COURT FILE NO.: CR-20-10000202-0000
DATE: 20210408
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DAYLO ROBINSON REBECCA HORTON AND TYLER VICKERS
M. Gharabaway, for the Crown
M. Little, for Mr. Robinson
C. Sheppard, for Ms. Horton
R. Moriah, for Mr. Vickers
D. Way, for the Complainants W and D
HEARD: 8-9, 12 March 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proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4(1) of the Criminal Code of Canada.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.
s.a.Q. akhtar j.
RULING ON SECTION 276 APPLICATION
FACTUAL BACKGROUND AND OVERVIEW
[1] Daylo Robinson, Rebecca Horton, and Tyler Vickers are charged with counts of human trafficking, assault and sexual assault in relation to two complainants hereinafter referred to as “W” and “D”.
[2] Both complainants allege that the accused offered them work as escorts and then forced them to work against their will, sexually assaulting them and taking all their earnings. For a more detailed account of the allegations, see: R. v. Robinson, 2021 ONSC 2445.
[3] All three accused apply, pursuant to s. 276 of the Criminal Code, R.S.C. 1985, c. C-46, to ask questions of both complainants about their prior sexual history. The Crown conceded that the “first stage” of the s. 276 framework under s. 278.93(2) of the Criminal Code - that there was a sufficient basis to hold a hearing - had been met.
[4] This application deals with the stage two hearing.
Proposed Questions Relating to Prior Sexual Activity
[5] In D’s case the applicants argue they are entitled to cross-examine on prior utterances made to the police. They argue that D in her police interview, attempted to paint a picture of inexperience and lack of familiarity with the sex trade. Consequently, they claim they should be entitled to contradict D to demonstrate her lack of credibility at trial.
[6] The applicants also wish to question D on her reasons for attending the Motel 6 in March 2018 and her prior use of the advertising services of Backpage.com.
[7] In W’s case, the applicants seek leave to cross-examine her on the following areas:
(a) When W worked as a sex worker;
(b) The nature of W’s work;
(c) How W advertised her services;
(d) Whether and how W previously recruited other sex workers.
[8] I will deal with each of these areas in turn.
LEGAL PRINCIPLES
Section 276 of the Criminal Code
276 (1) In proceedings in respect of an offence under section 151, 152, 153, 155 or 159, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant
(a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or
(b) is less worthy of belief.
(2) In proceedings in respect of an offence referred to in subsection (1), evidence shall not be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94, that the evidence
(a) is not being adduced for the purpose of supporting an inference described in subsection (1);
(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.
(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) 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 or justice considers relevant.
The Jurisprudence
[9] It is now recognised that a complainant’s prior sexual activity has little or no role to play in a criminal trial. Historically, use of this type of evidence resulted in a trial of the complainant rather than a trial of the accused: R. v. R.V., 2019 SCC 41, 436 D.L.R. (4th) 265, at para. 33; R. v. Goldfinch, 2019 SCC 38, 435 D.L.R. (4th) 1, at para. 33. In R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, the Supreme Court of Canada pressed a reset button on the use of prior sexual activity in criminal trials.
[10] Since then, Parliament and the common law have refined and, in many ways, tightened the principles relating to the admission of prior sexual history.
[11] The current procedure set out in s. 276 of the Criminal Code maintains a bar on “twin myth” reasoning: the inference that because of their prior sexual activity a complainant is more likely to have consented or is less worthy of belief.
[12] Although an accused has the right to full answer and defence, an accused does not have the right “to have procedures crafted that take only his interests into account. Still less is he entitled to procedures that would distort the truth-seeking function of a trial by permitting irrelevant and prejudicial material at trial”: R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, at para. 24.
[13] As such, the right to cross-examine is not unlimited. Section 276(3) of the Code ensures that an accused’s right to question a complainant must be assessed taking into account all of the factors set out in that subsection: R.V., at paras. 40-41. In cases where cross-examination on prior sexual activity is permitted, the questioning must be tightly controlled and, in certain cases, it might be appropriate to approve specific wording of the questions to be asked: R.V., at paras. 8, 73. Alternatively, a court might require the use of agreed statements of fact to ensure that evidence of prior sexual activity stays within proper bounds: Goldfinch, at para. 98.
