COURT FILE NO.: CR-17-737 DATE: 2018 11 06 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – J.D. and D.B.
Counsel: Jelena Vlacic, for the Crown Harry J. Doan, for J.D. and Thomas Wiley for D.B.
HEARD: October 29, 30, 31, and November 1, 2018
REASONS: DISCREDITABLE CONDUCT APPLICATION
RESTRICTION ON PUBLICATION
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
L. Shaw J.
Overview
[1] J.D. and D.B. are charged with a number of offences including procuring for the purposes of providing sexual services contrary to s. 286.1(1) of the Criminal Code, exercising control, direction or influence contrary to s. 286.3(1) of the Criminal Code, receiving a financial or other material benefit contrary to s. 286.2(1) of the Criminal Code and knowingly advertising an offer to provide sexual services for consideration contrary to s. 286.4 of the Criminal Code. These offences relate to two complaints, A.O. and D. H. The indictment covers a period of time between June 28, 2016 and September 26, 2016.
[2] The Crown seeks leave to introduce evidence at trial of instances of prior discreditable conduct of both accused. The defence opposes the admission of the evidence arguing that it is inadmissible as any probative value of the evidence is outweighed by its prejudicial effect.
[3] The trial has not yet taken place so I have not heard viva voce evidence from either complainant or other witnesses the Crown intends to call. The review of the evidence below is set out based on the evidentiary record for this application only. For the purposes of this application, I have been provided with excerpts from statements given to the police by the two complainants and two other witnesses the Crown intends to call at trial.
[4] While it is unknown at this time if either of the accused will testify at trial, it is anticipated that the theory of their defence will be that two other witnesses, who the Crown intends to call, were responsible for procuring, directing, controlling, advertising and receiving a material benefit from the sexual services provided by the complainants and that they were unaware of those activities.
[5] The guiding principle in deciding this application is that the Crown cannot call general bad character evidence about the accused’s behaviour on other occasions for the sole purpose of showing that the accused is the sort of person likely to commit the offence charged. Such evidence is presumptively inadmissible as the trier-of-fact might punish the accused for other conduct or convict because they are bad people. The onus is on the Crown to prove that the probative value of such evidence outweighs the prejudicial impact. (R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908 at paras. 31-55)
[6] The Crown seeks leave to introduce evidence of the following:
a. That a witness, J.M., lived with both accused and worked as an escort under their direction during the period of the indictment; b. That J.D. physically assaulted and threatened J.M; c. That J.M. and J.D. were involved in a romantic relationship; d. That both accused continued to associate with J.M. after their release on bail; e. That there was another escort, K.C. who worked as an escort with the complainants under the direction of the accused; f. That J.D. supplied illicit drugs to the escorts; g. That a witness, A.B., who was a co-accused, was physically assaulted by D.B. and physically assaulted and threatened by J.D.; h. That A.B. believed that J.D. had access to a firearm in the home where she lived with the accused.
Background
[7] J.D. and D.B. are common-law spouses. One of the witnesses the Crown intends to call is A.B., the biological daughter of D.B., who was also an accused charged with the same offences. A.B. gave a statement to the Peel Regional Police (“PRP”) on August 28, 2018. On September 24, 2018 she pled guilty to a single count of receiving a material benefit from sexual services contrary to s. 286.2(1) of the Criminal Code. She has not yet been sentenced.
[8] A.B.’s anticipated evidence will be that while she worked as an escort and was involved with supervising the complainants in providing sexual services at hotels, she did so under the direction of both accused. Her evidence will be that she was threatened and assaulted, primarily by J.D., if she did not perform her tasks correctly. She was also physically assaulted by D.B. She believed that J.D. had access to a firearm that was in their home.
[9] Another witness the Crown intends to call is J.M who was born on May 16, 2000 and was 16 years of age during the period of the indictment. She had been living with J.D and D.B. since the age of 14/15 and considered the accused to be parental figures. She was called as a witness for the defence at the preliminary inquiry conducted in October 2017 and gave evidence that she and A.B. were at the centre of organizing and directing the activities of the complainants and that, to her knowledge, the accused were completely unaware of their activities.
