Court File and Parties

COURT FILE NO.: CR-23-30000605-0000 DATE: 20241213 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MARCUS BRYAN Applicant

• and - HIS MAJESTY THE KING Respondent – and – A.A.P. Complainant / Respondent

Counsel: Maria Rosa Muia, for Marcus Bryan Brigid McCallum and Ana Serban, for the Crown Dawne Way, for the Complainant

HEARD: October 31, 2024

Pinto J.

An Order has been made pursuant to ss. 486.4(1) of the Criminal Code directing that any information that could identify the complainant shall not be published in any document or transmitted in any way.

Section 276 Stage 2 Ruling

Overview

[1] The applicant is charged with a number of offences including human trafficking, firearm offences, kidnapping and uttering a threat in relation to the complainant.

[2] A judge-alone trial is set to commence on January 20, 2025.

[3] On October 2, 2024, I ruled in R. v. Bryan, 2024 ONSC 5466, that s. 276 of the Criminal Code applies to this case notwithstanding that it does not apply categorically to every case of alleged human trafficking.

[4] On October 8, 2024, I granted the Defence’s s. 276 application at Stage 1 and directed it to Stage 2 with certain stipulations: R. v. Bryan, 2024 ONSC 5466.

[5] On October 31, 2024, at Stage 2, I heard submissions from the Defence, Crown and complainant’s counsel.

[6] This is my ruling with respect to Stage 2 on the question of the admissibility at trial of evidence concerning the complainant’s prior sexual activity.

[7] Since s. 276 applies, the evidence of the complainant’s prior sexual activity is only admissible if: (a) it does not engage the “twin myths” identified in s. 276(1) namely, that a complainant is more likely to have consented to the sexual activity in question, or is generally less worthy of belief because of that prior sexual activity; and (b) it satisfies the requirements for admissibility identified in s. 276(2), in that (i) it must be relevant to an issue at trial; (ii) it must be of specific instances of sexual activity; and (iii) it must have significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

[8] Section 276(3) requires the judge making the determination of admissibility to consider a number of factors. A s. 276 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.”

[9] For the reasons that follow, I grant the application with certain stipulations.

The Nature of the Case

[10] The accused was arrested and charged on April 20, 2022 with a number of offences in relation to the complainant. On the preferred indictment, the following 12 charges remain:

Count 1 – Human trafficking, contrary to s. 279.01. Count 2 – Receive a financial or other material benefit from human trafficking, contrary to s. 279.02(1). Count 3 – Remove a travel or identity document for the purposes of human trafficking, contrary to s. 279.03(1). Count 4 – Procuring or exercising control, contrary to s. 286.3(1). Count 5 – Receive a financial or other material benefit from sexual services, contrary to s.286.2(1). Count 6 – Advertising another person’s sexual services, contrary to s. 286.4. Count 7 – Uttering threat to cause death or bodily harm, contrary to s. 264.1(1)(a). Count 8 – Possession of a weapon, contrary to s. 88(1). Count 9 – Use a handgun while committing an indictable offence, contrary to s. 85(1)(b). Counts 10 and 11 – Kidnapping, contrary to s. 279(1)(a). Count 12 – Robbery, contrary to s. 344(1)(b).

[11] The complainant provided two videotaped statements to the police on March 1, 2021 and March 31, 2021. The video statement transcripts were made available to me.

[12] The details of the complainant’s allegations are detailed in paragraphs 12 to 16 of the applicant’s Stage 2 factum.

[13] In summary, the complainant alleges that she met the accused sometime in July 2020 through Tinder. She told police that she had met the applicant for a simple ‘hook up’ but that they continued to go on several dates; that at some time in the Summer of 2020, she and the accused worked together (escorting) for one week before the complainant left due to the accused being controlling; that the accused found her in the Fall or Winter of 2020 by setting up a fake date (sexual service appointment) with her after locating one of her ads; that the accused (a Black male) used a White male to identify himself at the door so the complainant would let him in, and then proceeded to threaten her with a gun and forced her to provide sexual services against her will; that the complainant made $50,000 during this time; and that the complainant escaped and continued to work independently for some time.

