Court of Appeal for Ontario
Date: 2024-11-28 Docket: C69504
van Rensburg, Roberts and Favreau JJ.A.
BETWEEN
His Majesty the King Respondent
and
Zuhair Gorges Appellant
Counsel: Julie Santarossa, for the appellant Kevin Pitt, for the respondent
Heard: December 22, 2023
On appeal from the convictions entered by Justice Christine E.J. Malott of the Ontario Court of Justice on June 15, 2020.
A. Overview
1The appellant was convicted of kidnapping, assault, assault with a weapon, uttering death threats and a human trafficking offence – exercising control to facilitate exploitation. These and other charges arose out of events that took place on May 13, 2018 (the “May 13, 2018 incident”). The appellant was sentenced to 6.5 years in prison.
2The appellant appeals his convictions. He argues that the trial judge improperly used s. 276 of the Criminal Code, R.S.C. 1985, c. C-46, as a shield to ignore all of the complainant’s evidence regarding her work as a sex worker. He also submits that the trial judge made several errors in her assessment of the complainant’s credibility.
3I agree with the appellant that the trial judge erred in holding that she could not consider any of the complainant’s evidence regarding her work as a sex worker. At trial, the complainant was cross-examined about her prior interactions with the appellant, including discussions they had about him potentially helping with her work as an escort and their plan for him to recover money that an acquaintance of his had stolen from her. The Crown did not object to that evidence and the trial judge did not raise any concerns during the complainant’s cross-examination on these topics. In closing submissions, the appellant relied on aspects of this evidence as part of his challenge to the complainant’s credibility. In her reasons, while the trial judge said that s. 276 of the Criminal Code did not apply, she nevertheless stated that “any testimony and any inconsistencies in any testimony which touch[ed] upon [the complainant’s] sexual activities or practices or any alleged involvement in any way with the sex trade [would] not factor into [her] assessment of credibility or reliability or [her] decision in any way”. She thereby purported to ignore significant portions of the complainant’s evidence on the basis that it engaged the twin myths without identifying the specific evidence she disregarded or explaining why that evidence engaged the twin myths.
4In my view, the trial judge breached the appellant’s right to procedural fairness because he was not given an opportunity to address the admissibility and proper use of this evidence after it had been led at trial. In addition, the trial judge erred in disregarding some of the complainant’s evidence regarding her work in the sex trade. The appellant relied on this evidence in ways that did not engage the twin myths. Most notably, he relied on this evidence to attack the complainant’s credibility by highlighting significant discrepancies in her testimony, especially regarding the appellant’s motive for the alleged kidnapping and other offences. The lack of procedural fairness in the manner in which the trial judge ignored this evidence amounts to a miscarriage of justice and therefore this is not an appropriate case for the curative proviso. On this basis, I would allow the appeal.
5In the circumstances, it is not necessary to address the other grounds of appeal regarding the trial judge’s assessment of the complainant’s credibility.
B. Background
(1) Evidence at trial
6The complainant was the main witness at trial.
7The complainant’s testimony included evidence regarding her interactions with the appellant and his girlfriend in the period leading up to the May 13, 2018 incident. The complainant testified that she normally lived in Toronto, but that she had returned to Windsor, near where her parents and son lived, in late April 2018. While she was there, she stayed at times with family, a friend and in a hotel.
8The complainant had known the appellant and his girlfriend for many years. She reconnected with them while she was staying in the Windsor area. She testified that she had been considering working as an escort and sought the appellant’s assistance. She said that he agreed that she would pay him $20 to drive her to meet with clients, but that this did not happen because she did not follow through on her plan to work as an escort. The complainant also said that, at the same time, she was trying to help the appellant’s girlfriend end her relationship with the appellant because the appellant mistreated his girlfriend. This led to animosity between the appellant and the complainant, and eventually between the girlfriend and the complainant.
9A significant portion of the evidence at trial addressed events that occurred some time before May 13, 2018, which involved a so-called “fake millionaire”. While the complainant was staying at a hotel in Windsor, she met someone she would come to believe was posing as a wealthy businessman from Dubai. This man, the “fake millionaire”, was apparently known to the appellant, but the complainant did not meet him through the appellant. She claimed that, while in her hotel room, the “fake millionaire” stole a few hundred dollars from her purse and caused her credit card to be charged for certain incidentals. The complainant’s testimony about the details of this incident, including the amount of money stolen, was inconsistent. However, she maintained that, after the theft occurred, she asked the appellant for help in recovering her money. He agreed to get it back for her, and in exchange he would keep half.
10In the days leading up to the May 13, 2018 incident, the appellant and the complainant exchanged text messages in which the complainant expressed impatience about getting her money back. There were also text messages and social media posts that suggested that the appellant was developing growing animosity toward the complainant, particularly after she accused him of collecting the money and not giving any of it back.
