COURT FILE NO.: CRIM J(P) 165/23 DATE: 2024 03 01

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – JC and DB Accused

Counsel: S. Stackhouse, for the Crown M. Martin, for JC D. Goodman, for DB K. Bryan, for the Complainant

HEARD: February 14, 2024

REASONS FOR DECISION OTHER Sexual Activity Applications

Restrictions on publication: By court order made under subsection 486.4(1) of the Criminal Code, RSC 1985, c C.46, information that may identify the person described in this judgment as the complainant may not be published, broadcasted, or transmitted in any manner. Under section 648(1) of the Criminal Code, no information about this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict. This publication has expired on _____________, 2024.

The Honourable JUSTICE Ranjan K. AGARWAL

I. INTRODUCTION

[1] The accused JC is charged with several offences, including trafficking in persons (Criminal Code, s 279.01), material benefit from trafficking (s 279.02), receiving a material benefit from sexual services (s 286.2), and procuring (s 286.3).

[2] The defence seeks: (a) production of third-party records relating to the complainant under section 278.3(1) of the Criminal Code; and (b) leave to adduce evidence that the complainant has engaged in other sexual activity under section 276(2). The Crown seeks leave to adduce evidence of the complainant’s other sexual activity under the common law principles set out in R v Seaboyer, [1991] 2 SCR 577.

[3] Though the charged offences aren’t enumerated in section 276(1), Justice Mirza held the other sexual activity screening regimes apply to this case. See R v JC, 2023 ONSC 6093.

[4] In R v JC, 2024 ONSC 765 (which was my reasons for decision on Stage One of JC’s third-party records application), I ordered that the Crown produce the following records to the court for review by a judge: (a) the police records from the investigation into the alleged threats made to the complainant between January 13, 2023, and January 16, 2023; and (b) any police records containing communications between Detective Constable Greg Vandekerckhove and the complainant regarding JC.

II. FACTS

A. Background Facts

[5] The complainant met the accused in August or September 2021 in Oshawa. She alleges that he recruited her into the sex trade. He allegedly paid for hotel rooms for in-calls, drove her to out-calls, posted photos of her online, drugged her, and threatened to assault her. The complainant alleges that all the money she made was turned over to the accused and she wasn’t able to keep any of it.

[6] The complainant gave a statement to the police on September 14, 2021. Among other things, the complainant advised the police:

• she goes by “Ash” “in the street”
• about 5 or 6 days before the police interview, she was walking in Oshawa when she heard her name “Ash”
• JC posted photos of her on sex trade websites, which he took off her old phone that she had saved from years ago
• she was “trafficked for almost three years”

[7] The complainant had worked in the sex trade for several years before this incident. The police interviewed the complainant in March 2021 as part of another unrelated human trafficking investigation. The complainant told the police that she couldn’t “answer…accurately” whether she was working independently from May to July 2020. The police notes state that the complainant confirmed she was working independently at the time of the interview.

B. Litigation History

[8] The pretrial applications were scheduled for December 2023. The trial was scheduled for February 2024. The applications were adjourned to January 23, 2024, because several third-party records weren’t available.

[9] Due to scheduling issues, the hearing couldn’t start that day. The assignment court judge ordered that the parties’ other sexual history applications would proceed at the start of the trial. Stage One of the third-party records application was heard on January 26, 2024, and February 1, 2024. I provided an oral decision immediately after the hearing and released written reasons on February 5, 2024.

[10] On February 2, 2024, the court adjourned the trial to start on June 17, 2024. The court directed that the parties’ other sexual history applications and Stage Two of the third-party records application should proceed during the time previously scheduled for the trial. The applications were heard orally on February 14, 2024.

[11] On the third-party records application, the Crown and the complainant argued that only some records should be produced to the accused, specifically pages 30, 92-99, 124-140, 165-171, 231-234, 260-261, and 354-356 of the investigation records and all of the communication between DC Vandekerckhove and the complainant, subject to the redaction of personal identification information. As a result, I held a brief hearing, in the absence of the jury and the public, to help me make a determination whether the other records should be produced to the accused. I provided an oral decision immediately, which is repeated below.

