Court File and Parties
COURT FILE NO.: CR-19-4156 DATE: 2022-03-25
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – H.H. Defendant
Counsel: Michael Ventola, for the Crown Soban Ponnampalam and Rumsha Siddiqui, for the Defendant Cornelia Mazgarean, Counsel for the Complainant
HEARD: March 21 and 22, 2022
Restriction on Publication
Pursuant to s. 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcast or transmitted in any manner. This judgment complies with this restriction so that it can be published.
Ruling on Crown’s Voluntariness Application, Crown’s S. 715.1 Application, the Accused’s S. 276 and 278.93 Applications
Introduction
1H.H. is charged with procuring a person under 18 years of age to offer or provide sexual services for consideration, and four other sex trade related offences. All of the charges relate to the complainant A.B.
2A.B. disclosed the allegations to the police when she was still 17 years old, after the police were contacted by school staff who believed that A.B. was involved in human trafficking.
3A.B. gave a statement to the police that in the fall of 2018 she had an argument with her parents and was thrown out of her family home. She needed money. She needed a job. She contacted Mr. H.H. in October 2018 in response to his Snapchat post for girls to call him if they needed to make extra money. She alleges that Mr. H.H. facilitated her providing sexual services in exchange for money.
Section 715.1 Application
4A.B.’s statement to the police was taken on December 19, 2018. It was video recorded and made under oath and describes the alleged offences at issue in the case. The Crown anticipates that A.B. will adopt this statement to the police at trial and seeks to admit the statement into evidence at Mr. H.H.’s trial pursuant to s. 715.1 of the Criminal Code if it is adopted by A.B. A.B. was under the age of 18 at the time of the offence, the statement describes the acts complained of, and the statement was made within a reasonable time of the alleged offence.
5The defence conceded that the video statement meets the requirements of s. 715.1 of the Code, and the statement will be admitted on consent.
Defence s. 278.93 Application
6Mr. H.H. brought an application pursuant to s. 278.93 of the Criminal Code to adduce material in his possession that could potentially constitute a “record” in his possession within the meaning of s. 278.1 of the Criminal Code.
7This material consists of 6 screen shots of photos taken from the complainant’s Instagram account and depict the complainant dancing at a night club. The photos were publicly available on the internet and do not depict the complainant engaged in any sexual or other private activity. Mr. H.H.’s first position is that these photographs do not fall within the definition of “record” in s. 278.1 of the Code.
8Section 278.1 of the Criminal Code defines “record” as:
278.1 For the purposes of sections 278.2 to 278.92, record means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence.
9The Crown and the complainant agree that these photographs do not contain personal information about the complainant, and do not qualify as “records” within the meaning of the Code.
10I agree with this submission, and therefore conclude that an admissibility hearing is not required.
Defence s. 276 Application
11Mr. H.H. also seeks permission from the court to adduce evidence and cross-examine the complainant with regard to the complainant’s prior sexual activity, in particular her alleged prior work as an escort.
12Section 276(1) of the Code provides that “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.
13Section 276(2) of the Code sets out the conditions for admissibility of such evidence:
[E]vidence 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.
14Mr. H.H. takes the position that although the complainant did contact him to inquire about making money, she informed him that she had worked in the sex trade in the past and wanted another way to make money. He explained to her how she could make money by assisting him in selling drugs. She agreed and made several drug sales for him.
15Mr. H.H. takes the position that he should be able to question the complainant about her prior sexual activity since the evidence has nothing to do with the “twin myths” identified in s. 276(1). He wants to ask her questions about how long she was involved in the sex trade, the number of clients she had, and how much money she made.
16Mr. H.H. argues that these questions are relevant on four grounds:
(a) Her prior involvement as an escort before communicating with Mr. H.H. in October 2018 is “contrary to her statement to the police that she had sought the Applicant’s help in making money through the escorting business”. In his affidavit in support of his s. 276 application, Mr. H.H. states: “If it were the case that she knew about the escort business prior to contacting me then she would not have reached out to me to figure out how to make money from escorting”; (b) Her prior involvement as an escort is relevant to her credibility because it contradicts what she said in her statement to the police; (c) Her prior involvement as an escort is relevant to the defence theory that the complainant is blaming the accused in order to save her relationship with her boyfriend; and (d) Her prior involvement as an escort is relevant because the complainant’s friend told the police that the complainant told her that she had engaged in sex work with someone at a mall.
