R. v. N.G.

Warning

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT FILE NO.: CR-22-15785

DATE: 20230131

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. N.G.

BEFORE: The Honourable Madam Justice C. Verner

COUNSEL: Mr. Trbojevic, for the Crown

Mr. Capotosto, for the Defendant

HEARD: January 23, 2023

RULING ON MOTION FOR DIRECTIONS, RE: S. 276

[1] N.G. stands charged with sexual service offences under ss. 286.1, 286.2, 286.3, 286.4 of the Criminal Code, and human trafficking offences under ss. 279.01 and 279.02.

[2] He was originally seeking direction as to whether a number of documents that he may want to adduce at trial, amount to “records” as defined in s.278.1. However, Crown counsel agreed that the documents, as they were described by N.G., did not amount to records. I reviewed the documents and confirmed that they were accurately described by N.G. in the material, and thus, given the Crown’s position (which I find is appropriate), N.G. does not need to bring an application under s. 278.92.

[3] N.G. is now seeking direction as to whether he needs to bring a s.276 application, even though he is not charged with any offence listed in that section, before he can adduce evidence the complainant engaged in sexual activity other than the activity that forms the subject matter of the charges.

[4] The section reads:

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.

[5] The question for the court is whether s.276 applies to sexual services offences or human trafficking offences, even though they are not amongst the offences listed. In R. v. Jarvis, 2002 SCC 73, Justices Iacobucci and Major provided the following guidance in interpreting a statute:

The approach to statutory interpretation can be easily stated: one is to seek the intent of Parliament by reading the words of the provision in context and according to their grammatical and ordinary sense, harmoniously with the scheme and the object of the statute (Interpretation Act, R.S.C. 1985, c. I-21, s. 12; Bell ExpressVu Ltd. Partnership v. Rex, 2002 SCC 42 (S.C.C.); Rizzo & Rizzo Shoes Ltd., Re, 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27 (S.C.C.); R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688 (S.C.C.); E. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87).

[6] Although the most recent cases interpreted s. 276 as saying it does apply to sexual services and human trafficking offences (R. v. Vallejos, 2022 ONSC 2753, R. v. Hamblett,2022 5726, R. v. Lees, 2023 ONSC 124, R. v. T.A., 2020 ONSC 6714), there are a few more dated cases supporting the Applicant’s position that s.276 does not apply to such offences (see: R. v. Williams, 2020 ONSC 206, R. v. Langford, 2021 ONSC 4307, R. v. Powell, 2021 CarswellOnt 20684). The Applicant relies on the reasoning in the latter set of cases.

The Applicant’s Position

[7] The Applicant’s main argument, relying on R. v. Williams, 2020 ONSC 206, focuses on the fact that s.278.92 explicitly includes sexual services offences and human trafficking offences, while s.276 does not. He argues that the omission in s.276 is intentional. Section 278.92 reads:

278.92 (1) Except in accordance with this section, no record relating to a complainant that is in the possession or control of the accused — and which the accused intends to adduce — shall be admitted in evidence in any proceedings in respect of any of the following offences or in any proceedings in respect of two or more offences at least one of which is any of the following offences:

(a) an offence under section 151, 152, 153, 153.1, 155, 160, 170, 171, 172, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3; or

(b) any offence under this Act, as it read from time to time before the day on which this paragraph comes into force, if the conduct alleged would be an offence referred to in paragraph (a) if it occurred on or after that day.

[8] According to the Applicant’s argument, since Parliament turned its mind to s. 276 when it enacted s.278.92, the fact that sexual services offences and human trafficking offences were not added to the list of offences in s.276 at the time of the enactment of s.278.92, was intentional. In other words, the Applicant argues that Parliament intended for the s.278.92 regime to apply to those offences and intended that the s.276 regime did not.

[9] I accept that if Parliament had enacted s.276(1) at the same time, or even after it enacted s.278.92, the fact that sexual services offences and human trafficking offences were omitted from the section, would be given significant weight in assessing Parliament’s intent. However, considering that s. 276(1) was enacted before s.278.92 and not changed at the time of s.278.92’s enactment, it is less clear if the omission in s. 276 is intentional.

[10] For me, the real question is whether there is a rational explanation for why Parliament would have s.278.92 apply to sexual services and human trafficking, but not have s.276 apply. The Applicant, relying on R. v. Williams, 2020 ONSC 6347 (Williams II), submits there is a rational explanation. He submits that unlike for s.278.92, s.276 does not lend itself well to the sexual services offences, since the Crown does not have to prove a lack of consent for such offences. In Williams II, Stribopolous J. considered the history of the enactment of s.276 and the relevance of the twin myths to sexual offences and concluded that the s.276 regime is relevant when an offence charged has a lack of consent as an element.

