Court File and Parties
COURT FILE NO.: CR-22-10000277 DATE: 20240311 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – NIMO ALI and CARLINGTON GRAHAM Applicants
Counsel: James Cruess, for the Respondent James Miglin, for the Applicant, Nimo Ali Steven Hinkson, for the Applicant, Carlington Graham
HEARD: November 16 and 23, 2023
B. P. O’MARRA J.
Rulings ON APPLICATIONS PURSUANT to s. 276 of the criminal code
Overview
[1] The applicants were jointly charged on a multi-count indictment with a series of human trafficking offences, as well as possession of child pornography for the purpose of transmission contrary to the Criminal Code, R.S.C., 1985, c. C-46. The time frame in the indictment is from September and October 2020. The two complainants, A.C. and B.W., were 15 and 16 years old respectively at the time of the alleged offences.
[2] The complainants were interviewed by members of the Toronto Police Service and York Regional Police several times from October 2020 through March of 2021. Over time, the police learned that the two complainants had been the subjects of human trafficking by another person named Woodley who was unconnected to the two applicants. The information indicated that the two complainants had been involved in that other human trafficking scheme preceding and during the time frame of the alleged offences by the applicants. In some of their initial interviews by police, the complainants denied that they had been involved in the sex trade with persons other than the applicants. They also denied knowing how the sex trade worked before they met the applicants. This included denying any prior knowledge of websites such as Leo List, where advertisements and photos are posted online to attract sex-trade customers.
[3] The applicants applied pursuant to s. 276 of the Criminal Code for leave to cross examine the complainants in regard to some aspects of their involvement in the sex trade with Woodley. The Crown opposed any such questions.
[4] Counsel for Ms. Ali did not file an affidavit in support of the application but relied on various recorded statements of the complainants. Counsel for Mr. Graham filed a brief affidavit in support of the application.
[5] On November 23, 2023, the applications were allowed in part. The jury trial has now been completed. These are my reasons.
The Legal Framework
[6] The Criminal Code in s. 276 sets out the statutory framework for such applications:
Evidence of complainant’s sexual activity
276 (1) In proceedings in respect of an offence under section 151, 152, 153, 153.1 or 155, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, 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.
Condition for admissibility
(2) In proceedings in respect of an offence referred to in subsection (1), 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, 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.
Factors that judge must consider
(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account
(a) the interests of justice, including the right of the accused to make a full answer and defence;
(b) society’s interest in encouraging the reporting of sexual assault offences;
(c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;
(d) the need to remove from the fact-finding process any discriminatory belief or bias;
(e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;
(f) the potential prejudice to the complainant’s personal dignity and right of privacy;
(g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and
(h) any other factor that the judge, provincial court judge or justice considers relevant.
Interpretation
(4) For the purpose of this section, sexual activity includes any communication made for a sexual purpose or whose content is of a sexual nature.
[7] The headnote in R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, succinctly summarizes the scope and purposes of s. 276 of the Criminal Code and its applicability to proceedings such as allegations of human trafficking:
A. Section 276 and Prior Sexual Activity Evidence
Section 276 of the Criminal Code governs the admissibility of evidence about of evidence about a complainant’s prior sexual activities and the uses to which that evidence may be put. The animating purposes behind the s. 276 regime are to protect the integrity of the trial by excluding irrelevant and misleading evidence, protect the accused’s right to a fair trial, and encourage the reporting of sexual offences by protecting the security and privacy of complainants. Section 276(1) provides that in proceedings in respect of certain listed offences, evidence of a complainant’s prior sexual activity is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant is more likely to have consented to the sexual activity in question or is less worthy of belief. This section is categorical in nature and applies irrespective of which party led the evidence. Section 276(2) provides that evidence of the complainant’s prior sexual activity adduced by or on behalf of the accused is presumptively inadmissible unless, after certain procedures have been followed, the trial judge rules to the contrary. The s. 276 regime applies to any proceeding in which an offence listed in s. 276(1) has some connection to the offence charged, even if no listed offence was particularized in the charging document. Crown-led prior sexual activity evidence is subject to the common law principles articulated in R. v. Seaboyer, [1991] 2 S.C.R. 577.
[8] Section 276 of the Criminal Code maintains a bar on “twin myth” reasoning, specifically the inferences that because of prior sexual activity, a complainant is either more likely to have consented or is less worthy of belief.
[9] The right to make a full answer and defence does not entitle the accused to procedures that would distort the truth-seeking function of a trial by permitting the admission of irrelevant and prejudicial material: R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, at para. 24.
[10] The right to cross examine is not unlimited. Section 276(3) of the Criminal Code ensures that the right to cross examine a complainant must be assessed taking into account all of the factors in that subsection: R. v. R.V., 2019 SCC 41, [2019] 3 S.C.R. 237, at paras. 40-41. Where cross examination on prior sexual activity is permitted, the questioning must be tightly controlled. In certain cases, it may be appropriate to approve specific wording of the questions to be asked: R.V., at paras. 8, 73.
