Where Law Meets Limitations: The Roles and Boundaries of Trial Judges in the Development of the Common Law

Author: P Dhillon

Abstract

 There is no question that historically, women and men have been hesitant to come forward and report sexual offences. These victims are afraid to come forward because of the fear of not being believed, fear of retribution, and fear of the criminal justice system and its methods. However, in the past few decades, the combined efforts of Parliament and the common law have helped to bridge some of the gaps that perpetuate these fears. This blog will explain the development of provisions in the Criminal Code [the “Code”] and in the common law regarding what types of evidence are admissible at trial through the examination of R. v. M.D. and R. v. Williams.

S.276 Applications and Seaboyer

 In 1982, Parliament enacted section 276 of the Code to combat the stereotypes discussed above by barring any cross-examination of a complainant of past sexual activity through which a victim could be blamed for their assaults.¹Parliament enacted this with the intention of protecting vulnerable complainants from the victim-blaming that they would endure during cross-examination. The victim blaming was specific to targeting women; this was often done through what the SCC called the “Twin-Myths,” which were inferences that were not based on facts but were rooted in stereotypes.²Although largely discredited now, these myths were that an unchaste woman was more likely to consent to sexual activities and that they are less worthy of belief because of previous sexual activity.³ In 1992, the SCC addressed the principles in s.276 through R. v. Seaboyer and found them unconstitutional because they were inconsistent with the accused’s s.7 and s.11 (d) rights under the Charter of Rights and Freedoms.⁴ Specifically, this section did not allow defence counsel to put forward the defence of consent in a sexual assault.⁵ The Court decided that in order to award protection to a complainant and grant an accused the opportunity for a full answer and defence, the common law would need to be developed. Specific procedures were articulated in Seaboyer that would allow evidence about past sexual activity into a trial that balanced the rights of both an accused and a complainant.⁶ Parliament reacted to this immediately and “essentially codified the decision in Seaboyer, providing a legislated mechanism for trial judges to determine the admissibility of evidence of a complainant’s prior sexual activity.”⁷ Basically, to engage in an examination of a complainant’s sexual history, defence counsel must submit a s.276 (2) application prior to trial, have a voir dire on the matter, and then the trial judge will decide whether the evidence is more prejudicial than probative to go into the trial proper. Keep in mind that the protection that s.276 offers to complainants is limited to offences found under this provision, and for the most part are strictly sexual assault offences.

R. v. Williams and R. v. M.D.

 Mr. Williams is charged with four offences, all involving the same complainant; three are for sexual services offences, and the fourth is for uttering threats.⁸ The accused and complainant were in a relationship, and the accused allegedly forced her into the sex trade and exploited her.⁹ The Crown claims that allegedly the accused would “exercise, ‘control, direction, or influence’ over [the complainants] movements for that purpose.”¹⁰ At trial, defence counsel wishes to cross-examine the complainant on “topics that it acknowledges will, directly and by implication, elicit evidence regarding sexual activity by her that is not the subject of the charges he faces.”¹¹ The Court ruled in a previous case management that the scheme in s.276 does not apply to this case, and defence can introduce this evidence. However, after this ruling, R. v. M.D. was released, in which the Court extended the common law to provide analogous protections to complainants in any sexual service offences, as those that are provided under s.276 for sexual assault charges.¹² As a court of coordinate jurisdiction, the principles of judicial comity would encourage the court in Williams to follow the line of reasoning in M.D.¹³ However, in Williams, the Court rejects the principles in M.D.¹⁴