17The applicant has not persuaded me that the complainant’s prior sexual history is relevant to the charges, or if it has any relevance, that it has “significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice”.
18Even assuming that the complainant was previously involved as an escort, I do not see how such involvement would support any of the four arguments advanced by Mr. H.H.
19I have reviewed the complainant’s statement to the police, and the police do not ask her any questions about whether she was previously involved in the sex trade, and she does not provide any statements that would suggest an answer one way or the other. The police questions are focused on the complainant’s communications and interactions with Mr. H.H. Her responses have the same focus. Counsel for the defendant has taken some statements out of context to suggest that the complainant is referring to activities prior to communicating with Mr. H.H., but read in context it is clear that they relate specifically to her communications and interactions with the accused.
20In her statement to the police the complainant recounts how Mr. H.H. explained to her his business model:
He told me basically everything that did actually happen was what happened, that he would be in charge of dealing with that so that way it wouldn’t be weird in any sense …so I didn’t have to, you know, worry about them finding out my age or something…It was just done and easy, he could do it for me. …I went twice, and then that was it. After these two incidents I stopped, that was it. So he told me about it, and he was being very persuasive on the fact that, you know, it’s a good thing, it’s safe.
21Even assuming that the complainant was previously involved as an escort, any such involvement would not be inconsistent with her statement to the police, which focuses on what Mr. H.H. told her about his escort service and how often she worked for Mr. H.H. Nor would it be inconsistent with her statement that she communicated with the accused to find out from him how his escort business operated and how much money she would receive if she worked for him. The complainant’s alleged prior involvement in the sex trade makes none of her statements to the police less likely to be true and is not relevant to her credibility.
22Raising an allegation of prior sex work, in my view, simply perpetuates the myth that a woman involved in the sex trade is less worthy of belief for that reason alone.
23The proposed line of questioning would not meet the requirement in s. 276(2)(c) that the evidence “is of specific instances of sexual activity”, rather, it would be a generalized examination of all such alleged activity. The questions would amount to a fishing expedition that could catch nothing other than the complainant’s personal dignity.
24Nor is the complainant’s previous sexual history significantly probative, or even relevant, to the applicant’s position that when the complainant contacted him he told her about how she could make money selling drugs for him. The accused may advance this position without cross-examining the complainant about her past sexual activity. Questions about the complainant’s past sexual activity do not make the accused’s version of events more likely to be true.
25In this regard I rely on the similar analysis of Monahan J. in R. v. Desir, 2020 ONSC 1158, where, in similar circumstances, he rejected the accused’s argument that “cross examination of the complainant on her employment in the sex industry will help show that she had the opportunity, knowledge and the desire to work for herself in that industry and [is] therefore important to …making full answer and defence”.
26He stated, at para. 33:
On the other hand, admission of the evidence on the basis proposed by Mr. Desir would directly contradict the entire purpose underlying the section 276 regime, which is to render evidence of a complainant’s prior sexual history presumptively inadmissible. In any human trafficking prosecution in which a complainant had some prior involvement in the sex trade, it would be possible for the accused to argue that the complainant had the “opportunity, knowledge and the desire to work in that industry”. This would mean that any such complainant would be presumptively subject to cross examination on this prior sexual activity, which is precisely the outcome which section 276 is designed to prevent.
27With regard to the defence “theory” that the complainant is blaming the accused in order to save her relationship with her boyfriend, I do not understand how this has anything to do with whether she was an escort prior to communicating with the accused. The accused may advance that theory without examining the complainant about her past sexual activity. The complainant is clearly not blaming the accused for anything that she did before she first communicated with him in October 2018. Permitting these questions about prior sexual activity would result in the gratuitous humiliation of the complainant by putting her prior sexual history on trial based only on the accused’s speculative and unrelated theory about her motive for making her statement to the police.