11The complainant testified that, in the early morning of May 13, 2018, she went to a friend’s house to celebrate the friend’s birthday. While there, the appellant repeatedly contacted her over Facetime. She agreed to meet him outside the friend’s house, expecting that he was coming to return the money he owed her. The appellant arrived in an SUV and said he wanted to talk to her. She then got in the vehicle. Once in the vehicle, she felt something sharp poke into her side and the car drove off. She was then driven to a residence and blindfolded. Once inside she was hog tied “like a pig on a stick” with zip ties and physically assaulted for several hours. An unidentified man assisted the appellant with the assaults.
12The complainant’s description of the assaults included punching her face and head, scratching a “z” in her cheek with a knife, ripping off her artificial fingernails, burning her with cigarettes, and repeatedly dunking her head in a bucket full of water.
13The complainant claimed that, throughout the assaults, the appellant was pressuring her to work for him as an escort. She testified that, during the assaults, the appellant Facetimed his girlfriend, and that the girlfriend told the appellant to “cut her face off so she can’t make another dollar”. The complainant said that she persuaded the appellant and his associate not to make significant marks on her face because this would prevent her from working as an escort. She gave evidence that she ultimately agreed to work for the appellant as an escort after he threatened to harm her parents and her son.
14The complainant testified that after she told the appellant she would work for him as an escort, he and his associate untied her and took her back to the appellant’s vehicle. She convinced them to drop her off at a friend’s house by telling them she could get drugs for them from this friend. No drugs were procured, but they let her out of the vehicle on the understanding that she would start escorting for the appellant that same evening. The complainant then went inside the friend’s house, after which she made her way to the house of another friend, with whom she had been staying at the time of the incident. That friend took photos of her injuries, though these were not tendered into evidence. The complainant then called her lawyer and, later that day, the police. As part of their investigation, the police took photographs of the complainant’s injuries, some aspects of which were consistent with her testimony. The photos were made exhibits at trial.
15Based on the complainant’s disclosure to the police, the appellant was arrested and charged with several offences. His girlfriend was also arrested and charged with assault with a weapon.
(2) The trial decision
16The trial proceeded against the appellant and his girlfriend.
17The only witnesses at trial were the complainant, the friend whose house she was at when the appellant picked her up, and the friend she was staying with at the time of the incident. The Crown also called one police officer as a witness. The appellant and his co-accused girlfriend did not testify, and the defence did not call any witnesses.
18At trial, the complainant was cross-examined over three days. A portion of her cross-examination focused on her work as a sex worker in Toronto and at a strip club in Windsor. There were also questions about her interactions with the appellant prior to the kidnapping, including their discussions about him potentially helping her work as an escort, and their discussions regarding the “fake millionaire” and retrieving the money the man had stolen from her. The Crown did not object to these questions and the trial judge did not intervene during most of this questioning.
19The evidence at trial was completed on February 28, 2020. At that time, the trial judge required the parties to provide written submissions and adjourned the matter to April 2, 2020, for supplementary oral closing submissions. Due to the beginning of the COVID-19 pandemic, that date was adjourned and the parties ultimately agreed that closing submissions would be delivered in writing only.
20In her reasons for decision delivered orally on June 15, 2020, the trial judge found the appellant guilty of kidnapping, assault, assault with a weapon, uttering death threats and exercising control to facilitate exploitation. She accepted the Crown’s theory of motive and found as fact that the appellant had acted “to convince [the complainant] to agree to work as an escort for him.” The charge against the appellant’s girlfriend was dismissed.
21In her reasons, the trial judge explained that the case turned predominantly on the credibility and reliability of the complainant’s evidence. The trial judge noted that the complainant acknowledged that there were discrepancies in her memory due to trauma, and because she had spent the two years since the incident trying to forget it. The trial judge also noted that the complainant admitted that she had initially lied to the police about aspects of the incident out of concern for her family’s safety. This included a lie about where she was when the appellant picked her up.
22Despite these discrepancies, the trial judge found the complainant to be a credible witness. She rejected the defence’s theory that the complainant made up what happened to her and inflicted the injuries on herself. The trial judge also found the complainant’s evidence reliable, noting that, in some respects, it was corroborated by photographs in evidence, and the testimony of her two friends and of the police officer witness.
23The trial judge went on to address each of the specific charges against the appellant and his girlfriend. She found there were significant material inconsistencies in the complainant’s evidence regarding her allegations that the appellant’s girlfriend participated in the assault over the phone, which was the only charge against her. On that basis, she found the girlfriend not guilty of that charge. The trial judge also found that the complainant’s evidence about threats to her family contained too many inconsistencies and improbabilities, and she found the appellant not guilty of those charges.
24The trial judge noted several other inconsistencies in the complainant’s evidence. For example, she did not accept that the kidnapping lasted 10 hours and that the complainant was beaten continuously throughout this period. She also did not accept the complainant’s evidence that the appellant’s associate suggested that she be killed, or some of the complainant’s evidence of what happened after the appellant dropped her off. The trial judge found that these aspects of her evidence did not make sense and were not corroborated by any taxi records or phone records. The trial judge nevertheless found that those were peripheral aspects of the complainant’s evidence, that her evidence was consistent regarding the material elements of the remaining charges against the appellant, and that any discrepancies in her testimony were minor. The trial judge also noted that discrepancies regarding peripheral or minor aspects of the complainant’s evidence may be attributable to the trauma she suffered due to the May 13, 2018 incident. On this basis, the trial judge made the following findings:
Her evidence as it relates to the injuries is corroborated by the photographs and by the testimony of [her friend] and Constable Farrand. I find that [the appellant] did these things to her in accordance with her testimony.
