Court File and Parties

COURT FILE NO.: CR-21-10000391 DATE: 20230106

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – D.A.L.

Counsel: Monica Gharabaway, for the Crown Jordana Goldlist, for the accused

HEARD: December 16, 2022

Ruling on applicability of section 276

P.J. Monahan J.

[1] D.A.L. is charged with a variety of human trafficking and sexual services offences, [1] alleged to have been perpetrated against a female complainant. The Crown alleges, amongst other things, that Mr. L. and a previously charged co-accused recruited the complainant into the sex trade by providing her with drugs and taking advantage of her drug addiction.

[2] Mr. L. seeks to cross-examine the complainant at trial with respect to her sexual activity, other than the sexual activity which forms the subject matter of the charges before the court. He seeks a ruling as to whether he is required to bring an application pursuant to section 276 of the Criminal Code in order to determine the admissibility of such evidence. Mr. L. argues that no such application is required because the offences with which he is charged are not specifically enumerated in section 276. Nor are any of the offences listed in section 276 a predicate or included offence for any of the charges he faces.

[3] Mr. L. relies upon a number of decisions of this court which have held that, because the human trafficking and sexual services offences are not listed in section 276, the section 276 regime does not apply in proceedings in respect of those offences. He urges me to follow the carefully reasoned decisions of Stribopoulos J. in R. v. Williams, 2020 ONSC 206 and R. v. Langford, 2021 ONSC 4307, holding that, in enacting recent amendments to related Criminal Code provisions, Parliament specifically decided not to broaden the scope of section 276 to include human trafficking and sexual services offences. Therefore, although the Supreme Court of Canada in R. v. Barton, 2019 SCC 33 urged an expansive approach to the interpretation of section 276, it would be inconsistent with Parliament’s intent if the human trafficking or sexual services offences were incorporated into section 276.

[4] I note that there are a significant number of more recent decisions of this Court which have declined to follow Williams and Langford, particularly R. v. T.A., 2020 ONSC 6714, R. v. Vallejos, 2022 ONSC 2753, R. v. Hamblett et al., 2022 ONSC 5726.

[5] With the greatest of respect for the contrary view, I prefer the reasoning in the latter, more recent decisions. I find that a section 276 application is required whenever an accused charged with human trafficking or sexual services offences seeks to cross-examine a complainant regarding sexual activity, other than the sexual activity that forms the subject matter of the charges, since those offences have some connection to the offences listed in section 276.

Section 276 applies to proceedings involving offences that have “some connection” to those listed in section 276 (1)

[6] In Barton, the Supreme Court of Canada held that section 276 applies not only to proceedings involving the offences expressly enumerated in section 276 (1), but also to offences that have “some connection” to those listed.

[7] Moldaver J. reached this conclusion on the basis of the well-established principle of statutory interpretation to the effect that the words of the statute are to be interpreted purposively, “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.” [8]

[8] The objects of section 276 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. Moldaver J. described these objects as “fundamental”, which led him to conclude that section 276 should receive a “broad, generous interpretation that does not unduly restrict the regime’s scope of application”. [9] A generous interpretation was also consistent with the text of the provision, which states that it applies to proceedings “in respect of” a listed offence. Moldaver J. observed that the words “in respect of” are “of the widest possible scope” and are “probably the widest of any expression intended to convey some connection between two related subject matters”. [10]

[9] Moldaver J. in Barton accordingly held that a “broad relational test” should be applied in determining the scope and application of section 276. Whenever, in substance, there is “some connection” between the offence charged and the offences listed in section 276 (1), the section 276 regime will apply. [11] This would include, but would not be limited to, cases in which “the listed offence is the predicate offence for the offence charged or an included offence of the offence charged.” [12]

