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Criminal - Evidence of Sexual Activity [CCC 276] (4). 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 some CCC 276 issues - particularly whether or not the provision applies to charges for sexual services [CCC 286.3(2)], human trafficking [CCC 279.01(1)] and similar offences:(2) Section 276 Did Not Apply to These Proceedings
[65] I begin by observing that admissibility rulings under s. 276 – which necessarily entail a determination of whether s. 276 applies to a particular proceeding – are questions of law for the trial judge: Criminal Code, s. 278.97; R. v. T.W.W., 2024 SCC 19, 437 C.C.C. (3d) 1, at para. 19. More specifically, the trial judge’s determination that s. 276 applied to these proceedings raises the question of whether he applied the correct legal principles – a question on which no deference is owed: T.W.W., para. 22.
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[67] In the wake of Barton, courts have split in the application of its “broad relational test” to offences not enumerated in s. 276. The division has played out most visibly in the trial courts in Ontario. Since the release of Barton on May 24, 2019, the issue has been canvassed in more than two dozen decisions. Two conflicting lines of jurisprudence have emerged as to whether s. 276 applies in trials for human trafficking and sexual services offences when a listed offence is not among the counts charged.
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[73] In the discussion that follows I will first explain why I agree with the appellants that s. 276 does not apply to all proceedings in respect of sexual services and human trafficking offences, and then I will explain why s. 276 did not apply to these particular proceedings.
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(i) Section 276 Does Not Apply Categorically to Prosecutions for Sexual Services and Human Trafficking Offences
[74] Whether s. 276 applies categorically to proceedings in respect of sexual services and human trafficking charges is a question of statutory interpretation.
[75] The point of departure is the wording of s. 276. The section does not apply to all sexual offences. Rather, it lists 14 specific offences and states that it applies to proceedings “in respect of” those offences. The sexual services and human trafficking offences are not specifically listed. Before Barton, s. 276 was typically applied only to proceedings involving listed offences. As such, it would only have been applied to sexual services and human trafficking cases where a listed offence was also charged. That, however, changed after Barton established a “broad relational test” for applying s. 276 to proceedings in which no listed offence has been charged, with the question being whether “in substance [a listed offence] is implicated in the proceeding”.
[76] Cases that have extended s. 276 to any prosecution for sexual services and/or human trafficking offences have tended to advance three specific reasons: (1) these offences, like the listed offences, are sexual offences; (2) some elements of these offences, such as exploitation, overlap with elements of certain listed offences, meaning that there is “some connection” between all proceedings involving these offences and a listed offence such as sexual assault; and (3) complainants in these types of proceedings are subject to the same biases and prejudices that s. 276 is intended to address.
[77] I appreciate the validity of each of these concerns. But as Nakatsuru J. stated in Langford, at para. 7, while applying s. 276 to sexual services offences and protecting vulnerable sex workers “makes sense in many ways”, the application of s. 276 to offences other than those listed is not a matter of policy, but of statutory interpretation and following Barton.
[78] I agree with the reasoning in Langford, along with Williams #1 and M.D., which applied the modern approach to statutory interpretation and rejected the categorical application of s. 276 to prosecutions where the accused had been charged with sexual services and/or human trafficking offences, but not with a listed offence.
[79] The first important point from these cases is that, for there to be “some connection” between a listed offence and the charged offences, it is not sufficient that the offences merely share a common feature or element – such as the fact that they are all sexual offences, or that the complainant engages in sexual activity in circumstances of exploitation. Rather, what is required is that the commission of a listed offence, while not charged, arises on the facts such that it is, in substance, implicated in the particular proceeding.