I find that [the appellant] convinced her to get into his car and drove her away blindfolded against her will. I find that he transported her to a house she could not identify and confined her there.
I find that he assaulted her in the car by poking her in the side with something sharp. I find that at the house he was involved in binding her wrists and ankles with zip ties, after which he had punched her causing her to sustain a black eye and other bruising, and to have a split lip.
I find that he cut lines into her face with a knife. I find that he ripped the nail extensions off her right hand. I find that he dunked her head in water and poured water over her face. I find that he burned her with cigarettes leaving scars on her collarbone and arm. I find that he threatened to kill her and I find he did all of this to convince her to agree to work as an escort for him. Once she did, he stopped mistreating her and released her with instructions to be ready to start work that evening.
C. Analysis
25The appellant raises two general issues on appeal. First, he argues that the trial judge erred in relying on s. 276 of the Criminal Code to disregard significant parts of the complainant’s evidence. Second, he argues that the trial judge made several errors in her credibility assessment.
26As I explain below, in my view the trial judge did not apply s. 276. But I agree that she erred in her approach to excluding the evidence related to the complainant’s work as a sex worker. This was a significant breach of procedural fairness amounting to a miscarriage of justice and can therefore not be cured by the proviso. I would order a new trial, and it is therefore not necessary to address the other errors alleged by the appellant.
27I start with a review of the applicable legal principles, followed by a review of the trial judge’s treatment of the evidence at issue.
(1) Section 276 of the Criminal Code and this court’s recent decision in R. v. A.M.
28Section 276 of the Criminal Code restricts the admissibility of evidence regarding a complainant’s prior sexual activities in proceedings “in respect of” certain offences. In R. v. A.M., 2024 ONCA 661, this court recently explained the history and objectives of s. 276. For this appeal, it is not necessary to repeat the history and objectives, but they form the background to the reasoning in this decision.
29Section 276(1) of the Criminal Code applies to proceedings in respect of 14 listed offences. It provides that in such proceedings evidence that a complainant has engaged in sexual activity, with an accused or any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant (a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge or (b) is less worthy of belief. Section 276(4) provides that “sexual activity includes any communication made for a sexual purpose or whose content is of a sexual nature.”
30Section 276(2) provides that, in proceedings in respect of a listed offence, the accused shall not adduce evidence that the complainant has engaged in sexual activity, other than the sexual activity that forms the subject-matter of the charge, unless the court, following the procedure set out in ss. 278.93 and 278.94 of the Criminal Code, determines that the evidence:
(a) is not being adduced for the purpose of supporting an inference described in subsection (1);
(b) is relevant to an issue at trial; and
(c) is of specific instances of sexual activity; and
(d) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
31Section 276(3) sets out specific factors a trial judge is to consider when deciding whether to admit evidence that a complainant has engaged in sexual activity other than sexual activity that forms the subject matter of the charges.
32None of the offences charged in this case are offences listed under s. 276(1). At the time of the trial, there was some disagreement amongst lower court decisions regarding whether s. 276 applies categorically to non-enumerated offences that may have a sexual aspect, like sexual services and human trafficking offences: see, for example, R. v. Williams, 2020 ONSC 206, 64 C.R. (7th) 226; R. v. M.D., 2020 ONSC 951, at paras. 17-46; R. v. Langford, 2021 ONSC 4307, 74 C.R. (7th) 147, at paras. 2, 6-25; R. v. Powell, 2021 ONCJ 708, at paras. 6-10; R. v. Europe, 2023 ONSC 5322, at paras. 8-24; R. v. Floyd, 2019 ONSC 7006; R. v. T.A., 2020 ONSC 6714; R. v. MacMillan, 2021 ONSC 3952, at paras. 16-27; R. v. Ryckman, 2022 ONSC 20, at paras. 4-15; R. v. Maldonado Vallejos, 2022 ONSC 2753; R. v. Lees, 2023 ONSC 124; and R. v. N.G., 2023 ONSC 792.
