Background
A.M. and M.P. were charged with human trafficking and sexual-services offences arising from sexual services provided by A.K. The Crown alleged that they used positions of power, including their role as drug suppliers, to control A.K. and profit from her work. The defence maintained that A.K. had previously worked independently and for agencies in the sex trade and had approached A.M. for assistance attracting clients.
The trial judge ruled that the Criminal Code’s section 276 pre-screening regime applied because the charges engaged concerns associated with sexual assault. He consequently restricted cross-examination about A.K.’s previous sex work and redacted related portions of her preliminary-inquiry testimony. A.M. and M.P. were convicted of advertising sexual services, procuring, and receiving a material benefit from sexual services, but acquitted of the human trafficking charges.
The Ontario Court of Appeal found that section 276 had been applied incorrectly, quashed the convictions, and ordered new trials on the sexual-services offences. The Crown appealed to the Supreme Court of Canada.
The Court’s Holding
The Supreme Court unanimously dismissed the Crown’s appeal. It held that section 276 does not categorically apply to prosecutions for sexual-services or human trafficking offences because Parliament did not include those offences in the provision’s list of enumerated offences. Under the test from R. v. Barton, section 276 applies to a non-enumerated charge only when an enumerated offence is a predicate or included offence, or when all elements of an enumerated offence are implicated by the particular proceeding.
The trial judge erred by finding a sufficient connection to sexual assault merely because the charged offences touched on consent. The elements of procuring—such as control, direction, or influence over a person’s movements—are distinct from whether that person consented to a sexual act. The Court also declined to extend the common-law screening framework from R. v. Seaboyer to sexual-services and human trafficking cases, reasoning that doing so would contradict Parliament’s deliberate legislative choices and constitute more than an incremental common-law change.
Evidence of prior sex work cannot be used to establish a general propensity to engage in sex work or sexual activity, or to suggest that a complainant is less susceptible to exploitation. But it may support legitimate inferences about the complainant’s state of mind, working arrangements, autonomy, or the commercial context of the relationship. Here, the proposed evidence concerned those commercial and contextual matters, so the Court affirmed the order quashing the convictions and directing new trials.
Key Takeaways
- Section 276 does not automatically govern sexual-services and human trafficking prosecutions; its application to a non-enumerated charge must be established case by case.
- The Barton connection exists when an enumerated offence is a predicate or included offence, or when all its elements are implicated by the proceeding—not merely when some elements or themes overlap.
- Prior sex-work evidence may be admissible for a legitimate commercial or contextual purpose, but not to prove sexual propensity, diminished credibility, or general immunity from coercion or exploitation.
Why It Matters
The decision clarifies the reach of Canada’s statutory restrictions on prior sexual-activity evidence and preserves Parliament’s distinction between section 276 and neighbouring records-screening regimes. Courts may not impose section 276 categorically on offences that Parliament omitted from its enumerated list.
At the same time, the ruling does not leave complainants unprotected. Trial judges remain responsible for stopping questioning rooted in myths, stereotypes, or improper propensity reasoning while allowing relevant evidence necessary to assess the parties’ commercial relationship, the complainant’s perspective, and allegations of control or exploitation.