COURT FILE NO.: CRIMJ(P)908/18
DATE: 2021 08 18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
R. Prihar, for the Crown
- and -
JONATHAN WILLIAMS
A. Romain and P. Kott, for Mr. Williams
Accused
HEARD: Wednesday, 16 August 2021
TRIAL RULING NO. 4 – PRE-CHARGE CONFERENCE ISSUES
PUBLICATION BAN
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
Trimble J.
[1] In the pre-charge conference on 16 August 2021, the defence requested that a jury instruction be given in a number of areas which I address below.
1. Vetrovec Instruction
[2] The defence urged me to include a Vetrovec instruction for the complainant for the following reasons:
She was engaged in an illegal activity by selling sexual services for money, although she is immune from prosecution;
She lied during her evidence;
She destroyed evidence; and
There was an overwhelming number of inconsistencies in her evidence which means she is not capable of being believed.
[3] The Crown says that there is no need for a Vetrovec instruction.
[4] A trial judge has broad discretion in terms of providing a Vetrovec instruction.
[5] The Vetrovec instruction is necessary when, in all the circumstances, it is unsafe to find an accused guilty on the unsupported evidence of a witnesses or witnesses who are "unsavory", "untrustworthy", "unreliable", or "tainted".
[6] In R. v. Khela 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 3, Fish J., said that the Vetrovec warning is used where there are witnesses who, because of their amoral character, criminal lifestyle, past dishonesty, or interest in the outcome of the trial cannot be trusted to tell the truth even when they have expressly undertaken to do so by their oath or affirmation. The question is not whether the trial judge personally finds a witness trustworthy, but whether there are factors which experience indicates the need to approach that witness' evidence very carefully (see: Khela, para. 35).
[7] In R. v. Y.S., 2021 ONSC 4010, LeMay J. decided that he would not issue a Vetrovec instruction because there was no evidence that the complainant was of an amoral character. She was the subject of outstanding charges for theft, failure to appear and assault. LeMay J. concluded that while there were some difficulties with her evidence, there was nothing in her history to suggest that "... she cannot, ab initio, be trusted tell the truth." She had many issues with credibility and motivation to lie. Those are factors that go to the assessment of her credibility but do not go to the question of whether her evidence should be approached with caution before the content of that evidence is even to be considered.
[8] In this case, a Vetrovec instruction is not necessary. The complainant is not the kind of witness about whose evidence I am suspect, ab initio, notwithstanding her oath to tell the truth. I say this for the following reasons:
a) She has no criminal record.
b) There is no issue of moral turpitude or inherent unreliability about her evidence.
c) She has no interest in the outcome of this case. That she may be entitled a restitution order if Mr. Williams is convicted, does not give her an interest in the outcome of the litigation. It may go to motive, however.
d) Whether the sale of sexual services are illegal is a legal question that is not yet settled. In R. v. MacDonald, a recent decision of Gambacorta J. in the Ontario Court, the court held that the sale of sexual service is illegal, although the vendor is immune from prosecution (see also R. v. Jonathan Williams, per LeMay J.'s oral reasons 24 June 2021). In R. v. N.S. 2021 ONSC 909, however, Sutherland J. held the sale of sexual services is not illegal.
e) She struck no deal with the Crown or made any other unsavory bargain that would taint her evidence.
[9] As indicated, the issues raised by the defence with the complainant's evidence go to her credibility and motive.
2. Instruction Regarding Exceptions to the Material Benefit Provisions
[10] The defence wishes that I instruct the jury with respect to the exceptions in section 286.2(4) to the material benefit from sexual services provisions in section 286.2(1) of the Criminal Code. The exception Mr. Williams relies upon is:
Subject to subsection (five), subsections (one) and (two) do not apply to a person who receives the benefit
(d) in consideration for a service or good that they do not offer to the general public but that they offered or provided to the person from whose sexual services the benefit is derived, if they did not counsel or encourage that person to provide sexual services and the benefit is proportionate to the value of the service are good.
[11] The defence wishes me to instruct the jury that because the complainant's evidence is so rife with inconsistencies and lies, the only evidence they can accept with respect to any money Mr. Williams received from the complainant was the two $20 deposits shown on Exhibit 6 in March 2016. The defence argues that these payments were to either reimburse Mr. Williams or pre-pay him for the cost of purchasing bitcoin so he could purchase ads on Backpages.com advertising the sale of the complainant's sexual services. In other words, Mr. Williams was little more than a conduit for the flow of money from the complainant to Backpages.com, and that Mr. Williams received nothing for his services to the complainant.
[12] The defence further argues that the Crown has the obligation to negative exception in the subparagraph (4)d and has not done so.