33When the appeal was argued, this court had under reserve its decision in A.M. That decision has since been released. In A.M., the court confirmed that s. 276 does not apply categorically to all proceedings where an accused is charged with a sexual service or human trafficking offence but not a listed offence. Rather, whether a listed offence is implicated in the proceeding, and accordingly whether s. 276 applies, must be determined on a case-by-case basis having regard to the charges, the Crown’s proposed evidence, and whether the defence proposes to lead evidence of a listed offence. The court reached this conclusion as a matter of statutory interpretation and in accordance with the Supreme Court of Canada’s decision in R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579. At para. 92, van Rensburg J.A. summarized her conclusion on the applicability of s. 276 to non-enumerated offences:
In summary, the issue is whether the proceeding is, in substance, “in respect of” one of the listed offences. It is incorrect to adopt the categorical approach taken in a number of cases that s. 276 will always apply to prosecutions for sexual services or human trafficking offences, with the result that any offence that is analogous to, or shares some common features with, a listed offence is essentially read into s. 276. Instead, the application of s. 276 to proceedings in respect of non-enumerated offences must be determined “in the context of [the] particular prosecution, taking into account the charges, the nature of the allegations, and the subjects about which the accused seeks to cross-examine the complainant”. [Citations omitted.]
34The court further rejected the suggestion made by at least one lower court decision, namely M.D., that the procedure established by the Supreme Court of Canada in R. v. Seaboyer, [1991] 2 S.C.R. 577, should be required in all cases involving non-enumerated offences such that an accused person charged with a sexual service offence would be obliged to bring a written application when seeking to admit evidence of a complainant’s extraneous sexual activity: A.M., at para. 107. In doing so, endorsing other lower court decisions where requiring a Seaboyer application in all cases involving sexual services or human trafficking offences was rejected, this court emphasized at paras. 111-12 that, regardless of whether s. 276 applies in a particular case, trial judges remain responsible as gatekeepers to prevent accused persons from adducing evidence from complainants that improperly engages myths and stereotypes:
[W]hile there is a risk of stereotypical or myth-based reasoning in sexual services and human trafficking prosecutions, the trial judge as gatekeeper has the ability to intervene, with or without objection at trial, to preclude questions from being answered on the basis of relevance or where the probative value of the evidence is substantially outweighed by its prejudicial effect. The trial judge will always have the authority and responsibility to guard against improper reasoning and the invocation of myths and stereotypes: see Barton, at paras. 1, 68 and 201.
As Stribopoulos J. emphasized in Williams #2, at paras. 50-63, existing rules of evidence already protect against the admission of irrelevant and prejudicial evidence. Even without Seaboyer’s extension, a trial judge is well-positioned to balance the competing interests at play as testimony unfolds by barring or placing limits on the admissibility and use of evidence of other sexual activity, intervening to stop inappropriate questioning, and directing a voir dire in exceptional cases if one is required. Trial judges, as Nakatsuru J. observed in Langford, at paras. 48-49, are not powerless when a sex worker is questioned about unrelated sexual activity:
A trial judge hearing the evidence of a complainant [in such a case] is well-placed to assess and balance the competing interests as the testimony unfolds, both in examination-in-chief and cross-examination. A trial judge can quickly intervene and stop inappropriate questioning. They can even set prior limits to the questioning … [and] can instruct the jury in such a fashion as to ensure that the evidence is rightfully considered and that no prejudicial stereotypes or myths enter into the deliberations. How this role is exercised by the trial judge will depend very much upon the facts of each individual case.
… Finally, if questions are permitted, the trial judge can place strict limits on it. It does not have to be an all or nothing choice.
[Emphasis added.]
35In A.M., the court allowed the appeal. In that case, the appellants had been charged with a number of offences, including human trafficking and various sexual services offences, none of which were listed offences under s. 276. The trial judge nevertheless heard and decided an application under s. 276 and excluded some evidence of the complainant’s prior work in the sex trade, including her experience posting advertisements. On appeal, based on the legal analysis discussed above, this court found that it was an error to apply s. 276 to the admissibility of the evidence at issue. The court reasoned as follows, at paras. 97-98:
I disagree that s. 276 applied in the circumstances of this case. None of the listed offences was an included offence to the charges in this case, nor was such an offence implicated in the factual circumstances advanced by the Crown. As noted earlier, sexual assault is not an included offence to procuring, even when it is alleged that the accused has committed the offence by exercising control over the complainant’s movements. The requirement that the Crown prove an accused “exercised control, direction or influence” is not the same as saying the complainant did not consent to the sexual act. In a different case it might be alleged that the accused used violence or the threat of violence to compel the complainant to offer her sexual services, implicating the offence of sexual assault: see e.g., R. v. J.C. and D.B., 2023 ONSC 6093. In this case however there was no suggestion that the sexual services A.K. provided were non-consensual. Nor was lack of consent an element of the two counts of human trafficking. For one count (exercising control, direction or influence for the purpose of exploitation contrary to s. 279.01(1)), any consent is statutorily declared to be invalid by s. 279.01(2), and for the other (receiving material benefits from the commission of a s. 279.01(1) offence), consent is irrelevant.