[12] On the other sexual history applications, the parties conceded that the evidence sought to be adduced was capable of being admissible under section 276(2). As a result, the Stage Two hearing proceeded that day. I reserved my decision; these are my reasons.

[13] I heard these applications as the designated case management judge appointed under section 551.1, exercising the powers of a trial judge under section 551.2.

III. LEGAL FRAMEWORK

A. Third-Party Records

[14] When the judge orders the production of the record, in whole or in part, to the court, the judge must review it in the absence of the parties to determine whether any or all of it should be produced to the accused. See Criminal Code, s 278.6(1). The judge may hold a hearing in the absence of the jury and the public if the judge considers that such a hearing will help make the determination. See Criminal Code, s 278.6(2).

[15] If the judge is satisfied, after reviewing the record, that it’s likely relevant and its production is necessary in the interests of justice, the judge may order that the record be produced in whole or in part to the accused, subject to any conditions that may be imposed under section 278.7(3). See Criminal Code, s 278.7(1).

[16] In determining whether to order production to the accused, the judge must again “consider the salutary and deleterious effects of the determination on the accused’s right to make a full answer and defence and on the right to privacy, personal security and equality of the complainant or witness, as the case may be, and of any other person to whom the record relates”. The judge must perform this assessment by taking account once again of the factors set out at sections 278.5(2)(a)-(h). See Criminal Code, s 278.7(2).

B. Other Sexual History: Accused’s Application

[17] In this proceeding, evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, isn’t 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 (i.e., the twin myths). See Criminal Code, s 276(1).

[18] 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 determines, under the procedures set out in sections 278.93 and 278.94, that the evidence:

(a) isn’t being adduced to support one of the twin myths;

(b) is relevant to an issue at trial;

(c) is of specific instances of sexual activity; and

(d) has significant probative value that isn’t substantially outweighed by the danger of prejudice to the proper administration of justice.

See Criminal Code, s 276(2).

[19] Application may be made to the judge by or on behalf of the accused for a hearing under section 278.94 to determine whether evidence is admissible under subsection 276(2). See Criminal Code, s 278.93(1). An application must set out “detailed particulars” of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial. See Criminal Code, s 278.93(2).

[20] Specific Instance. A consideration of the admissibility of evidence of other sexual activity tendered under section 276(2) must begin with a “clear understanding of the nature of the evidence” the defence seeks to introduce. A finding of relevance and a balancing of probative value against prejudicial effect, both of which are prerequisites to admissibility under section 276(2), can only be “properly done” if the nature of the proposed evidence is clearly articulated. “Bare assertions” that such evidence will be relevant to “context, narrative or credibility” can’t satisfy section 276(2). Evidence of other sexual activity runs the real risk of “derailing a trial by turning it into an inquiry about the complainant’s sexual character” rather than the accused’s guilt. Far-ranging cross-examination of complainants about other sexual activity runs the risk of “intimidating, humiliating, and distracting the complainant” during their testimony. See R v LS, 2017 ONCA 685, at paras 65-66; R v Goldfinch, 2019 SCC 38, at paras 51, 53.

[21] Relevance. Relevance is fact-specific. It depends on the material facts in issue, the evidence introduced, and the positions of the parties. Evidence doesn’t have to establish or refute a fact in issue to be relevant; it need only, as a matter of “common sense and human experience”, have some tendency to make the existence or non-existence of that material fact more or less likely. See LS, at paras 86, 89. The relevant issue can’t be one of the twin myths barred by section 276(1). There will, of course, be circumstances in which “context will be relevant for the jury to properly understand and assess the evidence.” That assessment, however, must be free of twin-myth reasoning. “General arguments” that the sexual nature of a relationship is relevant to context, narrative, or credibility won’t suffice. See Goldfinch, at para 65.

