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Criminal - Pre-trial Screening. R. v. A.M.
In R. v. A.M. (Ont CA, 2024) the Divisional Court allowed a criminal appeal, here that focussed on CCC 276 which addresses "to what extent evidence may be led by an accused with respect to a complainant’s sexual activities other than the offence charged" with respect to one or more of 14 listed offences. Here the specific issue was "the test for applying s. 276 to offences that are not specifically listed in the section, which I refer to as “non-enumerated offences”".
Here the court considers whether a 'Seaboyer' "pre-trial screening procedure for the admissibility of evidence of a complainant’s other sexual activity (and in particular, evidence of other sex work)" is required in the circumstances of the case:(iii) A “Seaboyer-type” Application Is Not Required in All Sexual Services and Human Trafficking Proceedings
[101] I pause here to refer to the Crown’s alternative argument – that, in the event that s. 276 does not apply to all trials for human trafficking and sexual services offences, this court should recognize an extension to the common law under Seaboyer to require a pre-trial screening procedure for the admissibility of evidence of a complainant’s other sexual activity (and in particular, evidence of other sex work). The Crown relies on M.D., where Dennison J., after rejecting the application of s. 276 to proceedings involving sexual services and human trafficking offences, directed that a Seaboyer-type procedure be adopted in respect of evidence of other sexual conduct by sex workers where the accused is charged with sexual services offences: at paras. 47-76. Dennison J. also directed, in that particular case, that the complainant be afforded counsel and provided with the opportunity to make submissions at the hearing.
[102] The appellants argue that this court should not extend the Seaboyer process where s. 276 does not apply because this would be an unwarranted extension of the common law in circumstances where Parliament has spoken clearly: R. v. Williams, 2020 ONSC 6347, 396 C.C.C. (3d) 267 (“Williams #2”), at paras. 8-65; Langford, at paras. 40-52.
[103] Seaboyer resulted from the Supreme Court’s decision to strike down the earlier version of s. 276 as unconstitutional and its unwillingness to return to the pre-s. 276 status quo. In place of s. 276 the court provided guidelines for the admission of evidence designed “to remedy [the section’s] defects while preserving the intent of s. 276”: Darrach, at para. 19. And in 1992, Parliament enacted a new s. 276 regime which essentially codified the common law principles set out in Seaboyer governing the admissibility of other sexual activity evidence. As such, applications under s. 276 of the Criminal Code are often referred to as “Seaboyer” applications.
[104] As noted earlier, in Barton Moldaver J. observed that, although s. 276(2) applies only to evidence adduced by or on behalf of the accused, trial judges should follow Seaboyer to determine the admissibility of Crown-led prior sexual activity evidence in a voir dire: at para. 80. In other words, he recognized that Seaboyer will apply in some cases that fall outside s. 276, and will require a similar prior assessment of admissibility to be made.
[105] In M.D., after determining that s. 276 did not apply, Dennison J. concluded that an accused person charged with a sexual service offence should be required to bring a written application when seeking to admit evidence of other sexual conduct of the complainant. In her careful analysis of the issue, she relied on the obligation of a trial judge to ensure that only relevant evidence is admitted and to exclude irrelevant and misleading evidence. Recognizing that the common law Seaboyer procedure was in relation to sexual assault complainants, she noted that its purpose and rationale “applies with at least equal force when considering the admission of evidence of other sexual conduct by sex workers”: at para. 57. Referring to the systemic biases, prejudices and stereotypes faced by sex workers, she concluded that a voir dire was necessary in proceedings involving sexual services to ensure that evidence of other sexual activity was not introduced for the purpose of fostering myths and stereotypes: at paras. 62-63. Her decision also appointed counsel for the complainant and anticipated that the factors under s. 276 would be applied in the determination of the Seaboyer application.
[106] Other cases have considered the issue and concluded that this aspect of M.D. was wrongly decided, and they have rejected the proposed extension of Seaboyer to proceedings involving sexual services and human trafficking offences: see Williams #2; Langford, at paras. 40-52; and Europe, at paras. 25-27.