28Finally, the statement by the complainant’s friend that the complainant told her that she engaged in sex work at a mall was not made part of the record on this application. I was not, therefore, able to review the statement to determine its relevance. The Crown advises that the friend’s statement actually relates to “the sexual activity that forms the subject-matter of the charge” and is therefore exempt from the s. 276 process. The applicant is therefore free to examine the complainant or her friend (if she testifies) about this statement.
29Looking at the factors listed in s. 276(3) of the Code, I conclude that the proposed cross-examination about the complainant’s past sexual activity is not necessary for the accused to make full answer and defence but will have great prejudice to the complainant’s personal dignity and right of privacy. The s. 276 application is therefore dismissed.
Crown Voluntariness Application
30The parties have agreed to the following facts with respect to the Crown’s voluntariness application:
(a) In May of 2019, Mr. H.H. was incarcerated at Maplehurst Correctional Complex on unrelated drug trafficking offences. During the day of May 15, 2019, Mr. H.H. was transferred to Central East Correctional Center. (b) Upon his arrival at CECC, Mr. H.H. was subject to an intake assessment. During this process, the healthcare team notes any medical concerns with the incoming inmate as well as any medical concerns raised by the transferring institution. Mr. H.H. was transferred to a regular unit (general population) rather than any medical or other unit that would have been the case if there were any concerns about Mr. H.H.’s state. (c) Mr. H.H. remained incarcerated at CECC until May 17, 2019. On the morning of May 17, 2019, Mr. H.H. was brought to the Newmarket Courthouse pursuant to a judge’s order.
Additional facts
31On May 17, 2019, Mr. H.H. was arrested in the cells at the Newmarket Courthouse at 9:45 a.m. for child luring and sex trade related offences. Mr. H.H. was read his right to counsel.
32At 11:00 a.m. Mr. H.H. was interviewed by Detective Orshansky. The interview lasted approximately 51 minutes and was video recorded.
33Mr. H.H. opposes the introduction of the statement on the basis that he was not of an operating mind on May 17, 2019.
The Interview
34The entire interview was played in Court.
35At the outset of the interview Detective Orshansky reviews the events of Mr. H.H.’s arrest at 9:45 a.m. and the charges, confirms that Mr. H.H. was given his right to counsel, repeats the right to counsel and cautions Mr. H.H. again prior to proceeding with the statement. Mr. H.H. tells the detective that he does not want to speak to duty counsel until “after we are done”.
36Mr. H.H. confirms that he understands everything that he is told.
37Detective Orshansky asked Mr. H.H. the reason why he is already “doing time”, asking “What’s that all about?”. Mr. H.H. tells the detective the charges, the date that he was incarcerated, the length of his sentence and the day that he found out that his parole had been revoked. Mr. H.H. corrects the detective when the detective states the wrong date for when the parole would have begun.
38About 3 minutes into the interview, Mr. H.H. asks Detective Orshansky if he will be able to go for bail, and the detective replies that once they are done “you’re gonna go downstairs to courtroom 104 for a bail hearing.”
39Mr. H.H. tells the detective his home address, where he went to school, the location of the school, where he was working, how he applied for that job, the make, model and year of the car he drives, how much he paid for the car, who he bought it from, and his plans to go to school to learn elevator repair.
40Mr. H.H. tells the detective about how and when he met the complainant and about their going to Canada’s Wonderland with other friends. Detective Orshansky asks Mr. H.H. about the complainant’s allegations, and Mr. H.H. answers all of his questions. Mr. H.H. tells the detective what he has posted on Snapchat and denies making the posts alleged by the complainant. The detective pursues this a couple of times, but Mr. H.H. sticks to his story. Mr. H.H. tells the detective that he has a midnight blue Samsung S6 cell phone that was seized when he was arrested.