[22] Probative value. The final step in the section 276 analysis requires judges to balance the probative value of proposed evidence against the danger of prejudice to the proper administration of justice, taking into account the factors set out in section 276(3). Balancing the section 276(3) factors ultimately depends on the nature of the evidence being adduced and the factual matrix of the case. It will depend, in part, on how important the evidence is to the accused’s right to make full answer and defence. See Goldfinch, at para 69.

[23] If the judge is satisfied that the evidence sought to be adduced is capable of being admissible under subsection 278.92(2) (Stage One), the judge shall grant the application and hold a hearing under section 278.94 to determine whether the evidence is admissible under subsection 276(2) (Stage Two). See Criminal Code, 278.93(4); R v JJ, 2022 SCC 28, at paras 23-31.

[24] For evidence of a complainant’s other sexual activity (whether contained in a “record” or otherwise), section 278.92(2)(a) requires the judge to determine whether the evidence is admissible based on the conditions in section 276(2), as informed by the factors listed at section 276(3). See JJ, at para 31.

C. Other Sexual History: Crown Application

[25] The prohibition against such evidence applies even when the Crown adduces the evidence. See R v Barton, 2019 SCC 33, at para 80; Goldfinch, at para 75.

[26] The Crown may lead evidence of consensual sexual conduct on the part of the complainant purposes other than the twin myths where it possesses probative value on an issue in the trial and where that probative value isn’t substantially outweighed by the danger of unfair prejudice flowing from the evidence. See Seaboyer, at 584.

[27] The factors that the judge is directed to consider under section 276(3) applies to the Crown through section 276 codifying the principles in Seaboyer. See R v Darrach, 2000 SCC 46, at para 20.

IV. PRELIMINARY ISSUES

A. Complainant’s Counsel’s Participation

[28] The complainant’s rights of participation specifically apply to Stage Two hearings. See R v JJ, 2022 SCC 28, at para 99. Here, a practical issue arose: the complainant’s counsel attended the hearing to participate in Stage Two of JC’s third-party records application and other sexual history application. But the defence opposed the complainant’s participation in the Crown’s Seaboyer application.

[29] The Crown and the complainant point to R v RV, 2019 SCC 41, at para 79, where the Supreme Court of Canada said it would be “prudent” for Crown and defence applications to be heard at the “same time”. As I explain below, hearing the applications together allowed me to “more accurately assess the impact” of admitting the evidence and “appropriately tailor ways” for its introduction.

[30] In R v LF, 2020 ONSC 6790, Justice Goldstein held that the complainant didn’t have participation rights in the Crown’s Seaboyer application. He acknowledged that the complainant may have standing “in the exercise of [the trial judge’s] trial management function”, although “such cases would be rare” (at para 26).

[31] LF was only about Crown-led evidence. As a result, there weren’t two applications being heard together, as here. In this case, the Crown and the complainant were aligned in their position on the Crown’s Seaboyer application. Finally, the issues in the two applications were intertwined to the point that separating them to exclude complainant would’ve been impractical. As a result, I ordered that the complainant’s counsel could make oral submissions at the hearing.

B. Records in the Possession of the Accused

[32] As discussed below, the defence seeks to cross-examine the complainant on text messages between her and JC. The complainant asserts that if JC intends to introduce these messages for a non-sexual purpose, he must screen them under section 278.92 of the Criminal Code.

[33] Though the defence’s notice of application refers to section 278.92, this issue wasn’t briefed by the parties. It also wasn’t clear, at the application hearing, whether JC intended to introduce some or all of the messages for a non-sexual purpose. Finally, the Crown advised that it intended to adduce the text messages into evidence.

[34] As a result, the parties conceded and I agree that this issue is best left to the trial judge. That said, if this issue remains in dispute, the parties should raise it with the court as soon as possible, given that this matter is proceeding before a jury and the complainant has participation rights.

V. ANALYSIS AND DISPOSITION

A. Some of the Third-Party Records Should Be Produced

[35] Again, the Crown and the complainant don’t oppose some records being produced to the accused. I’m satisfied that these records are likely relevant and their production is necessary in the interests of justice. As a result, I order that the records may be produced to the accused, subject to them being edited to sever personal identification information, such as telephone numbers.

