Court File and Parties

Court File No.: CR-19-10000146-0000 Date: 2021-03-15 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Matthew Hamilton

Counsel: O’Nelia Delgado, for the Crown Alonzo Abbey, for Matthew Hamilton Dawne P. Way, for the Complainant

Heard: March 4, 2021

Restriction on Publication: Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4(1) of the Criminal Code of Canada. This ban does not apply to publication of these reasons in law reports nor to a discussion of the underlying legal principles in other publications.

Before: R.F. Goldstein J.

Reasons for Judgment On Application Under s. 278.92

[1] The complainant is an “Instagram influencer.” Mr. Hamilton, the accused, is one of her Instagram followers. Mr. Hamilton also says that the complainant is a sex worker, and that they made an arrangement to have consensual paid sex. The complainant says that they met so that she could sell an iPhone. Mr. Hamilton says that they had a consensual sexual encounter. The complainant says that that Mr. Hamilton robbed and sexually assaulted her.

[2] Mr. Hamilton has Instagram messages that he says discredit the complainant’s version of events and corroborate his. Mr. Hamilton also says he needs to call evidence that the complainant portrayed herself as a sex worker on her Instagram account. He says that it is relevant to his defence of honest but mistaken belief in communicated consent. Mr. Hamilton’s trial is scheduled for May 31, 2021. He applies pursuant to s. 278.92 of the Criminal Code to adduce the Instagram messages and the evidence that the complainant presented herself as a sex worker on Instagram. For the reasons that follow, the application is allowed in part.

Background

[3] On January 27, 2018 Mr. Hamilton and the complainant met for the first time in person in the parking area at 812 Lansdowne Avenue, Toronto.

[4] According to the complainant’s statement to the police, Mr. Hamilton was residing at an AirBnB. The complainant told the police that she was selling an iPhone 6 for $500 on her Instagram account. She had arranged to meet Mr. Hamilton for the exchange to take place. Instead, he entered her car wearing what the complainant took to be a police ballistic vest. He told the complainant that he was a police officer. He demanded that she masturbate him. He took out a gun and threatened her. She complied and the accused ejaculated. He took her new iPhone X and then left her car. The complainant observed Mr. Hamilton using a key fob to re-enter the building.

[5] The complainant called the police. The police attended. They obtained and executed a search warrant at an apartment belonging to Mr. Hamilton’s brother. Mr. Hamilton was, apparently, house-sitting. The police seized, among other things, a ballistic vest; a black 9mm handgun; a pellet gun; two rifles, ammunition, and keys to a gun safe as well as various locks and trigger locks. The police found a firearms permit in the accused’s brother’s name. The police also seized Mr. Hamilton’s cell phone and some clothing belonging to him. He was charged with multiple offences, including sexual assault, sexual assault with a weapon, robbery with a firearm, and possession of a prohibited or restricted firearm.

[6] Mr. Hamilton tells a very different story in his affidavit. He says that he began communicating with the complainant through Instagram in late 2017. Their communications were sexual in nature. There were communications on December 19 and 31 2017; and on January 5, 12, and 27, 2018. On January 27, 2018 he met the complainant in the parking lot of 812 Lansdowne Avenue. The complainant was going to provide sexual services for money. The arrangements were made over Instagram. Mr. Hamilton says that there were no communications about the sale of an iPhone.

[7] Mr. Hamilton gave a statement to the police. He denied the allegations. He also provided the Instagram messages to the Crown and the police. The messages indicate that the complainant was going to provide sexual services to the accused for money. The messages say nothing about the sale of a cell phone.

[8] The police re-interviewed the complainant. The police asked the complainant about the Instagram messages. The complainant did not deny that the Instagram messages were hers. She indicated that she had no intention of following through with any sexual activity. Counsel informed me in submissions that the complainant indicated to the police and at the preliminary inquiry that the messages about the iPhone sale had been on an app called Storyboard.