Consent was also not a live issue based on the application record before the trial judge. There was no suggestion that A.K. had been sexually assaulted or that the appellants forced her to work in the sex trade. Rather, the Crown’s theory that the appellants exploited A.K. rested on the allegation that they had abused a position of trust, power or authority by taking advantage of her drug and alcohol addiction, and not on any meaningful vitiation of consent. Further, and in any event, while abusing a position of trust, power or authority vitiates consent for the purpose of a sexual assault charge (see Criminal Code, s. 273.1(2)(c)), lack of consent is only one element of the sexual assault offence: see. R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 25. As Fraser J. explained in R. v. A.M., 2021 ONCJ 266, at paras. 25 and 27, s. 276 is not engaged “by the mere alignment of ‘some elements’ of the charged offence and an enumerated offence” but requires “the complete constellation of elements comprising a listed offence”. Here that constellation of elements is lacking. Even on the Crown’s theory, there was no sexual assault.
36The court went on to find that, because of this error, the appellants had been precluded from cross-examining the complainant about evidence that was relevant to their defence. Moreover, the evidence at issue did not engage the twin myths.
37Finally, the court in A.M. refused to apply the curative proviso in s. 686(1)(b)(iii) of the Criminal Code. The court noted that the proviso will rarely apply where cross-examination has been improperly curtailed: at para. 130. The appellants in A.M. had been precluded from asking the complainant questions about her prior work as an escort, including her experience posting her own advertisements. The court explained why the appellants’ convictions would not have been inevitable had they been able to elicit such evidence on cross-examination. In the circumstances, the excluded evidence could have affected the outcome of the trial and reliance on the curative proviso was not appropriate.
(2) The trial judge’s treatment of the complainant’s prior sexual conduct
38In this case, counsel had agreed, from the outset, that the offences charged were not listed offences to which s. 276 of the Criminal Code applied. Consistent with this agreement and her own determination that the provision had no application, the trial judge did not purport to explicitly apply s. 276. However, on her own initiative and only after closing submissions had been delivered, she effectively excluded a broad area of evidence on the basis that it improperly engaged the twin myths. The parties were first informed of this when the trial judge delivered her reasons in which she explained that she had disregarded “any testimony which touch[ed] upon [the complainant]’s sexual activities or practices or alleged involvement in any way with the sex trade”.
39Superficially, the trial judge’s reasoning may appear to be consistent with A.M. in that the trial judge was exercising a gate-keeping function to guard against improper reasoning based on the twin myths. However, I agree with the appellant that the trial judge’s approach to the issue was procedurally unfair and that she erred in excluding from her consideration all of the complainant’s evidence that touched on her alleged involvement with the sex trade. I start with a review of the circumstances in which the evidence at issue was led at trial and how the trial judge approached this evidence, followed by an analysis of the impact of this approach on trial fairness.
40During her cross-examination, the complainant was asked multiple questions about her work as a dominatrix in a Toronto spa and her work at a strip club in Windsor. She was also asked multiple questions about her prior dealings with the appellant, including the discussion they had when the complainant was considering working as an escort with the appellant’s assistance, as well as their dealings regarding the “fake millionaire”. These questions took up a significant portion of the cross-examination and were an evident area of focus for defence counsel. In her decision, the trial judge herself noted there was “significant questioning” of the complainant in relation to the “fake millionaire” incident and “a great deal of questioning in relation to [the complainant]’s sexual practices and alleged involvement in a sex trade”. The Crown did not object to any of these questions, and the trial judge did not interject during these lines of questioning.
(a) The appellant’s reliance on the complainant’s prior sexual conduct
41As reviewed above, after the evidence was completed, counsel delivered written, rather than oral, closing submissions. The submissions made on behalf of the appellant focused almost entirely on the complainant’s credibility. The complainant’s work in the sex trade was emphasized in the first few pages and addressed repeatedly thereafter. I would characterize the frequent references to the complainant’s work as a sex worker as falling into three categories.
42First, the appellant submitted that there were inconsistencies in the complainant’s evidence regarding whether she had ever worked as a sex worker. She initially stated that she would never do that, but then provided evidence that she had performed some sex work as a dominatrix at a Toronto spa, that she had worked at a strip club in Windsor and, according to her friend’s evidence, she had worked as an escort. The appellant also suggested that, if the complainant had in fact encountered the “fake millionaire” as she claimed, it would have been while working as an escort.
43Second, the appellant submitted that the complainant’s evidence that he kidnapped and assaulted her in order to coerce her into becoming an escort made no sense given her evidence that she already had an agreement with him to obtain his assistance should she decide to work as an escort. The appellant urged the court to find that the alleged motive, which lay at the core of the complainant’s evidence about the assaults, would have been illogical in the circumstances.
44Third, the appellant argued that the complainant’s attempt to link the appellant’s motive for the kidnapping and other offences to the theft of money by the “fake millionaire” made no sense. The appellant emphasized that the complainant’s account of the circumstances in which she claimed to have encountered the “fake millionaire” were belied by her friend’s testimony, and that her evidence regarding the amount he purportedly stole from her changed over the course of her testimony from $200 to $800. The appellant also highlighted evidence given by the complainant that the appellant had intended to abduct and kidnap the “fake millionaire” in the same way he abducted her. He submitted that her evolving evidence in this respect further undermined her credibility.