[36] I reviewed the records in the absence of the parties to determine whether any other records should be produced to the accused. I’m satisfied that the other records produced to the court aren’t likely relevant, in that there’s no reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify. The production of these remaining records would be unnecessarily time-consuming with no probative value.

B. Other Sexual History

[37] The issue engaged by this evidence is whether the complainant was providing sexual services independently before the offence period, during the offence period, and after the offence period. JC’s application relates to Crown-led evidence so I deal with the applications together.

[38] Before the hearing, the defence abandoned its request to adduce evidence about alleged sexual contact between either of the accused and the complainant. The defence sought to adduce evidence about the complainant’s knowledge of JC before August 2021 but, during the hearing, it conceded that this wasn’t evidence of other sexual history.

1. Complainant’s Prior Involvement in the Sex Trade

[39] On first blush, this evidence’s admissibility seems pretty straight-forward. But as disclosed by the parties’ oral arguments at the hearing, the effect of the admissibility of this evidence raises competing positions between the Crown, the complainant, and the defence. This issue is complicated by the fact that the complainant’s evidence, so far, isn’t linear. It’s challenging, based on the bits and pieces filed to date, to know exactly what her narrative is. Perhaps during her examination in chief, the narrative becomes clearer, rendering some of these issues either obviously relevant or moot.

[40] The Crown seeks to introduce evidence of the complainant’s prior involvement in the sex trade. It proposes to do so through a factual admission: “The complainant was involved in the sex trade industry for several years prior to August 2021, that there were sexual photographs of her on her phone, some of which were previously used in ads, and that a name she used while involved in the sex trade was ‘Ash’”. The Crown argues that it will be impossible for the complainant to explain her narrative without disclosing her prior involvement in the sex trade. In doing so, she’ll have to explain how JC obtained photos of her and how he knew her trade name.

[41] The defence doesn’t oppose the Crown’s position, provided the evidence doesn’t stray into evidence about the complainant previously being trafficked.

[42] The defence seeks to adduce into evidence the sexual photographs used in the ads from the offence period. The Crown intends to put these ads and photographs into evidence, so it doesn’t oppose the defence’s request. But the complainant argues that only one of the photos was created before the offence period and to advertise sexual services. As a result, she contends that questions about the other photographs should be limited to whether JC took the photos or if they were already on her phone. If JC didn’t take the photos, the complainant argues that the purpose for taking the photos isn’t necessary or admissible.

[43] The defence responds that there’s some evidence that the complainant was working independently on at least two specific instances before August 2021 and, as such, it’s relevant whether she voluntarily took these photos as part of that sex work. The defence also wants to cross-examine the complainant on “what she had control over, the distribution of proceeds and cost sharing arrangements, including for hotel rooms.” This last inquiry arises from the complainant’s information that she was sharing a room at the EST Hotel with JC’s girlfriend while working in the sex trade in 2020.

[44] The defence relies on R v Williams, 2020 ONSC 6347. In that case, the accused was charged with procuring. The defence sought to question the complainant on her experience working in the sex trade before meeting the accused and after their relationship ended because it was relevant to her credibility. In paragraph 59, Justice Stribopoulos held that such evidence “appears relevant”:

If true, it makes it slightly less probable, as a matter of logic and common sense, that the complainant’s involvement in that industry during the period charged in the indictment was due to the accused’s actions and by implication, much more significantly, that he exerted influence over her for that purpose.

The defence argues that, as a matter of judicial comity, I should follow Williams. In other words, a complainant’s past and future sex work is prima facie relevant. The Crown and the complainant argue that Williams engages in twin-myths reasoning.

[45] I disagree with the defence. Justice Stribopoulos’s statement has to be read in the context of that case. In an earlier decision, he held that section 276(1) doesn’t apply to the offence of procuring. See R v Williams, 2020 ONSC 206. In the decision relied on by parties here, he declined to apply a common law screening regime like Justice Dennison did in R v MD, 2020 ONSC 951. Given that Justice Stribopoulos wasn’t concerned with the other sexual activity regime, I don’t read his decision as holding that this type of evidence is also always relevant in cases under that regime (as here).