[11] However, I am not persuaded that s.276 only applies to offences involving a lack of consent given that s.276 explicitly applies to s.155, incest and s.173, indecent acts. The Crown does not need to prove a lack of consent to prove either of those offences. I agree with M.G. Quigley J.’s finding in R. v. T.A., 2020 ONSC 6714 that the twin myths are relevant in sexual services offence cases. Perhaps, most obviously, the myth that sexually active women are less credible, is clearly at play in such cases.

[12] I do not accept that there is a rational explanation for why the s.278.92 regime would apply to sexual services offences, but s.276 would not. I accordingly do not accept that the difference in the list of offences between s.276 and s.278.93 is, in itself, determinative of the issue before me. I must consider further whether the words of s.276, when assessed in “their grammatical and ordinary sense, harmoniously with the scheme and the object of the statute” (R. v. Jarvis), dictate that the section applies to sexual services offences and/or human trafficking offences.

“In Respect Of”

[13] I therefore consider the language of s.276. It stipulates that the regime applies to proceedings “in respect of” a list of offences. In R. v. Barton, 2019 SCC 33 Moldaver J. found that the phrase “in respect of”, meant that there only had to be “some connection” between the offence charged and one of the enumerated offences. He said:

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 (S.C.C.), 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.

[14] In R. v. Langford, 2021 ONSC 4307, Nakatsuru J. found that Moldaver J. was “careful” to say there needed to be “some connection”; Nakatsuru J. thereby implied that the threshold was not necessarily a low one. However, as I read Moldaver J.’s decision, he suggested that the “some connection” threshold was an easy one to meet. He described the phrase “in respect of” as “exceptionally broad language”. He emphasized that it is "of the widest possible scope" and is "probably the widest of any expression intended to convey some connection between two related subject matters". In stating that predicate offences and included offences were only examples of a connection, he implicitly was saying there were other types of connections that would meet the test.

[15] To assess what other types of connections may be sufficient, Moldaver J. directed trial courts, in paragraph 74, to consider the purpose of s.276. Significantly, he did not suggest in that paragraph that the purpose of the section is linked to sexual assaults in particular. Instead, he suggested that the purpose is linked to sexual offences. He recognized s.276 as protecting the security and privacy of complainants in sexual offences cases.

[16] In other areas of his judgment, Moldaver J. implied that s.276 in fact should be used to protect sex workers. In his opening paragraph, he emphasized that the backdrop to his judgment, in which he concluded that s.276 applied in that case, is that the courts should be doing more to protect sex workers. He said:

We live in a time where myths, stereotypes, and sexual violence against women — particularly Indigenous women and sex workers — are tragically common. Our society has yet to come to grips with just how deep-rooted these issues truly are and just how devastating their consequences can be. Without a doubt, eliminating myths, stereotypes, and sexual violence against women is one of the more pressing challenges we face as a society. While serious efforts are being made by a range of actors to address and remedy these failings both within the criminal justice system and throughout Canadian society more broadly, this case attests to the fact that more needs to be done. Put simply, we can — and must — do better.

[17] To summarize the relevant findings in Barton, Moldaver J. directed courts to interpret s.276 as applying to any offence that has some broad connection to one of the enumerated offences, keeping in mind that s.276 is there to protect complainants of sexual offences. He further directed courts that the Code should be interpreted to do more to protect sexual services workers. Thus, although Moldaver J. does not explicitly state that s.276 applies to sexual services offences and/or human trafficking offences involving sex workers, I find that his decision provides support for such a conclusion.

R. v. J.J., 2022 SCC 28

[18] In the subsequent case of R. v. J.J., 2022 SCC 28, the Supreme Court provided further support for finding that s.276 applies to the offences in the case at bar. More particularly, Wagner C.J. and Moldaver J. suggested in J.J. that s.276 applies to the same set of offences as does s.278.

[19] In J.J., the court assessed the constitutionality of the records regime under s. 278.92 to s.278.94. In finding that the regime is constitutional, Wagner C.J. and Moldaver J., relied on the fact that the Supreme Court already found s.276 is constitutional in Darrach, 2000 SCC 46 and they found that ss.276 and 278.92 were similar in many respects. At no point did they suggest that the sections apply to different offences. More importantly, at no point did they suggest that the purpose behind the two sections is different in any way. In fact, they suggested the opposite. Here is one passage in which they suggested that s.276 protects the same group of people as does s.278.92, namely complainants of sexual offences:

The record screening regime does not apply to all defence evidence; it is specifically tied to the legislative purpose of protecting complainants' highly private records in sexual offence trials. Like the former s.276 regime, s. 278.92 screening in the context of private record applications applies to a narrow set of evidence that implicates important interests of complainants in sexual offence cases and has the potential to create serious prejudice. Private records are analogous to s.276 evidence, as they can also implicate myths that are insidious and inimical to the truth-seeking function of the trial (Darrach, at paras. 26 and 28). Like s.276 evidence, private records encroach on the privacy and dignity of complainants.