45The Crown did not take the position, in written submissions or otherwise, that it would be improper for the trial judge to rely on the evidence the complainant gave at trial regarding her work in the sex trade. In fact, the Crown relied on the complainant’s work in the sex trade to argue that she was particularly vulnerable. In addition, the Crown referred to the money recovered from the “fake millionaire” as an underlying motive for the offences.
46As mentioned above, before releasing her reasons, the trial judge did not raise any concerns with the parties’ reliance on this evidence nor did she solicit further submissions on this point.
(b) The trial judge erred in her approach to the complainant’s prior sexual conduct
47In her reasons, the trial judge explained that, while s. 276 did not apply per se, she was nevertheless relying on the principles underlying s. 276 to disregard all of the complainant’s evidence regarding her work in the sex trade:
There was also a great deal of questioning in relation to [the complainant]’s sexual practices and alleged involvement in a sex trade, possibly encompassing the origin of the debt previously discussed.
Counsel were, from the outset, agreed that human trafficking is not one of the enumerated sections requiring an analysis under Section 276 of the Criminal Code. However, I am still of the view that I am entitled, and even required, to consider the spirit and purpose for which it exists.
There is obviously no sexual activity that is the subject matter of these charges, which is clearly why the section doesn’t apply. However, it was, in my view, implied that I should believe that she was more likely to voluntarily engage in escort services and also that she was less credible because of it. In my view, that is wholly inappropriate as it attempts to promote thinking which is directly in line with the twin myths.
I will, therefore, not be considering testimony relating to those areas in making a determination in this case. To be more specific, any testimony and any inconsistencies in any testimony which touch upon [the complainant’s] sexual activities or practices or alleged involvement in any way with the sex trade will not factor into my assessment of credibility or reliability or my decision in any way. [Emphasis added.]
48Unlike in A.M., the trial judge did not err by applying s. 276 to non-enumerated offences in a case where enumerated offences had not been implicated. However, the complete exclusion of the complainant’s evidence regarding her involvement in the sex trade led to the same mischief as in A.M. because evidence material to the appellant’s defence was improperly disregarded such that he was prevented from making full answer and defence to the charges against him. Here, the trial judge’s approach was problematic both as a matter of procedural fairness and substantively.
49The central issue at trial was the complainant’s credibility. As reviewed above, the appellant’s written closing submissions included submissions regarding her prior work in the sex trade, including some of her interactions with the appellant prior to the alleged kidnapping and assaults. The appellant relied on significant inconsistencies in the complainant’s evidence regarding her interactions with the appellant to attack her credibility, especially her suggested motive for the May 13, 2018 incident.
50In her decision, the trial judge stated that she had disregarded the complainant’s “sexual practices and alleged involvement in a sex trade, possibly encompassing the origin of the debt previously discussed” because she thought that it was implied that she should believe that the complainant “was more likely to voluntarily engage in escort services and also that she was less credible because of it.” Having made this statement, the trial judge did not identify the specific evidence that she concluded she should disregard because of her view that it was being proffered for an improper purpose. However, throughout the rest of her reasons, she never referred to the evidence the appellant relied on in closing submissions regarding the agreement between the appellant and the complainant that he would provide assistance with her escort work and regarding their dealings with the “fake millionaire”.
51With respect, while it is commendable and in fact necessary for trial judges to guard against the misuse of evidence that could engage myths and stereotypical thinking, that does not mean that all evidence regarding a complainant’s involvement in the sex trade should be disregarded in every case. As explained in A.M., at para. 122, s. 276 seeks to guard against “inferences from the sexual nature of the activity, not inferences from other potentially relevant features of the activity: ‘If evidence of sexual activity is proffered for its non-sexual features, such as to show a pattern of conduct or a prior inconsistent statement, it may be permitted’ ” [citations omitted]. The same principle necessarily applies to the admissibility of evidence regarding a complainant’s prior sexual activity for non-enumerated offences.
52In this case, there is no doubt that the complainant’s cross-examination treaded into areas of marginal and questionable relevance. For example, she was questioned extensively about the nature of her work at the spa in Toronto and at the strip club in Windsor. This reasonably could have given rise to the trial judge’s concern that she was being invited to believe that the complainant was less credible because of her prior work in the sex trade.
53Yet, there were other areas of evidence related to the complainant’s sex work that were clearly relevant to her credibility generally and to the believability of her explanations for the appellant’s motive for the kidnapping and other offences, and that did not engage myths and stereotypical thinking. For example, the complainant claimed that the “fake millionaire” stole money out of her purse, but her explanation for how the debt arose and the amount she claimed he owed her changed over the course of her evidence. While noting the defence had “criticized” the complainant in the course of cross-examining her “for inconsistent testimony in relation to details” of the “fake millionaire” incident, the trial judge did not examine those inconsistencies in her analysis. On this issue, the trial judge limited her findings to the complainant “[perceiving] that there was a $200 debt owed to her by [the appellant]” and that “[t]here was ill will between them related to that debt”.