[46] The Crown replies that if the defence cross-examines the complainant on whether she was working independently in May to July 2020 or March 2021, the Crown should be allowed to introduce evidence about the complainant being trafficked before the offence period. The defence responds that the Crown can elicit evidence about the complainant being trafficked connected to those two earlier periods but not otherwise.

[47] At this stage, I’m satisfied that this evidence is relevant to issues at trial (and it’s not being adduced to support one of the twin myths). I agree that it will be almost impossible for the Crown to elicit the complainant’s narrative about what happened to her during the offence period without discussing her prior sex work. The complainant’s response to JC using her street name or her use of sex work terms and practices would be too difficult to excise from her evidence or, even if possible, it might leave the jury confused about her evidence.

[48] I also agree that the defence should be allowed to cross-examine the complainant on whether her prior sex work was independent—it’s relevant to the complainant’s credibility. I don’t believe the defence is making a “bare allegation” given the complainant’s statements to the police. This evidence is important to the defence narrative.

[49] In the Stage One ruling on JC’s third-party records application, I found that the inconsistencies between the complainant’s September 2021 statement that she’d been trafficked for almost three years wasn’t “materially different” evidence from the March 2021 evidence. There, I was asked to consider the inconsistency to order production of the police records from other trafficking allegations. That inquiry raised different issues than here, including that the Crown will be adducing sexual photos that the complainant says she took before the offence period.

[50] Once those photos are in evidence, the defence should be allowed to explore:

• whether the photos were on the complainant’s phone before she met JC in Fall 2021
• if the photos were on her phone before Fall 2021, whether she took the photos for providing sexual services
• whether she took the photos in May to July 2020 or March 2021 (the two periods for which there’s some evidence she was working independently)
• whether she took the photos voluntarily
• if she took the photos voluntarily, whether she was working independently, in that whether she had control over the money she earned or the cost of providing the sexual services, such as for hotel rooms

[51] Finally, I also agree that the Crown should be allowed to adduce evidence about whether the complainant was being trafficked in and around the times she says she was working independently. This context will be relevant for the jury to understand and assess the evidence.

[52] In total, this evidence has significant probative value. Though there’s some danger of prejudice, sexual history evidence always carries a potential for prejudice. To that end, it would be prudent to use an agreed statement of facts or leading questions, or pre-vetting the complainant’s anticipated evidence with the trial judge so that neither party strays into introducing evidence that isn’t reasonably connected to this line of inquiry.

2. Text Messages Between JC and the Complainant

[53] JC and the complainant texted each other in August and September 2021. The defence seeks to cross-examine the complainant on these text messages, including several messages that are about the complainant’s other sexual history:

• on August 24, 2021, JC and the complainant discussed services she intended to provide to “2 guys on way for 1020”—JC suggested that they “come up one at a time” and the complainant responded “I’ve done it b4 I’ll be ok n they don’t have enough time too”
• on August 25, 2021, the complainant texted JC “Idk what I was thinking putting myself in this program ur stuck wit me for good lol ash is permanently back”
• on September 2, 2021, JC asked the complainant where she was—she responded “Jus at falls smoking blunt with this guy then he’s dropping me off n leaving”

[54] The defence argues that these messages contradict the complainant’s evidence that JC trafficked her in late August and early September as they show she was working independently from JC or had control over her own movements.

[55] The Crown intends to introduce into evidence all these text messages. It doesn’t oppose the defence’s request. The complainant argues that the complainant’s meaning in these texts is unclear, so there’s no evidence of “specific instances of sexual activity” (especially the August 25th message). Alternatively, the complainant argues that the defence should pre-vet its questions to avoid straying beyond the scope proposed by the defence.

[56] This evidence isn’t being adduced to support one of the twin myths. Given the complainant’s evidence that she was trafficked by JC from when she met him in Oshawa until her September 14th police statement, the August 24th and September 2nd messages are relevant to credibility and narrative. Again, this evidence is part of the defence narrative.

