Court File and Parties

COURT FILE NO.: CR-17-08739 DATE: 20191218 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

A.M. and M.P. Defendants/Applicants

COUNSEL: K. Hutchinson, for the Crown R. Lichtman, for the Defendant/Applicant, A.M. A. Wine, for the Defendant/Applicant, M.P. D. Lerner, for the Complainant

HEARD: October 18, 2019

PUBLICATION BAN

Pursuant to s. 486.4 of the Criminal Code, no information that could identify the complainant shall be published in any document or broadcast or transmitted in any way.

Pursuant to s. 278.95(1)(a) and (b) of the Criminal Code, the identity of the complainant, the contents of the application record, and the evidence taken and submissions at the hearing of this matter may not be published. Pursuant to s. 278.95(1)(c) of the Criminal Code this Ruling may be published in a legal publication or report (online or print).

RULING RE: SECTION 276 APPLICATION

MCKELVEY J.:

Introduction

[1] The defendants in this action are charged with a variety of offences. These include trafficking in persons, contrary to s. 279.01 of the Criminal Code, receiving a material benefit from trafficking, contrary to s. 279.02, advertising sexual services, contrary to s. 286, as well as trafficking in certain drugs, contrary to s. 5 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.

[2] The defendants have brought an application under s. 276 of the Criminal Code in advance of trial to obtain an order permitting them to cross-examine the complainant on her history of working in the sex trade. Submissions on this application were received not only from the applicants and the Crown but also from legal counsel for the complainant.

[3] Originally, the trial was to be heard before a jury. However, the defendants subsequently re-elected and the case is now scheduled to be tried by judge alone.

[4] The complainant has previously given evidence to the police by way of statements and has been examined at a preliminary inquiry. This evidence suggests that the complainant entered the sex trade between approximately [redacted for publication] years of age. She has worked both independently and for others.

[5] The events leading up to the current charges started with a meeting at a club where the complainant was introduced by a friend to the defendant, A.M., and another person who I shall refer to as “D”. The evidence of the complainant was that she was then working in the escort industry for a company and was planning to work independently. Her girlfriend introduced her to D. and the defendant A.M. Initially, the complainant travelled to [redacted for publication] to work for D. as an escort. However, that relationship ended quickly as she was caught stealing drugs from him.

[6] After her return to Ontario in [redacted for publication] 2015, the complainant followed up with A.M. and according to the evidence of the complainant, she began to work for the defendant, A.M., by providing sexual services to clients in the [redacted for publication] area. Subsequently, the complainant started working with both defendants in the sex trade. However, there was a period of time when the complainant terminated the relationship she had with the defendants and decided to work independently. Subsequently, however, she came back to work for the defendants. According to the allegations contained in the indictment, the working relationship between the complainant and the defendants occurred between [redacted for publication] 2015 and [redacted for publication] 2017.

[7] For purposes of the s. 276 application, the applicants rely principally on the charge of human trafficking. Section 279.01(1) of the Criminal Code defines trafficking in persons as follows:

Every person who recruits, transports, transfers, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person, for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence.

[8] Section 279.04(1) defines exploitation for purposes of this section. It states that,

A person exploits another person if they cause them to provide, or offer to provide, labour or a service by engaging in conduct that, in all the circumstances, could reasonably be expected to cause the other person to believe that their safety or the safety of a person known to them would be threatened if they failed to provide, or offer to provide, the labour or service.

[9] Section 279.04(2) provides that in determining whether an accused exploits another person under subsection (1), the court may consider whether the accused: (a) used or threatened to use force or another form of coercion; (b) used deception; or (c) abused a position of trust, power or authority.

[10] The Crown’s theory is that the defendants used their position as drug suppliers to the complainant to control her and to work in the sex trade for them. The Crown asserts that the defendants were in a position of trust vis-à-vis the complainant.

[11] In summary, therefore, the Crown alleges that the defendants used the supply of drugs to get the complainant to perform sex work and later, to coax her back into sex work after she decided to leave them and work independently.

[12] The position of the defendants is that there was no position of trust between them and the complainant. They note that based on the complainant’s evidence, she was escorting and addicted to drugs well before she met them and also continued to escort independently and use drugs in the time frame after she initially left them and her subsequent return to work for them.