[20] It is particularly apparent that Wagner C.J. and Moldaver J. assumed that s.278.92 and s.276 applied to the same set of offences, from their discussion of when documents that contain evidence of “other sexual activity” should be subjected to the s.278.92 process. They said:

It is helpful to clarify why evidence of an explicit sexual nature that relates to the subject matter of the charge may be caught by the record screening regime even if it is not s.276 evidence. In addition to creating the record screening regime for private records, Bill C-51 also added s. 276(4), which specifies that sexual activity "includes any communication made for a sexual purpose or whose content is of a sexual nature". This provision applies to sexual activity other than the sexual activity that forms the subject matter of the charge (s.276(2)). Any communication regarding such sexual activity would fall within the s.276 regime.

Accordingly, the only records of an explicit sexual nature that could be subject to the record screening regime outside of the s.276 context would be records pertaining to the complainant, in the possession or control of the accused, that relate to the sexual activity which forms the subject matter of the charge. For clarity, "subject matter of the charge" refers to the components of the actus reus of the specific charge that the Crown must prove at trial. These types of records are likely to engage the complainant's reasonable expectation of privacy under the content and context framework described above.

[Italics in original. Bold added.]

[21] This passage reveals that Wagner C.J. and Moldaver J. approached the issue before them on the basis that ss.276 and 278.92 apply to the same offences. They indicated that the only sexual activity would be subject to the s.278.92 regime is the sexual activity that forms the subject matter of the charge, because all other sexual activity would be caught by s.276, which essentially trumps s.278.92. However, if the Applicant was correct, then in sexual services offence cases, there would be no s.276, and therefore, all evidence of sexual activity could be subject to the s.278.93 regime. Since Wagner C.J. and Moldaver J. did not allow for this possibility, their decision in J.J. is inconsistent with the Applicant’s theory.

[22] Justice Monahan similarly recently found in R. v. Lees, 2023 ONSC 124 that the discussion in J.J. about when s.278.93 applies to evidence of sexual activity, is inconsistent with the theory that sexual services offences and human trafficking offences do not invoke s. 276. Significantly, there are no cases that post-date J.J., which conclude that human trafficking offences or sexual services offences do not attract s. 276 scrutiny.

[23] Both Barton and J.J. support a finding that s.276 applies to sexual services offences and human trafficking offences involving sex workers.

Other Considerations

[24] In addition to considering the language from the Supreme Court and the interpretation of “in respect of”, I must also consider the rest of the language in s.276. I find that the list of included offences further assists in assessing Parliament’s intent. The list includes:

Sexual interference

Invitation to sexually touch

Sexual exploitation

Sexual exploitation with a person with a disability

Incest

Compelling the commission of beastiality

Beastiality in the presence of or by a child

Parent or guardian procuring sexual activity

Householder permitting illegal, underage sexual activity

Indecent acts

Sexual assault

Sexual assault with a weapon

Aggravated sexual assault

[25] Keeping in mind that the purpose of the section is focused on protecting the complainant, I note that the one common feature amongst the complainants for all of the listed offences is that they are complainants of sexual offences – nothing more. Thus, Parliament used the “exceptionally broad” phrase “in respect of”, which is “probably the widest of any expression intended to convey some connection between two related subject matters”, in relation to a list of offences which only had one relevant common factor – they involve complainants of sexual offences. This lends support for a finding that non-included offences which involve complainants of sexual offences have “some connection” to the enumerated offences.

[26] I also note, looking at the list of included offences, that there is no rational basis for Parliament to have intended to protect complainants in, for example, incest and indecent act offence cases, but not protect complainants of, for example, procuring under s. 286.3, which criminalizes inter alia the exercise of control over sex workers.

[27] Similar to the offences included in the list, there is a live risk that triers of fact will rely on myths and stereotypes in assessing the weight to give to a sex worker’s evidence, especially when she is testifying about engaging in sexual acts. Arguably, the risk of relying on myths is in fact higher in sexual services offence cases, where the complainants will often have a long and involved sexual history, than it would be in indecent act cases, for example.

Conclusion

[28] I am not persuaded by the Applicant’s argument that the s.276 regime should not apply to sexual services offences or human trafficking offences. Instead, when I consider the words of s.276 in “their grammatical and ordinary sense, harmoniously with the scheme and the object of the statute”, I find that the regime does apply in the case at bar. More importantly, the Supreme Court of Canada implicitly found in Barton and J.J. that s.276 does apply to sexual services offences. Accordingly, the Applicant must bring a s.276 application before adducing any evidence of the complainant engaging in sexual activity other than that which forms the subject matter of the charges.

The Honourable Madam Justice C. Verner

Date: January 31, 2023