Court File and Parties

Court File No.: CR-23-30000605-0000 Date: 2024-10-02 Ontario Superior Court of Justice

Between: His Majesty The King, Applicant And: Marcus Bryan, Respondent

Counsel: Brigid McCallum, for the Crown Maria Rosa Muia, for Marcus Bryan

Heard: April 29, 30 and May 1, 2024

Before: Pinto J.

Order Regarding Complainant Identity

AN ORDER HAS BEEN MADE PURSUANT TO SS. 486.4(1) OF THE CRIMINAL CODE DIRECTING THAT ANY INFORMATION THAT COULD IDENTIFY THE COMPLAINANT SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR TRANSMITTED IN ANY WAY.

Ruling on Pre-Trial Application (Applicability of s. 276)

Overview

[1] The applicant is charged with a number of offences including human trafficking, firearm offences, kidnapping and uttering a threat in relation to the complainant.

[2] A judge-alone trial is set to commence on January 20, 2025.

[3] On April 29, 30 and May 1, 2024, I heard arguments with respect to three pre-trial applications:

(a) A Defence application for an order that the s. 276 regime under the Criminal Code does not apply to cases of human trafficking or, in the alternative, for an order permitting the applicant to cross-examine the complainant regarding her past sexual history.

(b) A Crown application that a recording of a 911 call by the complainant, and statements made by the complainant to her aunt at the time of the 911 call, be admitted into evidence under the res gestae exception or some other exception to the hearsay rule; and

(c) A Crown application that the complainant be permitted to testify at trial by CCTV pursuant to s. 486.2(2) of the Criminal Code.

[4] On June 20, 2024, I issued rulings in respect of (b) and (c), see R. v. Bryan, 2024 ONSC 3497.

[5] This is my ruling with respect to issue (a), the applicability of the s. 276 regime to cases of human trafficking and this case in particular.

[6] At the time of the application hearing, the Court of Appeal was sitting in reserve on the issue of whether the s. 276 regime applies to the offence of human trafficking. On September 6, 2024, the Court of Appeal released its decision in R. v. A.M., 2024 ONCA 661. The decision held that s. 276 does not apply categorically to all proceedings where the accused is charged with a human trafficking or sexual service offence, but not a listed offence; and that the application of s. 276 to such proceedings must be determined on a case-by-case basis having regard to the charges, the evidence the Crown proposes to lead, and whether the Defence proposes to elicit or lead evidence of a listed offence (to assess whether a listed offence, although not charged, is implicated in the proceeding).

[7] Applying the Court of Appeal’s direction in A.M. and for the reasons that follow, I find that the s. 276 regime applies to this case. I direct that the parties proceed to a Stage 1 / Stage 2 s. 276 hearing where the scope and admissibility of evidence related to the complainant’s sexual activities will be determined.

The Nature of the Case

[8] The accused was arrested and charged on April 20, 2022 with a number of offences in relation to the complainant. On the preferred indictment, the following 12 charges remain:

Count 1 – Human trafficking, contrary to s. 279.01. Count 2 – Receive a financial or other material benefit from human trafficking, contrary to s. 279.02(1). Count 3 – Remove a travel or identity document for the purposes of human trafficking, contrary to s. 279.03(1). Count 4 – Procuring or exercising control, contrary to s. 286.3(1). Count 5 – Receive a financial or other material benefit from sexual services, contrary to s.286.2(1). Count 6 – Advertising another person’s sexual services, contrary to s. 286.4. Count 7 – Uttering threat to cause death or bodily harm, contrary to s. 264.1(1)(a). Count 8 – Possession of a weapon, contrary to s. 88(1). Count 9 – Use a handgun while committing an indictable offence, contrary to s. 85(1)(b). Counts 10 and 11 – Kidnapping, contrary to s. 279(1)(a). Count 12 – Robbery, contrary to s. 344(1)(b).

[9] The complainant provided two videotaped statements to the police on March 1, 2021 and March 31, 2021. The video statement transcripts were made available to me.

[10] The complainant alleges that she met the accused sometime in July 2020 through Tinder. She told police that she had met the accused for a simple ‘hook up’ but that they continued to go on several dates; that at some time in the Summer of 2020, she and the accused worked together (in the sex trade) for one week before the complainant left due to the accused being controlling; that the accused found her in the Fall or Winter of 2020 by setting up a fake date (sexual service appointment) with her after locating one of her ads; that the accused (a Black male) used a White male to identify himself at the door so the complainant would let him in, and then proceeded to threaten her with a gun and forced her to provide sexual services against her will; that the complainant made $50,000 during this time; and that the complainant escaped and continued to work independently for some time.

[11] Further, the complainant alleges that on February 28, 2021, the accused found her, and took her with an unknown female in a white BMW SUV to the Niagara Falls area and forced her to provide sexual services against her will until the next morning on March 1, 2021. While driving to Niagara Falls, the accused allegedly used the complainant’s phone to create a new LeoList ad and the unknown female responded to and set up appointments with prospective clients. The complainant made $600 and gave the money to the accused and unknown female. The accused and unknown female brought the complainant home, at which point the complainant’s aunt and cousin intervened and called police.