41Mr. H.H. tells the detective about selling an old Snapchat account to another drug dealer. He explains why he sold the account and how much he sold it for, what it was really worth and how he spent the money. He remembered all the details except for the purchaser’s name: “Michael or something, but I don’t know his last name”.
42He claimed not to recall his cell phone password or any of his social media passwords.
43Mr. H.H. tells Detective Orshansky about his trip to Vancouver to visit someone he knew from school and that he “went to the forest, the mountains, and walked around”. He specifically recalled going to Hasting’s Street where he saw a couple of people overdose.
44Mr. H.H. denied dealing cocaine: “I usually sold just MDMA, weed, Xanax”. He told the detective that he would use “a point or two at the most…I’ve used pills too, but only do like half a pill, and they were 300 milligrams, like point one five.” Mr. H.H. denies developing a dependency on drugs, but listed the drugs that he did take:
I didn’t use anything too often, I’d usually change it up. I’d use hydromorphine every now and then, MDMA, weed, Xanax, clonazepam, Adderall, meth, heroin.
45He clarified that he only used heroin “five times at the most…It was like half a point or less”
46But Mr. H.H. told Detective Orshansky that “I’ve been sober now for 10 months so I’m pretty happy about that”, although he still smokes weed “Not half an ounce a day, maybe a half ounce in a month or more”:
I went to Maplehurst for a month and a half and I’ve been sober since... Now I’m proud to say I’ve been sober for ten months now…not like it was my choice, I didn’t really have a choice but once I got out I was on house arrest. There’s cameras at my house…I just never really started using again”.
47Mr. H.H. tells the detective that now that his parole has been revoked he will be finished with his drug charges on July 24. He asks Detective Orshansky questions about the investigation.
48The interview ends when Mr. H.H. asks the detective how much time he could get for these charges, and the detective explains that he should talk to his lawyer if he has these questions. Asked if there was anything else, Mr. H.H. states: “No, just hope that I’ll be able to beat it”.
49Detective Orshansky fills out some forms and tells Mr. H.H. that he can sign them but does not have to, and Mr. H.H. states “Yeah, I just don’t want to sign it.”
50Finally, at about the 48 minute mark, Detective Orshansky tells him that his first appearance will be a bail hearing the same day, and Mr. H.H. states: “Courtroom 104, right?”.
Evidence at the Voir Dire
Detective Orshansky
51Detective Orshansky testified that when he interviewed Mr. H.H., Mr. H.H. appeared fine. He was interacting appropriately, answering questions in a coherent manner, and freely disagreeing with some questions asked. Mr. H.H. had no issue answering any questions that were asked. Mr. H.H. did not appear impaired, and Detective Orshansky had no concerns in this regard. There was nothing in Mr. H.H.’s conduct or appearance that would cause the detective to believe that Mr. H.H. was under the influence of either drugs or alcohol. Mr. H.H. seemed nervous at the beginning of the interview, but became more at ease as the interview progressed. He did not appear to be in distress at any time.
52Detective Orshansky did think that Mr. H.H. had an “odd demeanour”, which he attributed to Mr. H.H.’s mental health issues that he read about in the reports.
H.H.
53H.H. testified that he did not recall the interview with Detective Orshansky.
54He stated that on the date of the interview he was taking multiple prescription medications for anxiety, depression and bipolar. These medications were: clonazepam, trazodone, Cymbalta, buspirone, and lyrica. The side effects of these drugs were that he was drowsy, confused, foggy and “zombie-like”.
55He also testified that he was using opiates at Maplehurst on a daily basis in the month leading up to the interview. He obtained the opiates from his cell mate. He believed that the opiates were fentanyl, although he could not be sure. When he mixed the opiates with his prescription medication, they increased the side effects and he was foggy, confused and not 100%.
56When he mixes drugs, he has memory loss. His friends have told him that he sometimes says things that he does not remember later. He looks normal, but he is lost and confused.
57While he has no memory of the interview on May 17, 2019, he “probably” didn’t know that he was talking to a police officer, because if he had known it was a police officer he would not have talked to him. When he sees the video of the interview he thinks that he looks sick, with a weird stare, and it looks like he was in withdrawal.
