COURT FILE NO.: 17-RA19529
DATE: 20191210
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
TYLER FLOYD
Applicant
– and –
AMANDA MAILLOUX
Applicant
Jason Neubauer, for the Crown
Allan Brass and Shira Brass, for Tyler Floyd
Kirstin McCrae, for Amanda Mailloux
HEARD: December 5 and 6, 2019
Restriction on Publication
An Order was made under section 486.4 of the Criminal Code of Canada that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way. As well, section 278.95 of the Criminal Code prohibits the publication of certain information relating to this application. This decision does not refer to the complainant or witnesses by name and may be published.
REASONS FOR decision
Roger j.
[1] Under s. 276 of the Criminal Code, R.S.C. 1985, c. C-46, the applicants seek to cross-examine the complainant about her sexual history, limited to: whether the complainant engaged in prostitution in the two weeks before the alleged incidents of April 26 to May 1, 2017. Sections 276, 278.93, and 278.94 of the Criminal Code are applicable.
[2] The applicants are both charged with the following offences: distribution of child pornography; advertising sexual services; receiving a material benefit from sexual services; recruiting a person under the age of 18 to provide sexual services; recruiting for the purpose of exploitation; and exercising control for the purpose of exploitation a person under the age of 18. Mr. Floyd is also charged with confining a person, and assault causing bodily harm. These charged offences are respectively under the following sections of the Criminal Code: s. 163.1 (3); s. 286.4; ss. 286.1 (2) and 286.2 (2); s. 286.3 (2); s. 279.01 (1); s. 279.011 (1); s. 279 (2); and s. 267 (b).
[3] This issue arose during the trial. This required that the cross-examination of the complainant be adjourned; although to maximize court time, parties agreed to other Crown witnesses testifying out of order. To resolve this issue, we held a hearing to decide whether s. 276 is applicable (as the offences charged are not offences listed at s. 276). I decided that it is applicable (see R. v. Floyd, 2019 ONSC 7036). Next, as required by s. 278.93, we held a hearing to determine whether the evidence sought to be adduced is capable of being admissible under s. 276 (2). I decided that the evidence meets this preliminary threshold in an unpublished decision read on the record on December 4, 2019. The complainant had retained legal counsel who, on consent of the parties, had already received of a copy of the s. 276 application. This and the flexible approach of the parties allowed us to hear this application on December 5 and 6, 2019.
Issue
[4] The issue on this application is whether the complainant’s prior sexual activities – limited to whether she engage in prostitution in the two weeks before the alleged incidents of April 26 to May 1, 2017 – are admissible.
Analysis
[5] Section 276 of the Criminal Code provides that in respect of offences listed in that section (the Supreme Court of Canada in R. v. Barton, 2019 SCC 33, [2019] S.C.J. No. 33, at paras. 70 to 78, held that s. 276 applies to any proceeding in which an offence listed in s. 276 has some connection to the offences charged, even if no listed offence was particularize in the charging document), the complainant’s sexual activity, other than the sexual activities that form the subject matter of the charges, is not admissible unless it meets the test outlined at s. 276.
[6] Section 276 prohibits such evidence being introduced by any party to support one of the twin myths. Where the Crown seeks to introduce such evidence, for another purpose, the common law principles articulated in R. v. Seaboyer, 1991 CanLII 76 (SCC), 1991 2 S.C.R. 577, at p. 635 are applicable (R. v. Barton, at para. 80, R. v. R.V., 2019 SCC 41, 2019 S.C.J. 41 at para. 78 – that the sexual history evidence possesses probative value on an issue in the trial that is not substantially outweighed by the danger of unfair prejudice). Where an accused seeks to introduce such evidence, for another purpose, it is presumptively inadmissible unless the accused satisfies the judge, following the procedures set out in ss. 278.93 and 278.94 that the evidence:
a) is not being adduced for the purpose of supporting an inference that it is therefore more likely that the complainant consented to the sexual activity that is the subject-matter of the charges, or that the complainant is therefore less worthy of belief (the twin myths);
b) is relevant to an issue at trial;
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.
[7] In determining whether the evidence is admissible, considering the above, the judge shall take into account the factors listed at s. 276 (3).
[8] As well, s. 276 must be interpreted and applied against the backdrop that sexual assault is still a highly gendered and underreported crime which profoundly impact victims and which also has an extremely high social cost (R. v. Goldfinch, 2019 SCC 38, [2019] S.C.J. No. 38 at paras. 37 and 38).