The Requirements Under s. 278.93(2) of the Criminal Code
[14] Section 278.93(2) of the Code requires that any s. 276 application “must be made in writing, setting out detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial, and a copy of the application must be given to the prosecutor and to the clerk of the court.”
[15] The applicants provided affidavits setting out the basis for their proposed questioning. All three are almost identical to each other and take the form of legal arguments rather than personal affidavits connecting their defence to the questions they wish to ask.
[16] The Crown and the complainants’ counsel object to the form of material provided. They submit that they have no material on which to cross-examine the applicants regarding the connection of their questions to the primary issue that needs to be decided: the relevance of the complainants’ prior sexual history to the defence.
[17] The applicants submit they are not obliged to reveal details of their defence if evidence of prior sexual activity is relevant to the Crown’s burden of proof. They say inconsistent statements regarding their experience as sex trade workers impact W and D’s credibility and, as a result, significantly undermine the Crown’s case.
[18] In support of their position, the applicants rely on comments in R.V., at para. 54, that a bare denial of the offences may suffice as a basis for a s. 276 application.
[19] The applicants are correct - it may. However, the s. 276 evaluation is conducted on a case-by-case basis and not all cases are the same.
[20] In R.V., the accused was charged with sexual assault and sexual interference. The complainant testified that she was a virgin at the time of the offence and the Crown intended to rely on the complainant’s pregnancy as proof of the accused’s culpability. The accused denied any sexual contact with the complainant. He sought to question her on prior sexual activity with others to show that the pregnancy was caused by the complainant’s sexual activity with someone other than himself. The Court held that it would be unfair to prohibit this line of questioning given the Crown’s specific introduction of the evidence to support its case.
[21] The decision in R.V. does not stand for the proposition that the defence need not provide any details of their defence other than a denial. In R.V., the appellant did provide details of his defence: he denied any sexual activity with the complainant. Given this position and that the Crown intended to lead evidence of the complainant’s pregnancy as proof of the offences, it would have been grossly unfair if the accused had not been allowed to question the complainant on whether she had had sex with others.
[22] This is a very different case. In Darrach, at para. 56, the Court made clear that:
The defence must satisfy the trial judge that the evidence it seeks to adduce meets the statutory requirements for admissibility. To admit evidence of sexual activity at trial, the judge must provide written reasons about how the evidence "is expected to be relevant to an issue at trial" and the factors she considered in making this determination (as per ss. 276.2(3)(b) and (c)). It is perfectly appropriate that, to this end, the affidavit must disclose evidence that is "capable of being admissible under subsection 276(2)". Among other things, the evidence must be adduced for a permissible purpose and must be relevant to an issue at trial. The affidavit must therefore establish a connection between the complainant's sexual history and the accused's defence. As the trial judge put it, "there would have to be evidence to establish the link between the potential defences ... and the prior sexual conduct". [Emphasis added]
[23] The stipulation that an applicant provide “detailed particulars” means that “the Criminal Code ensures that judges are equipped to meaningfully engage with the s. 276 analysis and that defence evidence does not take the Crown or complainant by surprise”: R.V., at para. 48; Darrach, at para. 55; Goldfinch, at para. 51.
[24] The applicants are therefore required to connect their questions of prior sexual activity to their defence. In R.V. the connection was established by the appellant’s denial that he was the cause of the complainant’s pregnancy. Sexual activity with others could suggest or even confirm that another man was the father.
[25] The need to provide some indication of what evidence the applicants seek to adduce is essential in determining whether the prior sexual activity is relevant. The importance of this requirement is emphasised by the Crown’s right to cross-examine the accused on the relevance of the issues they have chosen to raise. As made clear in Darrach, the disclosure of some or all aspects of the defence is necessary to provide the judge with sufficient information to determine whether the evidence of prior sexual activity passes the s. 276 threshold: at para. 65.
[26] It is only when a judge can identify the relevance to the defence that they can determine whether the factors in s. 276(3) apply, and also whether there is significant probative value to the evidence which is not substantially outweighed by its prejudicial effect, as required by s. 276(2)(d).
[27] Here, the only defence put forward is the attack on the complainants’ credibility. If that was the test, then s. 276 would be satisfied in nearly all cases. This, on its own, cannot satisfy the test set out in s. 276: Goldfinch, at para. 5.