[13] The Crown argues that the exception in subsection (4)d does not apply. In any event, subsection (5) contains the exception to the exceptions in subsection (4). Subsection (5) says that the subsection (4) exceptions do not apply to a person who commits an offence under subsection (1) or subsection (2) if that person... "(d) engaged in conduct, in relation to any person, that would constitute an offensive under section 286.3".
[14] Parliament has created a labyrinthine piece of legislation. As McKay J. said in R. v. Anwar, 2020 ONCJ 103, para. 181 "Section 286.2(4)(d) adds a complex new defence for third parties providing services or goods to a sex worker but makes the application of the section difficult to ascertain or define in practice."
[15] Section 286.2(4)(d) can be broken down into the following parts in order to determine whether it exempts someone. The person claiming the exemption must have
a) received a benefit,
b) in consideration for a service or good that they do not offer to the general public,
c) but that they offered or provided to the person from whose sexual services the benefit is derived,
d) provided that they did not counsel or encourage that person to provide sexual services,
e) and the benefit is proportionate to the value of the service or good.
[16] The last two subclauses are conjunctive. Both must be met.
[17] In this case, the facts do not support the application of the exception.
[18] The only evidence aside from Exhibit 6 concerning the two $20 payments is the complainant's to the effect that her two $20 payments to Mr. Williams were so that he could buy bitcoin with which to purchase ads in Backpages.com advertising the sale of the complainant's sexual services.
[19] If the jury accepts the complainant's evidence, Mr. Williams purchased ads advertising this sale of the complainant's sexual services. This is an offence under s. 286.3(1) as it is counselling or encouraging SB to sell sexual services. The exception in subsection (4)d does not apply. In any event, if the exception does not apply by virtue of subsection (5)d. If the jury does not accept the complainant's evidence, then there is no offence under s. 486.2 as there is merely an unexplained transfer of money without any evidence of any intent for the transfer.
3. An Instruction Concerning the Frailty of Text Evidence
[20] The defence wanted an instruction to go to the jury to the effect that because the complainant had "destroyed evidence" by deleting texts passing between she and Mr. Williams, the jury should be cautious about relying on the texts that were introduced into evidence. In this respect he referred me to para. 30 of R. v. Tello, 2018 ONSC 356, which he submits supports such an instruction.
[21] In Tello, before the jury was selected, the Crown indicated that it would submit four volumes of digital photographs of text messages sent through Blackberries operating on a "Pretty Good Privacy" system, which permitted the individuals to send messages directly to one another without going through an intervening server. The defence raised no objection to the jury hearing and seeing this evidence.
[22] After several witnesses had reviewed and given evidence on the messages, and each juror had been given copies of all message, the defence moved for an order that the messages were not admissible. The trial judge held the evidence was admissible and was appropriately placed before the jury. Viva voce testimony of the police authenticated the photographs of the text messages, and the trial judge was satisfied that it provided a sufficiently accurate and fair record of the text message communications between the parties to justify their admission. He also held the probative value of the evidence substantially outweighed any potential prejudicial effect of its admission.
[23] At the conclusion of the trial, trial judge provided a specific instruction to the jury to alert them to the "serious issues" between the parties concerning the reliability of this body of evidence in terms of the inferences that could safely be drawn from this collection of photographs of text messages. The jury was reminded of the following:
a) The jury did not have the "complete record" of all relevant text messages as there were some missing messages;
b) Portions or aspects of some of the available text messages were missing;
c) The jury could not safely conclude that the accused was the person responsible for the text messages emanating from the email the addresses on the texts, and
d) Some of the messages were out of chronological order, and that, accordingly, the jury could not safely conclude that messages that might appear on their face to be responsive to earlier messages are, in fact, in responsive to such messages.
[24] In this case, it was a theme throughout the complainant's examination in chief and her 3 ½ day cross-examination that SB deleted texts between she and Mr. Williams. She admitted that she had done so. She admitted that she did not know how many she deleted and what those emails were about.
[25] Further, she was cross-examined about alleged discontinuity in the text threads contained in Exhibits 1 and 5 that might suggest that emails were edited from the text threads that were produced.
[26] The issue of any frailty of the text messages in evidence, given the deletion of other text messages, is clear to the jury.
[27] In light of the foregoing I shall provide the following instruction to the jury:
In this trial, you have heard a great deal of evidence with respect to the texts between SB and Mr. Williams.
SB admitted that she had deleted a large number of texts between she and Mr. Williams, although she did not know the number or what those texts said. She said she did this at the instruction of Mr. Williams.
She was cross-examined extensively on this issue.
She was cross-examined extensively on Exhibits 1 and 5 concerning the dates and times of various texts, the difference between some of the headers on certain pages of those two exhibits compared to others, as well as on differences in font sizes on some texts as opposed to others, and the differences in timestamps on some texts compared to others. The defence submits to you that the texts in Exhibit 1 and 5 are not continuous and are heavily edited.
