ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-21-1048-00 DATE: 2024 03 01
B E T W E E N:
HIS MAJESTY THE KING G. Hendry, for the Crown
- and -
AYUB SHARIFFABRAR, KOK DIANG, S. Pemberton, for A. Shariffabrar
AND NYANG DIANG A. Absiye, for K. Diang P. Singh, for N. Diang
HEARD: September 26, 2022
DECISION ON APPLICATION UNDER S.276 OF THE CRIMINAL CODE
André J.
[1] In a decision released on September 26, 2022, I ruled that the anticipated evidence with which the defendant seeks to cross-examine L.S., the complainant, is admissible in the trial and, as a result, a Stage Two hearing is warranted pursuant to s.276(2) of the Criminal Code (“the Code”).
SUMMARY OF THE TRIAL EVIDENCE
[2] L.S. testified that on or about May 25, 2020, she went to the home of a friend where she smoked weed and had a drink of alcohol. She lost all memory of what happened afterwards and woke up in the condominium of Mr. Shariffabrar. Over the next few days, he plied her with drugs and alcohol. He had her take sexually suggestive photographs which were posted on a site called Leolist on May 28, 2020, at 12:34 a.m. Video evidence adduced by the Crown, on consent, showed L.S. entering and exiting Mr. Shariffabrar’s residence sometimes accompanied by unknown males who appeared to remain in the residence for approximately ten to twenty minutes before exiting. L.S. testified that during the time she spent at the apartment, she was given such drugs as cocaine, Xanax, methamphetamine, and alcohol. She testified further that Mr. Shariffabrar also directed her to give him the money which she received for the sexual services she provided.
[3] Under cross-examination, it was revealed that L.S.’s cellphone connected to the Wi-Fi of a hotel in Guelph from May 29, 2020, from 11:07 p.m. to May 30, 2020, to 11:40 a.m., and to a Brampton hotel at 1:51 p.m. on May 30, 2020. It is the evidence on which the Applicants seek to cross-examine L.S.
GROUNDS FOR THE APPLICATION
[4] The Applicants provide the following grounds for the Application:
The Applicants believe that the questioning of L.S. is necessary on the issues for the following reasons:
a. To make full answer and defence, b. To test the nature of the relationship between the Applicants and L.S., c. To question L.S. as to why her cellphone device location was tagged on May 29, 2020, to May 30, 2020, at the “Days Inn” in Guelph and the “Monte Carlo Inn” in Brampton, on May 30, 2020, d. To question L.S. as to whether she was at these locations providing sexual services for consideration independently, voluntarily and willingly, prior to meeting the Applicants, which the evidence during trial suggests was on June 1, 2020, at the condominium on Brickstone Mews, in Mississauga.
[5] The Applicants maintain that the anticipated evidence is admissible given that:
a) The evidence does not engage the twin myths set out in s.276(1)(a) of the Code, b) The anticipated evidence has significant probative value that outweighs any prejudicial effect its admission may have, and c) The prejudice that may flow from the admission of the evidence is attenuated by the fact that this is a judge-alone trial.
COUNSEL FOR L.M.
[6] Ms. Lund submits that the anticipated evidence is irrelevant in that even if L.S. had sex for consideration on her own volition either in Guelph or Brampton prior to June 1, 2020, that does not constitute evidence that she was not procured to have sex against her will from June 1, 2020, to July 13, 2020.
[7] More egregiously, according to Ms. Lund, the intended use of the evidence would engage the myths, set out in s.276(1)(a) of the Code, in that the Applicants are submitting that sexual activity that does not form the subject matter of the charges should be used to suggest that L.S. is unworthy of belief.
THE CROWN’S POSITION
[8] Mr. Hendry succinctly submits that the evidence sought does not have significant probative value which outweighs its prejudicial effect. Furthermore, there is no evidence that the Leolist advertisement was on her phone. Finally, he submits that the only inference to be drawn from the evidence is that L.S. was involved in the sex trade prior to June 1, 2020 and that this evidence cannot be used to support an inference that she was unworthy of belief.
ANALYSIS
[9] In R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, the SCC noted that s.276 does not create a blanket exclusion of evidence of other sexual activity. It merely prohibits the admission of such evidence solely to support the inference that a complainant is more likely to have consented to the alleged assault or is less worthy of belief by virtue of that other sexual activity.
[10] The Applicants submit that adducing the cellphone device evidence is meant to challenge the complainant’s position that the Applicants procured her into providing sexual services for consideration. They submit, further, that the ability to question L.S. on these locations will provide the court with a more fulsome picture of the sexual services provided during the time period in the indictment without invoking the twin myths.