[10] On September 25, 2018, she provided a statement to the Ontario Provincial Police stating that her prior testimony was not true. Her anticipated evidence will be that she was working as an escort under the direction of the accused and that the accused were fully aware and involved in her activities. Her evidence will be that she had been instructed by the accused to tell the court at the preliminary inquiry that they had no knowledge of any escorting activities performed by the women in the home. J.M’s evidence will be that she complied with their instruction because of her fear of and devotion to J.D. and D.B. Her evidence will be that she believed she was in love with J.D.
[11] The complainant, A.O., knew A.B. and considered her a friend. Her anticipated evidence will be that she approached A.B. in the summer of 2016 as she was no longer living in her mother’s home as she was struggling with drug addiction. A.B. suggested she come live with her family at J.D.’s and D.B’s home where A.B. was living at the time.
[12] A.B. told A.O. that if she were to live with her family, she would be working as an escort primarily out of hotels that would be booked by D.B. and that any profits would be split equally between A.O., A.B. and J.D.
[13] A.O. worked for 5 to 8 weeks as an escort in hotels. She would spend weekends at the home of J.D. and D.B. using illicit drugs, some of which was supplied by J.D.
[14] Her evidence will be that there were other escorts who worked with her at the hotels included A.B. and J.M and another individual known as K.C. In August 2016, the complainant D.H. began to work as an escort in hotels with her as well.
[15] Towards the end of September 2016, A.O. left the home of the accused and returned to her family’s home. Her evidence will be that she left the home after being assaulted by J.M.
[16] The complainant, D.H. knew A.B. and also struggled with addiction issues. Her evidence will be that she contacted A.B. in mid-September 2016 and sought her advice on how to go about becoming an escort. A.B. picked her up and brought her to the home of J.D. and D.B. J.D. and D.B. told her that she could stay at their home if she worked as an escort.
[17] Over the next two weeks, she attended at several hotels with A.B., J.M. and A.O. She would give half of her earnings directly to J.D.
[18] She left the home of J.D. and D. B. after a physical altercation involving J.M and K.C.
The Law
[19] Evidence of prior discreditable conduct is presumptively inadmissible against an accused. Evidence of misconduct beyond which is alleged in the indictment and does no more than blacken the character of the accused is inadmissible. A defendant in a criminal proceeding is charged with a particular offence or a set of offences and not with being the sort of person who commits a particular offence or offences. The reason for this general exclusion is to avoid the trier-of-fact engaging in impermissible propensity reasoning. Such reasoning means to draw an inference from the discreditable conduct that the accused has the propensity or disposition to do the types of acts charged and is therefore guilty of the offence. (R. v. Handy, 2002 SCC 56, [2002] S.C.J. No. 57 (S.C.C.) at para 31; and R. v. Stubbs, 2013 ONCA 514, [2013] O.J. No. 3657 (Ont.C.A.) at para. 54)
[20] Prior discreditable conduct, however, is admissible where the Crown proves, on a balance of probabilities, that the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its acceptance into evidence. In R. v. J.A.T., [2012] ONCA 177 the court found at para. 51 that evidence that tends to show from extrinsic misconduct that an accused is a person of bad character, but is also relevant and material, falls outside the general exclusionary rule provided its probative value exceeds it prejudicial effect.
[21] Evidence of extrinsic misconduct may be admitted to demonstrate a system of violent control over others to explain why abuse could occur and continue unabated and unreported. Evidence may also be admitted as part of the narrative to provide context for other events as well as to establish motive or animus. In each case the evidence of extrinsic misconduct must be relevant to some material issue, other than propensity, and be more probative of that issue then prejudicial through impermissible propensity reasoning. (J.A.T. at para. 54)
[22] Probative value can only be assessed by examining the material issue in question. At para. 73 of Handy Justice Binnie said the following:
The requirement to identify the material issue “in question” i.e., the purpose for which the similar fact evidence is (proffered) does not detract from the probative value / prejudice balance, but is in fact essential to it. Probative value cannot be assessed in the abstract. The utility of the evidence lies precisely in its ability to advance or refute a live issue pending before the trier of fact.