[28] The applicants must go further: they must link the inconsistencies to a relevant issue at trial. It is not enough to say that they deny the allegations, allege the complainants are unreliable, and remain silent on the actual issues that evidence of sexual history might engage. Establishing a connection between prior sexual history and their defence requires some detail of the applicants’ defence in this case.
[29] I now turn to the proposed areas of questioning.
THE PROPOSED QUESTIONS FOR D
1. D’s Attendance at the Motel 6
[30] When D spoke to the police, she indicated that she had gone to the Motel 6 to work as an escort. The applicants submit that this evidence is essential in explaining D’s presence at the motel and how they met her.
[31] The Crown and the complainants’ counsel concede that this is an essential part of the narrative. Indeed, it would be difficult for the Crown to present its case without adducing this fact.
[32] This evidence is accordingly admissible, subject to the limits set out at the end of these reasons.
2. The Attack on D’s Comments in the Police Interview
[33] The applicants identify four sections of D’s statement, when interviewed by Detective Constable Jason Reynolds, which they posit permits cross-examination on her prior experiences in the sex trade.
[34] According to the applicants these utterances are D’s attempts to portray herself as being unfamiliar with the escort business. The applicants submit that the utterances are contradicted by later comments (at pp. 182-184 of her interview) where D agreed that she had been working as an escort for “a couple of years” prior to the events in question.
Area 1: “I’m not familiar….. this was the first time” (p.39)
[35] The first set of utterances arise at p. 39 of D’s police interview. The applicants contend that in making these comments D tried to “feign innocence and ignorance” of the escort trade.
[36] The relevant portion of the exchange actually begins at p. 37, when D told police that she met “Josh” [Scanlan] and he introduced her to Mr. Robinson. After D told Mr. Robinson that she was at the hotel making money as an escort, Mr. Robinson assured her that if she joined him he could make her “so much more money”. When D queried how that was possible, Mr. Robinson replied that they should go to his motel room to find out. D agreed although she said she felt “high” having consumed a large quantity of alcohol. The interview continued:
D: Yeah so ahm he was like okay let’s go deal with the people then and I make you more money so ---
Q: What do you think he meant by dealing with the people?
D: Like going to talk to them, I don’t know I was really was not really familiar I told you this was the first time that with any of this – I don’t know I wasn’t familiar with any of that I didn’t know any any these people.
Q: Okay
D: So I was okay let’s go. [Emphasis added]
[37] The applicants submit that the underlined words show how D was trying to portray herself as someone who had little familiarity with the escort trade. The applicants forcefully argue they should have the opportunity to correct that impression by adducing evidence of her previous work as an escort.
[38] I reject this position as I do not agree with the applicants' interpretation of the exchange.
[39] It is clear that D’s comments are directed specifically at the situation she found herself in when she went with Mr. Robinson to the motel room. D was asked what she thought Mr. Robinson meant by “dealing with the people”. D’s explanation was that she “was not really familiar” with “these people” rather than the escort trade.
[40] Accordingly, D’s utterances do not permit the admission of prior sexual activity under the s. 276 requirements.
Area 2: D’s Belief re: The Second Hotel (p.58)
[41] Later in the police interview D told Reynolds that she did not believe that she was going to be involved in escorting after she left the Motel 6 and arrived at a different “higher class” hotel. The applicants argue that they should be permitted to challenge that belief by adducing evidence of her prior activity as an escort.
[42] I disagree. D’s comments occurred after she had already told the police that she had gone to the Motel 6 to work as an escort.
[43] If the applicants' position is to that D must have known that she was going to the hotel to escort because of her prior history in the sex trade, I fail to see the correlation.
[44] Indeed, it strikes me that this argument appears to amount to the proposition that because she had previously been an escort it was more likely that she would be conducting herself as an escort at the hotel. This, of course, is propensity reasoning forbidden by s. 276(1)(a) of the Code. See also: R. v. Desir, 2020 ONSC 1158, at paras. 28-33; R. v. A.M., 2019 ONSC 7293, at para. 28.
[45] The applicants have failed to provide any other connection to a live issue at trial and this line of question is therefore impermissible.