[80] In Williams #1, the accused was charged with sexual services offences. The Crown argued that because of the coercive actions of the accused, the complainant did not truly consent to providing sexual services, and as such there was a connection to the listed offence of sexual assault. Stribopoulos J. rejected this argument, noting that lack of consent is not an element of the offence of procuring and that the two offences are not the same. He stated, at para. 27, that “[a]cceding to this argument would conflate the more stringent requirement for concluding that consent to sexual activity has not been genuinely and freely given, with the less exacting demands for the actus reus of the procuring offence found in s. 286.3(1)”. While he agreed that there is no consent to sexual activity where a complainant concludes that she has no choice in the matter – for example, because of violence, threats of violence, or extortion – he observed, at paras. 29 to 30:[A] coercive exertion of power by an accused over a complainant that leaves her some degree of choice in whether or not to sell her sexual services can still result in an accused being culpable for exercising [“control, direction or influence”] under s. 286.3(1)….
In other words, “consent” to sexual activity is not necessarily vitiated whenever an accused has exercised “control” over a complainant’s involvement in the sex trade. It follows that the offence of sexual assault, listed in s. 276(1), is not an included offence to procuring (s. 286.3(1)), even where the accused has committed that offence by exercising control over a complainant’s movements. [Emphasis added.] [81] Similarly, in M.D., Dennison J. concluded that, for the purpose of determining the application of s. 276, there is no connection between the listed offence of sexual assault and acting for the purpose of exploiting a complainant within the meaning of the human trafficking offence in s. 279.01: at para. 40. As Nakatsuru J. noted in Langford, simply because the offences share some common features does not mean that the Barton test is met.
[82] These three cases also relied on the recent legislative history of s. 276 and other provisions to conclude that Parliament made a deliberate choice not to include the sexual services and human trafficking offences in the list of offences found in s. 276(1), and that applying the screening mechanism in s. 276(2) to all such proceedings would be contrary to the intention of Parliament.
[83] Notably, in December 2018, Parliament made extensive amendments to the Criminal Code, including changes to the s. 276 regime.[11] Bill C-51 added in s. 276(2)(a) a new criterion that must be satisfied before any sexual activity evidence is admissible to clarify that such evidence is not being adduced for the purpose of supporting an inference prohibited in s. 276(1), i.e., one of the twin myths. Further, through s. 276(4), Bill C-51 extended the definition of “sexual activity” to include “any communication made for a sexual purpose or whose content is of a sexual nature”. Parliament did not, however, add any other offences – including the sexual services or human trafficking offences – to the 14 offences listed in s. 276(1).
[84] This stands in contrast to the listed offences governing the admission of private records relating to the complainant held by the accused (see s. 278.92) and third-party record applications (see s. 278.2). Importantly, Bill C-51 added s. 278.92, to require an application whenever an accused seeks to admit into evidence a “record relating to the complainant” that is in the possession or control of the accused “in any proceedings in respect of” an offence listed in s. 278.92(1). The listed offences for the purpose of this section include the 14 offences listed in s. 276(1), as well as 7 sexual services and human trafficking offences (including 4 of the 5 offences charged in this case): Criminal Code, s. 278.92(1)(a). This expanded list also applies to third-party record applications: Criminal Code, s. 278.2(1)(b).
[85] Bill C-51 also revoked the existing procedural provisions governing s. 276(2) applications and replaced them with ss. 278.93 and 278.94, which are procedural provisions that apply to both s. 276(2) and s. 278.92(2) applications. These provisions include the right of complainants to be represented and to participate in both types of application.
[86] In its legislative summary of Bill C-51, the Library of Parliament noted that s. 276(1) was not amended to include historical offences, unlike the Bill’s new provision for private records relating to the complainant held by the accused (see s. 278.92(1)(b)) and the existing provision for third-party record applications (see s. 278.2(1)(b)): see Lyne Casavant et al., Bill C-51: An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, Publication No. 42-1-C51-E (Ottawa: Library of Parliament, 1 October 2018, revised 18 December 2018), at p. 22. No explanation for the exclusion was provided, nor do the legislative debates shed any light on the decision not to include historical offences in the ambit of s. 276 or discuss the reach of the provision more generally.