For over three decades, the common law has been stagnant in developing the rules and procedures established in Seaboyer. Until recently, in R. v. Barton, the court addressed that when the Crown leads prior sexual activity evidence, trial judges are to follow Seaboyer to determine admissibility of this evidence.¹⁵ The Court in M.D. utilized the steps the court took in Barton, specifically paragraphs 72-76, which explained the “some connection test,” through which applications of s.276 can be made should they have some connection to a sexual assault.¹⁶ Further, the Court says that because Barton dictates that applications of s.276 are not limited to include or predicated offences, this provision should be broadly interpreted to capture the purpose of the legislation.¹⁷ The Court in M.D. did not find “some connection” between the listed offences in s. 276 (1) and the offences in the case at hand, but decided that the common law needs to be developed to reflect the evolving social and moral beliefs of society.¹⁸ So, the Court in M.D. extended the common law and provided procedural and substantive safeguards analogous to s.276 for sexual services offences. However, inWilliams, the Court rejects following these principles for the reasons set forth below.

1.     “Judges are not free to make significant changes to the common law or changes that circumvent the legislative choices by Parliament”¹⁹

2.     “‘Sexual Services’ cases do not pose the same risk of “twin-myths” reasoning endemic to Sexual Offences cases”²⁰

3.     “Existing rules of evidence protect against the admission of irrelevant and prejudicial evidence in cases not involving s.276 (1) offences.”²¹

Ultimately, the court in Williams allows defence counsel to submit any evidence in accordance with the existing evidentiary rules and places no additional restrictions on any evidence being introduced.

Is there a solution?

Based on the rulings in R. v. Hawkins, R. v. Salituro, and R. v. Watkins, it is my understanding that the SCC has limited authority on developments that it can make in common law, and if it should choose to do so, it should be done incrementally and within the limitations of the court’s power.²² In the case of lower courts, I believe the same principles would apply. The substantial development in the common law that M.D. sought could be dangerous in my respectful view. As discussed in Williams, there needs to be a balance between “legislature and courts in our constitutional democracy,” and if lower courts begin to take matters into their own hands, it could result in discrepancies in the law across the country.²³ Further, in matters such as this, there needs to be a strict balance between the accused’s and the complainant’s rights. Implementing a stringent procedure for an accused’s introduction of evidence presents an unfair bureaucratic barrier; it is costly and time-consuming. With the procedures developed in M.D., an accused would need a pre-trial application, a notice of application, supporting affidavits, an appointment of counsel for the complainant and finally a voir dire.²⁴ These are all impediments in an already delayed and overworked justice system. I believe the common law, as it stands, and the provisions and rules within the Code are sufficient to address any evidentiary issues that complainants may face through trials in sexual services cases. However, I do agree with some of the Court’s reasons in M.D. regarding the prejudicial views that sex workers are inherently subject to, even within the confines of our current procedural rules and provisions. In my opinion, this is an issue best dealt with by trial judges. As the gatekeepers of all evidence and submissions, trial judges have an obligation to assess whether evidence submitted into a trial is more prejudicial than it is probative. We must trust in the ability of our judges to decipher this on a case-by-case basis.

 Endnotes:

1 R. v. Seaboyer; R. v. Gayme, [1991] 2 SCR 577 at 586.

2 Wayne K. Gorman, “The Use of a Complainant’s Prior Sexual Activity to Support the Defence of Consent in Sexual Assault Trials” (10 January 2023), online (pdf): < judges-juges.ca> at 200.

3 Ibid.

4 R. v. Williams 2020 ONSC 6347 at para 17 [Williams].

5 Gorman, supra note 2 at 198-200.

6 Williams, supra note 4 at para 40.

7 Ibid at para 41.

8 Ibid.

9 Ibid at para 2.

10 Ibid.

11 Ibid at para 3.

12 Ibid at paras 7-9.

13 Ibid at paras 10-11.

14 Ibid at para 12.

15 Ibid at paras 21-22.

16 R. v. M.D. 2020 ONSC 951 at paras 21-25, citing R. v. Barton 2019 SCC 33.

17 Ibid.

18 Ibid at paras 56-59.

19 Williams, supra note 4 at paras 12-13.

20 Ibid at paras 36-37.

21 Ibid at paras 49-50

22 Ibid at para 30.

23 Ibid at para 31.

24 Ibid at para 32.