Have Criminal Code changes made prostitution safer?

Law360 Canada (July 17, 2024, 12:34 PM EDT) --

John L. Hill

During a visit to a penitentiary in the Netherlands, the warden of the institution advised it was the only prison in the country holding sex offenders. “How many are there?” I asked. The answer I received was 13. Of course, Amsterdam has the famous “red-light district.”

In many European cities, prostitution is open and legal. Canada has laws supposedly making it safer for those who sell sexual services. Under s. 286.5(2) of the Criminal Code, sex workers may sell their services, but s. 286.1 prohibits the purchase of sexual services. The legislation was aimed at making the sex trade less dangerous for service providers. But has it worked?

The situation recounted in R. v. Varghese, 2024 ONCA 555, suggests that it is still a dangerous way to make a living. In October 2019, John Varghese responded to an ad for escort services. N.D. told Varghese to meet in her hotel room. They discussed the price and services to be delivered.

A video recording showed Varghese taking the hotel elevator from the lobby at 6:15 p.m. and returning at 6:40 p.m. Justice Renu Mandhane decided what happened in the hotel room after listening to eight days of testimony. N.D. had reported the incident to the police, and Varghese was charged with forcible confinement, robbery, uttering threats, sexual assault and aggravated sexual assault.

N.D. claimed Varghese forced her to disrobe and perform fellatio on him, threatened her at knifepoint, photographed her nude except for a bra and robbed her of $17 cash. She tried to escape by running into the washroom. Varghese disputed the complainant’s story. He was disappointed N.D. was older than advertised and decided not to request her services. She threatened to call the police and allege wrongdoing on his part. He reluctantly gave her $90 for oral sex. She became upset when he ejaculated in her mouth. She rifled his clothing and took cash. He advised he would post the photo he had taken on social media to warn others that N.D. was a scammer.

Both N.D. and Varghese testified to facts that were easily disproved. Justice Mandhane was left not knowing whom to believe and using “common sense” to reconcile facts, finding neither version of events satisfactory. With such reasonable doubt, Varghese was acquitted on all counts. The Crown appealed.

The “common sense” the trial judge relied upon included her view that a woman being threatened, as N.D. claimed, would have exited the hotel room and not fled to the bathroom. However, the appeal court found that it is a persistent myth that victims of sexual assault will necessarily resist, fight or attempt to flee from their assailant. The Supreme Court of Canada has held that “myths and stereotypes have no place in a rational and just system of law, as they jeopardize the courts’ truth-finding function” (R. v. A.G., 2000 SCC 17; R. v. Kruk, 2024 SCC7; R. v. Ewanchuk, [1999] 1 S.C.R. 330). Reliance on such discredited stereotypes is an error in law. A tainted credibility assessment may displace deference to the judge’s assessment and allow for appellate intervention (R. v. Lacombe, 2019 ONCA 938; R. v. Luceno, 2015 ONCA 759).

Perhaps Justice Mandhane could have avoided this scrutiny by simply stating that she found the complainant’s story implausible rather than justifying her disbelief by arguing that common sense was being applied.

The trial judge also erred in not considering confirmatory evidence. She found that the confirmatory evidence had little bearing on whether an assault took place. Yet R. v. Primmer, 2021 ONCA 564, holds that confirmatory evidence need not relate to the central issue in a prosecution to be relevant. It needs to be more consistent with the complainant’s version than another version (R. v. T.W.S., 2018 BCCA 119; R. v. Demedeiros, 2018 ABCA 241). Such confirmatory evidence included a hospital report of a deep knife wound to the thumb, which corroborated N.D.’s account that Varghese was wielding the knife.

The trial judge also dismissed accounts given by witnesses who met N.D. subsequently because they were able to concoct a story supportive of their friend and work associate, N.D. A new trial will have to deal with these issues.

Would it not have been easier, and oh so much safer for all involved, if Canada’s sex worker laws allowed customers and suppliers to meet without the threat of criminal consequences in secure and monitored settings where resort to violence need never occur?

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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