54Another example, as submitted by the appellant, was the inconsistency between the complainant’s evidence that the appellant was pressuring her to work for him as an escort during the kidnapping and assault and her evidence that they had already reached an agreement for terms on which he would assist her with her work as an escort. The trial judge did not refer to any of this evidence or the appellant’s submissions on these issues. She did, however, find as a fact that the appellant’s motive was to force the complainant to work for him as an escort.
55More importantly, the trial judge’s approach to this evidence makes it impossible to identify exactly what evidence she disregarded because of her concern that the appellant relied on it for improper purposes. In the normal course, the trial judge should have ruled on the admissibility of the evidence while the complainant was being questioned: see R. v. Kutynec (1992), 70 C.C.C. (3d) 289 (Ont. C.A.), at pp. 294-95; R. v. Enden, 2007 SKCA 100, 52 M.V.R. (5th) 92, at para. 20. Even if the Crown did not raise concerns with various areas of cross-examination, this was the trial judge’s role as gatekeeper: A.M., at para. 111; R. v. R.K.K., 2022 BCCA 17, at para. 6, leave to appeal refused, [2022] S.C.C.A. No. 67. Doing so would have given the appellant’s trial counsel an opportunity to make submissions on the admissibility and proper use of the evidence at issue. At the very least, if the trial judge’s concern over the admissibility of this evidence arose after receiving the written closing submissions, she should have given the parties an opportunity to make further submissions. However, rejecting this broad area of evidence in her reasons, without first having invited submissions on the issue, was procedurally unfair: R. v. Rose (1997), 100 O.A.C. 67 (C.A.), at para. 33; see also R. v. Brown, 2024 ONCA 453, 171 O.R. (3d) 721, at para. 59.
56In the circumstances, I find that the trial judge erred by excluding all evidence of the complainant’s prior work in the sex trade, including her communications with the appellant about this topic, without first receiving submissions on the issue. If she had received submissions, it would have then been incumbent on the trial judge to distinguish between the different areas of evidence on this topic to determine admissibility and the proper use of the evidence. Some of the complainant’s evidence should likely have been admitted and considered as part of the trial judge’s credibility assessment; for example, her prior communications with the appellant about his assistance working as an escort and about the debt owed by the “fake millionaire”. Other evidence may not have been admissible, such as the complainant’s work at the spa or at the strip club. But the trial judge’s all or nothing approach to this evidence was both procedurally unfair and wrong in principle. As I explain below, this error amounts to a miscarriage of justice.
(3) The proviso does not apply
57The Crown relies on the curative proviso in s. 686(1)(b) of the Criminal Code to argue that, even if this court concludes that the trial judge erred in excluding all the complainant’s evidence regarding her prior work in the sex trade, no substantial wrong or miscarriage of justice occurred. I disagree.
58In my opinion, the way in which the trial judge excluded the evidence at issue in this case caused a miscarriage of justice. Consequently, reliance on the proviso is not available.
59An error that deprives an accused of a fair trial constitutes a miscarriage of justice within the meaning of s. 686(1)(a)(iii) of the Criminal Code. The Supreme Court and this court have emphasized that miscarriages of justice do not arise from specific types of error: see e.g., R. v. Davey, 2012 SCC 75, 293 C.C.C. (3d) 265, at paras. 50-51; Fanjoy v. The Queen, [1985] 2 S.C.R. 233, at p. 240; R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at paras. 69-74, per Lebel J. (concurring); R. v. Bains, 2015 ONCA 677, 328 C.C.C. (3d) 149, at para. 88; R. v. Wolynec, 2015 ONCA 656, 330 C.C.C. (3d) 541, at para. 91; R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at pp. 220-21; R. v. G.G. (1995), 97 C.C.C. (3d) 362 (Ont. C.A.), at p. 380. The analysis is fact-specific and requires evaluating the impact of the error on the actual or apparent fairness of the trial: Bains, at para. 90.
60The essential question is “whether the irregularity was so severe that it rendered the trial unfair or created the appearance of unfairness”: R. v. Tayo Tompouba, 2024 SCC 16, 435 C.C.C. (3d) 285, at para. 72. “A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness to the accused”: R. v. Harrer, [1995] 3 S.C.R. 562, at para. 45 per McLachlin J. (concurring); see also R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554. Where such basic procedural fairness is compromised, it cannot be said that the trial is fair.
61The curative proviso is not available where there has been a miscarriage of justice. Accordingly, as the Supreme Court explained in R. v. Arradi, 2003 SCC 23, [2003] 1 S.C.R. 280, at para. 38, “[t]he distinction between irregularities that occur during a trial that are classified as a ‘wrong decision on a question of law’ (s. 686(1)(a)(ii) of the Code) and those classified as a ‘miscarriage of justice’ (s. 686(1)(a)(iii) of the Code) is fundamental, since it will have a direct impact on the applicability of the curative proviso in s. 686(1)(b).” Regardless of the strength of the Crown’s case, neither branch of the proviso can be applied to cure a miscarriage of justice: see R. v. Ahmed, 2015 ONCA 751, 330 C.C.C. (3d) 60, at paras. 75-78; R. v. Haidary, 2023 ONCA 786, at para. 24.