[12] At trial, it is anticipated that the Defence will argue that the complainant told the accused that she worked in the sex trade when they first met; that the complainant and the accused engaged in a casual sexual relationship; that the accused received fellatio from the complainant on two occasions in his car; that the complainant used different types of ad formats to advertise sexual services; that the complainant worked for individuals who are not the accused between July and December 2020; that the complainant often asked the accused for rides while she was working; and that the complainant asked the accused for money because she was not making enough through her work in the sex trade.

[13] It is anticipated that the credibility and reliability of the complainant will be a central issue at trial.

Analysis

[14] It is obvious that none of the 12 offences with which the applicant is charged are listed in s. 276. Accordingly, as in A.M., the main issue is whether s. 276 applies in this case even though the offences are not enumerated in s. 276.

[15] In A.M., the Court of Appeal provided the following guidance as to the applicability of the s. 276 regime to a particular case:

[92] 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”: Williams #1, at para. 6. See also M.D., at para. 8, and Langford, at para. 16.

[16] In A.M., the Court of Appeal disagreed with the trial judge and held that s. 276 did not apply to the circumstances of that case. None of the offences listed in s. 276 was an included offence to the charges in the case, nor was such an offence implicated in the factual circumstances advanced by the Crown.

[17] Notably, in A.M., the appeal court held, “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 [i.e., A.M.] there was no suggestion that the sexual services provided were non-consensual.” Further, at para. 98, the court stated, “There was no suggestion that A.K. had been sexually assaulted or that the appellants forced her to work in the sex trade.”

[18] The within case can be distinguished from A.M.. Here, the Crown is alleging that the accused used violence or the threat of violence to compel the complainant to offer her sexual services. The Crown alleges that the accused found the complainant in the Fall or Winter of 2020 and employed another male who proceeded to threaten the complainant with a gun. The complainant was then allegedly forced to provide sexual services against her will. Further, the Crown alleges that between February 28 and March 1, 2021, the complainant was forced to provide sexual services against her will in the Niagara Falls area. Under s. 265(3)(b) of the Criminal Code, threats can vitiate the complainant’s consent to the sexual activity in question. If the complainant did not consent to the sexual services that she provided, and assuming the other elements of sexual assault were present, it would follow that the “sexual assault” of the complainant is implicated in the circumstances of this case, and s. 276 applies.

[19] I would also distinguish the within case from R. v. Langford, 2021 ONSC 4307, 74 C.R. (7th) 147, a case whose reasoning and result were endorsed by the Court of Appeal: A.M. at para. 78. In Langford, the accused was charged with sexual services offences. Nakatsuru J. found that in light of the interplay between the statutory interpretation of s. 276 and Barton, “each case must still be scrutinized on its facts to determine whether the proceeding is ‘in respect of’ a listed offence.” On the facts in Langford, Nakatsuru J. found that one of the reasons why the s. 276 regime did not apply was because “the alleged threats of violence [were] not connected to the complainant giving her consent to the sexual activities that she had with her clients,” and that “the threats [had] no relation to the sexual activity.” Conversely, in the within application, the Crown’s theory of the case is very much that the complainant’s consent to provide sexual services resulted from the physical and psychological threats from the applicant.

[20] In R. v. J.C. and D.B., 2023 ONSC 6093, a decision which preceded A.M., but which was referenced by the A.M. court (see above), Mirza J. found that in circumstances where the complainant was alleged to have been threatened by violence and coercive tactics to engage in sex with clients, s. 276 was engaged: J.C. at paras. 10, 30 to 32.

[21] Following the approach laid out in A.M., I have concluded that, while the charges would not suggest that s. 276 applies, the nature of the allegations suggests that the complainant was forced to provide sexual services to clients as a result of the applicant’s threats. In other words, the offence of sexual assault is implicated and s. 276 applies.

[22] As I have already decided that s. 276 applies, I do not find it necessary to continue to the next factor, “the subjects about which the accused seeks to cross-examine the complainant.”

(a) Evidence that the complainant worked in the sex trade prior to, during, and in between the two incidents involving the applicant (September to December 2020 and February 28 to March 1, 2021);

(b) Evidence of the complainant’s use of websites (LeoList) to advertise her sexual services in the GTA, Barrie and Niagara Falls regions and how she communicated with prospective clients;

(c) Evidence of how much money the complainant approximately made in the time she was working independently, the approximate number of clients she had, how much she charged and how she received payment;

(d) Evidence that the complainant worked for other individuals during and in between the two incidents involving the applicant;

(e) Evidence of the general relationship between the applicant and the complainant including:

(i) The nature and frequency of their casual sexual relationship;

(ii) The definition of their relationship;

(iii) The conclusion of their relationship.

[23] The parameters of whether and to what extent the complainant can be examined and cross-examined on her past sexual history will be determined at the Stage 1 / Stage 2 s. 276 hearing.

Pinto J. Released: October 2, 2024