLachlin in Seaboyer at para. 96, “evidence of sexual conduct and reputation in itself cannot be regarded as logically probative of either the complainant’s credibility or consent.”
[48] A trial judge hearing the evidence of a complainant in a case such as this is well-placed to assess and balance the competing interests as the testimony unfolds, both in examination-in-chief and cross-examination. A trial judge can quickly intervene and stop inappropriate questioning. They can even set prior limits to the questioning. Moreover, the trial judge can instruct the jury in such a fashion as to ensure that the evidence is rightfully considered and that no prejudicial stereotypes or myths enter into the deliberations. How this role is exercised by the trial judge will depend very much upon the facts of each individual case.
[49] Just as an example, in the case before me, the complainant has said that she does not know how to advertise escort services in Backpages, a form of Internet advertising. According to her, Mr. Langford did this for her. In light of her evidence, the relevance and probative value of questioning her on her past experience in escorting surrounding this issue would be different in terms of both impeaching her credibility and in supporting the defence theory that Mr. Langford had no hand in assisting her, than in a case where the complainant does not claim this lack of knowledge or experience. The trial judge will not be handicapped in making the proper assessment of the relevance of such questioning and if relevant, whether prejudice substantially outweighs probative value. Finally, if questions are permitted, the trial judge can place strict limits on it. It does not have to be an all or nothing choice.
[50] Furthermore, I do not see a significant advantage in requiring a common law application being brought in advance by the defence to pursue such questioning. In many instances, matters such as this can be resolved quickly and fairly during the trial. In an exceptional case where a voir dire is required then one can be had. I observe that even in instances where the s. 276 regime applies, the defence is not precluded from bringing or renewing an application when something new arises in the evidence of the complainant: Barton, at para. 65.
[51] In this day and age where the pressures on the criminal courts to dispense justice in a timely manner grows ever greater, I am hesitant to add another layer of mandatory pre-trial procedure in the absence of a more convincing argument that the advantages will outweigh the disadvantages. It is important to remember that no case stands alone. Making this a requirement for all cases involving sexual services offences or sex trade workers will undoubtedly have a large impact on the administration of justice more generally.
[52] I underscore that I do not fail to see the arguments from the other side. I am just saying, like Justice Stribopoulos, I do not see a compelling reason at this point to change the common law to achieve the worthy objectives that Justice Dennison noted.
D. CONCLUSION
[53] In conclusion, no s. 276 application or pre-trial common law voir dire is required. The trial judge is best suited to make these determinations with respect to the appropriateness and the limits of the proposed questioning by Mr. Langford.
Justice S. Nakatsuru
Released: June 30, 2021
COURT FILE NO.: CR-19-30000330-0000
DATE: 20210630
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DORIAN LANGFORD
Applicant
REASONS FOR JUDGMENT
NAKATSURU J.
Released: June 30, 2021
[^1] The decision does not say how old the complainant was at the material time.