The issues in question derive from the facts alleged in the charge and the defences advanced or reasonably anticipated. It is therefore incumbent on the Crown to identify the live issue in the trial to which the evidence of disposition is said to relate. If the issue has ceased to be in dispute, as for an example when the fact is admitted by the accused, then the evidence is irrelevant and it must be excluded. The relative importance of the issue in the particular trial may also have a bearing on weighing up of factors for and against admissibility. Similar fact evidence that is virtually conclusive of a minor issue may still be excluded for reasons of overall prejudice.
[23] Once the probative value of the evidence is assessed, the court must then turn its mind to the prejudicial effect of the evidence. There are two types of prejudice. The first is moral prejudice which is the risk that the trier of fact will convict the accused on the basis that he or she is a bad person who deserves to be punished. Cases have commented that where the evidence is of a morally repugnant act committed by the accused, the prejudice would be significant and, accordingly, its probative value must be significant. A second type of prejudice is reasoning prejudice which risks diverting the trier of fact from its task such that the similar fact evidence may be given more weight than it deserves. (R. v. Bent, 2016 ONCA 651, 342 C.C.C. (3d) 343 at paras. 46 and 70)
[24] In J.A.T, at para. 52, the court found that the prejudicial effect of evidence of prior discreditable conduct can affect a jury’s deliberative process in three many ways:
i. The jury may assume, from its acceptance of the evidence of the extrinsic misconduct, that the accused is a “bad person” thus likely to be guilty of the offences charged; ii. The jury may tend to punish the accused for the extrinsic misconduct by finding him or her guilty of the offences charged; iii. The jury may become confused by the evidence of extrinsic misconduct, their attention deflected from the main purpose of the trial, the offences charged, and substitute their conclusion on the extrinsic misconduct for their verdict on the indictment they are trying.
[25] The Crown relies on the decision of R. v. S.B., [1996] O.J. No. 1187. In that case, the accused was charged with a number of offences relating to conduct towards his spouse including break and enter, uttering death threats, assault with a weapon and sexual assault. In a pretrial motion, the Crown sought a ruling regarding admissibility of conduct on the accused both before and after the period of indictment related to acts of spousal abuse commencing five years earlier. The Crown’s position was that the history of physical aggression, threats and arguments and stalking was not strictly admissible as similar fact but added important narrative and context regarding the charged offences.
[26] Hill, J. commented that the Crown faced a prevailing presumption that the evidence was inadmissible. Nonetheless, in deciding to admit the evidence, Hill, J. said as follows:
Violence between strangers, as a general rule involves a narrative of circumstances of limited temporal duration. Violence within a relationship, spousal or otherwise, necessarily, and frequently, involves the complex dynamics and subtleties of the personalities of the principles within the context of their individual and shared experiences, understanding, rules and emotions.
While submissions of admissibility on the basis of mere narrative can, of course, be abused, to deny the triers–of–fact complete information regarding the prior history of the parties runs the risk of presenting an entirely sterile and antiseptic record devoid of the realities of the individual circumstances of the participants.
[27] At para. 25 Hill J. found that the evidence of earlier history of abuse permitted a comprehension of the true nature of the relationship between the parties. If accepted, the evidence would establish a pattern of dominance, control, possessiveness and fear promoted by the accused in his relationship with his spouse. Such evidence might assist the jury in considering the credibility of the complainant’s account of events in the sense of explaining her lack of desire for reconciliation, her fear for her safety in light of the accused alleged stalking and her in actions in not reporting the harassment. Hill, J. found that evidence of the relationship of the parties may assist in explaining otherwise unusual aspects of the complainant’s behaviour including fear of reporting or fear to take flight from danger.
[28] The defence relies on R. v. Magno, 2012 ONSC 4014. In that case, Ducharme J. said at para. 60
Far too often narrative is a last gasp justification used by an evidentiary scoundrel when there is no other legitimate basis to support the admission of evidence. Narrative evidence is not admissible simply because it is somehow part of a story that the Crown wishes to tell. Rather, it is admissible because it provides contextual information necessary to the proper understanding of the admissible evidence. Thus, it may involve the relationship between the various individuals in the case or the events leading up to the commission of the alleged offence.