[14] Further, the complainant alleges that on February 28, 2021, the accused found her, and took her with an unknown female in a white BMW SUV to the Niagara Falls area and forced her to provide sexual services against her will until the next morning on March 1, 2021. While driving to Niagara Falls, the accused allegedly used the complainant’s phone to create a new LeoList ad and the unknown female responded to and set up appointments with prospective clients. The complainant made $600 and gave the money to the accused and unknown female. The accused and unknown female brought the complainant home, at which point the complainant’s aunt and cousin intervened and called police.

[15] On January 14, 2022, the investigating officer, Detective Constable (DC) Vandekerckhove, upon receiving results of the “tower dump” production orders, discovered that there were 46 communications between the number suspected to belong to the applicant and the complainant. The communications started on February 26, 2021, and ended at 7:49 p.m. on February 28, 2021. Most of the communications were text messages, but the last contact was a 14-second phone call. Another officer, Officer Zeppiere, conducted a ‘ping’ on the complainant’s cellphone and was advised that the phone was not active and that it was last online on February 28, 2021 at 8:10 p.m.

[16] On January 25, 2022, DC Vandekerckhove showed the complainant a photo of the applicant. DC Vandekerckhove noted at the time that the complainant was involved in five police investigations of trafficking involving numerous persons.

[17] The unknown female alleged to have kidnapped the complainant with the applicant has not been identified.

[18] At Stage 2, the applicant provided an affidavit in support of his s. 276 application:

(a) He disagrees with the complainant’s characterization of their relationship as exploitative.

(b) He and the complainant met sometime in January 2021 through the dating application Tinder. They began communicating through the application, and then met in person.

(c) After communicating on Tinder for a few days, they met in person, engaged in consensual sexual activity (fellatio). This occurred in his vehicle which was parked in the back parking lot of a motel in Mississauga.

(d) They continued to communicate via Tinder. A few days after meeting in person, the complainant asked him to meet again at the same location at the motel in Mississauga. He asked the complainant why she was still at that location, and she informed him that she was working as an escort. This conversation occurred through the application Tinder. He did not judge the complainant for her chosen line of work and it did not matter to him what her chosen line of work was.

(e) A few weeks after meeting, the complainant again asked him to meet up with her. At the meeting, the complainant asked him to driver her to Barrie, which he did. He does not recall the name of the motel in Barrie. Consensual sexual activity (fellatio) occurred in his vehicle in the parking lot of the Barrie motel. This was the second and last time any sexual activity occurred between them.

(f) The following morning the complainant contacted him wishing to see him and asking for a ride back to Toronto. He drove to Barrie and they drove back to Toronto together. He confronted her about his feelings of being used, that he did not have any romantic feelings for her, and that he did not want to continue being friends. The complainant was upset and told him that she had feelings for him. He did not reciprocate the feelings and made it clear that it was the end of their relationship. They did not have further contact until the complainant contacted him towards the end of February 2021.

(g) He disagrees with how the complainant characterized their relationship in her statement to police, including how it started and how it ended. He also disagrees with how the complainant described the nature of their sexual activity. They did not engage in sexual activity inside a hotel room and that is not what led to him finding out that the complainant engaged in sex work.

(h) He denies trafficking the complainant, forcing her into the sex trade, or materially benefitting from her work.

[19] At trial, it is anticipated that the Defence will argue that the complainant engaged in sex work on her own before and during the time the applicant met with her, with no influence or control by the applicant.

[20] It is anticipated that the credibility and reliability of the complainant, motive to fabricate, and animus towards the applicant will be central issues at trial.

The Proposed Evidence

[21] The applicant seeks to lead the following evidence through cross-examination of the complainant at trial, and through the calling of viva voce evidence should the Defence elect to call evidence:

(a) Evidence that the complainant worked in the sex trade prior to, during, and in between the two incidents involving the applicant (September to December 2020 and February 28 to March 1, 2021), specifically: i) her mobility; and ii) the timeline of her involvement with the applicant;

(b) Evidence of the complainant’s use of websites (LeoList) to advertise her sexual services in the GTA, Barrie and Niagara Falls regions, including: i) how she communicated with prospective clients who responded to her ads; ii) how she formatted her ads; iii) the changes she made to her ads and when she made those changes.

