Court File and Parties

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

DATE: 20221128

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Applicant

– and –

DAYLO ROBINSON Respondent

– and –

REBECCA HORTON Respondent

– and –

TYLER VICKERS Respondent

Counsel:

Monica Gharabaway, for the Crown

Michael Little, for the Respondent Daylo Robinson

Tania Bariteau, for the Respondent Rebecca Horton

Royland Moriah, for the Respondent Tyler Vickers

HEARD: April 20, 21, 25, 27, 28, and 29, 2022

NOTICE OF RESTRICTION ON PUBLICATION, Pursuant to s.648 of the Criminal Code

No information regarding this ruling, the evidence presented, or materials filed shall be published in any document, or broadcast, or transmitted in any way before the jury retires to consider its verdicts, or until the trial is otherwise concluded.

RULINGS ON APPLICATION TO ADMIT OUT OF COURT STATEMENTS OF A WITNESS AT TRIAL

B.P. O’Marra J.

OVERVIEW

[1] The three accused are named in a seventeen-count indictment that alleges very serious offences, including human trafficking and sexual offences. The two complainants are R.W. and M.D. This application relates to the anticipated evidence of R.W.

[2] On April 23, 2018, R.W. provided an extensive statement to members of the Toronto Police Service (“TPS”). The transcript runs 242 pages. That statement was under oath and recorded on video. R.W. was cross-examined by counsel for Daylo Robinson and Tyler Vickers intermittently at a preliminary hearing over eight days in July and August 2019. Further dates were set to complete the preliminary hearing. R.W. refused to return for further cross-examination. Counsel for Rebecca Horton had not commenced her cross-examination when a direct indictment was preferred in February 2020.

[3] R.W. has now moved to reside in the United States. She has refused to return to testify at trial, or to provide remote testimony. There is no legal process to force her to do so.

[4] The Crown applied to have R.W.’s sworn video statement of April 23, 2018, and her evidence at the preliminary hearing admitted at trial for the truth of their contents. The three accused opposed the applications.

[5] On April 29, 2022, I made the following rulings, with reasons to follow at a later date:

1. The sworn video statement of April 23, 2018 is admissible against all three accused as evidence of its contents.

2. The evidence of R.W. at the preliminary hearing is not admissible against any of the three accused for the truth of its contents.

3. Counsel for each accused may refer to, file and play the audio of any portion of transcript of the testimony at the preliminary hearing where R.W. is contradicted as to what she said in her video statement of April 23, 2018, or things she has stated at the preliminary hearing that were not referred to in her video statement of April 23, 2018. Her evidence at the preliminary hearing is admissible at the instance of the defence as relevant to her credibility and reliability.

EVIDENCE ON THE APPLICATION

[6] The Crown called members of TPS who had dealt with R.W. from April 23, 2018. Their evidence related to the futile efforts made to have R.W. attend for the trial either in person or remotely. It is agreed that there is no legal process to compel her attendance in person or remotely since she resides outside of Canada. The efforts made on behalf of the prosecution to have R.W. participate in the trial are relevant to the issue of necessity, and whether the Crown should be permitted to file her out of court statements as evidence at trial.

EVIDENCE OF OFFICER JASON REYNOLDS

[7] Officer Jason Reynolds has been a member of TPS for over 20 years. In May 2018, he worked in the human trafficking unit. He was involved from the early stages of this investigation. He prepared a search warrant and was present when the three accused were arrested.

[8] Officer Reynolds was not involved in the preliminary hearing in 2019 but he received information about R.W. related to her emotional upset in testifying. He understood that R.W. had testified over numerous days. In October 2019, he received information that R.W. said she did not want to participate in the court process any further. The officer in charge asked Officer Reynolds to contact R.W. and hopefully develop a rapport with her in support of her role as a victim and a witness.

[9] Officer Reynolds was not successful in establishing a rapport with R.W. She maintained intermittent contact with him. She sent him a message saying she needed to move on and focus on her children.

[10] The original trial date was set for May 2021. In February 2021, Officer Reynolds prepared an affidavit in support of the Crown’s application to tender R.W.’s evidence by video link.

[11] R.W. told Officer Reynolds that she had suffered a great deal of mental stress during her extended cross-examination at the preliminary hearing. She was concerned that if she had to endure that process again it would impact her ability to care for her children.