[9] Mr. Hamilton indicated in his affidavit that he intends to defend himself on the basis of honest but mistaken belief in communicated consent. He says that the Instagram account will provide evidence to show why he got in touch with the complainant: the complainant is an Instagram influencer and sex worker. The Instagram messages show that the true purpose of the meeting had nothing to do with selling an iPhone. The Instagram messages also show that the complainant was not credible when she told the police that the meeting was about an iPhone but failed to mention sex. In testimony he indicated that he also followed the complainant on Snapchat. Snapchat is an app where messages are automatically deleted after a period of time. He testified that he paid to follow her on Snapchat. He also testified that she offered photos of herself on Snapchat.

Issues

[10] Mr. Abbey, for the accused, brings this application pursuant to s. 278.92 of the Criminal Code. There are two categories of evidence that Mr. Abbey wishes to adduce: first, evidence of the complainant’s Instagram account; and second, the Instagram messages between the accused and the complainant.

[11] Evidence of a complainant’s prior sexual activity is inadmissible unless it meets certain specific requirements: s. 276(2) of the Criminal Code.

[12] The Instagram messages are a “record relating to a complainant” and thus subject to the regime in s. 278.92 in a sexual assault prosecution. Such a record is prima facie inadmissible: s. 278.92(1) of the Criminal Code. The evidence may, however, be admitted if it meets the test set out in s. 278.92(2) and (3):

(2) The evidence is inadmissible unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94,

(a) if the admissibility of the evidence is subject to section 276, that the evidence meets the conditions set out in subsection 276(2) while taking into account the factors set out in subsection (3); or

(b) in any other case, that the evidence is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account

(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) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences;

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

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

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

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

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

(i) any other factor that the judge, provincial court judge or justice considers relevant.

[13] The purpose of the s. 276 regime is to “protect the integrity of the trial by excluding evidence that is misleading, to protect the rights of the accused as well as to encourage reporting of sexual offences by protecting the security and privacy of complainants”: R. v. Darrach, 2000 SCC 46 at para. 19. The judge on a s. 276 application acts as gate-keeper. My role is to exclude evidence that would trench on the prohibited grounds while at the same time upholding the purposes of the legislation: R. v. Barton, 2019 SCC 33 at para. 68.

Analysis

[14] For the purposes of this application, I will use the term “Instagram account” to describe the complainant’s Instagram page. I will use the term “Instagram messages” to describe the communications over the Instagram app between the complainant and Mr. Hamilton. I will deal with the evidence relating to the Instagram account first, and then the Instagram messages.

(a) Is The Instagram Account Admissible?

[15] I was not provided with any material about the Instagram account. There is very little in Mr. Hamilton’s affidavit that sets out a basis upon which I can judge the Instagram account’s relevance. He simply states: “I would like the trier of fact to know that I meet [sic] the complainant on Instagram, which I liked.” He does state in his Notice of Application that:

In order for the Applicant to make full answer and defence at his trial, he requires the opportunity to adduce evidence that the complainant was employed, participating, associating, and/or presenting herself as a sex trade worker before she met the Applicant for a one-time meeting on January 27, 2018.

[16] I see no difficulty with Mr. Hamilton testifying simply that the complainant is an Instagram influencer. I also see no difficulty with Mr. Hamilton testifying that he met the complainant on Instagram, as he asserts in his affidavit. If he goes no further in his testimony, s. 276 is not engaged.

[17] That, however, is not what the Notice of Application requests. To be fair, Mr. Abbey did not press this part of his argument strenuously, but all I am really left with is an assertion made in the Notice that the Instagram account demonstrates that the complainant is a sex worker. The Instagram account therefore indicates how Mr. Hamilton and the complainant came to have an exchange that is allegedly about consensual paid sex.

