Court File and Parties

Court File No.: CR-15-169 Date: 2016-09-23

Ontario Superior Court of Justice

Between: Her Majesty the Queen Michael Carnegie, Provincial Crown, Elizabeth Barefoot, Federal Crown

- and -

David Joachim D’Souza Vanessa Christie, for the Accused Accused

Heard: September 22 & 23, 2016

Reasons for Decision on the Admissibility of Proposed Evidence to be Used by the Defence in Cross-Examination of the Complainant

Conlan J.

I. Introduction

[1] David D’Souza stands charged on a multi-count Indictment. There are charges related to human trafficking, prostitution, possession of child pornography, pointing a firearm, threatening, weapons and narcotics.

[2] The accused is being tried in the Superior Court of Justice in Owen Sound, by a judge and jury. The complainant has testified in chief. The cross-examination of the complainant is about to begin.

[3] The Defence wishes to cross-examine the complainant on three areas that require a ruling: (i) an attendance that the complainant had with the police in or about April 2014, during the alleged offence period but regarding an unrelated matter, (ii) photographs of the complainant that the Defence alleges were posted by her on the internet in October 2015, and (iii) a Court proceeding in Newmarket in April 2016 wherein the complainant testified.

II. Analysis

The Prior Police Visit

[4] The general rule is that, apart from special circumstances, there is no policy that evidence of a complainant’s character or credibility is inadmissible.

[5] There are no special circumstances here. For example, section 276 of the Criminal Code does not apply in that Mr. D’Souza is not charged with any of the listed offences in subsection (1).

[6] The proposed evidence is not the subject of any exclusionary rule.

[7] The issue to be decided, therefore, is the relevance of the proposed evidence. Further, the Court should consider its probative value versus its prejudicial effect.

[8] If it is true that the complainant spoke with a police officer in or about April 2014, in fact the same police officer to whom she gave her statement in the within proceeding in late May 2014, then I am of the view that the accused, in order to make full answer and defence, is entitled to explore that in cross-examination in order to query why the complainant did not disclose any allegation against Mr. D’Souza.

[9] There is no need to get in to the details of that other investigation, and the Defence is not permitted to do so. It will suffice to question the complainant about when that police attendance occurred, what precipitated that attendance with the police (that is, the complainant reporting something to a person in authority), where that police attendance occurred, who she spoke with, for how long, in what capacity she was there (as a victim or as a witness or both), whether it had anything to do specifically with Mr. D’Souza, whether she in fact disclosed anything to the police at that time about Mr. D’Souza, and, if not, why not.

[10] The complainant might have a good explanation as to why she did not disclose anything to the police at that time about this accused.

[11] The relevance of this area is obvious. The police attendance in question falls directly within the alleged offence period. If the complainant was in a safe place, speaking with the police, at a time proximate to when she has already testified at trial that she was contemplating reporting what was happening with Mr. D’Souza to someone, then it is surely relevant to her credibility as to why she remained silent about Mr. D’Souza, if she in fact did.

[12] This proposed area of cross-examination is of high probative value. Any potential prejudicial effect can be limited by the Court ensuring that the evidence is not used to support an argument that is improper, for example, that the complainant ought not to be believed by the jury solely because she delayed the reporting of the allegations.

The Internet Postings

[13] The complainant has testified thus far at trial that she took provocative photographs of herself at the instruction of the accused, sent them to Mr. D’Souza at his instruction, and he alone had them published on Backpage (the internet).

[14] The certain impression left with the jury is that the internet postings were the responsibility of Mr. D’Souza.

[15] If it is true that the complainant, the following year, was doing all of that herself, then that is relevant to her credibility and the veracity of her allegations about being controlled and manipulated by this accused.

[16] But I find that the relevance is fairly limited. It is very possible for the complainant to have been directed and controlled by this accused regarding the photographs of her pre-May 2014 even though she willingly took similar photographs of herself and posted them online 18 months later, in October 2015.

[17] I am sure that the Defence would not use the proposed evidence to simply smear the complainant as a sultry woman with low standards of cleanliness. That would be improper.

[18] Even so, however, the evidence of the October 2015 internet postings is simply unnecessary to combat the assertion by the prosecution in its opening address and the impression left by the complainant thus far in her testimony that her involvement in prostitution ended in late May 2014. The evidence related to the Court proceeding in Newmarket, discussed below, will more than adequately tackle those items and more than sufficiently provide the ammunition for Mr. D’Souza’s full answer and defence.

The Newmarket Court Proceedings

[19] This is an easy issue to decide.

[20] I have read the transcripts carefully of what happened in Newmarket.

[21] The complainant, in April 2016, testified as the alleged victim of some of the exact same charges facing Mr. D’Souza but committed by others – human trafficking, receiving a material benefit from human trafficking, and procuring prostitution.

[22] Those offences before the Court in Newmarket occurred almost immediately after the alleged offence period in our case.

[23] The fact that the prosecutor himself in Newmarket invited the Court to discharge the accused at the preliminary inquiry based on what he outlined as a litany of credibility problems on the part of the complainant is irrelevant at this trial involving Mr. D’Souza.

[24] What is relevant is that the complainant herself made some damning admissions to the Court in Newmarket about her willingness to work as a prostitute in 2014.

[25] Just one example will suffice. When asked by the prosecutor whether she wanted to work as a prostitute two years ago, which would have fallen within the alleged offence period in our case, the complainant answered “[w]ell, I was doing it, so, I guess, yeah” (page 35 of the transcript dated April 25, 2016).

[26] Unquestionably, it is highly relevant to this trial whether the complainant wanted to work as a prostitute in the year 2014, both during the alleged offence period on our Indictment and immediately afterwards. The entire theory of the Crown is that this vulnerable young lady was controlled and manipulated by Mr. D’Souza. The complainant’s own statement to the police ends with her agreeing with the officer that she desperately wanted out of the prostitution world.

[27] I can foresee no potential prejudicial effect arising from the proposed evidence. If counsel want to make submissions later in the trial on some instruction that should be given to the jury about the use that it can make of what happened in Newmarket, then they can bring that to my attention in due course. I repeat, the opinions of the prosecutor in Newmarket about the credibility of the complainant in that case and what the prosecutor ultimately did as a result of those opinions are irrelevant to our proceeding.

III. Conclusion

[28] Two of the three areas of proposed cross-examination of the complainant are permitted. At this stage, the internet postings from October 2015 are not allowed to be put to the complainant in cross-examination.

Conlan J.

Released: September 23, 2016