R. v. Bedford

R. v. Bedford Collection Decisions of the Court of Appeal Date 2000-03-23 Docket numbers C30721 Judges Osborne, Coulter Arthur Anthony; Finlayson, George Duncan; Labrosse, Jean-Marc Subject Criminal Decision Content DATE: 20000323 DOCKET: C30721 COURT OF APPEAL FOR ONTARIO OSBORNE A.C.J.O., FINLAYSON and LABROSSE JJ.A. BETWEEN: HER MAJESTY THE QUEEN ) Alan N. Young and ) Paul Burstein (Respondent) ) for the appellant ) and ) ) ) TERRI-JEAN BEDFORD ) Scott C. Hutchison and ) Thomas Galligan (Appellant) ) for the respondent ) ) Heard: March 13, 2000 On appeal from the conviction imposed by Bogusky J. dated October 9, 1998. FINLAYSON J.A.: [1] On October 9, 1998, the Honourable Judge Bogusky of the Ontario Court of Justice (Provincial Division) convicted the appellant of unlawfully keeping a bawdy house, contrary to subsection 210(1) of the Criminal Code. On October 16, 1998, the appellant was ordered to pay a fine of $3,000. She appeals from her conviction alone. [2] During the summer of 1994, a City of Vaughan by-law enforcement officer received a complaint from a resident that an advertisement had appeared in Now Magazine about a commercial use of a building located in a residential zone. The commercial use in question was the operation of a house of domination at 143 Thornridge Drive, called “Madame de Sade’s House of Erotica”. This information was passed along to the police who conducted an undercover investigation of the house. On September 15, 1994, police officers executed a search warrant at the premises and used two trucks to transport the abundant amount of material seized. [3] On the same date, the appellant was charged that she “unlawfully did keep a common bawdy house located at 143 Thornridge Drive, contrary to section 210(1) of the Criminal Code”. Prior to the trial, the charge was particularized to refer to a bawdy house kept for the purposes of prostitution and not for indecent purposes. The primary issue at trial was whether or not money was exchanged for sexual activity on a frequent and habitual basis at the house. Overview of the facts relevant to the issues in appeal [4] An undercover police officer, who had been taken on a tour of 143 Thornridge Drive by the appellant, described at trial various theme rooms that had been constructed in the house. In the basement, there was a burlesque room with a throne on a stage. There was a pole on the stage that extended from the ceiling to the floor. Also in the basement was a dungeon with suspended chains, ropes, jail cells, a shower and a sink, and a room with a massage table and chains hanging from the ceiling. On the main floor, there was a kitchen, a bathroom, a bedroom with a wooden cross, a coffin and a torture bench. There was also a parlour, a small office and a schoolroom that had school desks and a blackboard. [5] During the tour, the police officer witnessed unidentified people participating in various actives. He observed that these individuals, apparently clients, were not fully clothed. He also observed other individuals, apparently employees, acting as mistresses and wearing provocative clothing. [6] The appellant conceded from the outset that she was the keeper of “Madame de Sade’s House of Erotica”, a common house which offered women for hire for the purposes of sado- masochistic activities (“S/M”) involving “domination”, “bondage” and “erotica sessions”. She testified and described each of the theme rooms at the house. The office was primarily used for administrative purposes, such as consultations and file keeping, but it could also be used to service clients under the guise of being a principal’s office where “students” who misbehaved in the “classroom” would be sent for a spanking. The “parlour” was a room where clients could dress up in women’s clothing and role play by walking in high heels and playing musical instruments. The cross-dressers would often perform “drag queen” shows on the stage in the basement and videotape themselves to evaluate their acts. The mistresses would also perform stripteases and erotic shows on the basement stage. The appellant described the stage play as “very innocent”. The “torture chamber” was where clients were blindfolded and then touched, tickled or spanked with objects. This room was sometimes called the “erotica room” by some of the mistresses because they preferred that term, but the appellant testified in chief: “I never referred to it as the erotica room. It was a torture chamber”. However, she later conceded in her testimony that she had referred to it as the erotica room. The “schoolroom” was used to familiarize novice clients with the basics of S/M. They were taught how to address their mistress, what was to be expected of them, the punishment that they would receive for disobeying instructions, and the house rules. [7] The appellant testified that the house rule for all rooms was that sex was forbidden; that is, no intercourse, no oral sex, and no masturbation by a mistress. The