The ruling applies to charges laid before Parliament enacted the Protecting Victims Act this summer
An accuser’s past sexual activity can be used as evidence in criminal trials involving human trafficking and sexual services offences, the Supreme Court of Canada ruled in a unanimous decision Friday.
As a result of the ruling in R. v. A.M., two men who were accused of acting as pimps for an Ontario woman can now introduce evidence about the woman’s history of sex work at trial.
Canada’s so-called rape shield rules were enacted to prevent courts from relying on stereotypes about sexual assault complainants to discredit their accusations. Under the rules, which are outlined in s. 276 of the Criminal Code, courts cannot admit evidence about a complainant’s history of sexual activity in proceedings that involve any of 14 offences, which include sexual interference, aggravated sexual assault, indecent acts, and more.
They do not explicitly include human trafficking or sexual services offences.
In 2019, the SCC released a decision in a case called R. v. Barton, finding that in certain circumstances, courts cannot admit evidence about a complainant’s sexual history even in cases that do not involve the offences listed under s. 276. The high court said that if a case involved a crime with an “obvious or informal” connection to one of the listed offences, a court could not admit such evidence.
Writing for the high court in R. v. A.M., SCC Justice Mary Moreau said Canada’s rape shield rules do not apply to human trafficking or sexual services offences. This means that courts are allowed to admit evidence about a complainant’s sexual history in proceedings involving these offences.
The justice also ruled that it would be inappropriate to use the precedent set by Barton to conclude that rape shield rules apply to human trafficking or sexual service offences by virtue of their possible connection to the offences listed under s. 276. Moreau said doing so would be contrary to Parliament’s intent when it enacted the Criminal Law provision.
“Despite the risks associated with impermissible reliance on myths and stereotypes, under Canadian law, evidence of prior sexual history is not categorically irrelevant or inadmissible,” Moreau wrote.
“As this court stated in [R. v. Kruk], ‘just because the evidence happens to align with a myth or stereotype does not necessarily mean that any inferences that can be drawn from that evidence will be prejudicial.’”
Jeffery Couse, a partner at Lockyer Zaduk Zeeh who represented A.M., one of the accused, told Canadian Lawyer that Friday’s ruling “helpfully illustrates the distinction between inferences that arise from evidence of other sexual activity that are legitimate versus illegitimate.
“In the context of sex work, evidence of prior sex may shed light on the nature of the relationship between the accused and complainant,” Couse added.
But Angela Marinos, who represented one of the intervenors, the Raoul Wallenberg Centre for Human Rights, said she was surprised by Moreau’s stance in the ruling that the reliance on stereotypes about sexual assault complainants is a “subtle threat.”
“Respectfully, I think it's much more than a ‘subtle’ threat, and this language minimizes the lived experience of victims and survivors in the criminal justice system,” Marinos argued. “If harmful stereotypes and myths were only a ‘subtle threat,’ we would no doubt see higher reporting and conviction rates involving these offences.”
Both Couse and Marinos noted that Parliament’s enactment of the Protecting Victims Act this summer has broadened s. 276 so that in addition to the 14 listed offences, its scope covers offences “of a sexual nature” or “committed for a sexual purpose.”
Couse clarified that Friday’s ruling interprets the prior version of s. 276, which still applies to charges laid before the Protecting Victims Act came into force.
Marinos said that while she would have preferred Parliament to list human trafficking and sexual services offences under s. 276 explicitly, and she anticipates more arguments about what the Protecting Victims Act changes mean in practice: “I can appreciate the intent behind broadening the language.”
The Ontario Attorney General did not immediately respond to a request for comment.
The courts' rulings
The complainant in R. v. A.M., whom the court refers to as A.K., met the two men whom she accused of acting as her pimps, A.M. and X, at a bar in Toronto in February 2015. Over the next two and a half years, A.K. asked A.M. and X for help finding sex work in Toronto. She eventually met another man, M.P., who occasionally drove her to hotels or clients’ homes.
In September 2017, A.M. and A.K. fought, which led to A.M. grabbing A.K.’s arm at the men’s home in Newmarket, Ontario. A.M. and M.P. then agreed to drive A.K. to a bus station, but stopped at a friend’s on the way. A.K. then left the car and called the police, who arrested A.M. and M.P. the following month.
At trial, A.M. and M.P. asked the Ontario Superior Court of Justice for permission to cross-examine A.K. about her history of sex work, including how she became a sex worker; how long, often, and for whom she worked in the sex trade; how her earnings were split with others; whether she could make more money on her own; and how she met X and what arrangements she had with him before she began working with A.M.
The two men argued that their goal was to focus on the financial and advertising aspects of A.K.’s sex work, rather than its sexual nature.
The trial judge partially granted their request, allowing them to cross-examine A.K. about her meeting with X and their work arrangements as well as her independent work in the two-and-a-half-year period leading up to A.M. and M.P’s arrest. However, the judge barred the men from cross-examining A.K. about her sexual activity before and after this period, ruling that such a line of questioning could lead to the type of discrimination that s. 276 is meant to prevent.
The men were convicted of advertising A.K.’s sexual services for financial gain, recruiting and controlling her, and materially benefiting from her sexual services. However, they were acquitted of human trafficking offences.
The Ontario Court of Appeal disagreed with the trial court and ordered new trials. According to the appellate court, the trial court erred by applying s. 276 because human trafficking and sexual services offences are not among the 14 offences listed in the provision. Because the rape shield rules did not apply to the offences, the court should have allowed A.M. and M.P. to cross-examine on her history of sex work.
The Crown appealed to the SCC, but the SCC dismissed the appeal.
Moreau wrote that “categorically adding the sexual services and human trafficking offences to the enumerated offences in s. 276(1) would be contrary to Parliament’s intent.”
When Parliament enacted the s. 276 regime in 1992, it essentially codified the common-law framework set out in a 1991 SCC decision, R. v. Seaboyer, which upheld the constitutionality of rape shield rules. The Crown had argued that the high court should extend the common rules set out in Seaboyer so that they barred evidence about a complainant’s sexual history in proceedings involving human trafficking and sexual services offences. But Moreau rejected the argument, ruling that such a change to the common law would be contrary to Parliament’s intent.
Moreau then outlined a test to determine whether an offence that is not explicitly listed in s. 276 is nevertheless connected to one of the 14 listed offences, per the court’s Barton decision.
There are three circumstances where an unlisted offence can be considered connected to one of the listed offences: when a listed offence is a predicate offence for the offence charged; when a listed offence is an included offence of the offence charged; or when all the elements of the listed offence are implicated in the proceeding.
