James Cruess

The applicants, Nimo Ali and Carlington Graham, jointly charged with human trafficking and child pornography offences, brought applications under s. 276 of the Criminal Code for leave to cross-examine complainants on aspects of their prior involvement in the sex trade with an unconnected third party.

The Crown opposed.

The court allowed the applications in part, permitting cross-examination on specific inconsistencies and untruths related to the complainants' prior knowledge and involvement in the sex trade (e.g., taking photos for online ads, knowledge of Leo List), but prohibited questions that would invoke the "twin myths" (i.e., that prior sexual activity makes a complainant more likely to have consented or less worthy of belief).

The court emphasized that the cross-examination must be tightly controlled and accompanied by mid-trial and final jury instructions.

This ruling addresses Crown applications in a human trafficking trial for two complainants, aged 15 and 16 at the time of the alleged offences, to testify from outside the courtroom.

The applications were brought under section 486.2(2) of the Criminal Code, which permits such orders to facilitate a full and candid account or in the interest of the proper administration of justice.

The court considered the complainants' anxiety and fear, particularly one who experienced panic attacks during the preliminary hearing.

The court noted the lowered threshold for such orders following a 2015 amendment to the Criminal Code.

Both applications were granted, subject to technical transmission quality, with instructions to the jury not to draw adverse inferences from the use of testimonial aids.