appellant stated that she made it clear to the mistresses that the only time genitals were to be touched was when they were being tied up, shaved or waxed. She claimed that any sexualized activity taking place on the premises was without her knowledge or permission. [8] The trial judge expressly rejected much of the appellant’s evidence. He accepted in preference the testimony of one of the mistresses, whose identity is protected under a non- publication order, and who testified under her performing name of “Princess”. Princess told the court that, while the neutral conduct described above was indeed carried on in the various theme rooms of the house, about 55% of the sessions given were “erotica sessions” performed in the erotica room or dungeon, located downstairs. Prices for these sessions ranged from about $100 per half-hour to $150 per hour. Most clients (about 96%) got erections during erotica sessions and about 80% achieved orgasm. Most clients engaged in self-masturbation during such sessions, which was always an option open to them. Princess squeezed or pinched the testicles of clients while they masturbated to help them achieve or maintain an erection or orgasm. Princess further testified as to the activities of others who worked in the house. She said that she had seen the appellant, along with other employees, perform the erotica session services described above, while acting as mistresses. [9] A specific activity conducted in the erotica room, in which 45-50% of the clients were involved, was called “cock-and- ball stimulation” or “cock-and-ball torture”. In this activity, the appellant’s employees would tie up the client’s penis and scrotum. They would then hit the tip of the penis with a riding crop. If the clients liked it, they would continue; if not, they would stop. [10] Princess also testified about “ass play”, which was another part of the erotica sessions offered at the appellant’s establishment. It saw the appellant’s employee shave the anal area of the client and then stick her finger (inside a glove) or a “dildo” sheathed in a condom into the client’s anus. In doing so, the “attendant” would play around with the rectal area while slowly inserting the dildo, because “that’s a very sensitive area”. Like the cock-and-ball stimulation, ass play could be included in a basic erotica session. [11] On the evidence of Princess, the appellant discussed both the cock-and-ball activities and ass play with clients in a consultation before the session. Thus, according to Princess, if a client had not tried ass play before, “we would tell him” about what it involved. [12] The appellant taught Princess how to conduct ass play and permitted her to watch when the appellant performed with a client. In terms of her knowledge about the sensitivity of the anal region during ass play, for instance, Princess said: That I learned from Terri [the appellant] because I did not know that that was a very sensitive area and it’s very dangerous to play around that area. If the client wanted it, … and if he liked it, we would continue inserting it. If he didn’t like it we would stop. [13] The witness was pressed repeatedly on cross-examination on the question of the appellant’s participation in these activities and reiterated that she saw the appellant do them. When it was suggested that the activities were limited to personal guests (rather than clients) Princess was clear: They were clients. It was a business. Whatever they wanted – if they wanted something like that, it was done. [14] The police executed a valid search warrant on the appellant’s business. They seized anything they believed to be involved in the operation of the business. Fifteen officers were involved in the search and the conduct of some of the officers was unprofessional and demeaning to the appellant. It was alleged that the officers verbally and physically assaulted the appellant, unnecessarily strip-searched the female occupants of the house, and gave $50 of the appellant’s money to one of the employees. There were also some defects in the post-seizure return that was filed for the Justice of the Peace. The trial judge concluded, however, that the problems in the execution of the warrant and any post-seizure defects were minor. To the extent they constituted breaches of the Canadian Charter of Rights and Freedoms (“Charter”), the trial judge held that they did not attract the remedy sought by the appellant; namely, a stay of the proceedings. [15] One of the items seized by police pursuant to the search warrant and tendered in evidence by the Crown was a videotape, found with other tapes on a coffee table near a television set and VCR. The tape depicted certain events that the Crown alleged were illustrative of commercial activities conducted at the house. The appellant testified and agreed that she was the person depicted in the videotape, that it was made at her common house, and that it accurately showed the particular activity in which she was engaged at the