62In this case, I find that the trial judge’s decision to exclude all of the evidence “in relation to [the complainant]’s sexual practices and alleged involvement in a sex trade, possibly encompassing the origin of the debt” fundamentally jeopardized the fairness of the appellant’s trial. As such, it is an irregularity that constitutes a miscarriage of justice.
63The trial judge’s rejection of this evidence after closing submissions without giving notice of her concerns and without an opportunity to make submissions breached the appellant’s right to a fair trial. As noted above, the evidence was elicited through cross-examination of the complainant, at which time neither the court nor the Crown raised any significant objections. The appellant’s defence was premised on attacking the complainant’s credibility. In doing so, he relied heavily on the inconsistencies in her evidence, including the portions of her evidence that the trial judge ultimately excluded. The appellant’s reliance on these portions of the complainant’s evidence was clear from the cross-examination of the complainant and, most notably, from his closing submissions.
64The trial judge’s decision to exclude the evidence at issue without giving the parties notice or an opportunity to make submissions does not fall within her authority to control the trial proceedings. Such authority is not absolute and requires compliance with the law and procedural fairness: R. v. John, 2017 ONCA 622, 350 C.C.C. (3d) 397, at para. 49. In the context of proceedings leading to a conviction, even the exercise of a “highly discretionary” judicial power can constitute a miscarriage of justice when it causes unfairness: Tayo Tompouba, at para. 73.
65In this case, the trial judge’s approach breached the appellant’s right to procedural fairness because he was never given an opportunity to address the admissibility of the evidence even after it was clear from his closing submissions that it constituted a significant aspect of his attack on the complainant’s credibility: see R. v. Perkins, 2016 ONCA 588, 339 C.C.C. (3d) 438, at para. 35; R. v. Foisy (2000), 51 O.R. (3d) 161 (C.A.), at para. 7; R. v. Wetzel, 2013 SKCA 143, 427 Sask. R. 261, at para. 98. Throughout the trial, and especially on receipt of the appellant’s closing submissions, it would have been clear to the trial judge that excluding the evidence as she did could reasonably be expected to impair his defence. When the trial judge decided to exclude evidence that was heard at trial and relied on in closing submissions, she should have at least invited the parties to make submissions on this issue.
66The procedural unfairness in this case closely resembles that which caused the Alberta Court of Appeal to quash the convictions and order a new trial on the basis of miscarriage of justice in R. v. Arens, 2016 ABCA 20, 334 C.C.C. (3d) 379. In that case, a voir dire was held to determine whether some evidence had been obtained in breach of the accused’s rights under the Canadian Charter of Rights and Freedoms. The Crown conceded breaches of ss. 8 and 9, but the trial judge admitted the evidence despite these breaches following the analysis prescribed by R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. Then, without giving advance notice to the parties, the trial judge stated in his reasons for conviction that he had reversed his earlier voir dire ruling and held that there had been no Charter breach. In the eyes of the majority on appeal, the trial judge’s failure to invite submissions before reversing himself was a “fundamental procedural error” that amounted to a miscarriage of justice and the proviso could not apply: at paras. 16-19, 25-29, and 34.
67I acknowledge that the improper exclusion of evidence does not always amount to a miscarriage of justice. In some cases, such an exclusion may be more properly characterized as an error of law. In those circumstances, appellate courts can consider whether the curative proviso in s. 686(1)(b) of the Criminal Code should apply, including whether the error is so minor that it would not be expected to affect the result or whether the evidence against the appellant is overwhelming. However, the legal error in this case is compounded by the lack of procedural fairness. This case is therefore distinguishable from those in which cross-examination was improperly curtailed, but the reviewing court can still determine that further cross-examination on the areas that should have been permitted would have made no difference to the verdict: see e.g., R. v. R.V., 2021 SCC 10, 402 C.C.C. (3d) 295; R. v. Samaniego, 2022 SCC 9, 412 C.C.C. (3d) 7. Here, the appellant’s ability to cross-examine the complainant was not meaningfully impaired. Rather, the unfairness arises out of allowing him to elicit evidence through cross-examination and rely on that evidence in his defence only to find out, as the trial judge is delivering her reasons for judgment, that a significant portion of the evidentiary foundation for his closing was excluded without notice or an opportunity to address the issue.
68Ultimately, the total exclusion of evidence related to the complainant’s alleged involvement in the sex trade without notice, and without an opportunity to make submissions or for the appellant to re-orient his defence undermined the fairness of the trial. This was a miscarriage of justice. The proviso cannot be applied to uphold the convictions.
(4) Other grounds of appeal
69The appellant raises other grounds of appeal relevant to the trial judge’s assessment of the complainant’s credibility. Given the error identified above, it is not necessary to address these other grounds of appeal.
D. Disposition
70I would allow the appeal and order a new trial.
Released: November 28, 2024 “K.M.v.R.” “L. Favreau J.A.” “I agree. K. van Rensburg J.A.” “I agree. L.B. Roberts J.A.”
1This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.
