In a unanimous judgment released October 16, 2026, the Supreme Court held that the s. 276 regime does not automatically apply to sexual services or human trafficking prosecutions. It also confirmed that defence counsel can cross-examine on a complainant’s prior sex work when the purpose is commercial, not sexual.
The Facts
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: material benefit (s. 286.2(1)), procuring (s. 286.3(1)) and advertising (s. 286.4). The charges arose from sexual services provided by the complainant, A.K., between February 2015 and October 2017.
A.K. met A.M. and another man, X, at a Toronto bar and talked with them about working for X in the sex trade. She worked briefly for X in Edmonton. X sent her back to Ontario because of her substance abuse issues. When she later asked X for help finding work, he referred her to A.M., who arranged hotel work and Backpage.com ads. A.K. testified that she was the one who first contacted A.M., because she needed help attracting clients. M.P. sometimes drove her to calls. After an altercation in September 2017 at a house the accused rented in Newmarket, A.K. got out of a locked car and called police. The accused were arrested at that house on October 25, 2017.
The Crown’s theory was that the accused used their role as A.K.’s drug suppliers to control her and keep her in the sex trade. The defence said her substance abuse came before she met them, and that she had worked independently, including during a period when she stopped working for them (para. 12). At the preliminary inquiry, both sides questioned A.K. about her earlier sex work without objection. She said she started at about 18, had worked both independently and for agencies, had used Backpage.com before, and found agency work (at an even revenue split) more lucrative and safer.
At trial, McKelvey J. applied the “some connection” test from Barton. He held that s. 276 applied because the charges “would strike at the heart of the necessary consent,” which engaged sexual assault. He limited cross-examination to A.K.’s arrangements with X and her independent work during the period covered by the charges, and redacted her preliminary inquiry transcript to match. The accused were convicted of the three sexual services offences. They were acquitted of trafficking because exploitative purpose was not proven.
The Court of Appeal (2024 ONCA 661) held that s. 276 had been applied in error. Consent was not a live issue at trial, and the curative proviso could not save the convictions. It ordered new trials on the sexual services offences (paras. 23–27).
The Supreme Court (Moreau J. for the Court) dismissed the Crown’s appeal (para. 100).
The Holdings
1. Section 276 does not apply categorically. Reading the provision’s text, context and purpose, the Court found that Parliament deliberately left sexual services and trafficking offences out of the s. 276(1) list. Parliament did put those offences into the third-party records regime (s. 278.2, in 2014) and the private records regime (s. 278.92, in 2018), but it never added them to s. 276, even though it reviewed that section four times. The mischief s. 276 targets is inferences drawn “by reason of the sexual nature” of the activity. The elements of these offences “hinge on the nature of the relationship between the complainant and the accused, not a specific sexual act”. Non-consent is not an element of these offences, so the first twin myth is not directly engaged.
2. The Barton test, clarified. Section 276 applies to an offence not on the list in only three situations (para. 72):
- a listed offence is a predicate offence of the charge;
- a listed offence is an included offence of the charge; or
- all the elements of a listed offence are implicated in the proceeding. This is judged from the charges, the Crown’s theory, the evidence either side proposes to lead or elicit, the information or indictment, and the evidence at the preliminary inquiry or trial.
“Mere alignment” of some elements is not enough. The “complete constellation of elements” of a listed offence must be implicated. The trial judge was wrong to find a connection to sexual assault on the basis that procuring “touches on” consent. Control, direction or influence over a person’s movements is a different question from whether the person consented to a sexual act.
3. No common law Seaboyer screening as a fallback. The Court refused to extend Seaboyer to these offences. Barton’s reasoning about Crown-led evidence does not carry over. The procedural burden would be significant given Jordan. And because Parliament’s choice was deliberate, there is “no legislative gap to fill”.
4. Permissible and impermissible inferences. Evidence of prior sex work is not categorically irrelevant (para. 88, citing Kruk). Here it went to the commercial nature of A.K.’s work, not its sexual nature. It was offered to show that she entered the trade voluntarily and was not lured or exploited into it, and to give context on her autonomy, her decision-making and the power dynamics in her relationship with the accused. The Court also set limits. The evidence cannot be used to show a propensity to engage in sex work or sexual activity generally. Nor does a past voluntary choice to do sex work mean a complainant is less susceptible to exploitation, coercion or control.
Practice Points for Defence Counsel
- Make the threshold argument early. The Court says the “preferable practice” is for counsel, not the trial judge, to flag whether s. 276 might be engaged, and to do it before trial (para. 74). Raise it at the pre-trial conference.
- Read the Crown’s case for a hidden listed offence. Section 276 can still apply on the facts. The Court’s example is a trafficking case where sexual assault or coerced sexual activity is alleged as a method of control (para. 69). Review the synopsis, disclosure and preliminary inquiry evidence for that before assuming the regime does not apply. Your own proposed evidence counts in the analysis too (para. 72).
- Frame your purpose around commercial and relational inferences. Proper areas include working arrangements, revenue splits, advertising practices, agency versus independent work, how the complainant came to know the accused, and how her prior experience shapes her view of the relationship (paras. 89–91). Never suggest propensity, or that a sex worker is less vulnerable to exploitation. The trial judge will stop questioning that demeans the complainant or plays on prejudice against sex workers (para. 95), and jury cases will get limiting instructions (para. 97).
- Remember the records regimes still apply. Sexual services and trafficking offences are listed in both the private records regime (s. 278.92) and the third-party records regime (s. 278.2) (paras. 50–51). Cross-examination built on the complainant’s texts, messages or other private records in the defence’s possession may still need a records application. Both regimes have been renumbered and amended since this trial.
- Myths beyond the twin myths still apply. The trial judge’s general gatekeeping power reaches all discriminatory reasoning, including myths about delay in disclosure and post-incident contact (paras. 94–95).
- Standard of review on appeal. Whether s. 276 applies is a question of statutory interpretation, reviewed for correctness. A judge’s weighing of probative value against prejudice gets deference (paras. 30–31).
The Protecting Victims Act changes the analysis going forward
A.M. interprets s. 276 as it stood before the Protecting Victims Act, S.C. 2026, c. 19 (assented to June 18, 2026). The Court expressly did not consider the amendments (fn. 1). The amended s. 276(1), shown on Justice Laws as in force from July 18, 2026, covers the 14 listed offences and also “any other offence under this Act, or any other Act of Parliament, that is of a sexual nature or that is committed for a sexual purpose.”
Expect litigation over whether sexual services and trafficking offences fall within that phrase. Defence counsel can argue that A.M.’s point still holds under the new wording: these offences are defined by the relationship between the parties, not a sexual act (para. 61). Before relying on A.M. in a pending case, check the Act’s transitional and coming-into-force provisions to confirm which version of s. 276 governs your proceeding.