[18] With respect, the bare assertion of relevance, without evidence, is not enough. Section 276(2) prohibits the introduction of evidence of other sexual activity unless the judge determines that the evidence

(a) is not being adduced for the purpose of supporting an inference described in subsection (1) [one of the “twin myths”]

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

(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.

[19] The bare assertion of relevance or context is not enough: R. v. Goldfinch, 2019 SCC 38 at para. 5. Assuming for the moment, without deciding, that the complainant is a sex worker and that her Instagram account is evidence of that, it is difficult for me to understand what it is about her account that is relevant to a trial of these charges. Moreover, it is not a “specific instance of sexual activity”. Rather, it is an assertion that the complainant makes her living through sex work. That is simply an untethered allegation and without more is an assertion that the complainant was more likely to consent simply because she was a sex worker – a prohibited inference.

[20] I do recognize, however, that Mr. Hamilton may be required to explain how it is he came to meet the complainant. Without that, the jury may be left in the position of trying to understand the basis upon which Mr. Hamilton and the complainant began communicating.

[21] In Goldfinch the complainant and the accused had been in a relationship. They had dated and lived together. After their relationship ended, they remained in contact. They described their post-relationship relationship as “friends with benefits”. One evening the complainant came over to Goldfinch’s apartment. According to Goldfinch, she would sometimes do that, and they would have sex. The complainant testified that she told the Goldfinch that nothing was going to happen that evening, although he testified that he did not hear her say that. He testified that during the evening he mouthed “I’m going to fuck you” and she responded with a smile. The complainant testified that he then sexually assaulted and injured her. Goldfinch testified that they had consensual sex.

[22] Goldfinch applied under s. 276 of the Criminal Code to have the “friends with benefits” evidence adduced. His argument was that it was artificial to describe the relationship without reference to the sexual activity. The trial judge agreed. Goldfinch was acquitted. The Alberta Court of Appeal allowed the Crown’s appeal.

[23] In the Supreme Court of Canada, Karakatsanis J. for the majority found at para. 47 that the difficulty was not that Goldfinch and the complainant had a sexual relationship, but that Goldfinch “could not find a relevant use for the sexual nature of the relationship.” Prior sexual activity of the complainant is generally inadmissible unless the criteria in s. 276(2) are met, namely that 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.

[24] Karakatsanis J. agreed that the “friends with benefits” evidence was sufficient to meet the first criteria. The evidence was sufficiently specific that it encompassed sex without providing the details that would have invaded the complainant’s privacy. Karakatsanis J., however, found that the evidence did not meet the second criteria. Generic references to credibility are not enough:

That said, a relationship may provide relevant context quite apart from any sexual activity. Where the relationship is defined as including sexual activity, as the trial judge held "friends with benefits" was here, it is critical that the relevance of the sexual nature of the relationship to an issue at trial be identified with precision. (Para. 57).

[25] The failure to define the relevance of the evidence with precision was fatal.

[26] Moldaver J. (for himself and Rowe J.) was prepared to leave open the possibility that the “friends with benefits” evidence could be admitted. The problem was that Goldfinch’s affidavit was simply too broad. The affidavit did not link the evidence to a specific issue relating to his defence. Moldaver J. was, however, prepared to consider that the evidence might have been admissible to deal with a particular issue. He stated at paras. 123-126:

Evidence that the complainant and Mr. Goldfinch were in a "friends with benefits" relationship at the time of these events may have provided necessary context to aid the jury in assessing Mr. Goldfinch's testimony that he mouthed the words "I'm going to fuck you" to the complainant. If the jury lacked the knowledge that the two were in a sexual relationship at the time, this statement by Mr. Goldfinch might have seemed bizarre or even menacing. Furthermore, Mr. Goldfinch's testimony that he made this statement to the complainant may itself have seemed implausible. In this way, withholding the "friends with benefits" evidence from the jury could have led them to make an adverse credibility determination against Mr. Goldfinch that they otherwise would not have made…