time. This activity appeared to include both ass play and cock-and-ball stimulation. The only issue disputed by the appellant was whether the session shown was part of her commercial operation or was a personal, recreational undertaking. The learned trial judge found as a fact that it was a training video. [16] At trial, the appellant was permitted to adduce evidence of various “experts” on the S/M community and activities associated with that sub-culture. The trial judge received evidence from experts who he found to have an appropriate degree of knowledge about relevant issues. The trial judge rejected other purportedly expert evidence on the basis that it was not relevant or reliable. Grounds of appeal [17] The appellant raises five grounds of appeal: 1. The trial judge’s finding that acts of prostitution were frequent and habitual was unreasonable and not supported by the evidence. 2. The finding that the appellant had the requisite knowledge and control with respect to the alleged acts of prostitution was also unreasonable and not supported by the evidence. 3. The trial judge erred in admitting the videotape whose marginal probative value was outweighed by its prejudicial effects. 4. The trial judge erred in excluding the evidence of five of the expert witnesses tendered by the appellant. 5. The trial judge erred in ruling that the cumulative effect of the violations of the appellant’s rights under ss. 2, 8 and 10(b) of the Charter did not warrant a stay of proceedings pursuant to s. 24(1) of the Charter. Analysis [18] The appellant was determined at trial and on appeal to have the court deal with the charges as a test case for S/M. The appellant’s counsel insisted that the sado-masochistic activities described in this record were not about sex, but about pain and humiliation, and, as such, beyond the purview of s. 210(1) of the Code. However, a criminal offence is framed by the indictment in the particular case, not by the label placed on it by the accused. The trial judge properly abstained from engaging in a discussion about the nature of S/M activities and their popularity in contemporary life, and concentrated instead on the activities carried on by the mistresses on the premises in question. [19] The issue, as the trial judge saw it, was whether the activities provided in the House of Erotica were primarily sexual in nature. I think he was correct in framing the case in this way. While there is no definition of prostitution in the Code, it has been accepted for many years that prostitution consists of lewd acts for payment for the gratification of the purchaser. The fact that the acts described in this appeal also involve pain and humiliation does not detract from their sexuality nor the sexual gratification obtained by the clients. It is obvious from the testimony of Princess, which the trial judge accepted, that the pain and humiliation resulted, and was intended to result, in sexual arousal culminating in orgasm. That the operation was commercial and the keeper of the house was the appellant was uncontested. [20] Grounds 1 and 2 – unreasonable findings. The first two grounds of appeal can be conveniently dealt with together. The appellant asserts that the Crown has not established the constituent elements of the offence, i.e. that in order to convict on a charge of keeping a common bawdy house for the purposes of prostitution, the Crown must prove: (i) that the acts of prostitution that form the basis of the charge were taking place on a habitual and frequent basis at the premises (R. v. Patterson (1967), [1968] 2 C.C.C. 247 at 251 (S.C.C.)); and (ii) that the accused had some degree of control over the premises and participated in the use of the premises as a common bawdy house (R v. Corbeil (1991), 64 C.C.C. 272 at 275 (S.C.C.)). [21] There is no issue that this is the legal test. What the analysis breaks down to in the case in appeal is: (a) Whether prostitution is limited to conventional sexual activities such as sexual intercourse, oral sex and manual masturbation; (b) Whether the evidence at trial established that the sado- masochistic services provided were for the sexual gratification of the clients; and (c) Whether the anal and genital contact that did occur during the services provided at the house was only incidental and whether the appellant had knowledge of such contact. [22] The appellant admits that sado-masochist services were provided at the premises on a habitual and frequent basis with her knowledge and participation. She argues that these sado- masochist services were the essence of her business and that such services do not fall within the definition of “prostitution” because sado-masochism is not sexual in nature, focusing instead on humiliation and degradation. She further submits that “prostitution” has generally been restricted to sexual intercourse, oral sex and manual masturbation, and that none of these were provided at her premises. The witness Princess confirmed that the appellant