R. v. Bedford (T.J.), (2000) 131 O.A.C. 101 (CA)

• Judge: Osborne, A.C.J.O., Finlayson and Labrosse, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 13, 2000
• Jurisdiction: Ontario
• Citations: (2000), 131 O.A.C. 101 (CA)

R. v. Bedford (T.J.) (2000), 131 O.A.C. 101 (CA)

MLB headnote and full text

Temp. Cite: [2000] O.A.C. TBEd. MR.063

Her Majesty the Queen (respondent) v. Terri-Jean Bedford (appellant)

(C30721)

Indexed As: R. v. Bedford (T.J.)

Ontario Court of Appeal

Osborne, A.C.J.O., Finlayson and Labrosse, JJ.A.

March 23, 2000.

Summary:

Bedford was convicted of unlawfully keeping a bawdy house, contrary to s. 210(1) of the Criminal Code. She appealed the conviction.

The Ontario Court of Appeal dismissed the appeal.

Civil Rights - Topic 1556

Property - Land - Search or seizure of private residence - Bedford operated an establishment which provided sado-masochistic activities to patrons - She was convicted of unlawfully keeping a bawdy house, contrary to s. 210(1) of the Crim­inal Code - She appealed, arguing that the large number of police officers that con­verged on her establishment (which was also her home) when executing the search warrant were unnecessary - Moreover, the officers' conduct was inappropriate, and the amount they seized was excessive and intended to put her out of business - Bed­ford asserted that all these actions breached her s. 8 Charter rights - The trial judge held that although the officers' actions may have been inappropriate, there was no Charter breach - The Ontario Court of Appeal declined to intervene with this ruling where there was no wrongful exer­cise of the trial judge's discretion - See paragraphs 55 to 58.

Civil Rights - Topic 1559

Property - Land - Search and seizure by police - [See Civil Rights - Topic 1556 ].

Civil Rights - Topic 1646

Property - Search and seizure - Un­reasonable search and seizure defined - [See Civil Rights - Topic 1556 ].

Criminal Law - Topic 872

Disorderly houses - Bawdy-houses - Keep­ing a common bawdy-house - What consti­tutes (s. 210(1)) - [See Criminal Law - Topic 874 ].

Criminal Law - Topic 874

Disorderly houses - Bawdy-houses - Baw­dy - What constitutes - Prostitution - Bed­ford was convicted of unlawfully keeping a bawdy house, contrary to s. 210(1) of the Criminal Code - She appealed - Particular­ly, Bedford operated an establishment which provided sado-masochistic activities to patrons - Bedford argued that these activities were not about sex, but about pain and humiliation and, as such, beyond the purview of s. 210(1) - The Ontario Court of Appeal rejected this argument - Prostitution, while not defined in the Code, consisted of lewd acts for payment for the gratification of the purchaser - The fact that the acts performed on the patrons also involved pain and humiliation did not detract from their sexuality nor the sexual gratification obtained by the clients - See paragraphs 1 to 20.

Criminal Law - Topic 880

Disorderly houses - Bawdy-houses - De­fences - General - [See Civil Rights - Topic 1556 ].

Criminal Law - Topic 5202

Evidence and witnesses - Admissibility - Whether relevant and material - [See both Evidence - Topic 7000 ].

Criminal Law - Topic 5209

Evidence and witnesses - Relevancy - Prejudicial evidence - [See Evidence - Topic 3786 ].

Criminal Law - Topic 5360

Evidence and witnesses - Photographs, movies, videotapes, etc. - General prin­ciples - Admissibility - [See Evidence - Topic 3786 ].

Evidence - Topic 1024

Relevant facts - Admissibility - Inflam­matory evidence - [See Evidence - Topic 3786 ].

Evidence - Topic 1026

Relevant facts - Admissibility - Prejudicial evidence - [See Evidence - Topic 3786 ].

Evidence - Topic 3786

Documentary evidence - Public documents - Photographs, movies, videotapes, etc. - Videotapes - Bedford operated an es­tablishment which provided sado-masochis­tic activities to patrons - She was con­victed of unlawfully keeping a bawdy house, contrary to s. 210(1) of the Crim­inal Code - She appealed arguing, inter alia, that a videotape seized from the es­tablishment should not have been admitted into evidence where its prejudicial effect outweighed its probative value - Particular­ly, Bedford asserted that the tape, which showed her performing various acts on a patron, was personal - The Ontario Court of Appeal rejected this argument - The tape was found in the establishment - Moreover, it was relevant in that it directly corroborated evidence from an establish­ment employee that Bedford performed these types of services to clients and knew that her employees performed similar services - See paragraphs 32 and 33.