[9] The Crown and the complainant argue that the applicants have not established how escorting in the two weeks before is relevant to a defence the applicants wish to assert. They argue that the applicants simply wish to embark on a fishing expedition that will invariably engage the myth that the complainant is therefore less worthy of belief; that the applicants have not filed a sufficient affidavit to establish that the proposed evidence has significant probative value; and that the danger of prejudice to the proper administration of justice substantially outweighs any probative value of the proposed evidence. I disagree, and find for reasons that follow, that the applicants have met the conditions for admissibility outlined at s. 276 of the Criminal Code.
[10] The applicants have filed an affidavit and have outlined the evidence they seek to adduce. It centres around whether the Crown has established, beyond a reasonable doubt, that the complainant was “recruited” by the applicants. They seek to adduce evidence about whether the complainant engaged in prostitution in the two weeks before the alleged incidents by asking questions limited to: how did the complainant meet the accused? why did the complainant’s neighbour introduce her to the accused? how did that conversation happen? what was said? who sought out whom? and questions about the frequency that she engaged in prostitution within those two weeks only as it relates to determining whether the complainant was engaged in prostitution at a time material to the offences charged. The applicants do not seek to ask any question about “what” the complainant did as a prostitute during the two weeks before.
[11] The applicants have established that the proposed evidence is not being adduced to support any of the prohibited inferences outlined at s. 276 (1) (a) and (b) – the twin myths. Rather, the proposed evidence goes directly to whether the complainant was recruited and to her credibility and reliability arising from possible inconsistent statements.
[12] The proposed evidence is relevant to the offences charged at counts 7 and 8 (respectively, under s. 286.3 (2) and 279.01 (1) of the Criminal Code) for three reasons:
Whether the complainant engaged in the escort business during the two weeks before the alleged incidents is relevant to whether she was recruited, which is an element of the offences charged under counts 7 and 8. Whether the complainant was recruited is fact specific, and whether the complainant was previously involved in the escort business is a relevant factor to consider when deciding whether she was recruited (see R. v. Gallone, 2019 ONCA 663, 147 O.R. (3d) 225 at paras. 21, 59, and 65; R. v. Lucas-Johnson, 2018 ONSC 3953 at paras. 225 and 269; and on R. v. Evans 2017 ONSC 4028 at paras. 129 – 133). In Lucas-Johnson, the Court defined “recruit” as to “recruit” someone is defined in the Oxford Dictionary as “persuading or helping someone to do something” (endorsed in R. v. Crosdale, 2018 ONCJ 800, at para. 141). The Court in R. v. D’Souza, 2016 ONSC 2749, 339 C.C.C. (3d) 494 defined “recruit” in this way at para. 146: “The words used have common, ordinary meanings that are generally well known to the citizenry. In the simplest language possible, “recruit” means to enlist or get someone involved.” The Court in R. c. Leblanc, 2018 QCCQ 6841 agreed at paras. 67 to 77 that “recruit” refers to secure the service of. In fact, the Crown’s factum supports the above because at para. 54, the Crown states that “recruitment requires proof that the accused enlisted or persuaded the complainant to become involved in prostitution with him or her, not that the accused’s conduct was directed at enlisting or persuading the complainant to become involved in prostitution at large”. Consequently, whether the complainant was involved in prostitution just prior to the alleged incidents of April 26 to May 1, 2017, is relevant to whether the applicants recruited the complainant for purposes of engaging in prostitution with them, which is an element of the offence charged at s. 286.3 (2) (see Evans, at paras. 130 – 133). Count 8 (s. 279.01) also alleges that the applicants recruited the complainant for the purpose of exploitation. Something is relevant if it makes a fact which is in issue more or less likely, and something that is relevant is relevant even if the answers to the proposed questions are unknown (R. v. R.V., at para 58).
The proposed evidence is inextricably linked to whether the complainant was recruited by the applicants. The complainant gave a statement to the police on May 2, 2017. The video recording of that statement was adopted by the complainant during her examination in chief and was admitted into evidence at trial under s. 715.1 of the Criminal Code. At page 15 of the transcript of this video statement, the complainant says, in answers to questions asked by the police officer:
Q: So how long ago did you start working in the escort business? Like how long has it been?
A: Um, two weeks now.
Q: About two weeks. So when, tell me…
A: a week and a half.
Q: OK. So is it something that you went to them and said “hey I want to do this, help me” or did they say like “hey”.
A: It was more like I did it once or twice before I met them. And then a neighbour brought it up to them that I used to do that because we were trying to find a way to get money so they’re like “we can put you back on Backpage and help you out and make money”.