[29] Narrative will permit the trier of fact to more fully understand the evidence led at trial. However, such evidence remains presumptively inadmissible and where the Crown seeks its admission to complete the narrative it should only be admitted where its probative value outweighs its prejudicial effect. (Magno at para. 61).
Particulars of Discreditable Conduct Evidence
a. The Assaults on A.B, the Supply of Illicit Drugs and the Presence of a Firearm in the Home
[30] The Crown seeks to introduce evidence of threats and physical assaults made by J.D. towards A.B. and of physical assaults by D.B. on A.B. One physical assault occurred at a hotel when A.B. was working as an escort with the complainants A.O and D.H. A.B.s evidence will be that she had fallen asleep at the hotel. J.D. arrived, kicked the door in and grabbed her ponytail and pulled her out of the room. He was upset as she had missed some phone calls. Her evidence will be that J.D. kicked and punched her in the face and took her to another house where she was kept for four days.
[31] D.H.’s evidence will be that she was at the hotel and she saw J.D. dragging/pulling A.B. out of the hotel room. Her anticipated evidence will be that she believed she would have been punched or slapped in the head if she was to stand up to J.D.
[32] A.B.’s anticipated evidence will be that during the period of the indictment, J.D. threatened her on more than one occasion, punched her, causing her nose to bleed, spit in her face, hit her and threatened her if she did not watch the girls properly at the hotel and make sure they met their quotas. (A quota is a certain amount of money they had to make each night.)
[33] A.B.’s evidence will be that on one occasion, she was thrown to the ground by D.B. as she thought A.O. had “ratted us out” after an incident at the Sandman Hotel in Oakville in September 2016.
[34] A.B. also described being given cocaine by J.D. the day that she fell asleep at the hotel and was woken up when J.D. kicked the door in. Her anticipated evidence will be that J.D. gave her five or six grams of marijuana per day.
[35] The Crown is seeking leave to present evidence that A.B. believed that J.D. had a gun in the house and that she took J.D.’s threats of violence seriously given her belief that he had access to a gun in the home.
b. J.M.’s presence in the house and work as an escort
[36] The Crown seeks leave to introduce evidence that J.M., who lived with the accused from the age of 14/15, worked as an escort during the period of the indictment under their direction and that she was physically assaulted by J.D.
[37] It is anticipated that J.M.’s evidence will be that was involved in a sexual relationship with both J.D. and D.B. and that she believed she loved J.D.
[38] It is anticipated that J.M.’s evidence will be that she worked as an escort at hotels with A.B., A.O, D.H. and K.C.
K.C’s presence at the home and at the Sandman Hotel on September 23, 2016
[39] An incident occurred at the Sandman Hotel in Oakville, Ontario on September 23, 2016. The manager called the police as he was suspicious that three separate rooms were rented for three women being A.B., J.M. and K.C. The complainant A.O. was also present. The two accused and their daughter had also rented a room for that evening. It is anticipated that K.C. will not be called as a witness. She worked as an escort, at times with the complainants and A.B. and J.M. The Crown is prepared to lead evidence that her work as an escort was directed and controlled by someone other than the accused. The Crown is seeking leave to introduce evidence that she was at the Sandman Hotel on September 23, 2016. It is not clear if the Crown is also seeking leave on this application to introduce evidence that the accused, A.B, A.O. and K.C. were arrested by the police as a result of this attendance at the hotel on that day. I will hear further submissions in that regard.
[40] An advertisement was marked as an exhibit on a voir dire motion dealing with voluntariness. That advertisement for sexual services has a picture of K.C. and a cell number which the Crown alleges is D.B.’s cell phone number and was the same phone number used to book rooms at the Sandman Hotel for September 23, 2016. It is not clear if the Crown is seeking leave on this application to introduce this advertisement as evidence at trial and I will hear further submissions in that regard.
