Rape shield law doesn’t always apply to sex workers’ history

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The Supreme Court of Canada says that rape shield laws do not automatically apply to a complainant’s history as a sex worker when offences involve human trafficking and sexual services.

Although for years the courts and Parliament have crafted procedural safeguards to limit the ability of defence attorneys to introduce evidence or cross-examine a sexual assault complainant about their past sexual history, to keep myths and stereotypes about a complainant’s sexual history out of the proceedings, the question of whether this extended to a sex worker’s history was an open one.

In a 9-0 decision, the Supreme Court of Canada has said rape-shield laws do not automatically cover these questions. Rather, they must be examined on a case-by-case basis, and in this instance, they were allowed. 

In the case at hand, two men known as AM and MP were accused of acting as pimps for the complainant, AK, with offences relating to human trafficking, as well as advertising services and receiving material benefits from her sex work between February 2015 and October 2017. 

During preliminary inquiries, the accused asked to cross-examine AK about her previous sex work, with a focus on the financial and advertising aspects rather than the sexual nature of the work.

The trial judge drew on the Supreme Court’s previous jurisprudence in Barton to find a “connection” to the provisions in section 276 of the Criminal Code, which lay out the offences where it’s impermissible to ask for sexual history. The lower court decided those questions met the bar and were stricken from the transcript. AM and MP were convicted of advertising sexual services, procuring a person for facilitating the obtaining of sexual services, and receiving a material benefit from AK’s sexual services. They were acquitted of the human trafficking offences.

The Court of Appeal found the trial judge had improperly applied the test under Barton. Further, the sexual services and human trafficking offences were not part of the section 276 framework, so questions about the complainant’s past sex work should have been allowed. A new trial was ordered. 

The Supreme Court of Canada agreed with that analysis and dismissed the appeal.

“Categorically adding the sexual services and human trafficking offences to the enumerated offences in section 276(1) would be contrary to Parliament’s intent,” Justice Mary Moreau wrote for the Court, adding that extending the application of the common law pre-screening rules set out in Seaboyer would be inappropriate. 

“Instead, using a case-by-case approach to determine whether section 276 applies in proceedings involving sexual services and human trafficking offences respects Parliamentary intent and adequately guards against discriminatory lines of reasoning operating against complainants.”

Although she wrote that the Barton test is to be met as it was at the time of the alleged offences, Parliament has since adopted a new legislative regime in relation to section 276. Language introduced under Bill C-16 broadens the enumerated list of offences to include “any other offence under this Act, or any other Act of Parliament, that is of a sexual nature, or that is committed for a sexual purpose.”

'Unresolved murkiness'

Stephanie DiGiuseppe, a partner with Henein Hutchinson Robitaille LLP in Toronto, who was counsel for the Criminal Lawyers’ Association (CLA) as intervenors, says that while this decision offers some clarity, the changes to the law mean there is still an unresolved murkiness with the new language adopted by Parliament. It’s still uncertain as to whether the 276 regime will always apply to sexual services offences. 

“The most useful thing that comes out of the decision, which shines through the murky situation we’re in, is that we have some very clear guidance about what kind of inferences from prior sex work are going to be ultimately admissible.”

She says Justice Moreau provides guidance on the kinds of inferences that will be useful to trial courts in determining whether these offences have been committed, and on which kinds of evidence or inferences will be prohibited.

“In this case, the Crown wanted to say that prior work in the sex trade was always presumptively inadmissible and prejudicial to the reasoning process,” DiGiuseppe says. 

“The Court says no, that’s not true. There are all sorts of useful purposes for this type of evidence, and that reflects reality.”

The CLA argued that a prior history of sex work can be relevant and extremely useful to trial courts in determining whether a person has been exploited or whether they have been coerced in the context of these offences. For example, if a person has a prior history of sex work and a new person enters the scene, the court needs to be able to determine the power dynamics and whether the introduction of the new person influenced their decision-making or autonomy.

“These changes are obviously relevant to what the complaint was doing before they met the accused, and we were happy to see the Court agree to that,” DiGiuseppe says.

Avoiding myths and stereotypes

Angela Marinos, chief general counsel for the Raoul Wallenberg Centre for Human Rights, which intervened in the case, says that while she understands why the Court rejected the categorical inclusion of these offences under the section 276 regime, more needs to be done to strengthen protections for victims and survivors of sex trafficking, sexual services offences, and sexual violence.

To that end, she was glad to see that determining the admissibility of prior sexual history will continue to be done on a case-by-case basis.

“(The Court) didn’t take away or limit the trial judge's ability to preclude improper questioning based on the twin myths,” Marinos says, referring to the historical myths that unchaste women are more likely to consent to the sexual activity and are less worthy of belief. 

“On the contrary, it emphasized the judge's gatekeeping function and the importance of vigilantly monitoring against any improper inferences. That is a good thing.”

Also good? The fact that the Court devoted an entire section of its judgment to highlighting how reliance on myths and stereotypes undermines the administration of justice and jeopardizes the truth-seeking function of trials.

Melanie Webb, a criminal defence lawyer in Toronto and the past chair of the CBA’s criminal justice section, says that in future human trafficking prosecutions, where charges were laid after Bill C-16 came into force, the Crown will likely argue that section 276 still applies because the charges are of a sexual nature. Ultimately, she thinks it will lead to more litigation.

“The Court does explain quite fairly that when you’re talking about sexual services offences and human trafficking offences, the requisite elements to prove the offences really pertain to the nature of the relationship,” she says. 

“It’s not about a specific sexual act; it’s about the relationship between the complainant and the accused.”