[87] I agree with Stribopoulos J. in Williams #1, that “[t]he combined effect of these various amendments provides a strong indication of Parliament’s intention concerning the offences listed in s. 276(1)”, especially when its attention was focused on those offences, given its decision to list them in s. 278.92(1)(a), and that Parliament “deliberately chose not to include the sexual services offences within the list of offences found in s. 276(1)”: at paras. 35-36.
[88] I also agree with the observation of Nakatsuru J. in Langford, at para. 16, that the conclusion that Parliament’s intention not to specifically incorporate the sexual services offences within the ambit of s. 276 does not end the inquiry. Each case must still be scrutinized on its facts to determine whether the proceeding is, in substance, “in respect of” a listed offence.
[89] This is consistent with the case-by-case determination contemplated by Barton for proceedings where there is uncertainty about whether s. 276 applies because no listed offence has been charged. The focus is on the individual proceeding, and not the category of offence. As Moldaver J. observed in Barton, “[t]he ultimate responsibility for enforcing compliance with the mandatory s. 276 regime lies squarely with the trial judge … who is the gatekeeper in a criminal trial”: at para. 68.
[90] In some cases, the fact that the proceeding implicates a listed offence will be obvious: while a listed offence is not charged, it may be an included offence or a predicate offence. This was the case in Barton, where the listed offence of aggravated sexual assault was a predicate offence to the first degree murder charge. Alternatively, it may be readily discernible from the charge that a listed offence is implicated. For example, a proceeding involving charges under s. 279.011(1) (trafficking a person under 18) will often plainly engage the listed offence under s. 153(1), the sexual exploitation of a young person.
[91] In other cases, a more detailed assessment will be required. On a case-by-case basis the court will need to consider the charges, the evidence the Crown proposes to lead and whether the defence proposes to elicit or lead evidence of a listed offence, to assess whether a listed offence, although not charged, is implicated in the proceeding.
[92] In summary, the issue is whether the proceeding is, in substance, “in respect of” one of the listed offences. It is incorrect to adopt the categorical approach taken in a number of cases that s. 276 will always apply to prosecutions for sexual services or human trafficking offences, with the result that any offence that is analogous to, or shares some common features with, a listed offence is essentially read into s. 276. Instead, the application of s. 276 to proceedings in respect of non-enumerated offences must be determined “in the context of [the] particular prosecution, taking into account the charges, the nature of the allegations, and the subjects about which the accused seeks to cross-examine the complainant”: Williams #1, at para. 6. See also M.D., at para. 8, and Langford, at para. 16. . 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 usefully reviews CCC 276, it's 'screening procedure' and it's history:C. THE SECTION 276 APPLICATION
[18] In this section I will briefly describe the background to the screening procedure that is provided for under s. 276 of the Criminal Code, s. 276 itself, and the Barton decision. I will then turn to the trial judge’s decision on the s. 276 application in this case.
(1) Background to Section 276
[19] Historically in the prosecution of sexual offences, few limits were placed on the admissibility and use of evidence about a complainant’s prior sexual activities. Such evidence was routinely used to distort the trial process and to malign the complainant’s character based on myths and stereotypes, including the “twin myths” that the complainant was more likely to have consented to the sexual act at issue, or was less worthy of belief, because of their sexual history: R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at paras. 33-34; Barton, at paras. 55-56; and R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, at p. 604.
[20] In 1976, Parliament intervened by amending an existing provision of the Criminal Code to provide greater procedural protections to complainants.[3] When judicial interpretation of the provision did not alleviate the problems with the common law, Parliament responded in 1982 by enacting a broader set of legislative reforms.[4] The 1982 reforms prohibited an accused in proceedings in respect of listed sexual offences (sexual assault; sexual assault with a weapon, threats to a third party or causing bodily harm; and aggravated sexual assault) from adducing evidence of the complainant’s sexual conduct on other occasions, subject to three limited exceptions: (1) rebuttal evidence, (2) evidence going to identity, and (3) evidence relating to consent to sexual activity on the same occasion as the trial incident: Seaboyer, at pp. 601, 613.