[13] The applicants have sought an order under s. 276 to cross-examine the complainant on the following areas:

(a) That the complainant had worked previously in the sex trade;

(b) The details regarding how the complainant entered the sex trade;

(d) That the complainant had previously posted ads on backpage.com including copies of advertisements previously posted by the complainant;

(e) Who the complainant worked with in the past (agency work and independent work);

(f) What the money split was during her previous work experiences;

(g) That the complainant could make more money independently;

(h) That the complainant was open with her family about her work for safety reasons;

(i) The meeting with D. and arrangements to work with D.;

(j) The complainant’s independent work during the time of the allegations; and

(k) That the complainant worked as a sex worker after the time frame for the allegations.

[14] As noted at paragraph 48 of the applicants’ factum, the rationale for introducing the above-noted evidence is stated as follows:

Thus, the Applicants submit that the evidence that is sought to be adduced is to be used to prove that there is no evidence of any dependency on them, no evidence of any exploitation and as such, no evidence of Human Trafficking.

The Principles Applicable to a s. 276 Application

[15] It is significant to note at the outset that the application of s. 276 has recently been the subject of two important Supreme Court of Canada decisions. These decisions are R. v. Barton, 2019 SCC 33, and R. v. Goldfinch, 2019 SCC 38.

[16] Section 276 is stated to apply to proceedings in respect of an offence under certain sections of the Criminal Code. None of the charges involving the defendants in this case would specifically fall under those sections. The application by the defendants was, however, brought under s. 276. I have concluded that s. 276 is applicable in the present circumstances. In the Barton decision, the court noted at para. 76 that the s. 276 regime applies to any proceeding in which an offence listed in s. 276(1) has some connection to the offence charged, even if no listed offence was particularized in the charging document.

[17] In the present case, the charges in the indictment would strike at the heart of the necessary consent for the complainant to engage in the sexual services provided by her at the request of the defendants. As a result, the sexual assault provisions contained in s. 271 of the Criminal Code are engaged. I therefore agree that the provisions of s. 276 are applicable in this case.

[18] Section 276 requires a two-stage approach. At the initial stage, the court must consider whether the evidence:

(a) is of specific instances of sexual activity;

(b) is relevant to an issue at trial; and

(c) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

[19] At stage two, if a court determines that the criteria under the first stage have been met, the court is required to consider whether the evidence is admissible taking into account the following criteria:

(a) the interests of justice including the right of the accused to make a full answer and defence;

(b) society’s interest in encouraging the reporting of sexual assault offences;

(c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;

(d) the need to remove from the fact finding process any discriminatory belief or bias;

(e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;

(f) the potential prejudice to the complainant’s personal dignity and right of privacy;

(g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and

(h) any other factor that the judge, provincial court judge of justice considers relevant.

[20] In the present case, due to time constraints, counsel made argument on both the stage one and stage two analysis. It was agreed that I would then deliver my Reasons dealing with the argument on both stage one and stage two issues. No evidence was called by any of the parties on the voir dire.

Is the evidence admissible that the complainant has worked previously in the sex trade?

[21] At paragraph 54 of the applicants’ factum it asserts that,

Without permitting the Applicants to put forward evidence to the contrary and to question the complainant on her engagement in the sex trade prior to meeting the Applicants and independently while also working with the Applicants, would put before the courts a skewed interpretation of the nature of the relationship between the complainant and the Applicants.

[22] Both the Crown and the complainant take the position that the complainant’s prior sex trade work is not relevant to what took place between the complainant and the defendants. I agree with this submission. The applicants’ position appears to be that because the complainant was already a sex trade worker, she was less likely to be coerced or exploited to perform the specific sex trade work that forms the basis of the charges before the court. In my view, this falls into one of the twin myths set out in s. 276(1) which states that evidence that the complainant has engaged in some other sexual activity is not admissible to support an inference that, by reasons of the sexual nature of that activity, the complainant is more likely to have consented to the sexual activity that forms the subject matter of the charge or is less worthy of belief. At para. 1 in the Barton decision, the Supreme Court notes that we live in a time where myths and sexual violence against women — particularly indigenous women and sex workers are tragically common.

[23] The fact that the complainant was a sex trade worker and was addicted to drugs previously does not have any relevance to the charges faced by the accused. I have therefore concluded that this proposed area of cross-examination is not relevant to an issue at trial and is therefore inadmissible without any stage two analysis.

[24] I reach the same conclusion for the same reasons with respect to items (b) and (c) of the proposed areas for cross-examination.