To be clear, however, just as generic references to "context" or "narrative" will not suffice to justify the admission of sexual activity evidence under s. 276, bare invocations of "credibility" will not be enough…

Returning to the case at hand, Mr. Goldfinch might have been able to establish a legitimate link between the "friends with benefits" evidence and his credibility by pointing to the need to enable the jury to properly assess his testimony that he mouthed the words "I'm going to fuck you" to the complainant. Had Mr. Goldfinch referenced this aspect of his anticipated testimony in his s. 276 application, the trial judge would have been better equipped to engage in the balancing exercise required by s. 276(2) and (3). Indeed, she may have properly determined that the "friends with benefits" evidence was admissible for the narrow purpose of allowing the jury to assess Mr. Goldfinch's testimony on this point. She may have further found that the impact on the complainant's privacy rights and dignity would be limited, as the bare fact that Mr. Goldfinch and the complainant were in a "friends with benefits" relationship at the time of the alleged sexual assault would be unlikely to unduly arouse the jury's sentiments and would not require a sweeping and prejudicial inquiry into the complainant's sexual history. She may have also determined that admission of the evidence was necessary to ensure Mr. Goldfinch's right to make full answer and defence.

Be that as it may, the fact remains that in this case the "friends with benefits" evidence was admitted for a different — and much broader — purpose…

[27] Here, the Instagram account may be similar to the “friends with benefits” evidence referenced by Moldaver J. The Instagram account evidence may explain how it is that Mr. Hamilton and the complainant came to be communicating about sexual activity on January 27, 2018. It may also be relevant to Mr. Hamilton’s credibility. A trial is a dynamic process, and it may well come up in his evidence that Mr. Hamilton came to communicate sexually with the complainant about sex because he thought she was open to such communication. His conclusion – according to him – is that she was open to sexual communications was based on the content of her Instagram account.

[28] Moreover, I can see that the Instagram account may have relevance to Mr. Hamilton’s credibility. The complainant indicated in her first statement that they met over the sale of an iPhone. I can certainly see how, in cross-examination, her version of events will be put to Mr. Hamilton. Recall that the complainant said in her first statement that the meeting was about the sale of an iPhone – and that in the second statement how she was not serious about meeting for sex and given the high amounts he would have known that. No doubt Mr. Hamilton will have the complainant’s version of events put to him in cross-examination (that they were meeting for the sale of an iPhone) – and if the Instagram account evidence is excluded, he will be foreclosed from explaining that he thought she was serious because of what he saw on her Instagram account. If his counsel did not put the Instagram account to the complainant during her testinony, it could create a Browne v. Dunn problem for Mr. Hamilton. Excluding the Instagram account has the potential to create an unfairness to Mr. Hamilton.

[29] Unfortunately, Mr. Hamilton’s affidavit failed to state that link, and his Notice of Application was a simple reference to what can only be described as context. That is simply not good enough. As with Moldaver J.’s view of the “friends with benefits” evidence in Goldfinch, the purpose of the Instagram profile is not stated with sufficient precision. As a matter of fairness to Mr. Hamilton, however, I am not prepared to foreclose the possibility that there may be a legitimate, precise link between the Instagram account evidence and his defence that does not engage twin-myth reasoning.

[30] Accordingly, I will make myself available for further submissions on this point if counsel wish to contact the trial coordinator to arrange a time. Alternatively, counsel may raise this issue with the trial judge. The Instagram account will not be admitted unless and until further submissions are made.

(b) Are the Instagram Messages Admissible?

[31] Mr. Abbey argues that the Instagram messages are very obviously relevant to the reasons for meeting. They relate to the actual subject matter of the indictment. If the messages were excluded Mr. Hamilton would have no way of explaining to the jury how it is he came to be in the complainant’s car. The messages are also relevant to the complainant’s credibility, as they are clearly a prior inconsistent statement.