[21] In its 1991 decision in Seaboyer, the Supreme Court determined that the provision, which was by then renumbered as s. 276, violated ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms. McLachlin J. (as she then was), writing for the majority, concluded that the blanket exclusion of evidence of the complainant’s sexual activity overshot the provision’s purpose and undermined trial fairness, leading to a risk of wrongful conviction. The court struck down the 1982 provision as unconstitutional because it was too restrictive – it had the potential to exclude relevant evidence crucial to a fair trial: at p. 625. The court emphasized that the relevance of all evidence, including sexual history evidence, must be assessed on a case-by-case basis: at p. 609.
[22] In striking down the section, the court was careful to note that it was not reviving the old common law rules of evidence that generally permitted evidence of the complainant’s other sexual conduct and condoned invalid inferences from such evidence. Rather, McLachlin J. offered a set of principles to guide courts in determining on a voir dire that the proposed use of evidence of a complainant’s other sexual conduct is legitimate in a sexual offence trial: see Seaboyer, at pp. 634-36.
[23] Parliament responded in 1992 by enacting a new s. 276.[5] The 1992 regime was challenged on constitutional grounds but was upheld in 2000 by the Supreme Court in R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443. Gonthier J., writing for a unanimous court, explained that the new regime was essentially a codification of the guidelines in Seaboyer, which had affirmed that the purpose of s. 276 is “to protect the integrity of the trial by excluding evidence that is misleading, to protect the rights of the accused as well as to encourage reporting of sexual offences by protecting the security and privacy of complainants”: at paras. 19-20. In the court’s view, the new legislation preserved “[t]he balance struck in Seaboyer among the interests of justice, the accused and the complainant”: at para. 22.
(2) Section 276 of the Criminal Code
[24] Section 276(1) of the Criminal Code currently provides that, in proceedings in respect of 14 listed offences,[6] 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. Pursuant to s. 276(4), “sexual activity” includes “any communication made for a sexual purpose or whose content is of a sexual nature”.
[25] Section 276(2) provides that in proceedings in respect of a listed offence, evidence shall not be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge, or justice determines, in accordance with the procedures set out in ss. 278.93 and 278.94, that the evidence:(a) is not being adduced for the purpose of supporting an inference described in subsection (1);
(b) is relevant to an issue at trial; and
(c) is of specific instances of sexual activity; and
(d) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. [26] Section 276(3) sets out the following factors a judge is required to take into account on an application to determine whether evidence that the complainant has engaged in other sexual activity is admissible:(a) the interests of justice, including the right of the accused to make a full answer and defence;
(b) society’s interest in encouraging the reporting of sexual assault offences;
(c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;
(d) the need to remove from the fact-finding process any discriminatory belief or bias;
(e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;
(f) the potential prejudice to the complainant’s personal dignity and right of privacy;
(g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and
(h) any other factor that the judge, provincial court judge or justice considers relevant. [27] In sum, s. 276 governs the admission and use of evidence that a complainant engaged in sexual activity that does not form the subject matter of the charge. Section 276 “balances a number of trial fairness considerations, seeking to exclude evidence known to distort the fact-finding process while protecting the rights of both the accused and the complainant”: Goldfinch, at para. 28. Section 276(2) provides a screening mechanism, informed by the factors in s. 276(3), that requires the defence to disclose aspects of its case because of the potential prejudice that could result from the admission of the evidence: R. v. J.J., 2022 SCC 28, 415 C.C.C. (3d) 285, at para. 160.