interpreted sexual acts to mean these three activities and that the appellant instructed her not to provide them as services. [23] The theory of the Crown was that, although conventional sexual intercourse was not offered to clients, sexual stimulation and gratification saturated the activities that took place at what the appellant’s factum termed her “commercial house of domination”. Self-masturbation by clients, in conjunction with stimulation by the inmates of the house, was common. Attendants employed by the appellant would regularly engage in cock and ball stimulation and ass play, activities that saw the attendants engage in a variety of manipulations of their clients’ genitals and anal area (i.e. pinching testicles, inserting a range of dildos into clients’ anuses, and other intimacies) that routinely culminated in masturbation by the clients to the point of orgasm. [24] The trial judge specifically declined to deal with the charge on the basis of whether prostitution can include commercial sado-masochism generally. Rather, the trial judge, relying on the evidence of the witness Princess supported by what was depicted in the videotape, found that the erotica sessions were primarily sexual in nature and formed the backbone of the appellant’s business. [25] The appellant’s first submission that this court ought to limit the kinds of services included in the term “prostitution” to sexual intercourse, oral sex and manual masturbation is not supported by authority. None of the Canadian cases cited by the appellant support the submission that some form of genital contact is necessary to establish prostitution. Although there is no statutory definition of what constitutes prostitution, the common law is clear that “prostitution” refers to lewd acts for payment for the sexual gratification of the purchaser (R. v. Lantay (1965), [1966] 3 C.C.C 270 at 271-2 (Ont. C.A.); and Ref. re ss. 193 and 195.1(1)(c) of Criminal Code (Man.) (1990), 56 C.C.C. (3d) 65 at 91 (S.C.C.)). [26] The phrase “lewd”, in my opinion, is broad enough to encompass acts that do not include genital touching but are intended to be sexually stimulating. Further, the appellant’s submission in this regard is a bit of a red herring given that the trial judge accepted Princess’s testimony about the kinds of services that were provided, particularly the “erotica” sessions that appear to clearly have involved employees stimulating clients’ genitals in various ways. [27] The appellant’s second submission that the conviction cannot stand because the sado-masochistic services were not provided for the sexual gratification of the clients cannot withstand scrutiny on the facts of this case. It is difficult to accept that the services offered at the house were not sexual in nature, did not involve sexual gratification, and were not habitual and frequent in light of the fact that about 55% of the sessions provided were “erotica” sessions, during which about 96% of the clients got erections and about 80% achieved orgasm. [28] In R v. Chase (1987), 37 C.C.C. (3d) 97 (S.C.C.), relied upon by both parties on this issue, the Supreme Court of Canada ruled that the term “sexual” (in the context of “sexual” assault) is to be interpreted looking at all the circumstances surrounding the assault. Sexual gratification of the accused is not determinative nor is contact with specific areas of the human anatomy. The Court set out the test as follows at 103: The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: “Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer?” [29] It is hard to imagine that a reasonable person observing the erotica sessions as described by Princess would not regard them as “sexual”, even accepting that such sessions may have been designed to humiliate or degrade the client. Reliance by the appellant on Chase is therefore misplaced. It must be apparent that, in the absence of consent by the adult male customers, the activities described in this record would constitute a sexual assault. [30] The appellant’s third submission that any genital touching that occurred during the erotica sessions as part of the cock and ball or ass play activities were incidental and did not occur on a frequent and habitual basis. Alternatively, she asserts that she had no knowledge that genital touching was occurring with such frequency. The two grounds of appeal are effectively appeals from the trial judge’s findings of fact regarding the type and frequency of activity that occurred during the erotica sessions. While Princess did testify that manual masturbation by the appellant’s employees was not permitted, she also testified that: (i) she inserted her finger or a dildo into the client’s anus; (ii) she squeezed or pinched client’s testicles while they masturbated in order to help them maintain erection; and (iii) she had seen the appellant and other employees doing the same. There was also the fact that a number of dildos were on display and that there was a protocol for