[12] Officer Reynolds never met R.W. in person. In February 2021 he told his supervisor that R.W. required better victim management and support than she had received at the preliminary hearing. Based on his experience, victims of human trafficking often find the court process very difficult. The police and victim management would go to great lengths to assist them in the process. The situation with R.W. was more difficult because she was now residing outside Canada.

[13] Through Homeland Security in the United States, Officer Reynolds was able to arrange a support person who would work with R.W. where she then resided. He conveyed this to R.W. in February 2021 in a brief conversation. R.W. was also advised that she could testify by video link from the area where she resided. She seemed relatively content with that.

[14] Unfortunately, the trial did not proceed in May 2021. When Officer Reynolds told her that the trial would be delayed, she seemed to revert to her former position that she needed to move on and concentrate on her children. She did not say that she would not testify. However, she said she would be moving, in the near future, to another location in the United Sates.

[15] As the trial date of April 2022 approached, Officer Reynolds phoned R.W. on March 16, 2022. She described the negative impact of the legal process on her, and had grave concerns as to its negative impact on her mental health and her ability to care for her children. She agreed to consider the situation for a few days. When Officer Reynolds tried to contact her by phone a few days later she did not pick up. He has not heard from her since then.

[16] In cross-examination, Officer Reynolds said he spoke to R.W. no more than six times on the phone. The frequency of communication he had with her was the least he had experienced with a victim in such investigations.

EVIDENCE OF OFFICER ROB HEITZNER

[17] Officer Rob Heitzner has been a member of TPS for 32 years. In April and May 2018, he worked in the human trafficking unit.

[18] On April 23, 2018, he received information that R.W., a dual Canadian/American citizen, was at the United States Embassy in Toronto, and reported that she had been a victim of human trafficking. She was seeking an emergency passport. Officer Heitzner spoke to her and she agreed to go with police officers to TPS headquarters to provide a formal statement. She said she was fearful of the persons involved. She also said she had a relative who lived in the United States who was supportive of her. The officers arranged for her to stay at a safe place.

[19] Officer Heitzner received information that R.W. faced outstanding criminal charges in Newfoundland. The charges related to bad cheques as well as assaults and threats arising from a family situation. She was scheduled to appear in court on those charges in a few days. If she did not appear there could be a warrant issued for her arrest. Officer Heitzner preferred to sort out the outstanding charges here before she left for the United States. R.W. was unhappy about that. She wanted to leave Canada to stay with her relative in the United States.

[20] Officer Heitzner contacted her lawyers in Newfoundland as well as Crown counsel on those matters. The charges had not yet been set for trial. It was agreed that there would be a discretionary bench warrant rather than a warrant for her arrest for not appearing in court.

[21] On April 27, 2018, Officer Heitzner met with R.W. at her safe location in Toronto. She said she planned to fly to the United States on the following Monday. When the police went to meet with her on the Monday, they learned that she had already left Canada on a flight the prior Friday. Officer Heitzner did not have any direct contact with R.W. after that.

[22] In cross-examination, Officer Heitzner said it was not likely that the authorities in Newfoundland would have sought R.W.’s return to face charges there since she was a victim of human trafficking. It was ultimately up to the Crown and counsel in Newfoundland as to how those charges would be dealt with. Officer Heitzner did not look into the issue of R.W.’s compellability at trial if she left Canada. He would not have arrested her on the outstanding charges in Newfoundland in order to keep her in Canada.

THE LAW – KHELAWON

[23] Trial fairness embraces more than rights of the accused. The fairness of the trial must also be assessed in the light of broader social concerns. They include society’s interest in having the trial process arrive at the truth, R. v. Khelawon, 2006 SCC 57, 2 S.C.R. 787, at para. 48.

[24] In Khelawon, the Supreme Court addressed the admissibility of statements under a principled exception to the hearsay rule. The Court also addressed the factors to be considered in determining whether hearsay statements are sufficiently reliable to be admissible. The governing framework was set out in para. 42:

1. Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place.

2. A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach. The exception can be modified as necessary to bring it into compliance.

