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Criminal - Evidence of Sexual Activity [CCC 276] (5). R. v. J.O.P.
In R. v. J.O.P. (Ont CA, 2025) the Ontario Court of Appeal considered a trial level open court exception issue respecting criminal sex offence evidence [under CCC 278.94 and 278.95], and their non-application at the appeal stage where the appeal court's "implied jurisdiction to control its own processes" applies the Sherman Estate test:[6] Sections 278.94 and 278.95 of the Criminal Code establish exceptions to the open court principle applicable to hearings at first instance on the admissibility of evidence under s. 276(2) and s. 278.92(2). The purpose of these exceptions is the protection of the dignity and privacy of complainants in sexual offence prosecutions and the exclusion of irrelevant evidence advanced for an improper purpose. These exceptions do not govern appeal hearings: R. v. T.W.W., 2024 SCC 19, 437 C.C.C. (3d) 1, at paras. 64-67. However, an appellate court’s implied jurisdiction to control its own processes includes the discretionary ability to make orders for in camera hearings, sealing orders and publication bans: T.W.W., at para. 68. This discretion “should be exercised in a way that maintains court openness as far as practicable while protecting the complainant’s personal dignity and privacy and the accused’s fair trial rights”: T.W.W., at para. 4.
[7] Orders by appellate courts compromising the open court principle remain exceptional and the discretion to limit public access to court hearings should not be exercised lightly: T.W.W., at paras. 69 and 71-73. The criteria set out in Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R. 75, at para. 38, apply:In order to succeed, the person asking a court to exercise discretion in a way that limits the open court presumption must establish that:
(1) court openness poses a serious risk to an important public interest;
(2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and,
(3) as a matter of proportionality, the benefits of the order outweigh its negative effects.
Only where all three of these prerequisites have been met can a discretionary limit on openness … properly be ordered. [8] The onus of persuading the court that it should limit the open court presumption accordingly rests with the moving party: T.W.W., at paras. 71-72. Applying these principles in R. v. Reimer, 2024 ONCA 588, leave to appeal requested, [2024] S.C.C.A. No. 397, this court denied a request by the Crown for an order banning any publication of its decision on the merits of the appeal.[2]
[9] In camera hearings “are greater incursions on court openness compared to publication bans, because they more absolutely limit public discourse on the subject information by preventing access to the protected material entirely”: T.W.W., at para. 75. The same interests animating the limitations on the open court principle prescribed by the Criminal Code will nonetheless justify an appeal hearing that excludes the public in some instances. In R. v. D.V., 2025 ONCA 67, for example, this court ordered an in camera hearing of a motion to adduce fresh evidence of a complainant’s prior sexual activity. In that case, the argument for excluding the public was cogent because the admissibility of the proposed evidence had not been considered at first instance and the parties agreed that the order was needed to safeguard against any inadvertent public disclosure of the complainant’s sexual history.
[10] D.V. does not, however, establish an invariable or blanket rule. Requests for in camera hearings before this court are adjudicated on a case-by-case basis, weighing competing considerations in the context of the issues and facts in the case on appeal.
[11] Preserving a complainant’s privacy and dignity is a critical interest in every sexual assault proceeding. This interest could be at risk here as the result of the open court presumption. The first leg of the Sherman Estate test is accordingly met. Applying the second part of the test, however, the Crown did not persuade the court that an in camera hearing was necessary to prevent this risk from materializing. There are alternative means to address it. Submissions could be made on the appeal of the s. 276(2) application decision without referring in detail to the complainant’s prior sexual history. As well, the publication ban already in effect prohibits the identification of the complainant by name or personal information.
[12] In these circumstances, the need for an exceptional order excluding the public from the appeal hearing was not made out. . R. v. Gorges
In R. v. Gorges (Ont CA, 2024) the Ontario Court of Appeal allowed a conviction appeal from charges of "kidnapping, assault, assault with a weapon, uttering death threats and a human trafficking", here on the trial court's application of CCC 276 ['Evidence of complainant’s sexual activity'].
Here the court reviews the important CCC s.276 recent case of R v A.M.:(1) Section 276 of the Criminal Code and this court’s recent decision in R. v. A.M.
[28] Section 276 of the Criminal Code restricts the admissibility of evidence regarding a complainant’s prior sexual activities in proceedings “in respect of” certain offences. In R. v. A.M., 2024 ONCA 661, this court recently explained the history and objectives of s. 276. For this appeal, it is not necessary to repeat the history and objectives, but they form the background to the reasoning in this decision.
[29] Section 276(1) of the Criminal Code applies to proceedings in respect of 14 listed offences. It provides that in such proceedings evidence that a complainant has engaged in sexual activity, with an accused or 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. Section 276(4) provides that “sexual activity includes any communication made for a sexual purpose or whose content is of a sexual nature.”
[30] Section 276(2) provides that, in proceedings in respect of a listed offence, the accused shall not adduce evidence that the complainant has engaged in sexual activity, other than the sexual activity that forms the subject-matter of the charge, unless the court, following the procedure set out in ss. 278.93 and 278.94 of the Criminal Code, determines 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. [31] Section 276(3) sets out specific factors a trial judge is to consider when deciding whether to admit evidence that a complainant has engaged in sexual activity other than sexual activity that forms the subject matter of the charges.