[10] I note that the appropriateness of this expansive approach to the interpretation of section 276 was reinforced recently in R. v. J.J., 2022 SCC 28, where Wagner C.J. and Moldaver J. described the provision as a central element in a legislative scheme designed to address the fact that the criminal trial process can be “invasive, humiliating, and degrading for victims of sexual offences, in part because myths and stereotypes continue to haunt the criminal justice system.” [13] Victims of sexual offences have often had the “minutiae of their lives and character unjustifiably scrutinized in an attempt to intimidate and embarrass them,…[which undermines] the dignity, equality, and privacy of those who had the courage to lay a complaint and undergo the rigours of a public trial.” [14] While progress has been made in recent decades in attempting to strike a more appropriate balance between the accused’s right to a fair trial, the complainant’s dignity, equality, and privacy, and the public’s interest in the search for truth, “[m]ore needs to be done”. [15] The effort to strike a more appropriate balance between these various purposes would be significantly impaired if section 276 were to receive a narrow or formalistic interpretation.

There is “some connection” between human trafficking and sexual services offences and those offences listed in section 276 (1)

[11] Human trafficking and sexual services offences will commonly involve complainants who have been involved in the sex trade, as evidenced not only by the circumstances in this case but also in the numerous other recent cases which have considered the applicability of section 276 to such proceedings.

[12] As Moldaver J. noted in Barton, there continue to be systemic biases and prejudices against sex workers, including stereotypical assumptions that they assume the risk of any harm that befalls them because they engage in a dangerous form of work, and/or that they are less worthy of belief. [16] Moreover, in Barton, Abella and Karakatsanis JJ (dissenting, but not on this point) expressly cautioned against the use of the term “prostitute” when referring to sex workers, since it is “intrinsically linked to ‘twin myths’ reasoning and can lead to substantial prejudice in the way the jury assesses evidence.” [17] These “invasive and elusive” biases against sex trade workers [18] make it all the more essential that the requirements of section 276 be satisfied before evidence of their sexual activity can properly be adduced. Otherwise, the important strides that have been taken by both Parliament and the courts in recent years to keep biases, prejudices, and stereotypes out of the courtroom will be significantly undermined.

[13] I would also point out that recent amendments to the Criminal Code bar an accused who is charged with human trafficking or sexual services offences from adducing into evidence a “record relating to a complainant” which contains evidence subject to section 276 unless that evidence meets the conditions for admissibility set out in subsection 276 (2). [19] The “analytical framework” governing the admissibility of such records set out in J.J. requires that, in proceedings involving human trafficking or sexual services offences (as well as the other offences listed in section 278.92), the trial judge must first determine whether the proposed evidence contains information relating to a complainant’s other sexual activity. [20] If the proposed evidence does contain such information, it must be assessed in accordance with section 276 (2), taking into account the factors set out in section 278.92 (3).

[14] There is no meaningful distinction between an accused who seeks to adduce information regarding a complainant’s other sexual activity through a “record”, as opposed to through some other means. The complainant’s dignity and privacy interests are implicated by the sensitivity of the relevant information, not the particular medium used to convey it. [21] It follows that, because an accused is required to satisfy the conditions for admissibility set out in section 276 in respect of a “record” containing information about the complainant’s prior sexual activity, they must equally be required to satisfy those requirements if they seek to adduce the same information without relying on a “record”. Otherwise, form would triumph over substance, since the admissibility of sensitive personal information regarding a complainant would turn on the happenstance of whether the information happened to have been set out in a “record”. Such a formalistic and technical interpretation of section 276, despite its “exceptionally broad language”, [22] cannot have been intended by Parliament and, moreover, it flies in the face of the generous and purposive interpretation mandated by the Supreme Court in both Barton and J.J..

[15] This form over substance approach is the same kind of interpretation that Moldaver J. expressly rejected in Barton in deciding that the section 276 can apply in cases where there is no enumerated offence charged. Moldaver J. noted that limiting the application of section 276 to only listed offences would make it so that the regime’s applicability turns on the way that a prosecutor drafts a charging document. He concluded that “surely it makes no difference” whether the Crown particularizes a listed offence in a charging document if it is, in substance, implicated in the proceeding. [23] The same applies here: it should make no difference whether evidence of prior sexual history is derived from a “record” or not it engages a complainant’s dignity and privacy interests all the same.

