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

HEARD: 28 April 2021

s.a.Q. akhtar j.

RULING ON THE CROWN’S PRIOR DISCREDITABLE CONDUCT APPLICATION

Factual Background and Overview

[1] The respondents, Daylo Robinson, Rebecca Horton and Tyler Vickers are being tried for various human trafficking offences and sexual assault in relation to two complainants.

[2] Count 11 of the indictment alleges that the accused recruited, transported, transferred, received, held, concealed or harboured or exercised control, direction or influence over the movements of one of the complainants, hereinafter referred to as “D”, for the purposes of exploiting or facilitating the exploitation of her contrary to s. 279.011(1) of the Criminal Code, R.S.C. 1985, c. C-46.

[3] Count 12 alleges that the accused procured D to offer or provide sexual services for consideration contrary to s. 286.3(2) of the Criminal Code.

[4] Count 13 alleges that they recruited, held, concealed, harboured or exercised control, direction or influence over D for the purpose of facilitating an offence under s. 286.1(2) of the Criminal Code.

[5] The Crown seeks to lead evidence of Daylo Robinson’s prior discreditable conduct: a violent assault against D’s then pimp by striking her across the face with a baton.

[6] The respondents oppose the application on the basis that the probative value of this evidence is more than outweighed by its prejudicial effect.

Background Facts

[7] Sometime in March 2018, D arrived at the Motel 6 located in the city of Mississauga to work as an escort. She was accompanied by a female hereinafter referred to as “X” and another male both of whom were there to assist D find clients. When she arrived at the Motel 6, she contacted Josh Scanlan, a friend, who introduced her to Mr. Robinson.

[8] When Mr. Robinson enquired about D’s presence at the Motel 6 D admitted to working as an escort and making money “with this people”. Mr. Robinson told D that he could make her “so much more money”. When D asked how, he answered: “let’s go deal with the people then and I make you more money”. D’s understood this to mean that Mr. Robinson was going to talk to X although she did not know for certain.

[9] Mr. Robinson and Mr. Scanlan went to X’s hotel room while D stayed in Mr. Robinson’s room located next door. Shortly afterwards, D heard Mr. Robinson yelling loudly. In response, she went to X’s room to make sure everything was “okay”. She saw Mr. Robinson remove a baton from his pocket and strike X in the face telling her to “shut up”.

[10] X became stressed and panicked telling D that she could go. D returned to Mr. Robinson’s room with him and Mr. Scanlan. She assumed that X had left the Motel 6 because she heard the door to X’s room close and did not hear anyone return.

[11] Mr. Robinson explained that he had someone working at another hotel earning thousands of dollars a day. D was taken by Mr. Robinson and Mr. Scanlan to meet Ms. Horton at that hotel.

[12] When they arrived, Ms. Horton greeted them at the side entrance along with a client and invited D to accompany them to the client’s room where D consumed a large amount of alcohol. Ms. Horton encouraged D to provide sexual services to the client but D, heavily intoxicated, refused. Ms. Horton became angry and the client departed.

[13] In the days that followed, D was sexually assaulted by Mr. Robinson, Mr. Scanlan and Ms. Horton as well as being threatened by Mr. Robinson.

[14] D was taken to different hotels and provided with cocaine to ensure her continued work in the sex trade. At some point, Mr. Robinson and Ms. Horton left D with Mr. Scanlan who, following instructions from Mr. Robinson, communicated with and arranged appointments with D’s potential clients.

[15] At one stage, D became intoxicated and passed out. When she woke up, Mr. Scanlan had gone. Mr. Robinson told her that he and Mr. Vickers had beaten Mr. Scanlan and broken his jaw. Shortly afterwards, D left the apartment and contacted the police.

LEGAL PRINCIPLES

[16] There is no dispute that the evidence sought to be led by the Crown constitutes evidence of prior discreditable conduct as it involves an act of unrelated violence by Mr. Robinson towards another.

[17] Evidence of prior discreditable conduct is presumptively inadmissible. However, any party seeking to adduce this type of evidence must demonstrate, on a balance of probabilities, that it is relevant to an issue beyond disposition or character and that its probative value outweighs its prejudicial effect: R. v. B. (L.) (1997), 1997 3187 (ON CA), 116 C.C.C. (3d) 481 (Ont. C.A.), at para. 8; R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 41-42 and 49-55; R. v. Z.W.C., 2021 ONCA 116, at paras. 96-98.

[18] The threshold for relevance and materiality is not high and is met when the evidence “has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely that that proposition would appear to be in the absence of that evidence”: R. v. McDonald (2000), 2000 16871 (ON CA), 148 C.C.C. (3d) 273, at para. 24.

[19] However, the Crown “must be prepared to establish exactly what inferences it will be asking the jury to draw from the evidence, and the extent to which the evidence tends to permit those inferences”: Z.W.C., at para. 99.

[20] Prior discreditable conduct may be especially important in providing essential details of the unfolding of the offence so that the jury understands matters in a fashion that properly allows them to render a true verdict: R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, at para. 217.

[21] Prejudice is not measured by its incriminating impact but by its improper use by the trier of fact: B. (L.), at para. 22. The real danger of prior discreditable conduct is that an accused is convicted not of the offences with which he is charged but of past bad acts: Handy, at para. 139.

[22] In Z.W.C., at paras. 102-103, the court identified two forms of prejudice: moral and reasoning. Moral prejudice arises from the prospect that a trier of fact will convict an accused not on the evidence but on the basis of their prior bad acts or for being a “bad person”. Reasoning prejudice derives from the potential that a trier of fact might be diverted from its proper task and give the evidence more weight than it deserves.