3. In “rare cases”, evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case.

4. If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire.

[25] Prior to admitting hearsay statements under the principled exception to the hearsay rule, the trial judge must determine on a voir dire that necessity and reliability have been established. The onus is on the person who seeks the admission of such evidence to establish the criteria on a balance of probabilities, Khelawon, at para. 47.

[26] Evidence that is necessary may not be admissible unless it is sufficiently reliable to overcome the dangers arising from the difficulty of testing it. In some cases, the contents of the hearsay statement may be so reliable that contemporaneous cross-examination of the declarant would add little, if anything, to the process. In other cases, the evidence may not be so cogent, but the circumstances will allow for sufficient testing of the evidence by means other than contemporaneous cross-examination. In those circumstances, the admission of the evidence will rarely undermine trial fairness. Even if the two criteria are met, the trial judge has the discretion to exclude hearsay evidence where its probative value is outweighed by its prejudicial effect, Khelawon, at para. 49.

[27] There is a distinction between “ultimate reliability”, and “threshold reliability”. Only the latter is inquired into on the admissibility voir dire, Khelawon, at para. 50.

[28] On the admissibility inquiry, the relevance of any particular factor will depend on the particular dangers arising from the hearsay nature of the statement, and the available means, if any, of overcoming them, Khelawon, at para. 55.

[29] Under the principled approach, the reliability requirement is aimed at identifying those cases where the inability to test hearsay evidence is sufficiently overcome to justify receiving the evidence as an exception to the general exclusionary rule. The reliability requirement is usually met in two different ways. One is to show that there is no real concern about whether the statement is true or not because of the circumstances in which it came about. Another way is to show that no real concern arises because, in the circumstances, truth and accuracy can, nonetheless, be sufficiently tested, Khelawon, at paras. 61 to 63.

[30] Generally, a witness’s testimony before a preliminary hearing will satisfy the test for threshold reliability, since the fact that it was given under oath, or affirmation, and subject to contemporaneous cross-examination in a hearing involving the same parties, and mainly the same issues, will provide sufficient guarantees of trustworthiness. Internal contradictions in the testimony relate to the ultimate assessment of the actual probative value of the testimony, a matter for the trier of fact, Khelawon, at paras. 91 to 92.

[31] In R. v. Bradshaw, 2017 SCC 35, 1 S.C.R. 865, the Supreme Court revisited the principles set out in Khelawon:

1. In assessing threshold reliability, the trial judge must identify the specific hearsay dangers presented by the statement and consider any means of overcoming them. The dangers relate to the difficulties of assessing the declarant’s perception, memory, narration, or sincerity, and should be defined with precision to permit realistic evaluation of whether they have been overcome, at para. 26.

2. Substitutes for traditional safeguards include a video recording of the statement, the presence of an oath or affirmation, and warning about the consequences of lying. However, some form of cross-examination, such as preliminary hearing testimony, or cross-examination of a recanting witness at trial is usually required, at para. 28.

3. To assess inherent trustworthiness, the trial judge can consider the circumstances in which it was made, and evidence (if any) that corroborates, or conflicts with the statement, at para. 30.

4. At para. 57, the Supreme Court addressed the value of corroborative evidence in the substantive reliability inquiry:

   1. In sum, to determine whether corroborative evidence is of assistance in the substantive reliability inquiry, a trial judge should:

      a. Identify the material aspects of the hearsay statement that are tendered for their truth,

      b. Identify the specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case,

      c. Based on the circumstances, and these dangers, consider alternative, even speculative, explanations for the statement; and

      d. Determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out those alternative explanations such that the only remaining likely explanation for the statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement.

[32] The reference to “speculative” explanations in Bradshaw, “… must be plausible on a balance of probabilities, and any speculative explanation that does not survive such scrutiny, is to be rejected … not just any speculative explanation or fanciful idea suffices to abort the threshold reliability analysis – only those that are, on reflection, reasonably plausible.” R v. McMorris, 2020 ONCA 844, 398 C.C.C. (3d) 179, at para. 34.

[33] The situations that can give rise to necessity include where the declarant is outside the compulsion of the court, despite reasonable efforts to procure their attendance, either because they cannot be found, or are outside the jurisdiction of the court. Another situation is where a witness refuses to testify. R v. Abdulkadir, 2020 ABCA 214, 391 C.C.C (3d) 482, at para. 99.