[11] Ms. Pemberton relies on the decision in R. v. Williams, 2020 ONSC 6347 to support her submissions regarding the anticipated evidence’s relevance. At para. 59, Stribopoulos J. noted, in a case involving similar charges, that “evidence of her involvement in the sex trade before the complainant became involved with the accused, or after their relationship ended, appeared 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.” Ms. Pemberton submits, further, that to minimize any prejudicial effects, the trial judge may prohibit any questioning about the salacious details about any sexual activity L.S. may have engaged in at hotels in Guelph and Brampton.
[12] I agree with Stribopoulos J.’s observation in Williams, at para. 60, that the complainant’s prior involvement in the sex trade does not necessarily foreclose the accused having encouraged her participation in the sex trade. Stribopoulos J. rightly noted however, that this possibility does not render the evidence irrelevant. As the Crown correctly points out, even someone who has voluntarily been involved in the sex trade could be coerced into being involved in the trade.
[13] I also adopt the following observant of Doherty J.A. in R. v. L.S., 2017 ONCA 685, 40 C.R. (7th) 351, at para. 89 that,
Evidence does not 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.
[14] In my view, the close proximity of the evidence of L.S. being at hotels in Guelph and Brampton a day or two before June 1, 2020, may, as a matter of common sense or human experience, have some tendency to make the existence or non-existence of the fact that the accused procured her to become involved in the sex trade more or less likely. To that extent, the evidence is relevant.
[15] Ms. Lund submits that there is no evidence that the mere fact of the two locations of L.S.’s cellphone on May 29 and May 30, 2020, is relevant to an issue at trial. I disagree. The evidence at trial is that sexually suggestive photos of L.S. were posted on a site called Leolist on May 28, 2020. This was not done on L.S.’s cellphone, however one of the pictures was located on her cellphone. She was involved in the sex trade from June 1 to July 13, 2020. This evidence raises a rebuttable inference that she was similarly involved in the sex trade on May 29 and May 30, 2020.
[16] Does the probative value of the anticipated evidence substantially outweigh its prejudicial effect pursuant to s.276(2)? In my view, it potentially does. It could conceivably make the central issue in the trial more or less likely. The potential prejudice of the evidence is minimal. The details of any sexual activity that L.S. may have engaged in on May 29 and 30, 2020, in the trial are irrelevant. What may be relevant is whether L.S. engaged in the sex trade during the period, and, if so, whether she did so of her own free will.
[17] In determining the admissibility of the evidence, I am obliged to consider the factors listed in s.276(3) of the Code. The following are relevant in the application:
a) The right of the accused to make full answer and defence, b) The fact that admitting the evidence does not erode society’s interest in encouraging the reporting of sexual assault offences given that questions of L.S. could be restricted to exclude any details concerning of sexual activity she may have engaged in during May 29 and 30, 2020, c) Whether there is a reasonable prospect that the evidence will assist in some way in arriving at a just determinant in the case, d) The fact that there is no potential prejudice to the complainant’s personal dignity or rights to privacy given her testimony regarding the period of June 1, 2020, to July 13, 2020, e) The trial judge’s discretion to prevent any questioning about any unnecessary details regarding of sexual activity L.S. may have engaged in during May 29 and May 30, 2020.
[18] Finally, the Crown submits that having a judge-alone trial does not eliminate the rush of moral prejudice despite the judge’s ability to disabuse himself of any such prejudice. I agree with the Crown that having a judge-alone trial does not eliminate the prejudicial effect of the anticipated evidence; see R v. McFarlane, 2022 ONSC 2084, at para. 21. After all, while judges may seek to disabuse themselves, in appropriate cases, of stereotypes relating to various categories of persons, particularly those involved in the sex trade, that does not eliminate the existence of unconscious bias. That said, a trial judge can be mindful of the potential effects such as bias, while engaged in the decision-making process.
CONCLUSION
[19] For the above reason, the application is allowed. The Applicants are allowed to cross-examine L.S. on her activities in Guelph and Brampton on May 29 and May 30, 2020.
André J. Released: March 1, 2024
COURT FILE NO.: CR-21-1048-00 DATE: 2024 03 01
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
- and -
AYUB SHARIFFABRAR, KOK DIANG,
AND NYANG DIANG
DECISION ON APPLICATION UNDER S.276 OF THE CRIMINAL CODE
André J. Released: March 1, 2024