Evidence - Topic 7000

Opinion evidence - Expert evidence - General - Bedford operated an establish­ment which provided sado-masochistic activities to patrons - She was convicted of unlawfully keeping a bawdy house, con­trary to s. 210(1) of the Criminal Code - She appealed arguing, inter alia, that the trial judge erred in excluding the evidence of five of the seven expert witnesses that were tendered on her behalf - The Ontario Court of Appeal rejected this argument - Although all of the witnesses were very well disciplined people; very bright and well informed, none had any formal train­ing in the area of sado-masochism - Tech­nically, none of the testimony was admis­sible - Nonetheless, the trial judge heard all of the "expert" evidence and properly excluded the evidence of the last five after he determined that their evidence was irrelevant, lacking in objectivity and in the case of two of them, clearly biased - See paragraphs 33 to 57.

Evidence - Topic 7000

Opinion evidence - Expert evidence - General - The Ontario Court of Appeal noted that the admission of expert evidence depended 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" - See paragraph 49.

Evidence - Topic 7002

Opinion evidence - Expert evidence - Acceptance, rejection and weight to be given to expert opinion - [See first Evi­dence - Topic 7000 ].

Cases Noticed:

Patterson v. R., [1968] 2 C.C.C. 247 (S.C.C.), refd to. [para. 20].

R. v. Corbeil (1991), 124 N.R. 241; 64 C.C.C. 272 (S.C.C.), refd to. [para. 20].

R. v. Lantay, [1966] 3 C.C.C. 270 (Ont. C.A.), refd to. [para. 25].

Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123; 109 N.R. 81; 68 Man.R.(2d) 1; 56 C.C.C.(3d) 65; 77 C.R.(3d) 1; [1990] 4 W.W.R. 481, refd to. [para. 25].

R. v. Chase, [1987] 2 S.C.R. 293; 80 N.R. 247; 82 N.B.R.(2d) 229; 208 A.P.R. 229; 37 C.C.C.(3d) 97; 45 D.L.R.(4th) 98; 59 C.R.(3d) 193, refd to. [para. 28].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241; 89 C.C.C.(3d) 402; 29 C.R.(4th) 243; 114 D.L.R.(4th) 419, refd to. [para. 49].

R. v. McIntosh (O.) and McCarthy (P.) (1997), 102 O.A.C. 210; 117 C.C.C.(3d) 385 (C.A.), refd to. [para. 52].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1; [1996] 2 W.W.R. 153; 103 C.C.C.(3d) 1; 4 C.R.(4th) 1; 29 W.C.B.(2d) 152, refd to. [para. 57].

R. v. Carosella, [1997] 1 S.C.R. 80; 207 N.R. 321; 98 O.A.C. 81; 142 D.L.R.(4th) 595; 112 C.C.C.(3d) 289; 4 C.R.(5th) 139, refd to. [para. 57].

Authors and Works Noticed:

Baumeister, Roy, Escaping the Self: Al­coholism, Spirituality, Masochism and Other Flights from the Burden of Self­hood, generally [para. 42].

Baumeister, Roy, Masochism and the Self, generally [para. 42].

Bell, Shannon, Finding the Male Within and Taking Him Cruising: Drag King for a Day, generally [para. 44].

Bell, Shannon, Kate Bornstein: A Trans­gender, Transsexual Post-Modern Tiresi­as, generally [para. 44].

Bell, Shannon, Performing Theory: Soc­rates, Sam, Kate and Scarlot, generally [para. 44].

Bell, Shannon, Whore Carnival, generally [para. 44].

Dante, Robert, Boudoir Noir, generally, [para. 47].

Lee, John Allen, Studies in the Sociology of S-M, generally [para. 37].

Jacques, Trevor, On the Safe Edge: A Manual of SM Play, generally [para. 40].

Counsel:

Alan N. Young and Paul Burstein, for the appellant;

Scott C. Hutchison and Thomas Galligan, for the respondent.

This appeal was heard on March 13, 2000, before Osborne, A.C.J.O., Finlayson and LaBrosse, JJ.A., of the Ontario Court of Appeal. On March 23, 2000, Finlayson, J.A., delivered the following judgement for the Court of Appeal.