[57] The August 25th message is ambiguous. The complainant could be using “program” as a euphemism for the sex trade and “permanently back” might mean that she’s returned to providing steady sexual services. Or it could mean something entirely different. In either event, the defence can cross-examine the complainant on this text message. If the complainant was writing about her past sexual history, the evidence is relevant to credibility and narrative like the other messages. If she wasn’t, the message doesn’t engage her other sexual history.

3. Text Messages Between DC Vandekerckhove and the Complainant

[58] On September 15, 2021, DC Vandekerckhove texted the complainant: “More importantly, no independent work for now.” The defence seeks to cross-examine the complainant on this evidence. The defence argues that it’s relevant to whether the complainant was providing sexual services independently before September 15th (which would include the periods both before and during the offence period).

[59] This evidence isn’t admissible because it’s not about a “specific instance of sexual activity”. The basis for the defence’s request is a text is sent by DC Vandekerckhove—it’s unclear what period he’s referring to. The complainant doesn’t respond to this specific part of the message. There’s too great a risk that cross-examination on this statement would lead into an “unnecessary incursion” into all of the complainant’s sexual life before September 15th.

4. Police Records

[60] In the records from the January 2023 investigation, the police’s notes suggest that the complainant was providing sexual services independently at that time. The defence seeks to cross-examine the complainant on these records. Though it’s ambiguous, I’m prepared to accept that the police note refers to a specific instance of sexual activity on January 13, 2023.

[61] But this evidence isn’t admissible because it isn’t relevant. Even if the complainant were working independently in January 2023, that isn’t probative of whether the accused forced her to provide sexual services in August or September 2021. It risks engaging the myth that the complainant is more likely to have engaged in voluntary sex work during the offence period only because she also engaged in voluntary sex work later. See R v AM, 2019 ONSC 7293, at para 39. The defence repeats its reliance on Williams—for the reasons discussed above, I don’t believe Williams applies here.

V. CONCLUSION

[62] The accused’s application for production of third-party records relating to the complainant under section 278.3(1) of the Criminal Code is granted in part. I endorse an order that the Crown produce the following records to the accused, subject to the redaction of personal identification information: (a) pages 30, 92-99, 124-140, 165-171, 231-234, 260-261, and 354-356 of the investigation records; and (b) all of the communication between DC Vandekerckhove and the complainant.

[63] The remaining records sought by the accused aren’t likely relevant to an issue at trial or production isn’t necessary in the interests of justice. As a result, the application for those records is dismissed.

[64] The parties’ applications to adduce evidence of the complainant’s other sexual history is granted, in part:

• the Crown can introduce evidence that the complainant participated in the sex trade industry for several years before August 2021, that there were sexual photographs of her on her phone, some of which were previously used in ads (including putting the photos and ads into evidence), and that a name she used while involved in the sex trade was “Ash” (ideally through an agreed statement of facts)
• the defence can cross-examine the complainant on whether the photos were on her phone before she met JC in August 2021; whether she took the photos to provide sexual services and, if so, whether she did so in May to July 2020 or March 2021 and voluntarily; and whether she was working independently at that time
• the Crown can adduce evidence whether the complainant was being trafficked in and around the times she says she was working independently
• the defence can cross-examine the complainant on her text messages from August 24, 2021, August 25, 2021, and September 2, 2021, about whether she was working independently during the offence period

[65] Given the tricky nature of this evidence and the risk of spontaneous utterances that risk introducing evidence that strays beyond this ruling, I strongly urge the parties to consider some or all of the safeguards described in Goldfinch, such as an expanded agreed statement of facts, leading the complainant through this evidence, or pre-vetting the proposed questions and the anticipated evidence with the trial judge.

[66] Under section 278.9(1)(c) of the Criminal Code, given the interests of justice, such as the open courts principle and judicial comity, the court’s determination and these reasons may be published provided that no information that could identify a victim or witness is published, broadcast, or transmitted. The complainant’s and witness’s names have been anonymized.

Agarwal J.

Released: March 1, 2024