[32] Ms. Way, for the complainant, argues that none of the messages prior to January 27, 2018 are relevant. There is some discussion of the complainant providing nude pictures to Mr. Applicant. Those messages are irrelevant. Ms. Way does concede that some of the messages on January 27, 2018 are so closely connected to the subject matter of the indictment that no application under s. 276 is necessary. She further argues, however, that Mr. Hamilton must particularize how the messages either do not require a s. 276 analysis or satisfy the requirements of s. 276(2).

[33] Ms. Delgado, for the Crown, simply argues that none of the Instagram messages should be adduced. They are highly prejudicial and invasive to the complainant’s privacy rights.

[34] In my view, the messages dated December 31, 2017, January 5, and January 12, 2018 are not admissible. The message on December 31, 2017 is a short discussion of whether the complainant will provide fully nude pictures to the accused. It is not clear to me how that message is relevant to an issue at trial. The messages of January 5 and January 12, 2018 are simply short, innocuous messages sent by the accused to the complainant. The complainant does not respond. Those messages are not relevant.

[35] The messages of January 27, 2018, however, are another matter. I find that they are admissible. Mr. Hamilton may use the messages in cross-examination or proffer them in the defence case, should he call a defence.

[36] The accused and the complainant may or may not have communicated on Storyboard about an iPhone. There seems to be no doubt, however, that they communicated on Instagram about having a sexual encounter on January 27, 2018, the date of the alleged offences. I set out some of the key messages from that date (I have reproduced the original words and spellings):

COMPLAINANT: Well, I’m down for 2000. I would prefer a hotel over an Airbnb. And cash up front. If you’re serious send me deposit of $500 emt first and then I’ll come. ACCUSED: You want 500 before you show up? Lol seriously? How about I give you my cc and you can take it out? Take out 4000 Would that work? If I gav you my cc info? COMPLAINANT: How do I take it out from getting your cc info How do I** ACCUSED: Through your site? I’m not too comfortable sending you 500 before you show up. Why can’t I pay you upfront when you arrive? COMPLAINANT: Accept my follow request ACCUSED: Sure, this is my personal Instagram account COMPLAINANT: Ok So 2k per hour ACCUSED: Ya I can even meet you in your car with the money before you come up? COMPLAINANT: Ok ACCUSED: Can I be honest? I just want the bj. If you’re interested I’d only last about 5 minutes and I’ll give you 2000. We can do it in your car? COMPLAINANT: Sure that works ACCUSED: On the way? COMPLAINANT: I’m otw now Do you have a condom ACCUSED: I’ll pqy 500 extra for no condom? COMPLAINANT: Ok ACCUSED: *pay

[37] The complainant’s position is that she never intended to follow through on the sexual activity. Her real motivation was to sell her phone. She was curious why it is that the accused was offering so much money. She agreed to meet in order to sell the phone.

[38] That may be so, but in my view the messages are relevant because they relate to the core of how the complainant and the accused met. In the messages the complainant appears to agree to sexual activity. Whether she intended to follow through or not, and the impact that may have had on Mr. Hamilton’s subjective intent, is an issue for the trier of fact at trial. That said, the messages relate to the subject matter of the indictment and are admissible on that basis: s. 276(2) of the Criminal Code.

[39] As well, the messages appear to contradict the complainant’s first statement to the police. They are, therefore, directly relevant to her credibility. Although a general reference to “credibility” will not be sufficient to admit the evidence, “evidence of a sexual relationship may also be relevant when complainants have offered inconsistent statements regarding the very existence of a sexual relationship with the accused”: Goldfinch at para. 63.

[40] In my respectful view, it would be unfair to the accused if he were not able to adduce this evidence: R. v. Crosby, [1992] 2 S.C.R. 912 at paras. 9-11.

Disposition

[41] The application is granted in part. The Instagram messages of January 27, 2018 are admissible. The parties may make further submissions with regard to the Instagram evidence.

Released: March 15, 2021