[32] None of the offences charged in this case are offences listed under s. 276(1). At the time of the trial, there was some disagreement amongst lower court decisions regarding whether s. 276 applies categorically to non-enumerated offences that may have a sexual aspect, like sexual services and human trafficking offences: see, for example, R. v. Williams, 2020 ONSC 206, 64 C.R. (7th) 226; R. v. M.D., 2020 ONSC 951, at paras. 17-46; R. v. Langford, 2021 ONSC 4307, 74 C.R. (7th) 147, at paras. 2, 6-25; R. v. Powell, 2021 ONCJ 708, at paras. 6-10; R. v. Europe, 2023 ONSC 5322, at paras. 8-24; R. v. Floyd, 2019 ONSC 7006; R. v. T.A., 2020 ONSC 6714; R. v. MacMillan, 2021 ONSC 3952, at paras. 16-27; R. v. Ryckman, 2022 ONSC 20, at paras. 4-15; R. v. Maldonado Vallejos, 2022 ONSC 2753; R. v. Lees, 2023 ONSC 124; and R. v. N.G., 2023 ONSC 792.
[33] When the appeal was argued, this court had under reserve its decision in A.M. That decision has since been released. In A.M., the court confirmed that s. 276 does not apply categorically to all proceedings where an accused is charged with a sexual service or human trafficking offence but not a listed offence. Rather, whether a listed offence is implicated in the proceeding, and accordingly whether s. 276 applies, must be determined on a case-by-case basis having regard to the charges, the Crown’s proposed evidence, and whether the defence proposes to lead evidence of a listed offence. The court reached this conclusion as a matter of statutory interpretation and in accordance with the Supreme Court of Canada’s decision in R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579. At para. 92, van Rensburg J.A. summarized her conclusion on the applicability of s. 276 to non-enumerated offences: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”. [Citations omitted.] [34] The court further rejected the suggestion made by at least one lower court decision, namely M.D., that the procedure established by the Supreme Court of Canada in R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, should be required in all cases involving non-enumerated offences such that an accused person charged with a sexual service offence would be obliged to bring a written application when seeking to admit evidence of a complainant’s extraneous sexual activity: A.M., at para. 107. In doing so, endorsing other lower court decisions where requiring a Seaboyer application in all cases involving sexual services or human trafficking offences was rejected, this court emphasized at paras. 111-12 that, regardless of whether s. 276 applies in a particular case, trial judges remain responsible as gatekeepers to prevent accused persons from adducing evidence from complainants that improperly engages myths and stereotypes:[W]hile 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.
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.
[Emphasis added.] [35] In A.M., the court allowed the appeal. In that case, the appellants had been charged with a number of offences, including human trafficking and various sexual services offences, none of which were listed offences under s. 276. The trial judge nevertheless heard and decided an application under s. 276 and excluded some evidence of the complainant’s prior work in the sex trade, including her experience posting advertisements. On appeal, based on the legal analysis discussed above, this court found that it was an error to apply s. 276 to the admissibility of the evidence at issue. The court reasoned as follows, at paras. 97-98:I disagree that s. 276 applied in the circumstances of this case. None of the listed offences was an included offence to the charges in this case, nor was such an offence implicated in the factual circumstances advanced by the Crown. As noted earlier, sexual assault is not an included offence to procuring, even when it is alleged that the accused has committed the offence by exercising control over the complainant’s movements. The requirement that the Crown prove an accused “exercised control, direction or influence” is not the same as saying the complainant did not consent to the sexual act. In a different case it might be alleged that the accused used violence or the threat of violence to compel the complainant to offer her sexual services, implicating the offence of sexual assault: see e.g., R. v. J.C. and D.B., 2023 ONSC 6093. In this case however there was no suggestion that the sexual services A.K. provided were non-consensual. Nor was lack of consent an element of the two counts of human trafficking. For one count (exercising control, direction or influence for the purpose of exploitation contrary to s. 279.01(1)), any consent is statutorily declared to be invalid by s. 279.01(2), and for the other (receiving material benefits from the commission of a s. 279.01(1) offence), consent is irrelevant.
Consent was also not a live issue based on the application record before the trial judge. There was no suggestion that A.K. had been sexually assaulted or that the appellants forced her to work in the sex trade. Rather, the Crown’s theory that the appellants exploited A.K. rested on the allegation that they had abused a position of trust, power or authority by taking advantage of her drug and alcohol addiction, and not on any meaningful vitiation of consent. Further, and in any event, while abusing a position of trust, power or authority vitiates consent for the purpose of a sexual assault charge (see Criminal Code, s. 273.1(2)(c)), lack of consent is only one element of the sexual assault offence: see. R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 25. As Fraser J. explained in R. v. A.M., 2021 ONCJ 266, at paras. 25 and 27, s. 276 is not engaged “by the mere alignment of ‘some elements’ of the charged offence and an enumerated offence” but requires “the complete constellation of elements comprising a listed offence”. Here that constellation of elements is lacking. Even on the Crown’s theory, there was no sexual assault. [36] The court went on to find that, because of this error, the appellants had been precluded from cross-examining the complainant about evidence that was relevant to their defence. Moreover, the evidence at issue did not engage the twin myths.
[37] Finally, the court in A.M. refused to apply the curative proviso in s. 686(1)(b)(iii) of the Criminal Code. The court noted that the proviso will rarely apply where cross-examination has been improperly curtailed: at para. 130. The appellants in A.M. had been precluded from asking the complainant questions about her prior work as an escort, including her experience posting her own advertisements. The court explained why the appellants’ convictions would not have been inevitable had they been able to elicit such evidence on cross-examination. In the circumstances, the excluded evidence could have affected the outcome of the trial and reliance on the curative proviso was not appropriate. At paras 48-56 the court further considered the situation where the trial court, while holding that the charges did not fall under CCC 276, applied "the principles underlying s. 276 to disregard all of the complainant’s evidence regarding her work in the sex trade" - particularly as it bore on credibility.
. 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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