Position of the Crown
[41] The Crown’s position can be summarized as follows:
i) A.B.’s evidence of being assaulted, threatened and being supplied drugs is not evidence of discreditable conduct but is evidence that goes to the offence itself as the assaults, threats and supply of illicit drugs was the means by which A.B. was controlled by the accused. They controlled her and directed her to supervise the complainants. Through their control of A.B. they controlled the complainants; ii) Alternatively, if it is evidence of discreditable conduct, it is relevant to the issues of A.B.’s credibility, her state of mind and is necessary for narrative to describe the domination, control and fear promoted by the accused in their relationship with A.B. Its probative value therefore outweighs its prejudicial impact. iii) Leave is sought to introduce evidence of J.M. working as an escort under the direction of the accused as J.M.’s credibility and motivation to fabricate will be a central issue of both the Crown and defence theory of the case. As the anticipated theory of the defence is that J.M. was not only working as an escort but also directing the activities of the complainants, without the knowledge of the accused, her credibility will be closely scrutinized by the trier-of-fact. As J.M.’s role is integral to the theory of the defence and as she gave untruthful evidence at the preliminary inquiry which now requires explanation, the trier-of-fact will need to hear evidence that assists it with assessing her credibility. iv) J.M.’s work as an escort also goes to narrative as both complainants will give evidence about working with J.M. at various hotels and even, on occasion, working directly with her supplying sexual services to a customer. v) The presence of K.C. is also necessary as it goes to narrative as she was another escort present in the hotels working with the complainants and was present in the accused’s home and was the reason why D.H. left the home.
Position of the respondents
[42] The position of the defence is that any probative value of the evidence is far outweighed by its prejudicial impact and that the evidence is tainted by collusion.
Analysis
[43] It is important to note that all of the evidence for which the Crown seeks leave to present at trial is alleged conduct that occurred during the period of the indictment. This proximity in time is a factor to consider in assessing admissibility.
[44] A.B.’s evidence will be that she was required to supervise the complainants at the hotels and she did so under the direction of the accused. Her evidence will be that she followed their direction out of fear caused primarily by J.D.’s physical assaults of her and his threats during the period of the indictment. J.D.’s control of A.B. through physical assaults, threats and the supply of illicit drugs was the means by which he asserted control over the complainants. The anticipated evidence of D.H. that she witnessed J.D. dragging/pulling A.B. out of a hotel room and that she believed that J.D. would have punched or slapped her in the head if she stood up to him is evidence that a state of fear was adduced in her by J.D.’s conduct towards A.B.
[45] I agree that J.D.’s and D.B’s assaults of A.B. and supplying A.B. and the complainants with illicit drugs are not acts of prior discreditable conduct but evidence that goes to one of the counts itself being exercising control, direction or influence.
[46] If it is evidence of discreditable conduct, it is admissible as it goes to the issues of A.B.’s credibility and her state of mind and its probative value exceeds its prejudicial impact. It is anticipated that A.B’s credibility will be a central issue, particularly as she was once a co-accused and has pled guilty to one count of the indictment. (The Crown concedes that a Vetrovec warning will be necessary regarding her evidence.) The anticipated theory of the defence will be that A.B. was the key player in the recruiting, controlling and directing the escorting activities of the complainants. She will need to be able to give evidence explaining why she participated as an escort, why she did not leave the accused’s home and her motivation to fabricate evidence against the accused. Without hearing evidence with respect to how she was controlled through violence and threats would prevent the jury from fairly assessing her credibility and may unfairly result in the jury discounting her credibility as a witness. It is also evidence that goes to her state of mind with respect to why she remained in a home subjected to ongoing abuse and continued with escorting activities.
[47] The evidence is also necessary for the purpose of narrative. The Crown concedes that the admissibility of evidence based on narrative can be abused, but to deny the triers-of-fact evidence regarding the nature of the relationship between A.B. and the accused, using the words of Hill, J. “runs the risk of presenting a sterile and antiseptic record devoid of the realities of the individual circumstances of the participants.” (S.B. at para. 31).
