× Home Our Services   About Us   Recent Successes Testimonials News And Videos   Contact Us 中文 فارسی
Contact Our Firm

S. 276 in Sex Trafficking Charges

Book Your Free Consultation

The criminal justice system can be daunting, but you don’t need to go through it alone. Our Criminal lawyers are here to guide you every step of the way.

Contact Our Firm

 

In the recent case of R. v. Gorges, 2024 ONCA 857 the Ontario Court of Appeal readdressed whether non-enumerated charges require vetting through s. 276 of other sexual history primarily related to sex work done by the complainant during the relevant time frames.

In this case the trial judge declined to apply s. 276 in the form of an Application and only mentioned the issue during her decision without asking for input from the Crown or defence on that issue.

Ultimately, the trial judge disabused herself of any evidence that was submitted regarding sex work being performed by the complainant or that she had previously asked the accused to assist her with sex work for pay and help her recover money from one of her clients who allegedly owed her hundreds of dollars for a transaction.

The accused was alleged to have kidnapped and severely beaten the complainant in an attempt to force her to do sex work for him. Writing for the Court, Justice Favreau determined:

In my view, the trial judge breached the appellant’s right to procedural fairness because he was not given an opportunity to address the admissibility and proper use of this evidence after it had been led at trial. In addition, the trial judge erred in disregarding some of the complainant’s evidence regarding her work in the sex trade. The appellant relied on this evidence in ways that did not engage the twin myths. Most notably, he relied on this evidence to attack the complainant’s credibility by highlighting significant discrepancies in her testimony, especially regarding the appellant’s motive for the alleged kidnapping and other offences. The lack of procedural fairness in the manner in which the trial judge ignored this evidence amounts to a miscarriage of justice and therefore this is not an appropriate case for the curative proviso. On this basis, I would allow the appeal.

At the time of the trial decision in Gorges the decision of R. v. A.M., 2024 ONCA 661 had not yet been released. The Court of Appeal revisited that decision with the following summary:

In A.M., the court confirmed that s. 276 does not apply categorically to all proceedings where an accused is charged with a sexual service or human trafficking offence but not a listed offence. Rather, whether a listed offence is implicated in the proceeding, and accordingly whether s. 276 applies, must be determined on a case-by-case basis having regard to the charges, the Crown’s proposed evidence, and whether the defence proposes to lead evidence of a listed offence.

This means that cases which involve human trafficking or sexual services charges need to be carefully scrutinized to address whether or not other sexual history will require a pre-trial application. That decision will primarily revolve around whether or not an enumerated offence is entwined in the narrative or is a secondary, included offence.

In the instance of Gorges, the error could have been avoided if the trial judge had expressed concerns about the application of s. 276 prior to the decision in the case. Neither the Crown nor defence had any warning about the judge’s concerns and made written submissions largely focusing on evidence that the trial judge then informed them had been ignored due to s. 276.

The ultimate finding in Gorges was that “the complete exclusion of the complainant’s evidence regarding her involvement in the sex trade led to the same mischief as in A.M. because evidence material to the appellant’s defence was improperly disregarded such that he was prevented from making full answer and defence to the charges against him.”

Given that the main allegations against him related to an alleged kidnapping for the purpose of forcing the complainant into doing sex work, it was clearly relevant whether the complainant had previously asked the accused to help her engage in sex work voluntarily.

Leave a Reply

CONTACT INFORMATION


PHONE: (416) 364-3111
FAX: (416) 364-3271