cleaning them after use. The dildos were sheathed in condoms for health purposes when in use. This is compelling circumstantial evidence that dildos were part and parcel of the services rendered on the premises and supports the conclusion that genital touching was habitual and frequent and not merely incidental. [31] I would not give effect to these two grounds of appeal. [32] Ground 3 – the admissibility of the videotape. The appellant testified that the videotape was personal and unrelated to her business, but the trial judge did not believe her. I see no reason why the tape should not have been admitted. The appellant herself agreed that it was she performing the acts on the video, that they took place at her House of Erotica, and that the events were filmed with her consent by her boyfriend. The content of the video was thus verified under oath by a person capable of doing so. It was also the evidence of Princess that the videotape was readily available for all to see and that the appellant herself told Princess that she could watch it for instructional purposes. Perhaps most importantly, the videotape directly corroborated the testimony of Princess that the appellant performed certain services precisely in the manner depicted in the videotape for paying clients. All of these reasons were given by the trial judge in his ruling on the admissibility of the tape. The submission that the prejudice created by the admissibility of the tape outweighs its probative value is untenable. I would not give effect to this ground of appeal. [33] Ground 4 – the expert witnesses. The trial judge did admit into evidence the testimony of two of seven persons who were prepared to testify as experts but he did not give much weight, if any, to their evidence. He appeared to like the witnesses on a personal basis and described those with formal training as “all very well disciplined people; very bright, very well informed”. In his reference to formal training, though, the trial judge highlighted the fact that the witnesses whose evidence was excluded, who were otherwise professionals in their chosen academic fields, did not have any formal training in the subject of S/M. This is not to demean the witnesses; it is simply to point out that they were more amateur than expert in their approach to the subject. Some participated in S/M, some wrote about it, some did a modest amount of research about it, and one made a limited investigation of it as a matter of professional interest. None, however, were experts in the legal sense of the word. [34] I find the trial judge’s evaluation of the witnesses attractive. He said: “the common thread [among them] was that they were small ‘e’ experts as they were all having difficulty obtaining data, for obvious reasons”. The trial judge seemed to feel that he should accept the evidence of two of them in order to neutralize his personal distaste for the acts that had been described in the evidence. As he put it: . . . if I exclude all of the so-called experts on the basis of non-relevancy, the court runs a risk of drawing a negative inference toward the facts or the accused because some of the evidence presented was, although initially entertaining, it ultimately began to progress to the bizarre and ultimately disgusting. To avoid this possibility, I require some assistance in putting a human face on the participants as they are members of our community. In other words, I can use all the help I can get. [35] One of the experts whose testimony was admitted was Luc Granger, a registered psychologist in private practice who has been a professor of psychology for 28 years. He taught a course in human sexuality at the University of Montreal, where he was the head of the psychology department in the 1980s. He has also been retained since 1994 by Correctional Services of Canada to study and treat sexual offenders. [36] In his testimony, Professor Granger stated that, as part of a study, he interviewed or observed more than 120 people who participate in S/M activity, including professional dominatrixes. He testified that sexual gratification was not necessarily a component of S/M activity. He described S/M as “role play” and “theatre” and stated that the literature and his study do not support the notion that “people who engage in this activity [S/M] are sexually dysfunctional”. He stated that private S/M sessions were more likely to be sexual than commercial domination sessions. The trial judge accepted Professor Granger’s evidence but noted that his studies were based on poorly collected data. [37] The trial judge also admitted the evidence of John Allan Lee, a professor of sociology at the University of Toronto for 30 years. In terms of subject-matter, the main focus of Professor Lee’s publishing and lecturing is “relationships”; specifically, sexual relationships. In addition, Professor Lee has been an active participant in the S/M community for three decades and has written a book entitled “Studies in the Sociology