[48] If A.B.’s evidence is accepted regarding the assaults and supply of drugs, it would establish a pattern of dominance, control and fear used by the accused in their relationship with A.B. This evidence might assist the jury in considering A.B.’s credibility in assessing her reasons for working as an escort, supervising the escorts as directed and for not leaving the home sooner. The evidence provides contextual information regarding the relationship between A.B. and the accused and the complex dynamics of that relationship. If the evidence is not before the jury, the risk is that the jury will be left with a very sterile and antiseptic account of the nature and dynamics of the relationship.
[49] The evidence of J.D.’s and D.B.’s prior physical assaults of A.B. and threats towards her and J.D. supplying illicit drugs to A.B. and the complainants is, therefore, admissible.
[50] A.B.’s evidence that she believed that J.D. had a gun in the home and that it was also a means to control her through fear is not admissible as the prejudicial impact of a gun in the home exceeds its probative value. There is no evidence of a gun being in the home but only A.B.’s belief that one was present. There is no evidence about who owned the gun. The evidence could result in moral reasoning that if J.D. owned a gun and had it in the house, he must be the type of person to commit these criminal acts.
[51] The Crown seeks leave to introduce evidence that J.M. lived with J.D. and D.B. and worked as an escort under their direction and control during the period of the indictment. The Crown seeks leave to introduce evidence of J.D.’s violent behaviour towards her. The Crown also seeks leave to introduce evidence that J.M. had a romantic relationship with J.M. and that she continued to associate with him and D.B. after they were released on bail. The Crown does not seek to introduce evidence of any of the details of J.M.’s romantic relationship with D.B. or the sexual activity that she engaged in with both accused. The Crown concedes that the prejudicial effect of that evidence would exceed its probative value. I agree.
[52] There is a risk of both moral and reasoning prejudice if J.M.’s evidence that she worked as an escort under the direction and control of the accused is admitted as it is conduct for which the accused have not been charged. For the reasons that follow, I nonetheless find that the probative value of the evidence outweighs the prejudicial impact for a number of reasons.
[53] As with A.B., J.M.’s credibility will be a central issue as her anticipated evidence at trial will contradict her sworn evidence from the preliminary inquiry. J.M. will be asked to explain why she lied under oath, why she assisted with the escorting activities of the complainants and why she remained living in the accused’s home. In addition, the anticipated theory of the defence is that J.M. did not just work as an escort, but in fact, with A.B., directed and controlled the activities of the complainants. J.M’s role is integral and central to the theory of the defence. If the anticipated theory of the defence did not include her role in directing and controlling the complainants, the evidence of her working as an escort under the direction of the accused might not be admissible as evidence of prior discreditable conduct. However, given the anticipated theory of the accused that J.M. is a key player in controlling and directing the escorting activities of the complainants, she must be able to present evidence of her role and the nature of her relationship with the accused for the jury to consider.
[54] In order for the jury to fairly assess J.M.’s credibility, evidence of the nature and dynamics of her relationship with the accused, and, in particular with J.D., is necessary. If her evidence is accepted, it will assist the jury in understanding her motivation to lie under oath, why she did not leave the home of the accused and why she continued to work as an escort under their direction.
[55] The Crown does not seek to lead evidence of any of the specifics of J.M.’s work as an escort such as when she first started that work and how many customers she saw in a day. The evidence will be limited to the direction and assistance given by the accused such as D.B.’s role in booking hotel rooms.
[56] Evidence that J.M. worked as an escort under the direction of the accused is admissible. Evidence of D.B.’s assaults of her is admissible. Evidence of a romantic relationship between J.M. and J.D. would be prejudicial and risk moral reasoning given her young age. Evidence of her feelings towards J.D. are, however, admissible as that is evidence that would go to her state of mind both during the period of time of the indictment and why she followed directions and instructions regarding her evidence at the preliminary inquiry. The probative value of the evidence about J.M.’s feelings towards J.D. exceed the prejudicial impact.