58On cross-examination Mr. H.H. acknowledged that he left Maplehurst on May 15, 2019, and did not have any opiates on May 16 or 17, 2019. He believed that he was either high from the fentanyl, or he was in withdrawal, he could not remember which. He could not remember the name of the cell mate who gave him the opiates, although they shared a cell for about a month.
59He has had these memory problems since he was first prescribed the drugs in 2016 or 2017, but did not tell any of his doctors that the prescription medications made him foggy or caused memory loss because he liked the way they made him feel.
60He stated that he lied to Detective Orshansky about being sober for ten months, he lied about not having an Uber account, and he lied about how many times he met the complainant. He agreed that he lied in order to put himself in a better position to get parole.
Analysis
61In R. v. Oickle, 2000 SCC 38, the Supreme Court established that, whenever a person in authority questions a suspect, any statement made can only be admitted where the Crown can demonstrate, beyond a reasonable doubt, that it was made voluntarily.
62Where the voluntariness of an accused’s statement is at issue, a trial judge must engage in a contextual analysis, with an eye to a number of relevant factors, including: 1) whether there were any threats or promises; 2) whether there were any oppressive circumstances; 3) whether the accused had an operating mind; and 4) whether there were any instances of police trickery: Oickle, at paras. 47-71.
63Overall, in undertaking this analysis, the trial judge “should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession’s voluntariness, taking into account all aspects of the rule”: Oickle, at para. 71.
64In this case, we are not dealing with a confession, but the same analysis applies. Mr. H.H. takes the position that he did not have an operating mind at the time he spoke to Detective Orshansky.
65The Supreme Court explained the meaning of “operating mind” in Oickle, at para. 63, stating that “the operating mind requirement “does not imply a higher degree of awareness than knowledge of what the accused is saying and that he is saying it to police officers who can use it to his detriment””.
66Having viewed the video, I have no doubt that Mr. H.H. knew what he was saying and that he was saying it to a police officer. Throughout his interview Mr. H.H. was alert and able to answer questions – or refuse to answer questions – coherently and appropriately. He understood the questions asked and his answers were responsive. He had no difficulty remembering details and dates in relation to a variety of subjects in response to the questions asked. Indeed, his memory was so good that he corrected Detective Orshansky on one date and remembered the Courtroom number – 104 – for his bail hearing after being interviewed for 45 minutes.
67While initially nervous, there was no indication that he was in any distress at any point in the interview. He displayed no indication that he was intoxicated or under the influence of drugs or alcohol. He expressly told Detective Orshansky that he had been sober for 10 months.
68At no point does he appear “foggy” “confused” “drowsy” or “zombie-like”.
69Mr. H.H. had no difficulty disagreeing with Detective Orshansky or withstanding repeated questions about some subjects. He had no difficulty lying to Detective Orshansky when he thought it would be to his benefit.
70I agree with Detective Orshansky’s observations of Mr. H.H. at the interview; these are plainly borne out by the video itself. Indeed, I note that Mr. H.H. was more coherent during the interview with Detective Orshansky then he was when he testified at the voir dire. He spoke at a regular pace during the interview, but was much more hesitant and uncertain during his voir dire testimony.
71Mr. H.H. understood his rights and was able to make choices as to what to say to Detective Orshansky. Given the answers that Mr. H.H. gave to Detective Orshansky, and the nature of the questions Mr. H.H. asked, and Mr. H.H.’s acknowledged decision to lie to Detective Orshansky, there is no doubt that he was aware that he was speaking to a police officer and understood that his statements could be used to his detriment.
72I reject Mr. H.H.’s evidence that he did not know that he was talking to a police officer and did not know what he was saying or that he was in any way foggy or confused during the interview.
73Having regard to all the circumstances, the Crown has satisfied me, beyond a reasonable doubt, that Mr. H.H.’s statements were made voluntarily, and the Crown’s application is granted.
Justice R.E. Charney Released: March 25, 2022