of S-M”. [38] Professor Lee testified that sexual gratification is not necessarily the objective of S/M. Although sexual arousal and orgasm can be part of S/M scenarios and the activities can cause arousal, reaching orgasm is not the focus of S/M. Further, Professor Lee gave evidence that, during commercial slave/master situations and “fetish nights”, sexual gratification is uncommon: “You would very rarely see actual ejaculation in that context. And there are very strict, formal rules which people have to read and agree to in term – when you enter that context, and they’re often on paper, about no meaning no”. [39] However, as the Crown points out, even the evidence from these two experts was damaging to the defence. As with all the appellant’s experts, defence counsel never asked any hypothetical questions based on the facts of this case. The evidence was of consistently tenuous relevance. However, on cross-examination the Crown presented each of the proposed experts with hypotheticals based on the facts at hand. In the case of the accepted experts, Granger and Lee, there was no doubt in their mind that the facts described by the witnesses and depicted in the videotape constituted sexual acts. [40] One of the rejected experts was Trevor Jacques who described himself as a physicist and a systems analyst by trade. He had no formal training in psychology or sociology, two branches of the social sciences that might have a contribution to make on the subject. Also, he was not in fact a physicist and his training in research methodology was obtained only as part of his basic Bachelor of Science degree. Rather, his source of expertise stemmed from his personal experience as an active member of the S/M community for more than ten years. He has also led seminars for thousands of people all over the world on S/M practices, and is the principal author of a book entitled “On the Safe Edge: A Manual for SM Play”. [41] In his testimony, on direct examination, Mr. Jacques presented the results of an ad hoc, anonymous internet survey he conducted. However, on cross-examination, he conceded that a great deal of his evidence was based on an internet survey he conducted the night before he testified by searching the number of hits on different web pages. With respect to the individual web surfers who had generated the hits in question, Mr. Jacques had no idea who they were, their sex, ages, religious beliefs or racial makeup. Also, he did not know what the term “social research technique” meant as it might apply to his particular survey. Nonetheless, he admitted that 75% of sadomasochistic play involves sexual activity, that dildo play would be considered sexual in nature, and that a scenario involving cock- and-ball play and masturbation could be a sexual experience for the client. [42] Another witness proffered was Dr. Roy Baumeister, a professor of social psychology at Case Western Reserve University. He is the author of 178 publications, including “Masochism and the Self” and “Escaping the Self: Alcoholism, Spirituality, Masochism and Other Flights from the Burden of Selfhood”. Dr. Baumeister provided the court with a history of S/M and testified that pain and escapism are the central aspects of S/M behaviour. On cross-examination, Dr. Baumeister described the original research that had formed the basis of some of his scholarly writing. He conceded that his data sample was small. He also stated that although masochism can be “sexual” it is not “tantamount to having sex with a person”. [43] Professor Darryl Hill is a lecturer in the psychology department at the University of Windsor. He teaches a course entitled “Psychology of Sex and Gender”. The focus of Professor Hill’s studies is “cross-dressing” and transgenderism, areas in which he has published extensively and conducted empirical studies. He testified that his research has shown that many people have enlisted the professional services of other people to help them with their cross-dressing. In his testimony, Professor Hill stated that although some cross-dressers find the activity erotic, more find “psychological meaning” in the activity. [44] Shannon Bell is a professor of political science at York University, with a specialty in the political philosophy of sex. She has acted as a dominatrix in private settings and had become a client of a dominatrix in order to be able to write about her experiences. Over the years, she has interviewed more than 500 people in the S/M community, some as sources for her book, “Whore Carnival”. She is also the author of such articles as, “Performing Theory: Socrates, Sam, Kate and Scarlot”, an article on cross-dressing that begins with Socrates and ends with two female-to-male cross-dressers; “Finding the Male Within and Taking Him Cruising: Drag King for a Day”, an account of her experiences dressing up as a male for the day; and “Kate Bornstein: A Transgender, Transsexual Post-Modern Tiresias” (a male-to-female transsexual and performance artist