(c) Evidence of how much money the complainant approximately made in the time she was working independently, the approximate number of clients she had, how much she charged and how she received payment;

(d) Evidence that the complainant worked for other individuals during and in between the two incidents involving the applicant; and

(e) Evidence of the general relationship between the applicant and the complainant including:

(i) The nature and frequency of their casual sexual relationship;

(ii) The definition of their relationship;

(iii) The conclusion of their relationship.

The Applicant’s Position

[22] The applicant submits that the proposed evidence of other sexual activity is relevant, and necessary, to understand the applicant’s version of events including his characterization of the nature and duration of his relationship with the complainant; and to impeach the specific credibility of the complainant on certain aspects of her anticipated evidence.

[23] The applicant submits that the proposed evidence is relevant to challenging the complainant’s assertion that the applicant forced her to work at the relevant times, the timeline and nature of the relationship, to establish an alternative basis for the complainant’s knowledge of how the sex trade operated other than the applicant exerting control and direction over her activities, that the applicant and unknown female used the complainant’s phone to post and respond to the Niagara Falls ad, the pattern and style of ads posted, and how the applicant found her.

[24] With respect to “evidence that the complainant worked in the sex trade prior to, during, and in between the two incidents involving the applicant (September to December 2020 and February 28 to March 1, 2021)”, the applicant submits that such evidence is admissible because the central question at trial will be whether the complainant was forced to provide sexual services due to the applicant’s control, direction and influence, or whether she voluntarily and independently did so at the material times specified in the indictment. The applicant argues that the “prior to” period is relevant because the applicant claims that the complainant told him that she worked in the sex trade when they first met.

[25] The applicant’s rationale for wanting to explore whether the complainant was engaged in sex work during the time that she was allegedly being exploited by the applicant, is to delineate the sexual services the complainant provided independently from the sexual services, if any, that she purportedly provided due to the exploitation of the applicant.

[26] Relatedly, the applicant submits that evidence about what the complainant was doing in the sex trade between the two incidents goes to an anticipated difference between the applicant and complainant about the nature and timeline of their relationship. For instance, the applicant suggests that the proposed evidence about the complainant’s sex work will go to such “non-sexual” aspects as how the applicant found her in the Fall/Winter of 2020, the amount of money she was making and providing to the applicant, and whether, how and when an unknown female created and responded to an ad (about the complainant’s sexual services) between February 28 and March 1, 2021.

[27] Next, the applicant submits that three of the areas of the proposed evidence will also touch on the complainant’s prior or “other” sexual activities. However, the purpose of introducing such evidence is to permit the applicant to demonstrate that there was little to no difference between the time when the complainant was engaged independently in the sex trade, and the time that she was allegedly being controlling or exploiting by the applicant. The exploration of this evidence could raise a reasonable doubt as to whether the applicant was controlling or exploiting the complainant at all, or at least to the degree alleged by the Crown.

[28] The three areas are:

(a) Evidence of the complainant’s use of websites (LeoList) to advertise her sexual services in the GTA, Barrie and Niagara Falls regions and how she communicated with prospective clients;

(b) Evidence of how much money the complainant approximately made in the time she was working independently, the approximate number of clients she had, how much she charged and how she received payment; and

(c) Evidence that the complainant worked for other individuals during and in between the two incidents involving the applicant.

[29] The final area of proposed evidence is the relationship between the applicant and the complainant, and their sexual history in particular. The applicant claims that the reason is not to explore the details of their sexual activities but rather to determine if the character and duration of the relationship was as “casual” as the complainant has claimed. The applicant suggests that this goes to the complainant’s credibility. This might involve questions of how often the parties “hooked up”, over what period, and how and why the relationship ended. The applicant argues that the complainant’s animosity at the end of the relationship could have fueled the complainant’s motive to fabricate the allegations of control, abuse and exploitation upon which the criminal complaint is based.