[34] Necessity can be established when a witness dies, recants, or refuses to testify, McMorris, at para. 22.

[35] Counsel also provided me with the recent case of R v. SBS, 2022 ONSC 1075. In that case Justice Vallee considered whether the complainant’s statement at the preliminary hearing could be admitted at trial when defence had no opportunity to cross-examine the complainant. Despite the absence of cross-examination in SBS, the statement was procedurally reliable. The complainant was cautioned on the consequences of lying that it could be used in court, the statement was videotaped, and the complainant provided a written affirmation to tell the truth (at paras. 28-29).

[36] However, the jurisprudence does not indicate that both procedural reliability and substantive reliability need to be found for the statement to meet the threshold level of reliability (SBS at para. 36). If a statement is found to be procedurally reliable, an application judge can end the inquiry and admit the statement (SBS, at para. 36).

ANALYSIS

[37] The Crown alleges that R.W. was recruited by Daylo Robinson to travel from her home in Newfoundland to Toronto to engage in unspecified work for payment. Daylo Robinson arranged for, and paid, her travel expenses. After her arrival, he paid her taxi and rental accommodation as well. It is alleged that once R.W. was in the Toronto area, she was persuaded, and coerced, into prostitution with the proceeds being paid to Daylo Robinson and Rebecca Horton. R.W. was strictly controlled by the three accused, and was provided with a minimal amount of food and spending money. While she was under the control of the three accused, she alleges she was sexually assaulted by Tyler Vickers. The control by Daylo Robinson was exerted through threats. Rebecca Horton, and Tyler Vickers kept very close control of R.W.

[38] R.W. later told members of TPS that she escaped when the three accused were passed out or sleeping. She went to the United States Embassy in Toronto as a dual citizen, and reported that she had been abused, and subjected to human trafficking, and other offences.

[39] R.W. now resides outside Canada, and refuses to participate at this trial, either in person or by video conference, from her remote location. Her evidence is potentially available for the trial in the following forms:

1. The sworn audio/video statement of April 23, 2018, with a complete transcript of 242 pages.

2. Her sworn testimony, and extensive cross-examination, at the preliminary hearing on July 31, and August 1, 6, 7, 8, 9, 12, and 13, 2019.

3. The complete audio recording of proceedings at the preliminary hearing to accompany the transcripts for those dates.

[40] In terms of procedural reliability, the three accused stand in different positions. Counsel for Vickers had completed his cross-examination at the preliminary hearing. Counsel for Robinson had not completed her cross-examination when R.W. was no longer available to testify. Counsel for Horton had not commenced any cross-examination before R.W. was no longer available.

[41] In terms of substantive reliability, there are several areas where the potential evidence of R.W. is corroborated by other aspects of the police investigation.

[42] The three accused have a common interest and goal of challenging the credibility and reliability of the evidence of R.W. The cross-examination by counsel for Vickers and Robinson at the preliminary hearing, dealt with issues that counsel for Horton can, and should, refer to in challenging the evidence of R.W. Horton clearly shares an interest in challenging the credibility and reliability of R.W.

[43] I am satisfied that a combination of procedural and substantive reliability constitutes threshold reliability for the admissibility of the sworn video statement, dated April 23, 2018, for the truth of its contents against all three accused. That statement, plus the preliminary hearing transcript, and audio record, provides significant information to challenge the evidence of R.W. The audio of her testimony at the preliminary hearing provides a valuable record of more than just what she said. It will inform the jury as to her demeanor, and conduct, as she was cross-examined for many days.

[44] Based on various aspects of corroboration, there are substantive reliability implications for all three accused. This aspect is particularly significant for Horton, since there is less procedural reliability due to the preliminary hearing ending with a direct indictment by the Crown.

[45] R.W. repeatedly told members of TPS that her involvement in the prosecution of this case was causing her extreme anxiety and mental distress. The audio portion of her testimony at the preliminary hearing included loud and sometimes profane outbursts that reflected her anxiety, anger, and distress. The presiding justice at the preliminary hearing made great efforts to calm R.W. and urge her to do her best in answering the questions. The presiding justice also expressed concern for the impact of the ongoing court process on R.W. She appeared to be traumatized. This was clearly not a case where a witness casually declined further participation in the process for no valid reasons. The very nature of the allegations, and the protracted cross-examinations, weighed heavily on her. This in no way reflects adversely on counsel for the accused. They had a job to do, and were obliged, to ask many difficult and sensitive questions in defence of their clients.

