COURT FILE NO.: CR-20-9897 DATE : 2022-05-13
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN – and – JULIO MALDONADO VALLEJOS
The Honourable Justice Catrina D. Braid
Counsel: Tricia Holmes, Counsel for the Crown/Respondent Eric Uhlmann, Counsel for Mr. Maldonado
HEARD: April 8, 2022
RULING RE: WHETHER SECTION 276 APPLIES
I. OVERVIEW
[1] Julio Maldonado Vallejos is charged with human trafficking and other related offences. During the trial, the complainant testified that Mr. Maldonado spoke about reaching out to other women for the purpose of procuring them to engage in sex work as part of their “team”.
[2] In response to this evidence, Mr. Maldonado wishes to testify and cross-examine the complainant about her sexual history and seeks direction from the court regarding whether an application under s. 276 of the Criminal Code, R.S.C., 1985, c. C-46 is required. In deciding this motion for directions, I must consider the following issues:
A. Is s. 276 of the Criminal Code engaged when the accused is providing his response to the allegations? B. Is s. 276 of the Criminal Code engaged when the charges are not enumerated offences?
[3] In a brief endorsement dated April 29, 2022, I directed that Mr. Maldonado bring a s. 276 application before introducing evidence regarding the complainant’s sexual history. These are my reasons for that decision.
II. ANALYSIS
A. A Section 276 Application is Required, Even When the Accused is Providing His Response to the Allegations
[4] Evidence that the complainant has engaged in sexual activity, other than the sexual activity that forms the subject matter of the charge, shall not be adduced unless the judge determines, in accordance with the regime set out in s. 276, that such evidence is admissible.
[5] The complainant testified about text messages exchanged and other discussions that she had with Mr. Maldonado. She described how Mr. Maldonado spoke about reaching out to other women for the purpose of procuring them to engage in sex work as part of their “team”. In reasons at R. v. Maldonado Vallejos, 2022 ONSC 1442, I found that this evidence relates directly to the elements of the offences and does not require a discreditable conduct application for the evidence to be admitted. The complainant’s evidence is set out in detail in that ruling and will not be repeated here.
[6] In response to the complainant’s evidence, Mr. Maldonado wishes to cross-examine and testify about his version of the conversations with the complainant and why those text messages were sent. Mr. Maldonado has filed particulars on the motion for directions, which states that evidence regarding the women identified as A, Si and P may engage s. 276 of the Criminal Code. No further details have been provided.
[7] Mr. Maldonado seeks to cross-examine the complainant and to testify about evidence of a sexual nature involving the complainant. Since the court found that the complainant’s evidence forms part of the subject matter of the charges, Mr. Maldonado submits that he is entitled to cross-examine and testify about the same incident without being required to bring a s. 276 application. Defence counsel submits that this is analogous to a sexual assault trial in which an accused testifies in greater and different detail about the incident forming the subject matter of the charge. Counsel argues that s. 276 is only engaged when the accused wishes to discuss different incidents altogether from those forming the subject matter of the charge.
[8] I do not accept the submission that the proposed evidence does not require a s. 276 application simply because it is Mr. Maldonado’s version of events regarding the charges. The proposed evidence is sexual activity other than the subject matter of the charge, which requires a s.276 application.
[9] Section 276 requires that the court balance the accused’s right to make full answer and defence with the dangers that cross-examination may pose to the complainant’s privacy and dignity, and to the integrity of the trial process. The analysis applies regardless of whether the accused seeks to introduce evidence to establish a defence or to challenge inferences urged by the Crown: R. v. R.V., 2019 SCC 41, [2019] 3 SCR 237, at paras. 32 and 33.
[10] The decision in R.V. is directly on point. In that case, the Crown led evidence that the complainant was a virgin at the time of the alleged sexual assault, and that it led to her pregnancy. The accused sought to cross-examine the complainant regarding other sexual activity that could have resulted in the pregnancy. Even though the accused was raising a defence to Crown-led evidence, a s. 276 application was required.
[11] The facts of the case before the court are also somewhat analogous to R. v. Barton, 2019 SCC 33, [2019] 2 SCR 579. Mr. Barton was charged with the murder of Ms. Gladue, who was employed in the sex trade at the time of her death. He responded to the Crown’s case by introducing a version of events that involved sexual activity of the night before Ms. Gladue’s death, without having brought a s. 276 application.
[12] The Supreme Court of Canada held that, where an accused seeks to rely on the complainant’s prior sexual activity in support of his defence, non-compliance with the s. 276 regime results in a failure to expose and properly address misleading evidence and mistakes of law arising from that evidence. Non-compliance with the section may be advantageous to the accused but will come at the expense of the dignity and privacy of the complainant, the truth-seeking process and trial fairness, which must be addressed from the perspective of the accused as well as society more broadly: Barton at paras. 82-83.