Q: OK so they said that about a week and a half. So tell me more about that. You said they said “we can put you on Backpage, we can help you”
A: I was very hesitant before. The only reason why I said yes to coming to Toronto was because I had nowhere else to go and I didn’t want to be like (unintelligible) and stuff. I um, as you know, like I’m in a group home and I was on the run and um, I didn’t, like the building that she stays at, I’m not allowed there because her, the super, it’s not her apartment building
Q: Yeah
A: it’s a friend of ours, a close friend of mine. I met him (unintelligible) he’s very close to me. And um, he’s my family and then um, she came to live there and so that’s why I said to her
Q: OK
A: Yeah I can’t be there because I’m a runaway, it looks bad
Q: Yeah
A: I can be there if I’m allowed to be there by CAS
Q: OK. So you’re desperate to make money. You tell, a friend tells them or a neighbour or whoever tells them that you used to do that
A: Yeah
Q: And they say to you “we can put you on Backpage and we can help you out”?
A: Yeah basically they told me they could help me get money. Hoping I could get enough money to get an apartment and then they ended up taking all the money
How the complainant was recruited is part of the actus reus of the offences at counts 7 and 8. I agree with the applicants that the above alleged conversations are important to determining whether the complainant was recruited by the accused, and therefore important to their defence that they did not recruit the complainant. From the complainant’s answers to the above questions, it appears possible that how she was allegedly recruited is connected to her prior activities as an escort. It would be difficult for the applicants to effectively challenge the Crown’s contention that the complainant was recruited without cross-examining the complainant about these conversations. As well, and for the same reasons, an effective cross-examination about those alleged conversations could hardly be conducted without some reference to the complainant’s prior activities as an escort just before the alleged incidents. This is particularly evident from the complainant’s answers that “It was more like I did it once or twice before I met them. And then a neighbour brought it up … “We can put you back on Backpage….”.
- The proposed cross-examination is relevant to the complainant’s credibility – not about whether she is less worthy of belief whether she engaged in prostitution before or whether she is more likely to have consented, but whether she is a reliable or credible witness considering her evidence to date about this.
As indicated above, at page 15 of Exhibit A (the transcript of the complainant’s statement to the police of May 2, 2017, which was admitted at trial under s. 715.1 of the Criminal Code), the complainant indicated that she “did it once or twice before I met them”. At the preliminary inquiry on September 12, 2018, she responded “no” to whether she had done it before. Similarly, in cross-examination at the preliminary inquiry on September 13, 2018, she indicated that she did not say that she had done it before. I did not consider the complainant’s prior sexual history evidence given at trial before we embarked on this application, because it should not have been given, and is inadmissible, subject to the outcome of this application.
The Supreme Court of Canada held that “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” (R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, at para. 35). As well, the Supreme Court of Canada indicated that prior sexual activity may be permitted if it relates to a prior inconsistent statement potentially affecting the complainant’s credibility or reliability (R. v. Crosby, 1995 CanLII 107 (SCC), [1995] 2 S.C.R. 912, at paras. 6 – 8, 12 and 14 – here it is as well, similarly, inextricably linked – “An inconsistency on a material and pertinent issue is highly relevant in such circumstances”).
[13] “Specific instances of sexual activity must be read purposively and contextually” (R. v. R.V., at para. 48). As well, the degree of specificity required depends on the circumstances of the case, the nature of the sexual activity that the accused seeks to adduce and the use to be made of that evidence (R. v. R.V, at paras. 49 – 55, citing Goldfinch at para. 53). The facts in this case are somewhat similar to those of R. v. R.V., in that the accused offer a bare denial of recruitment without necessarily knowing or alleging what the evidence of the complainant is going to be. The applicants seek to cross-examine the complainant on her previous statement to the police where she said that she had been involved in prostitution “once or twice before I met them”. This satisfies the criteria of s. 276 (2) (c).
[14] This brings us to the required balancing of competing interests at s. 276(2)(d). Again, the analysis in this case is similar to that in R. v. R.V.: “Uncertainty of result does not deprive a line of questioning of its probative value” (R. v. R.V. at para. 62, citing from the decision of the Court of Appeal at para. 64).