[23] The court set out the following factors as among those to be considered, at para. 104:

• The seriousness of the discreditable conduct

• The extent to which it may support an inference of guilt solely on bad character

• The extent to which it may confuse the trier of fact

• The ability of the accused to respond

[24] In Luciano, the Court of Appeal for Ontario, at para. 227, set out the following series of questions to be asked before balancing probative value and prejudicial effect:

• • Is the conduct that of the accused?

• • Is the evidence relevant?

• • Is the evidence material?

• • Is the conduct discreditable to the accused?

[25] In this case, the argument focusses on the relevance and materiality of Mr. Robinson’s alleged conduct.

ANALYSIS

[26] Count 11 on the indictment charges the accused with trafficking under s. 279.011(1) of the Criminal Code which provides:

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

[27] Exploitation is defined in s. 279.04(a) which reads as follows:

279.04 (1) For the purposes of sections 279.01 to 279.03, 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.

(2) In determining whether an accused exploits another person under subsection (1), the Court may consider, among other factors, 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.

[28] In R. v. A.A., 2015 ONCA 558, 327 C.C.C. (3d) 377, at para. 70, the court described three principles emerging from s. 279.04:

i. the expectation of the specific belief engendered by the accused's conduct must be reasonable, thus introducing an objective element;

ii. the determination of the expectation is to be made on the basis of all the circumstances; and

iii. the person's safety need not actually be threatened.

[29] At para. 71, the court explained that “safety” extended to psychological as well as physical harm: citing R. v. McCraw, 1991 29 (SCC), [1991] 3 S.C.R. 72, at p. 81; and Winko v. British Columbia (Forensic Psychiatric Institute), 1999 694 (SCC), [1999] 2 S.C.R. 625, at para. 62.

[30] The Crown seeks admission of the following facts:

• Mr. Robinson’s assault on X with a baton

• Mr. Robinson’s utterance of “let’s go deal with the people then and I make you more money” when offering D work

• D overhearing Mr. Robinson yelling at X and calling her offensive names.

• X’s state of panic and stress after being beaten and her acquiescence in D leaving with Mr. Robinson as well as X’s exit from the hotel room.

[31] The Crown argues this evidence is relevant for the following reasons:

a. It provides an explanation for the trafficking relationship formed between D and Mr. Robinson;

b. It provides context for the unfolding of the essential narrative in this case;

c. It informs the reasonableness of D’s fear for her personal safety; and

d. It is highly probative evidence of counts 11-13 on the indictment which alleges that Mr. Robinson procured D’s services.

[32] The respondents oppose admission on the grounds that the evidence is too prejudicial and of limited probative value. They submit it has no bearing on the actual charges contained in the indictment. Moreover, counsel for Ms. Horton argues that neither she nor Mr. Vickers has any connection with the alleged conduct but will be tainted by association if the Crown is permitted to lead it.

[33] I find the last argument to be overstated. It is clear the conduct applies only to Mr. Robinson and, if admitted, an instruction would be given to the jury explaining its use and the fact that its application was limited to Mr. Robinson.

[34] Turning to the Crown’s grounds for admission, I agree that the jury would need to know why D ended up leaving X and joining Mr. Robinson. There is no doubt that the Crown could realistically argue that the conversation that Mr. Robinson had with D as well as his confrontation with X in the hotel room played a significant role in Mr. Robinson’s procurement of D in the sex trade.

[35] The potential prejudice in these events arises from Mr. Robinson’s assault on X. The Crown’s argument for admission is undermined by D’s failure to refer to the beating as a reason for going to work with Mr. Robinson or staying with him. Nor does she relate the assault to her safety concerns. When questioned by investigating officers, D did indicate she was afraid of Mr. Robinson but related those fears to his size and and appearing “intimidating” to her. There is no reference to the physical assault on X as being the reason for her safety concerns.

[36] Accordingly, on the evidence as it stands, the Crown cannot rely on Mr. Robinson’s assault of X as an element of the exploitation as defined by s. 279.04 of the Code. It follows that the probative evidence of the assault is significantly diminished and more than outweighed by its prejudicial effect.

[37] I find, therefore, that the Crown cannot lead evidence of Mr. Robinson striking X with a baton.

[38] However, I do accept that it would be unfair to deprive the jury of the narrative showing why D left X to join Mr. Robinson. The Crown must prove beyond a reasonable doubt that Mr. Robinson procured D in order to prove count 12 of the indictment, which means that the Crown has to show that the respondents intentionally caused, induced, or had a persuasive effect on the alleged conduct. In that context, evidence showing how D came to work for Mr. Robinson should not be withheld from the jury.

[39] As a result, I find that the Crown may lead evidence of the following:

• Mr. Robinson’s conversation with D when he first met her and offered her more money

• Mr. Robinson telling D “let’s go deal with the people then and I make you more money” and going to X’s hotel room

• The verbal argument between Mr. Robinson and X that took place in the hotel room

• X’s agreement that D could leave with Mr. Robinson

• X’s stressed and panicked appearance in the aftermath of the argument

• D’s assumption that X had left the Motel 6 because she heard X’s room door close and no sound of anyone returning

[40] In other words, all that needs to be excluded is the physical violence visited upon X during her encounter with Mr. Robinson. This would balance the Crown’s obligations to prove the charges with the accused’s right to a fair trial without any unduly prejudicial evidence.

S.A.Q. Akhtar J.

Released: 27 May 2021

COURT FILE NO.: CR-20-10000202-0000

DATE: 20210527

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.