[13] Therefore, I find that a s. 276 application is required, even when the accused is providing his response to the allegations.
B. Section 276 is Engaged Even Though the Charges Are Not Enumerated Offences
[14] Mr. Maldonado is charged with human trafficking, procuring sexual services for consideration, advertising sexual services, receiving material benefit from human trafficking, assault, assault with a weapon, forcible confinement, and two counts of criminal harassment. None of these offences are enumerated in s. 276. However, that does not end the analysis.
[15] In Barton, the Supreme Court of Canada held that the s. 276 regime applies not only to the offences enumerated in s.276(1), but also to cases where there is “some connection” between the offences charged and the offences listed in s.276(1). The court directed that the assessment of the applicability of the s. 276 regime to non-enumerated offences must be undertaken from a generous perspective and with a broad interpretation of which offences may be considered to have a connection to an offence listed in s. 276. The opening words of s. 276 — proceedings “in respect of” a listed offence – are of the widest possible scope. 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: Barton at paras. 72-76.
[16] Testifying in sexual assault cases can be traumatizing and harmful to complainants. Wide-ranging and intrusive questions about a complainant’s sexual history are often irrelevant, serving no purpose other than supporting the twin myths: R. V. at paras. 32 and 33.
[17] Historically, evidence of the complainant’s sexual history has been used to discredit complainants on the basis of myths and stereotypes. Wide-ranging and intrusive inquiries into a complainant’s sexual history were used to distort the trial process and essentially put the complainant on trial. This has been especially true of sex workers, who are a particularly vulnerable group: R. v. Goldfinch, 2019 SCC 38, [2019] 3 SCR 3, at para. 33 and Barton at para. 74 and 201.
[18] The s. 276 regime was enacted with several protective purposes in mind: (i) to protect trial integrity by excluding irrelevant and misleading evidence, (ii) to protect the accused's right to a fair trial by creating a framework under which a complainant’s evidence can safely be received and will be admitted, and (iii) to protect the security and privacy of complainants and thereby encourage the reporting of sexual offences. Giving s. 276 a broad, generous interpretation that does not unduly restrict the regime's scope of application will best achieve these objectives: Barton at para. 74.
[19] Canadian courts have recognized that sex trade workers, who are influenced, directed, controlled, or exploited, are not independent. They are a highly vulnerable population, hesitant to report and/or engage in the justice system, under regular circumstances. In R. v. Downey, [1992] 2 S.C.R. 10, Justice Cory observed that “prostitutes” are “have exhibited a marked reluctance to testify against their pimps” and that sex trade workers are a “particularly vulnerable segment of society” requiring a “measure of protection”: at paras. 56, 61, and 67.
[20] In this case, the human trafficking offence alleges that Mr. Maldonado “did recruit, transport, transfer, receive, hold, conceal, harbour or exercise control, direction or influence over the movements of [the complainant], for the purpose of exploiting her”. Consent to activity that constitutes human trafficking is not a valid defence: Criminal Code, s. 279.01(2).
[21] The power and breadth of the language in Barton demonstrates that the s. 276 regime is intended to apply to sex work offences and pimping-related charges. Human trafficking offences in s. 279.01 are connected to the enumerated offences in s. 276(1) because of the sexual nature of the offences and the element of sexual exploitation, to which there can be no consent. Numerous courts in Ontario have followed this direction, for example: R. v. Floyd, 2019 ONSC 7006, R. v. Amdurski, 2020 ONSC 6714, R. v. A.S., (20 November 2020), Newmarket (Ont. Prov. Ct.), R. v. MacMillan, 2021 ONSC 3952, R. v. Simeu, 2021 ONCJ 577, and R. v. Ryckman, 2022 ONSC 20.
[22] I have considered the reasons in R. v. Williams 2020 ONSC 206 and R. v. Langford, 2021 ONSC 4307, which can be distinguished because they do not involve human trafficking charges under s. 279.01. Even if those decisions could be considered by analogy, the reasons stand in stark contrast to the overwhelming weight of judicial authority in which s. 276 has been found to apply to human trafficking offences. I am of the view that those courts applied an interpretation of the broad relational test that was too rigid and narrow in scope.
[23] Defence counsel relies on R. v. Thomas, 2017 ONSC 7023, in which the court held that s. 276 did not apply because simple assault was not an enumerated offence: Thomas, para. 86. However, Thomas was decided before Barton and did not apply the broad, generous interpretation of s. 276 as required by Barton. I therefore decline to follow the reasoning in Thomas.
[24] I therefore find that s. 276 is engaged even though the charges are not enumerated offences.
III. CONCLUSION
[25] For all of these reasons, I find that Mr. Maldonado is required to bring a s. 276 application before introducing evidence of the complainant’s prior sexual history.
Braid, J. Released: May 13, 2022