and expert on cross-dressing). She has also taken part in several S/M seminars and performances. [45] Professor Bell testified that S/M is first about “the sharing of power” and secondly about the “subculture of fetishism” which includes leather, bondage and cross-dressing. She described S/M as “something that is happening in your head”. She stated, “In a sense I find S/M very, very therapeutic in terms of people taking something which is not within their power, turning it around and controlling it for the duration of that scene”. Professor Bell also testified that she has seen people masturbate themselves in an S/M scene, but has never seen anyone having sex. However, on cross-examination, she admitted that she was: somebody who doesn’t support things like bawdy-house law or things like the obscenities section in the Criminal Code ... I mean I teach this, and my opinion is fairly well known … It’s backed up by facts, but the other side can back the same thing up by different facts. Facts are always fit to one’s belief systems or concept of truth … there are very many different truths. We find truths that we live with and then we support those truths. [46] Despite the colourful views of this witness on a variety of subjects, most of which were off-target to the defence, Professor Bell readily agreed that the acts described by the witnesses and shown in the videotape could be sexual acts. [47] Robert Dante, another witness with close connections to the S/M community, is a journalist who has written articles and a book about the “S/M scene”. He has produced an instructional S/M video about the use of the bullwhip. In 1993, he started publishing an S/M magazine called Boudoir Noir. He has been a “dom” and his wife is a professional dominatrix. Mr. Dante has given lessons to hundreds of people in the S/M community about the bullwhip, master/slave relationships, power dynamics, flogging and whipping. [48] In his testimony, Mr. Dante referred to whipping and being whipped as “emotional catharsis”. He stated that he has visited a number of commercial dungeons and that these establishments “almost never or never” offer manual masturbation, oral sex or intercourse to their clients. When asked about when such activities might occur at these establishments, he said: “I have heard of it occurring very infrequently, usually with a person who is not as experienced. It’s usually seen as being extremely inappropriate. It is not standard practice. It is not something most people do”. On cross-examination, Mr. Dante testified that he is an active opponent of Canada’s bawdy house laws and that he has helped to raise money for the appellant’s defence. [49] The trial judge properly excluded the testimony of the last five witnesses because their evidence was irrelevant, lacking in objectivity and in the case of two of them, Bell and Dante, clearly biased. The test for the admission of expert opinion evidence is set out in R. v. Mohan (1994), 89 C.C.C. (3d) 402 (S.C.C.). It provides (at p. 411) that the admission of such evidence depends upon the following criteria: (a) relevance; (b) necessity in assisting the trier of fact; (c) the absence of any exclusionary rule; and (d) a properly qualified expert. In my opinion, none of the so-called expert testimony was admissible in that it falls short of the criteria of relevance, necessity and the need for a properly qualified witness. [50] The most obvious objection is relevance. As I have stated, S/M is not on trial: the activities that occurred in the appellant’s premises are on trial. The appellant is obsessed with the notion that S/M between consenting adults is not criminal. But sexual activities that can be acts of prostitution, when not provided for payment, rarely are criminal. The most that these witnesses could say is that what we might term “classic” S/M does not have to be sexual. Given the concession by all of them that what took place in the House of Erotica was sexual in nature, these witnesses really had nothing relevant to say. Their testimony merely confused the issue to be tried. [51] Necessity is very much a problem. What was put forward as expert opinion had none of the indicia of scientific knowledge. This of course overlaps into the absence of a qualified expert. Here, in explaining the nature of S/M, the witnesses were simply giving their personal opinions based on their own experience, the reading of some literature, anecdotal material, some interviews, and very little else. As stated by Sopinka J. for the Court in Mohan at 423: The trial judge should consider the opinion of the expert and whether the expert is merely expressing a personal opinion or whether the behavioural profile which the expert is putting forward is in common use as a reliable indicator of membership in a distinctive group. [52] More specific to the facts of this case are my own observations in R. v. McIntosh (1997), 117 C.C.C. (3d) 385 at 392 (Ont. C.A.): … it seems to me that before a witness can be