[28] Sections 278.93 and 278.94 of the Criminal Code set out the procedure for an accused’s application under s. 276(2). Section 278.93 provides for a first-stage determination based on an accused’s written application on notice to the Crown. The accused must provide “detailed particulars of the [other sexual activity] evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial”: Criminal Code, s. 278.93(2). If the judge determines that “the evidence sought to be adduced is capable of being admissible under [s.] 276(2)” (that is, it does not engage the twin myths prohibited under s. 276(1), it is relevant to an issue at trial, it is evidence of specific instances of sexual activity, and it has significant probative value that is not substantially outweighed by the danger of prejudice), then the application proceeds to a hearing under s. 278.94 to determine whether the evidence or any part of it is admissible under s. 276(2): Criminal Code, s. 278.93(4). The complainant has the right to be represented by counsel and to participate in the hearing, but is not compellable as a witness: Criminal Code, ss. 278.94(2), (3). The court is required to provide reasons on the application, including (a) where not all of the evidence is to be admitted, stating the parts that are admitted; (b) stating the factors in s. 276(3) that affected the determination; and (c) where all or any part of the evidence is to be admitted, stating the manner in which that evidence is expected to be relevant to an issue at trial: Criminal Code, s. 278.94(4).
(3) The Barton Decision
[29] Typically, the screening mechanism under s. 276 has been applied in cases where the accused was charged with at least one of the offences listed in that section. The landscape changed however with the Supreme Court’s decision in Barton, where the court concluded, at para. 77, that a trial for a murder allegedly committed in the course of a sexual assault with a weapon was a “proceeding in respect of” the listed offence of sexual assault with a weapon, and that as such, defence evidence about the accused’s prior sexual activity with the victim ought to have been screened through s. 276.
[30] Moldaver J., writing for the majority, applied the modern approach to statutory interpretation.[7] First, considering the words of the section in their context, he explained that the phrase “in respect of” in s. 276 is intentionally broad and of the widest possible scope, and imports such meanings as “in relation to”, “with reference to”, or “in connection with”. This indicated that Parliament did not intend to limit the application of the s. 276 regime to proceedings in which a listed offence was expressly charged: Barton, at paras. 72-73.
[31] Second, Moldaver J. explained that a broad and generous interpretation would best achieve the objects of s. 276 – 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 – and would avoid form trumping substance, where the applicability of the regime would turn on how the charges were drafted and not on “whether, in substance, a listed offence is implicated in the proceeding”: Barton, at paras. 74-75.
[32] After considering the text and purpose of s. 276, Moldaver J. stated that s. 276 applies to “any proceeding in which an offence listed in s. 276(1) has some connection to the offence charged”, which he described as a “broad relational test”: Barton, at para. 76.
[33] In Barton, it was plain to Moldaver J. that the proceeding implicated an offence listed in s. 276(1) because the accused was charged with first degree murder while committing the listed offence of sexual assault with a weapon: at para. 77. He noted however that, “where there is uncertainty about whether the s. 276 regime applies to the proceeding in question, the trial judge should raise that issue with the parties at the earliest opportunity and, after giving the parties the opportunity to make submissions, issue a ruling on the matter”: Barton, at para. 78. He also noted 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: Barton, at para. 80.
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[122] As the Supreme Court explained in Darrach, s. 276 prohibits inferences from the sexual nature of the activity, not inferences from other potentially relevant features of the activity: “If evidence of sexual activity is proffered for its non-sexual features, such as to show a pattern of conduct or a prior inconsistent statement, it may be permitted”: at para. 35. See also R. v. Webber, 2021 NSCA 35, 403 C.C.C. (3d) 239, at paras. 115-19; R. v. R.V., 2019 SCC 41, [2019] 3 S.C.R. 237, at paras. 44, 53-54; and T.W.W., at para. 26. Here, the appellants should have been allowed to cross-examine A.K. about her other sex work and prior posting of advertisements, and references to such evidence that were elicited during the preliminary inquiry ought not to have been redacted from the transcript. I therefore conclude that the trial judge erred by precluding the appellants, in advance of the trial, from cross-examining A.K. about her prior work in the sex trade, including questions about her experience advertising her services, and by redacting such evidence from the preliminary inquiry transcript. This evidence was relevant and not being proffered for impermissible purposes. Further, if the appellants had been permitted to solicit this evidence and strayed beyond permissible bounds, the trial judge would have had the authority and responsibility to exercise his gatekeeping function and to intervene.
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