[57] The Crown seeks leave to introduce evidence of another escort K.C. who worked at times with the complainants. The Crown is not seeking to introduce any evidence that K.C. worked under the direction or control of the accused. Rather, the Crown seeks to lead evidence that she was present in the accused’s home and worked with the complainants in hotels, including the Sandman Hotel. This may not necessarily be evidence of prior discreditable conduct but there is a risk of prejudice to the accused as it is evidence of another girl working as an escort who was at their home during the period of the indictment and worked with others who stayed in their home including A.B., J.M. and the complainants.
[58] K.C.’s presence in the home and in the hotels goes to narrative as it enables the complainants to give an accurate description of events with respect to with whom they worked in the hotels. In addition, D.H.’s evidence will be that K.C.’s assault of her was why she left the accused’s home.
[59] That is the extent to which any evidence may be led regarding K.C. as she is not being called as a witness at trial.
[60] I will hear further submissions from the Crown and defence regarding the issue of the advertisement for sexual services and the arrest of the accused, A.O., A.B and K.C. at the Sandman Hotel on September 23, 2016.
Collusion
[61] Counsel for J.D. argues that in assessing the admissibility of the evidence the court must consider the opportunity of the witnesses to collude as they were all acquainted. He submits that there is an air of reality to collusion and that it can taint the evidence of discreditable conduct. The crown must therefore establish, on a balance of probabilities, that the evidence is untainted.
[62] Where collusion is alleged, the trial judge is required to determine whether there is an “air of reality” or evidential foundation to the allegation of collusion. If the trial judge finds there is an “air of reality”, the burden shifts to the crown to satisfy the trial judge on a balance of probabilities that any similar fact evidence is not tainted with collusion. (R. v. W.(J.) 2013 ONCA 89 at para. 36)
[63] This submission was made counsel without any evidence introduced with respect to an allegation of collusion. No evidence was presented other than the suggestion that collusion must be considered as the complainants and witnesses lived together for a period of time and worked together as escorts.
[64] At para. 37 of W.(J.) the court found that: “Mere opportunity for contact is insufficient to give rise to an “air of reality” to the allegation of collusion.” Referring to para. 11 of Handy the court noted that “the issue is concoction or collaboration, not contact”.
[65] No evidence was presented other than the witnesses being in contact with each other during the period of the indictment. That is insufficient to raise an “air of reality” to the allegation of collusion and the onus does not shift to the Crown to prove, on a balance of probabilities, that the evidence is not tainted with collusion.
Summary
[66] In summary, the Crown is granted leave to introduce the following evidence of prior discreditable conduct during the period of the indictment:
- J.D.’s and D.B.’s assaults of A.B;
- J.D.’s threats of A.B.;
- J.D. supplying illicit drugs to A.B. and the complainants;
- J.M.’s work as an escort under the control and direction of J.D. and D.B;
- J.D.’s assaults of J.M.;
- J.M.’s romantic feelings towards J.D.;
- K.C.’s presence in J.D.’s and D.B.’s home and in the hotels working with the complainants and A.B. and J.M.
[67] The Crown’s application to lead evidence that A.B. believed that J.D. had a firearm in the house and that D.M. and J.D were involved in a romantic relationship is dismissed.
[68] I will hear further submissions regarding the Crown’s and defence position regarding the advertisement for sexual services and the arrest of the accused and others at the Sandman Hotel and will provide further reasons, if necessary, prior to commencement of trial.
[69] With respect to the discreditable conduct evidence that I have found to be admissible, I am prepared to give mid-trial and closing limiting instructions, if necessary. As stated at para. 100 in R. v. M.P. 2018 ONCA 608, limiting instructions about discreditable conduct evidence is not necessary in every case. Factors to consider in determining whether a limiting instruction should be given are:
i. The nature and extent of the evidence of extrinsic misconduct; ii. the relative gravity of the extrinsic misconduct in comparison to the gravity of the misconduct charged; iii. the likelihood that a limiting instruction may reasonably draw attention to the discreditable conduct; and, iv. the extent of the risk that without instruction the evidence may be used improperly.
[70] I am prepared to hear submissions from counsel regarding when and what limiting instructions should be given, keeping in mind these factors set out in M.P.
[71] My finding regarding the excluded discreditable conduct is based on the evidence that was part of this application. These reasons can be revisited, if the need arises during the trial.