[16] I note that cases which have held that section 276 does not apply to proceedings involving human trafficking or sexual services offences have argued that existing trial procedures and rules of evidence are well suited to weeding out irrelevant or prejudicial evidence concerning the complainant’s other sexual activity. [24] For example, it has been suggested that a trial judge hearing evidence of a complainant is well-placed to assess and balance the competing interests as the testimony unfolds and can quickly intervene and stop inappropriate questioning. The trial judge can also instruct the jury so as to ensure that any evidence of sexual activity that has been adduced is appropriately considered, such that no prejudicial stereotypes or myths enter into the deliberations.

[17] The difficulty with this argument is that Parliament enacted section 276 precisely because it concluded that existing trial procedures and rules of evidence were insufficient to take proper account of a complainant’s dignity, equality, and privacy interests. A central component of the section 276 regime is to require that sexual activity evidence be vetted in advance of trial, which will have the “salutary effect of focusing all parties on the legitimate use of such evidence.” [25] A section 276 ruling issued in advance of trial will also avoid the inappropriate or inadvertent admission of sexual activity evidence mid-trial, which may not be capable of being remedied through a limiting instruction to the jury. It will also reduce the risk of adjournments and delays that could result if the appropriate parameters of any sexual relationship evidence have not been defined in advance, which would be unfair not only to complainants, but also to the accused. [26]

[18] I conclude that there is “some connection” between human trafficking and sexual services offences and those listed in section 276 (1). Therefore, in proceedings in respect of such offences, evidence of a complainant’s other sexual activity cannot be introduced unless the requirements and conditions set out in section 276 are satisfied.

Conclusion

[19] Section 276 applies to this proceeding. Thus, Mr. L. cannot introduce evidence relating to the complainant’s sexual activity, other than the sexual activity which forms the subject matter of the charges, without bringing an application pursuant to section 276.

P. J. Monahan J. Released: January 6, 2023

References

[1] The “human trafficking” offences are set out in the Criminal Code, RSC 1985. c. C-46, ss. 279.01, 279.011, and 279.02, while the “sexual services” offences are set out in ss. 286.1, 286.2 and 286.3. [2] See R. v. Williams, 2020 ONSC 206; R. v. Williams, 2020 ONSC 6347 ("Williams II"). [3] R. v. Langford, 2021 ONSC 4307 ("Langford"). [4] 2019 SCC 33 ("Barton"). [5] 2020 ONSC 6714. [6] 2022 ONSC 2753. [7] 2022 ONSC 5726. I note that in R. v. M.D., 2020 ONSC 951, Dennison J. held that, although s. 276 did not apply to proceedings involving human trafficking or sexual services offences, an accused in such cases was nevertheless required to bring a common law application if he/she wished to adduce evidence of other sexual conduct of sex workers. [8] Elmer A. Driedger, Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983), at p. 87, cited in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21. [9] Barton, at para. 74. [10] Barton, at para. 72, citing Nowegijick v. The Queen, [1983] 1 S.C.R. 29, at p. 39. [11] Barton, at para. 76. [12] Barton, at para. 76. [13] R. v. J.J., 2022 SCC 28 ("J.J."), at para. 1. [14] J.J., at para. 1. [15] J.J., at para. 2. [16] Barton, at paras. 1 and 198-201. [17] Barton, at para. 230. [18] Barton, at para. 231. [19] See the Criminal Code, s. 278.92 (1) and (2) (a). [20] See J.J., at paras. 34 and 67-69. [21] J.J., at para. 49. [22] Barton, at para. 73. [23] Barton, at para. 75. [24] See Williams II, at paras. 55-63; Langford, at paras. 47-51. [25] R. v. Goldfinch, 2019 SCC 38, at para. 145. [26] J.J., at para. 86.