[15] The proposed evidence goes directly to an element of both offences under s. 286.3 (2) and s. 279.01 (1) of the Criminal Code. The probative value of the proposed evidence is therefore high because the Crown is required, under at least two of the charged counts, to establish that the applicants recruited the complainant, and the proposed evidence is a factor to consider when determining whether recruitment has been established. As well, the proposed evidence could be directly relevant to whether the complainant is a credible or reliable witness, not because of the prior sexual activity, which is impermissible, but to assess whether she gave inconsistent answers affecting her credibility or reliability, which is also not of trifling relevance. Consequently, the proposed evidence has significant probative value. I agree with the applicants that they have established that the proposed evidence is at the high end of significant probative value; not simply that the proposed evidence is not of trifling relevance. This obviously impacts the balancing exercise because evidence that only barely meets the “significant probative value” test will more easily be found “substantially outweighed by the danger of prejudice to the proper administration of justice”.
[16] Next, in the balancing of competing interests, I assess the danger of prejudice to the proper administration of justice. For the purpose of this analysis, I considered all the factors outlined at s. 276 (3). I considered that a finding that the proposed evidence is admissible will have a negative impact on the reporting of such offences and that it will cause prejudice to the complainant’s personal dignity and right of privacy. Indeed, the complainant is a young and vulnerable victim. I considered, as well, the backdrop outlined earlier that s. 276 must be interpreted and applied considering that sexual offences are still a highly gendered and underreported, that they profoundly impact victims, and have a high social cost. As well, when conducting this assessment, I also considered the specific prejudice to the complainant that some evidence of prior sexual activity is contained in her police statement, which was admitted during her evidence in chief, that some evidence of her prior sexual activity was led during the preliminary inquiry, and that some was also led during her examination in chief and cross-examination at trial before the Court raised the possibility that s. 276 might be applicable, which is most unfortunate. I also considered that the factors at s. 276(3)(a) and (c) favour the applicants, considering the high probative value of the proposed evidence.
[17] When I balance these competing interests, I find that the applicants have established that the proposed evidence has significant probative value which is not substantially outweighed by the danger of prejudice to the proper administration of justice. I arrive at this conclusion despite the elements which favour inadmissibility because the probative value of the proposed evidence is high, inadmissibility would prejudice the right of the accused to make a full answer and defence, and there is a reasonable prospect that the evidence will assist in arriving at a just determination in this case, such that the danger of prejudice to the proper administration of justice does not substantially outweigh the probative value of the proposed evidence.
[18] Consequently, the proposed evidence may be adduced, and the applicants may cross-examine the complainant at trial about whether the complainant engaged in prostitution in the two weeks before the alleged incidents of April 26, 2017 to May 1, 2017. Just before I read my decision on December 9, 2019, the applicants raised the possibility that this timeline might have to be extended slightly depending on the answers of the complainant (because of when she met the accused), and I agreed that the timeline may have to be extended slightly depending on the evidence given to ensure that the timeline captures the period of time material to whether the complainant was recruited by the applicants (under s. 286.3 (2) and s. 279.01 (1)). In the course of this cross-examination, the applicants may ask required follow-up questions, including questions relating to: how did the complainant meet the accused? her knowledge of why her neighbour introduced her to the accused? how did that conversation happen? what was said? who sought out whom? and questions about the frequency that she engaged in prostitution within that timeframe only as it relates to determining whether the complainant was engaged in prostitution at a time material to the offences charged. The applicants shall prepare an outline of the proposed questions to address the parameters of the evidence to be adduced, which will be marked as a letter exhibit to monitor and assess the ongoing admissibility of the cross-examination (R. v. R.V., at para. 73 – these were marked as exhibits F and G on December 9, 2019). The application record is to be sealed.
[19] Before we embarked on this application, the evidence given by the complainant during her cross-examination about whether she was an escort in the weeks before is admissible for the same reasons as above. Similarly, the evidence of the Best Western clerk/receptionist heard during an in-camera voir dire pending a ruling on this application (because the witness was from out-of-town) is also admissible for the same reasons. However, the evidence given by the complainant during her cross-examination about a prior act of sexual activity that does not relate to whether she was an escort in the weeks before is inadmissible.
[20] As well, the evidence given by the complainant in chief (in the s. 715.1 statement – outlined above – and after its adoption when the complainant disagreed that she had been an escort before), is also admissible as it relates directly to the above and as it would have been admissible at common law had the test outlined above in Seaboyer had been applied (because similar evidence was hereby found admissible under the higher threshold of s. 276).
Mr. Justice Pierre E. Roger
Released: December 10, 2019
COURT FILE NO.: 17-RA19529
DATE: 20191210
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
TYLER FLOYD
Applicant
– and –
AMANDA MAILLOUX
Applicant
REASONS FOR decision
Roger J.
Released: December 10, 2019