Should the defendants be entitled to cross-examine the complainant about her previously posted ads on backpage.com and the defendants’ request to introduce previous ads posted by the complainant unrelated to her relationship with the defendants?

[25] On the charge under s. 286.4 of the Criminal Code, the Crown must prove that the defendants knowingly advertised and offered to provide sexual services for consideration. The defendants’ position is that the complainant could have posted the backpage.com advertisements which are the subject matter of the allegations against the defendants. They seek to rely on prior ads that the complainant previously posted on the backpage.com website.

[26] During argument, the Crown advised that it would agree that the photographs and wording used in the advertisements which are the subject matter of the charge were provided to the defendants by the complainant. They will also agree to the fact that the complainant knew how to post advertisements on the internet.

[27] In light of the Crown’s position, I am of the view that the proposed cross-examination is not relevant. The fact that the complainant may have posted ads in the past adds nothing to the question of who was responsible for posting ads during the time it is alleged that the complainant was working for the defendants. I would note, however, that this issue can be re-visited in the event that the complainant in her evidence makes any suggestion that she was not aware of how to post an ad on the internet. This decision is without prejudice to the right of the defendants to cross-examine the complainant about her knowledge of how to post an ad on the internet.

Can the defendants cross-examine the complainant about her work in the past with agencies and/or independent work?

[28] This proposed area of cross-examination once again appears to rely on the proposition that the complainant is more likely to have consensually worked for the defendants based on her prior work in the sex trade. This proposed area of examination would therefore appear to violate one of the twin myths which is that the complainant is more likely to have consented to the sexual activity that forms the subject matter of the charge based on her prior history of sexual activity. For this reason, I conclude that this evidence is not relevant to an issue at trial and therefore does not require any stage two analysis.

[29] Similarly, there will not appear to be any relevance to the issue of how the complainant split the money during her previous work experiences and whether she could make more money independently. I also do not see any relevance to the issue of whether the complainant was open with her family about her work in the sex trade.

Should the defendants be able to cross-examine the complainant about her meeting with D. and her arrangements to work with D.?

[30] The Crown during argument conceded that this evidence was relevant to issues before the court. The Crown wishes to introduce evidence about D. as the meeting with D. is interwoven into the evidence as to how the complainant came to know the defendant A.M. The complainant acknowledges that the discussion at this meeting might be relevant but argues that the evidence about the complainant’s working in the sex trade at the time should be excluded based on a balancing of the factors set out in s. 276(3).

[31] I agree that the evidence of the meeting with D. and the defendant A.M. is relevant and does not engage the twin myths as set out in s. 276(1). This evidence would be relevant to issues at trial including the complainant’s motive for approaching the defendant A.M. as well as the negotiations which took place in relation to the alleged proposal to work for D. and the defendant A.M. These discussions would also appear to be relevant to the allegation that the complainant was coerced into working with either D. and/or the defendant A.M.

[32] I am further satisfied that in determining whether the evidence is properly admissible under the stage two analysis and the balancing of factors under s. 276(3), the balance favours the admission of this evidence at trial. To deny the defence the right to cross-examine on the discussions which took place at the commencement of the relationship would significantly impair the right of the accused to make a full answer and defence. It also appears there is reason to believe the evidence will assist in arriving at a just determination in this case. As this case is not being tried by a jury, there is no basis to believe that the evidence may unduly allow sentiments of prejudice, sympathy or hostility in a jury. With respect to the potential prejudice of the complainant’s personal dignity and right of privacy, I have concluded that this potential prejudice has been minimized given that the focus of this evidence will be limited to the circumstances surrounding the discussion with the complainant at the beginning of the relationship. The evidence will not extend to the complainant’s previous work in the sex trade.

[33] Both the Crown and the defence, will, therefore, be entitled to canvass evidence with respect to the initial meeting during the course of the evidence at trial.

[34] During argument on the Application, the complainant asked that if evidence of any discussions with D. is permitted, that a pseudonym for D. be used and that his name not be referred to in the evidence. This request is based on personal security concerns of the complainant. During the course of argument, both the defence and the Crown agreed that at trial, D. will be referred to by a pseudonym without prejudice to the right of any party to call him as a witness in which event his proper name would become known.

Can the complainant be examined about the independent work she did during the time period of the allegations?

[35] The Crown concedes that the independent sex trade work the complainant engaged in during the time of the allegations is relevant. The complainant does not agree with the Crown’s position in this regard. The complainant takes the position that whether the complainant was working independently as a sex trade worker during the time frame of the allegations, cannot, on its own, have any bearing on whether the complainant was likely to have consented to performing commercial sexual activity at the behest of the defendants in an exploitive or coercive manner.