permitted to testify as an expert, the court must be satisfied that the subject-matter of his or her expertise is a branch of study in psychology concerned with a connected body of demonstrated truths or with observed facts systematically classified and more or less connected together by a common hypothesis operating under general laws. [53] Moreover, even if the views expressed by the witnesses in this case could be classified as the subject of expert opinion, the field of expertise would have to be treated by the court as novel, which calls for a higher threshold of reliability. As Sopinka J. put it in Mohan at 415: In summary, therefore, it appears from the foregoing that expert evidence which advances a novel scientific theory or technique is subjected to special scrutiny to determine whether it meets a basic threshold of reliability and whether it is essential in the sense that the trier of fact will be unable to come to a satisfactory conclusion without the assistance of the expert. The closer the evidence approaches an opinion on an ultimate issue, the stricter the application of this principle. [54] Additionally, the appellant suffered no prejudice from the trial judge’s ruling as to the five excluded witnesses. Because of the inculpatory testimony that all seven of the “experts” gave as to the proper characterization of the acts being performed at the House of Erotica, the expert testimony was not at all helpful to the defence. This is a risk that the defence took in calling this evidence. The refusal of the trial judge to formally admit and consider the evidence of the five excluded witnesses could only enure to the benefit the appellant. Accordingly, I would not give effect to this ground of appeal. [55] Ground 5 – the execution of the search warrant. The most serious aspect of the appellant’s complaint respecting overseizure under the search warrant was that the large number of police officers descending on her premises, which was also her home, and seizing and carrying off furniture and fixtures in large vans, was intended to put her out of business and make it impossible for her to continue to live there. However, while critical of some of the actions of the police officers, the trial judge was not prepared to make such a finding. He said that while “in retrospect it does appear that there was overkill”, there was a basis for involving 15 officers in the execution of the warrant. There was a “technical breach” arising from the manner in which the things were described in the Return to the Justice of the Peace. However, the overwhelming majority of things seized (excluding some of the unmodified furniture) was justified as affording evidence of the offence under investigation. As the trial judge stated: “The bulk of the things taken had a strong possibility of being relevant in the Court proceeding”. [56] As to the conduct of some of the police officers, the trial judge found that the “rowdyism” in the basement involved “hooting and howling” and “rude” behaviour which was ultimately controlled by the officer in charge. The appellant was not improperly “rough-housed” during the search and arrest and the strip-search by a female police officer of the appellant was justified as related to the reason for arrest based on the officers’ experience in bawdy house arrests. There was some evidence, the significance of which was not clearly explained to me, that a police officer had given $50 to Princess, but the trial judge found that this did not happen, and that, if it did, it was not an egregious breach of the appellant’s rights. In short, the trial judge found that the conduct of the officers might have been “shabby”, but it was not outrageous and did not justify a stay of the prosecution. [57] While the appellant’s factum submits that there were breaches of the appellant’s ss.2, 8 and 10(b) Charter rights, the only reliance in this court was on s. 8. There appear to be no findings that would support other breaches. It is clear on authority that a judicial stay of proceedings is a heavy club and will only be resorted to in the clearest of cases: see R. v. O’Connor (1995), 103 C.C.C. (3d) 1 at 37-8 (S.C.C.). While the breaches of the appellant’s s. 8 Charter rights go beyond the trivial, as submitted by the Crown, they cannot be elevated to anything approaching the clearest of cases. Moreover, the exercise by the trial judge of his considered discretion in this particular case is entitled to our deference and cannot be interfered with unless there has been a wrongful exercise of that discretion in that no weight or little weight has been accorded relevant considerations: see R. v. Carosella (1997), 112 C.C.C. (3d) 289 at 309-10 (S.C.C.). There was no error in principle in this case. I would not give effect to this ground of appeal. [58] Accordingly, for the reasons given, I would dismiss the appeal. Released: March 23, 2000 Signed: “G.D. Finlayson J.A.” G.D.F. “I agree, C.A. Osborne A.C.J.O.” “I agree M.J. Moldaver J.A.”