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Joseph Neuberger, Michael Bury and Diana Davison, Neuberger & Partners LLP, Toronto Sex Assault Lawyers
The Court also refused to fill the space with the common law Seaboyer screen. And it drew a line that will matter in every trial of this kind: inferences from the commercial side of a complainant’s past sex work are not the same as inferences from its sexual nature. Justice Moreau wrote for all nine judges.
01 • BREAKDOWN OF CASE
A.M. and M.P. were charged with two human trafficking offences (ss. 279.01(1) and 279.02(1)) and three sexual services offences: receiving a material benefit (s. 286.2(1)), procuring (s. 286.3(1)) and advertising (s. 286.4). The allegations covered February 2015 to October 2017 and involved a complainant, A.K., who worked out of Toronto-area hotels and later a house in Newmarket.
The Crown said the accused used their role as A.K.’s drug suppliers to control her and keep her in the sex trade. The defence said she had worked in the trade since about age 18, independently and for agencies, and had sought out A.M. herself because she needed help attracting clients.
The defence wanted to cross-examine A.K. on that prior work: how she entered the trade, how earnings were split, how she advertised on Backpage.com, and so on. They said the focus was financial and advertising, not sexual. The trial judge held that s. 276 applied because the charges went to the heart of A.K.’s consent, which engaged sexual assault. He barred most of the questioning and redacted her preliminary inquiry evidence.
The accused were acquitted of trafficking but convicted of the three sexual services offences. The Court of Appeal for Ontario (2024 ONCA 661) found the s. 276 ruling wrong and ordered new trials. The Crown appealed to the Supreme Court.
02 • WHY S. 276 DOESN’T AUTOMATICALLY APPLY
The Crown asked the Court to treat sexual services and trafficking offences as always falling within s. 276. Applying the modern approach to statutory interpretation, the Court said no on all three fronts.
03 • THE BARTON TEST, CLARIFIED
In R. v. Barton, 2019 SCC 33, the Court said s. 276 reaches any proceeding where a listed offence has “some connection” to the charge. Ontario trial courts split on what that meant for sex work and trafficking cases. A.M. settles it: the inquiry is case by case, focused on the individual proceeding rather than the category of offence.
Section 276 is engaged in three situations:
The third route sets a real threshold. Overlap between some elements of the charge and a listed offence is not enough; the full set of elements must be in play. A trafficking case where sexual assault or coerced sex is alleged as a method of control could qualify. This case did not.
That is where the trial judge went wrong. Procuring requires control, direction or influence over a person’s movements. Proving that is a different question from whether the complainant consented to a sexual act, and consent was not a live issue at trial.
The Court also urged counsel to flag possible s. 276 issues early, ideally pre-trial, rather than leaving them to surface mid-trial.
04 • NO COMMON LAW BACK DOOR
The Crown’s fallback was to screen this evidence under the common law Seaboyer framework, as Barton did for Crown-led sexual history evidence. The Court declined for three reasons.
05 • COMMERCIAL INFERENCES VERSUS SEXUAL ONES
The Crown argued that the Court of Appeal had revived a prohibited myth: that because A.K. chose sex work before, she likely chose it again. The Supreme Court disagreed, and this is where the decision gets most practical.
Prior sexual history is not categorically irrelevant. What the law prohibits is a line of reasoning, not a category of evidence. Here the defence wanted the evidence for its commercial features: how A.K. ran her business, split earnings and advertised. That went to her autonomy, her decision-making and the power dynamics in her relationship with the accused, and it could help answer the Crown’s theory that she was coerced through her substance use.
The Court set clear limits in both directions:
Without s. 276, the trial judge remains the “ultimate evidentiary gatekeeper” (Goldfinch). The Court listed the tools: limiting questions, stepping in when questioning turns improper, jury instructions and case management. Questioning meant to demean a complainant or play on prejudice against sex workers must be stopped. The Court also restated, from Barton, the harmful stereotypes sex workers face, especially Indigenous women, and recognized these complainants as vulnerable witnesses.
06 • WHY THIS CASE MATTERS
A.M. resolves a split in the Ontario trial courts and gives a workable three-route test for when s. 276 reaches unlisted offences. For defence counsel, it confirms that a complainant’s past sex work can be explored for its commercial and relational context, without a formal application, when no listed offence is implicated. For Crown counsel, the path to screening now runs through the facts: plead and lead evidence that genuinely implicates a listed offence or rely on the trial judge’s gatekeeping.
It is also a strong statement of judicial restraint. The Court acknowledged the risks sex workers face as witnesses but held that extending s. 276 is Parliament’s call, not the courts’.
07 • SOURCE
This post is general commentary and is not legal advice. Neuberger & Partners LLP, Toronto Sex Assault Lawyers.