Area 3: “I wasn’t familiar with any of this…. I didn’t know what I was doing” (p. 59)
[46] The applicants make the same “unfamiliarity” argument with respect to D’s utterances at p. 59 of her interview. This exchange follows D’s assertion that she was not going to the second hotel for escorting and unfolds as follows:
Q. Did you believe that you were gonna be involved in escorting once you get to, to the hotel?
D: No.
Q: So you didn’t know. Like the conversation never came up.
D: No.
Q: Okay. You thought you just were gonna go there and see I guess ah ---
D: Umm hm.
Q: ---see what was gonna happen?
D: Yes. Yeah I pretty much just thought that we were gonna some kind of party like I really didn’t know.
Q: Okay.
D: And for the time going there I didn’t know.
Q: Okay.
D: I wasn’t familiar with any of this. I didn’t know what I was doing I just make money and it would be fine then. That’s what I meant. [Emphasis added]
[47] The applicants have isolated the last line of the exchange to support their argument that D was giving the impression that she was unfamiliar with escort work.
[48] Once again, I disagree with the applicants’ proffered interpretation.
[49] Reading the sentence the applicants’ way completely ignores the context of the questions and surrounding subject matter of the conversation. It is clear that D was telling the police she was unfamiliar with the way events had been unfolding and why she was going to the hotel rather than giving the impression she was unfamiliar with the escort trade.
[50] There is no basis to permit cross-examination on prior sexual history under this ground.
Area 4: “How am I supposed to know that” (p. 90)
[51] This exchange occurs during D’s recounting of Ms. Horton seeking to induce her into a sexual encounter for the benefit of a customer. D told the police that she was extremely drunk, and that Ms. Horton entered into a discussion with the customer who then approached D. The customer began to hug D whilst trying to kiss her. D resisted by turning her head. Ms. Horton exhorted D to return the customer’s advances and became angry when D refused.
[52] The interview proceeded in the following manner:
D: I; I even though I was drunk I knew I am not enough to kiss him ---
Q: Umm hm.
D: --- and then and then she was like what are you doing? You are supposed to be kissing him. I was like no, I am not.
Q: Umm hm.
D: And so that’s when she started like yelling at me telling me I ; I can’t be saying things in front of her tricks and stuff like that.
Q: Umm hm.
D: She’s like you can’t talk about things in front of the tricks that’s when is aid okay how am I supposed to know that?
Umm hm.
D: Like you know what I mean? And she just like expected me to know like it’s like I’ve done that before and nobody ever told me when I was actually coming at first. So at that point…
Q: Yeah.
D: ---and I was saying okay I know what do it.
Q: Umm hm.
D: And at that point I was drunk and I was like fuck it, it’s money. So then; then she talked when I was drunk I think I am pretty sure I never said yes to that.[Emphasis added]
[53] The applicants submit that the underlined words demonstrate a further example of D asserting her inexperience and lack of familiarity with the sex trade.
[54] Clearly they do not. D is simply describing a scenario in which she was forced into a situation that she did not want to continue. When D resisted, she was told not to say things in front of the customer. D explained that she did not realise that she was forbidden to say “things in front of [Ms. Horton’s] tricks”.
[55] This was not a declaration of lack of experience with the sex trade but one of not knowing what to do in front of Ms. Horton’s clients. D’s later comments that “I’ve done that before” are an indication that she had protested in other situations when she did not want sex and no one had corrected her.
[56] There is no basis to cross-examine D on these statements under s. 276(3) of the Code.
[57] It must be clear that my dismissal of the s. 276 application is based on a rejection of the applicants’ interpretation of D’s utterances.
[58] However, I would also add that even if I had agreed with the applicants, they would fail. There is no indication how a “feigned” lack of experience is relevant to any issue in this case other than a general attack on D’s credibility. In the absence of any relevant issue explicitly defined by the defence, I would find the probative value of her prior sexual history to be minimal and substantially outweighed by its prejudicial effect.
Questioning D on her Use of Backpages
[59] The applicants seek to cross-examine D on her prior use of advertising on Backpages (as told to the police on p. 184 of her statement). The applicants’ affidavit states that cross-examination is “necessary to rebut the Crown theory that D was procured into the sex trade. It is further necessary to rebut the Crown theory that [D] was the subject of human trafficking by me. [D’s] knowledge and familiarity with the sex trade industry prior to attending the motel 6 is necessary for me to rebut these allegations”.
