Case information

Criminal law — Evidence — Admissibility — Complainant’s sexual activity — What is the test for the application of the procedural safeguards in s. 276 of the Criminal Code to non-enumerated offences, particularly sex trafficking and sexual services offences — Does the common law Seaboyer framework provide procedural safeguards if s. 276 does not apply — Is it permissible to rely on a propensity-based inference that complainants who previously voluntarily engaged in sex work are more likely to voluntarily engage in sex work on subsequent occasions — Criminal Code, R.S.C. 1985 c. C-46, s. 276.

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(PUBLICATION BAN IN CASE)

A.M. and M.P. were charged with procuring the sexual services of A.K., receiving a material benefit from her sexual services, advertising her sexual services, human trafficking, trafficking in a controlled substance, and other offences. A.K. testified at a preliminary inquiry and at trial. A.M. and M.P. applied for leave to cross-examine her at trial and stated the focus of the cross-examination would not be on her past sexual activity. The trial judge permitted some cross-examination and permitted tendering a redacted transcript of A.K.’s testimony at the preliminary inquiry. A.M. and M.P. were not permitted much of their proposed cross-examination, including questioning A.K. regarding her previous work in the sex trade, how and when she entered the sex trade, her past advertisements, with whom and how she conducted her business in the past, and her continuance of sex work after the time frame alleged in the counts against A.M. and M.P. A.M. and M.P. were convicted for procuring sexual services, receiving a material benefit from sexual services and advertising sexual services. A.M. was convicted for trafficking a controlled substance. M.P. was acquitted on the count of trafficking a controlled substance and both were acquitted on all other counts. The Court of Appeal allowed an appeal and ordered a new trial on the counts of procuring A.K.’s sexual services, receiving a material benefit from A.K.’s sexual services, and advertising A.K.’s sexual services.