[107] Essentially the procedure that was endorsed in M.D. and that the Crown urges this court to accept would result in an extension of s. 276 beyond its current scope which is “in proceedings in relation to” 14 named offences. I agree with the appellants that such an extension would be contrary to the intent of Parliament, and an unwarranted and unnecessary extension of the common law.
[108] First, applying the Seaboyer framework in this case would represent a dramatic shift in the common law. As Stribopoulos J. observed in Williams #2, at paras. 30-33, there are significant constraints on the authority of courts to change the common law, and extending the Seaboyer procedures to an entirely new category of offences would be more than an incremental change to the existing common law and would circumvent Parliament’s deliberate legislative choice not to include sexual offences in s. 276. The Supreme Court has repeatedly noted the need to proceed cautiously through incremental change to the common law. As L’Heureux-Dubé J. (dissenting, but not on this point) explained in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 45:[T]he duty to review the common law carries with it a corresponding responsibility to proceed prudently. This Court has limited changes in the common law to those which are “slow and incremental” rather than “major and far-reaching”: Watkins v. Olafson, 1989 CanLII 36 (SCC), [1989] 2 S.C.R. 750, at p. 760, per McLachlin J. This Court must restrict reforms to only “those incremental changes which are necessary to keep the common law in step with the dynamic and evolving fabric of our society”: R. v. Salituro, 1991 CanLII 17 (SCC), [1991] 3 S.C.R. 654, at p. 670, per Iacobucci J. [109] Barton’s extension of Seaboyer to Crown-led evidence of prior sexual activity is an example of this incremental approach, but it would be a major change to the common law if the Seaboyer framework were extended to human trafficking and sexual services offences. Such an extension to whole new categories of offences would have considerable consequences for the legal system, requiring a voir dire to determine the admissibility of proposed evidence of other sexual activity.
[110] Second, Seaboyer should not be extended because there is no legislative gap for the common law to fill. Parliament enumerated certain offences in s. 276 but chose not to include the human trafficking and sexual services offences within the provision’s purview. Extending Seaboyer to cover those non-enumerated offences would undermine Parliament’s deliberate choice not to include those offences within the s. 276 regime. Crown-led evidence is different, as s. 276 is simply silent on that issue.
[111] Third, while there is a risk of stereotypical or myth-based reasoning in sexual services and human trafficking prosecutions, the trial judge as gatekeeper has the ability to intervene, with or without objection at trial, to preclude questions from being answered on the basis of relevance or where the probative value of the evidence is substantially outweighed by its prejudicial effect. The trial judge will always have the authority and responsibility to guard against improper reasoning and the invocation of myths and stereotypes: see Barton, at paras. 1, 68 and 201.
[112] As Stribopoulos J. emphasized in Williams #2, at paras. 50-63, existing rules of evidence already protect against the admission of irrelevant and prejudicial evidence. Even without Seaboyer’s extension, a trial judge is well-positioned to balance the competing interests at play as testimony unfolds by barring or placing limits on the admissibility and use of evidence of other sexual activity, intervening to stop inappropriate questioning, and directing a voir dire in exceptional cases if one is required. Trial judges, as Nakatsuru J. observed in Langford, at paras. 48-49, are not powerless when a sex worker is questioned about unrelated sexual activity:A trial judge hearing the evidence of a complainant [in such a case] 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… [and] 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.
... 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. [113] Further, as Stribopoulos J. observed in Williams #2, at paras. 50-51, the fact that courts in the three decades since Seaboyer’s release have not, at least until M.D., extended Seaboyer to other offences suggests that courts have not found it necessary to apply the guidelines from that case to prosecutions for charges that lack a connection to the offences enumerated in s. 276.
[114] Accordingly, I reject the Crown’s invitation to require a Seaboyer-type application by the defence in all cases involving sexual services or human trafficking offences.
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