[46] I am satisfied that the TPS, and Crown Counsel, took reasonable steps throughout to have R.W. participate in this process. The Crown successfully applied for an order permitting R.W. to testify at trial by remote video. It is agreed that there is no legal process to enforce her participation in person or by video since she resides outside Canada. The defence submit that the TPS, and Crown, should have done more to ensure her participation at trial.

[47] I fail to see any motive for the prosecution to not have R.W. testify in person, or by remote, at trial. In my view, they took reasonable steps to stay in contact with her, and provide the available support if she would participate.

[48] Necessity has been established.

[49] The material aspects of the statement of April 23, 2018, are the allegations that the three accused victimized R.W. in committing numerous offences related to human trafficking. R.W. also alleged that Tyler Vickers sexually assaulted her. The respondents submit that the inability to confront R.W. by cross-examination in person, or by remote, at trial, is the specific hearsay damage raised. As highlighted in SBS, the inability to cross-examine R.W. does not mean the hearsay statement will fail to meet the threshold level of reliability. The concerns raised by the defence must be considered in the context of all the evidence and goes to the question of ultimate reliability which is determined after all of the evidence is presented at trial (SBS, at para. 38).

[50] The respondents further submit that R.W. engaged in the sex trade of her own volition and was not persuaded, or coerced, to do so by them individually or in concert.

[51] On this application, the Crown referred to extensive evidence that corroborates R.W.’s version of events. This begins with the circumstances of her travelling to Toronto from Newfoundland. The list of corroborative evidence includes the following:

• Text messages between Daylo Robinson, and R.W. inviting her to travel to the Toronto area for unspecified work for payment.

• Evidence confirming that Robinson paid for her airfare, and taxi transport.

• Hotel records that show a room was reserved in her name upon her arrival.

• After her arrival, an advertisement under her photo for her sexual services with Daylo Robinson’s phone number as the contact.

• Motel records that R.W. stayed at another location arranged and paid for by Robinson.

• A police report from a desk clerk at a motel, where R.W. was staying with the three accused, who confirmed that R.W. asked for directions on the day she escaped the situation.

• Extraction records from Rebecca Horton’s phone showing that she and Daylo Robinson were controlling and benefiting from R.W.’s sexual services. In one exchange, Robinson sends Horton a message about R.W., “… tell (her) to use a fucking condom. I don’t need her catching herpes, and not being able to do shit”.

• Voluminous credit card records for Daylo Robinson showing charges for motels, advertising, and cash deposits, in the face of his claim to be unemployed at the relevant time.

• Multiple e-transfers of money sent to Daylo Robinson from R.W., and Rebecca Horton, during the relevant time period.

• Multiple e-transfers of money to Rebecca Horton’s account from R.W., and Daylo Robinson.

• A knife, and bear mace, found on execution of a search warrant at an apartment shared by the three accused. These items were referred to in R.W.’s statement, of April 23, 2018.

• Photos sent between Robinson and Horton of R.W. in various states of undress. There are also photos of R.W., and Horton, together advertising “duos” for hire, and sexual services.

CONCLUSION

[52] The combination of procedural, and substantive reliability establishes the threshold reliability of the sworn video statement dated April 23, 2018. The extensive preliminary hearing transcript and audio record provides significant ammunition for counsel for all three accused to challenge the credibility, and reliability, of R.W.

RESULT

[53] The sworn video statement, of April 23, 2018, is admissible for the truth of its content at trial. The preliminary hearing transcript, and audio is not admissible for the truth of its content.

B.P. O’MARRA J.

Released: December XX, 2022

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

DATE: 20221128

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Applicant

– and –

DAYLO ROBINSON Respondent

– and –

REBECCA HORTON Respondent

– and –

TYLER VICKERS Respondent

RULINGS ON APPLICATION TO ADMIT OUT OF COURT STATEMENTS OF A WITNESS AT TRIAL

B.P. O’MARRA J.

Released: December XX, 2022