Detective Curtis testified that she sat with the complainant and in order to confirm that all of the texts in Exhibits 1 and 5 were on the complainant's phone, and that she helped place them in date order.
It will be up to you to determine if, and if so, how much you rely on the texts contained in Exhibits 1 and 5. You can rely on all of them, none of them, or only some of them. It is up to you to decide. You are the only judges of the facts.
4. Control, Direction, or Influence the Movements of a Person – Does it Include Setting Rates?
[28] The defence submits that the phrase "control, direction, or influence the movements of that person" in s. 286.3(1) is limited to the accused's impact on the physical movements of the person selling sexual services. It does not include such things as what to charge for sexual services.
[29] The Crown submits that the section covers all things over which the seller of sexual services may be controlled, directed, or influenced, whether mental or physical, and relied on LeMay J., is R. v. Y.S., supra.
[30] Does control, direction, or influence over the movements of a person include non-physical movements – for example deciding how much to charge for what service, and how much should be made in a defined period of time.
[31] The case law suggests that "control, direction, or influence over the movements of a person" does include non-physical movements such as setting prices for services notwithstanding the presence of the words "movements of a person".
[32] In Y.S., LeMay J. considered the words "control, direction or influence over the movement of a person" under s. 279.01 and s. 286.3(1) of the Code. In that case the Crown contended that the control, direction, or influence arose because, inter alia, the accused was controlling the money that the complainant earned. In that case, the "control" over the money is alleged to be that the complainant handed it over to the accused who kept it.
[33] At para. 126, LeMay J. set out the four areas the Crown alleged were amounted to exercising control, direction, or influence over the complainant, one of which was controlling the money that she earned. In para. 127 he said: "Evidence of the exercise of control, direction or influence in any one of these areas would be sufficient to establish the first element of the test for the exploitation offence." (emphasis mine).
[34] In R. v. Evans, 2017 ONSC 4028 , Boswell J., in considering the same phrase albeit in s. 279.01(1), found that the control, direction, or influence over the movement of a person included non-physical activities such as deciding and dictating the rules for her services, setting the fees she charged, and setting the minimum income per month that the complainant was expected to earn.
[35] In R. v. A.A., 2015 ONCA 558, the Court of Appeal appears to have assumed that fixing the fees of the seller of sexual services satisfied the actus reus of exercising control, direction, or influencing the movement of a person as used in s. 279.011(1) (see: para. 28).
[36] I agree.
[37] Further, to limit the definition of "control, direction, or influence over the movement of a person" solely to physical movements of the person selling sexual services makes no sense. The essence of the offence is the effect of one person on another's ability to decide to do something, such as offer sexual services at one place or another, or to offer one kind on service or another. Likewise, the essence of the offence implicitly is the effect of one person on another's ability to make other decisions regarding sexual services, such as the price for those services. Making decisions requires metal movement, and by taking those decisions away from the seller of the services the accused is limiting her decision making power.
5. Conduct of Counsel
[38] It is the obligation of counsel to assist the trial judge in crafting a jury charge that provides clear and comprehensible instructions to the jury, which is normally done at the pre-charge conference. More specifically, counsel for the accused are obliged to assist the trial judge with respect to instruction with respect to the defence theory of the case (see: R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760, para. 44-49). The obligation to assist the trial judge at a pre-charge conference was extended to all counsel to assist the trial judge in crafting a jury charge that provides clear and comprehensible instructions on the positions "they are defending (see: R. v. Wellwood, 2017 CMAC 4, paras. 77–80; R. v. R.V., 2021 SCC 10, paras. 78-79).
[39] The obligation to be of assistance to the trial judge includes not only raising issues that should be addressed in making comprehensive and comprehensible the final instruction, but also providing the trial judge with the legal authority for the position advanced.
[40] In this case, with respect to issues 1, 2, and 3, above, the defence failed in its obligation. Indeed, defence counsel were unhelpful to the court in its task of crafting comprehensive and comprehensible instructions for the jury. Defence counsel repeated their habit, oft displayed at trial, of raising issues, relying solely on the wording of the statute or arguing from first principles. This habit of shooting from the hip, without reference to authority lengthened the pre-charge conference. Defence counsel's failure to provide the Court with a copy of LeMay J.'s 24 June decision in this very same case, in addition to lengthening the pre-charge conference, was discourteous to the court.
Trimble J.
Released: August 18, 2021
COURT FILE NO.: CRIMJ(P)908/18
DATE: 2021 08 18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
JONATHAN WILLIAMS
TRIAL RULING NO. 4 – PRE-CHARGE CONFERENCE ISSUES
Trimble J.
Released: August 18, 2021