[60] However, despite claiming that the cross-examination is “necessary” to rebut the Crown’s allegations, the applicants provide no basis of relevance to D’s prior advertising or how she entered the sex trade. The Crown has already conceded that the defence may refer to her arrival at the Motel 6 as an escort.
[61] The mere fact that D may have previously used Backpages cannot be used as evidence that it was she who was likely to have advertised her services in this case. This type of suggestion invokes the twin myth reasoning s. 276 was created to eliminate: Goldfinch, at para. 60; Desir, at paras. 27-29.
[62] I would add that, in their affidavits, the applicants do not appear to claim that D placed the advertisements that are the subject of the offences. As with other aspects of this application, the absence of any details of the applicants’ defence and the relevance of this issue makes it impossible to understand why the evidence should be admitted under s. 276(3) of the Code.
[63] Finally, I agree with my colleague Monahan J. in Desir, at para. 33, that the admission of the evidence on the basis of the applicants' arguments would permit any accused charged in a human trafficking offence to argue that a complainant’s prior sexual history was necessarily admissible to rebut the Crown’s case on the basis of a denial of the allegations.
THE QUESTIONS FOR W
[64] The applicants seek to cross-examine W on the following areas:
(1) When she worked as a sex worker;
(2) The nature of her work as a sex worker;
(3) How she advertised her services as a sex worker;
(4) If she previously recruited sex workers.
[65] The Crown and W’s counsel agree that (1) and (3) are areas that pass the s. 276 threshold. However, they oppose any questions concerning the nature of her sex work and the area of recruitment.
[66] With respect to (1), W told the police that she did not previously work in the sex trade. However, text messages extracted from her phone reveal the opposite. Regarding (3), W told the police that even though she had heard of Backpages she did not know what it was and had to be told by Mr. Robinson. Again, the same text messages contradict W’s statement by showing prior use of Backpages.
[67] The point that the applicants wish to adduce is that W was untruthful in making these statements when interviewed by the police. This type of cross-examination does not engage in the twin myth reasoning prohibited by s. 276(1) of the Code and is a legitimate area of cross-examination when used to directly contradict W.
[68] The Crown concedes that the applicants are therefore permitted to confront W on these contradictions. However, the contradiction must be established by an agreed statement of fact that W worked as a sex worker and that she had previously used Backpages. I agree with this position.
[69] An agreed statement of facts would preclude the possibility of extraneous and irrelevant details about W’s prior sexual activities being elicited in answers to cross-examination.
[70] I would add that the nature of W’s work as a sex worker and any other references to advertising and recruitment of other sex trade workers is impermissible as the applicants have not established any relevance to a live issue at trial.
CONCLUSION
[71] As previously discussed, the Supreme Court of Canada has made clear that it is open to the application judge, in appropriate circumstances to pre-approve the wording of permitted questions or order that the evidence be adduced through agreed statements of fact.
[72] I find that the latter course is the best way to deal with the proposed areas of cross-examination in this case.
Questions for D
[73] With respect to D, the applicants may use her police statement that D went to the Motel 6 to work as an escort. It is open to the applicants to suggest to D that she placed the contested advertisements on the Backpage site. They may not, however, make reference to her prior Backpages activity or her reference to it in her statement.
[74] The applicants are not permitted to question D on when she became an escort, the nature of her work, or whether she recruited other sex trade workers.
Questions for W
[75] The applicants may adduce evidence of the inconsistencies in W’s statements by referring to the fact that she told the police that she had not worked in the sex trade or used Backpages. Both inconsistencies must be established through an Agreed Statement of Facts indicating that:
• W had previously worked as an escort
• W had previously used Backpages
[76] These questions are permissible to contradict W on her prior statements to the police.
[77] The applicants may not refer to the text messages found on W’s phone or ask any questions regarding when she worked as an escort, the nature of her work and whether she recruited others into the sex trade.
S.A.Q. Akhtar J.
Released: 8 April 2021
COURT FILE NO.: CR-20-10000202-0000
DATE: 20210408
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DAYLO ROBINSON REBECCA HORTON AND TYLER VICKERS
REASONS FOR JUDGMENT
S.A.Q. Akhtar J.