[36] I have concluded that this evidence is relevant and does not engage one of the twin myths. The fact that the complainant left the defendants during the time period of the allegations and subsequently returned to work for the defendants is relevant to the question of whether the complainant’s work for the defendants was as a result of their alleged coercive or exploitive behaviour. Depending on the evidence adduced at trial, the evidence of the complainant about her independent work during the time of the allegations may have the potential to weaken the Crown’s case that the complainant was exploited in the alleged employment by the defendants.

[37] In considering the factors set out in s. 276(3) I have concluded that the interests of justice, including the right of the accused to make a full answer and defence is engaged and there is a reasonable prospect that this evidence will assist in arriving at a just determination in the case. With respect to the potential prejudice to the complainant’s personal dignity and right of privacy, the narrow focus for this evidence should minimize that potential prejudice. In addition, I agree with the Crown that questions in this area ought to be very general in terms of the type and amount of work done by the complainant in this time period. There is no need to go into the details of the sexual activities performed, and in fact, during their argument, the defence indicated they had no intention to delve into these types of details. I therefore conclude that this area of examination and cross-examination is admissible pursuant to s. 276.

Should the defendants be entitled to cross-examine the complainant about her work in the sex trade after the time period of the allegations?

[38] The Crown position which is adopted by the complainant is that this issue is not relevant.

[39] There may be certain cases where a complainant’s actions following the alleged sexual activities are relevant. For example, in R. v. L.S., 2017 ONCA 685, the Ontario Court of Appeal dealt with an appeal where the defence sought to introduce evidence of a continuing sexual relationship with the complainant after the alleged assault. In that case, the complainant and the accused cohabited and continued with a sexual relationship after the alleged assault. The trial judge dismissed an application by the defendant to introduce evidence of continued sexual activity after the alleged assault. On appeal, Justice Doherty found that the evidence was relevant. He stated at para. 88 that the evidence of the relationship carrying on as it had before the alleged assault was in fact relevant to whether the assault occurred. In that case, the defence could argue that evidence of a continuing sexual relationship could support the defence position that nothing had happened because nothing had in fact happened. The evidence in this case is quite different. The evidence relating to the complainant’s continued involvement in the sex trade is in no way related to the alleged involvement of the defendants. The inference the defence is attempting to assert is that the complainant’s return to the sex trade is evidence that the defendants’ alleged coercion had no bearing on the complainant’s earlier decision to engage in the sex trade. However, this argument would appear to engage one of the twin myths that the complainant was more likely to have consented to the sexual activity that forms the subject matter of the charge because of her sexual activity subsequently. For this reason I have concluded that this evidence is not relevant to an issue at trial and is not properly admissible evidence.

Should the defence be entitled to cross-examine the complainant about inconsistencies in her evidence about the time when she started working in the sex trade?

[40] The defendants have referred to the evidence of the complainant during the statement she gave to the police that she first engaged in sex work with an agency called [redacted for publication] when she was [redacted for publication] years old. However, during the preliminary hearing, the complainant testified that she first became a sex worker [redacted for publication] at the age of [redacted for publication]. The complainant further testified that she first worked at an agency by the name of [redacted for publication] and/or [redacted for publication] in [redacted for publication] for approximately six months.

[41] It is apparent in reviewing the inconsistencies that they are relatively minor and relate to a period well before the alleged offences. Under s. 276(2), no evidence shall be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than that which forms the subject matter of the charge unless the evidence, “has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice”.

[42] As noted in the Supreme Court of Canada decision in R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, the requirement of “significant probative value” serves to exclude evidence of trifling relevance which, even though it is not being used to support the two forbidden inferences, will still endanger the proper administration of justice.

[43] I have concluded that the inconsistencies in this case do not have significant probative value, but instead are of trifling relevance even though they are not being used to support the two forbidden inferences. Any probative value is substantially outweighed by the danger of prejudice to the proper administration of justice. I conclude, therefore, that this evidence is not admissible at trial.

Summary

[44] As noted previously, this application has been decided based on the information available prior to trial. The decisions I have made are without prejudice to the defendants renewing their application if so advised, based on additional evidence which may arise at trial.

Justice M. McKelvey

Released: December 18, 2019

ONTARIO SUPERIOR COURT OF JUSTICE