[11] A court might require the use of agreed statements of fact to ensure that evidence of prior sexual activity stays within proper bounds: R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at para. 98.
[12] The affidavit in support of an application pursuant to s. 276 must establish a connection between the complainant’s sexual history and the accused’s defence. There would have to be evidence to establish the link between the potential defences and the prior sexual conduct: Darrach, at para. 56.
Scope of the Applications
[13] The Crown conceded that stage one of the s. 276 analysis has been satisfied, so the applications proceeded to stage two.
[14] The applicants applied to cross examine the complainants on the fact they were engaged in the sex trade with persons other than the applicants before and during the time frame of the charges against the applicants. They did not apply to cross examine the complainants on any other sexual activity. The questions would be restricted to the complainants’ knowledge of and experience in taking photos and videos to be posted in online advertisements for sexual services. They also sought to cross examine in regard to the complainants’ communications with prospective customers for sexual services.
[15] The applicants rely on alleged untruths and inconsistencies in the statements given over time by the complainants to the police. A.C. admitted that she had been untruthful in her first statement as to her prior involvement and knowledge of certain aspects of the sex trade.
[16] The basis of these applications was to attack the complainants’ credibility based on specific prior statements they gave.
[17] The applicants would not suggest the complainants were less credible because they had prior involvement in the sex trade. Rather, they would challenge the complainants’ credibility based on specific, limited instances of untruths and/or inconsistencies related to their prior and ongoing involvement in the sex trade with someone unconnected to the applicants.
[18] I agree with Mr. Miglin on behalf of Ms. Ali that the alleged untruths and/or inconsistencies on material issues provide a valid basis for the applications. In the particular circumstances of this case, it was not necessary that his client provide an affidavit in support of the applications.
[19] I also agree with counsel for the applicants that to prohibit cross examination on specific instances of untruths and/or inconsistencies would distort the truth-seeking function of the trial. If the focused cross examination on specific issues was prohibited, the jury would be left with the false image that the two complainants had no prior knowledge or involvement in the sex trade. These would be classic instances of prior untruthful and/or inconsistent statements.
[20] The applicants sought to pursue cross examination of the complainants on some issues that exceeded the proper limits set out in s. 276 of the Criminal Code.
[21] The applicants’ position before the jury would be that the two complainants were involved in the sex trade on their own volition and without the direction of either applicant. However, the applicants went too far in this aspect. They sought to suggest that because the complainants had prior involvement in the sex trade, they were more likely to have participated in the sex trade on their own, rather than in the manner related to the allegations before this court.
[22] In my view this would unfairly invoke the prohibited myth or stereotype that prior involvement in the sex trade made it more likely they were involved in these allegations on their own volition. (The fact that someone cannot consent to be the subject of human trafficking would be a separate issue.)
[23] The applicants also sought to cross examine A.C. on a comment she made in one of her statements to the police. A.C. indicated that she understood that B.W. had been involved in the sex trade for two years. A.C. had only known B.W. for several months at the time. I would not allow this issue to be pursued with the jury. On a most basic level, it is hearsay. It also would attract a myth or stereotype based on B.W.’s alleged prior involvement in the sex trade.
The Result
[24] The two complainants, A.C. and B.W., can only be cross examined on specific portions of their witness statements and preliminary hearing transcript where it is alleged there are inconsistencies and/or untruths about their involvement in the sex trade beyond what is alleged against the two applicants. Before the applicants refer to an alleged inconsistency and/or untruth, they must first show the witness the specific portion of their statement or testimony that they are referencing.
[25] In cross examination of either complainant, the applicants are permitted to refer to alleged inconsistencies and/or untruths related to the circumstances in which photos were taken for use in the sex trade. They are also permitted to refer to alleged inconsistencies and/or untruths related to the complainants’ knowledge or involvement with Leo List.
[26] The following subjects shall not be the subject of any cross examination of the complainants or submissions of counsel:
- Reference to A.C. saying that B.W. had been involved in the sex trade for two years.
- Reference to either complainant’s involvement in other sex trade or sexual activity to suggest that this would make it more likely that they would then have been involved in the sex trade on their own, without the direction or control of either applicant.
- Reference or suggestion that either complainant consented or agreed to be involved in the sex trade with persons other than the applicants.
- Reference to any specific sexual activities beyond those involving the applicants as alleged in the indictment.
[27] Further, there will be a mid-trial instruction to accompany the limited cross examination in the stipulated areas. The overriding instruction will be that the jury must not consider evidence that the two complainants were previously or contemporaneously involved in the sex trade as rendering them less credible by virtue of that alone. The jury may consider any specific inconsistencies or untruths based on their statements to the police as relevant to their credibility. There will be a final instruction in this regard in my charge to the jury.
B.P. O’Marra J.