The Crown and Complainant’s Position

[30] At the Stage 2 hearing of this s. 276 application, the Crown conceded that the trial judge could be advised that the complainant was a sex worker at the time she met the applicant and that her method of getting clients was through online advertisements. The complainant does not object to the Crown’s revised position. However, both Crown and complainant argue that this does not permit evidence to be elicited about what sex work the complainant engaged in before she met with the applicant. The Crown and complainant remain opposed to the introduction of the rest of the proposed evidence.

[31] The Crown and complainant note that the Defence is fully entitled to cross-examine the applicant in areas that do not touch on her sexual activities. But s. 276 no longer permits that same unrestricted approach in regard to evidence of prior or other sexual activity. The Crown submits that, notwithstanding the applicant dressing up the application in the garb of a non-sexual rationale for the inclusion of the proposed evidence, the effect would be the same namely, to introduce “myth-based” reasoning into the trial along the lines that because the complainant was engaged in the sex trade, she was likely to have consented to the sexual activity in question, or is generally less worthy of belief when she says that she was trafficked, exploited and abused.

Analysis

[32] I will begin with the proposed evidence that “the complainant worked in the sex trade prior to, during, and in between the two incidents involving the applicant.” (para. 25(a) in the applicant’s Stage 2 factum).

[33] The Crown has conceded that it is permissible for the trial judge to know that the complainant was a sex worker at the time she met the applicant and that she obtained clients through online advertising. The question remains to what extent further questioning of the complainant about her activities as a sex worker is permitted under the s. 276 regime.

[34] I am prepared to permit the applicant some limited questioning of the complainant about her prior and ongoing involvement in the sex trade as it relates to (a) her mobility; and (b) the timeline of her involvement with the applicant. Beyond that, I am concerned that a deeper dive into the complainant’s involvement in the sex trade will risk twin-myth thinking that, because she was already involved in the industry, she was not susceptible to being trafficked or abused by the applicant, and that she is less capable of belief because of her status or former status as a sex worker. In this area of the proposed evidence, I find that without some ability to explore the complainant’s mobility and timeline it will impede the trial judge from understanding the competing narratives from the Crown and Defence.

[35] Next, I move to the three areas, namely “evidence of the complainant’s use of websites” (para. 25(b)), “evidence of how much money the complainant approximately made, etc.” (para. 25(c)), and “evidence that the complainant worked for other individuals” (para. 25(d)). I agree with the applicant that the purpose of introducing such evidence is to permit the applicant to demonstrate that there was little to no difference between the time when the complainant was engaged independently in the sex trade and the time that she was allegedly being controlled or exploited by the applicant. The applicant submits that his argument will never be that, because the complainant was independently working as a sex worker, that she could not be a victim of trafficking. However, that should not preclude the applicant from dealing with evidence demonstrating that he was not the one controlling or trafficking her and that when he was with her, her activities were no different than what she was doing independently. The exploration of this evidence could raise a reasonable doubt as to whether the applicant was controlling or exploiting the complainant at all, or at least to the degree alleged by the Crown. I anticipate that a discussion of such evidence may implicate the complainant’s sexual activities because it would touch on what sexual services or related restrictions were described in the websites. Relatedly, a discussion of how much money the complainant made would likely involve a discussion of what payments were made in relation to which sexual services. I find that this evidence is admissible because:

(a) It relates to an issue at trial – whether anything changed when the applicant was allegedly in control;

(b) It relates to specific instances of sexual activity. I would put a time limit and direct that the exploration of the websites, payments and other individuals that the complainant allegedly worked for should not go further back than 6 weeks from the time that the complainant first met the applicant.

(c) It has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice because referring to these three areas of evidence could be fundamental to the coherence of the defence narrative: R. v. W.M., 2019 ONSC 6797, at para. 21.

[36] I would not permit an examination of whether the complainant provided sexual services after the 911 call that resulted in the police involvement. I cannot see how that would be relevant to the issues at trial.

[37] The final area of proposed evidence is the relationship between the applicant and the complainant, and their sexual history in particular. I am prepared to allow evidence that touches on how often the parties “hooked up”, over what period, and how and why that relationship ended. I agree with the defence that such evidence could shed light on the character and duration of the parties’ relationship and whether it was as “casual” as the complainant has claimed. With respect to the proposed evidence that, “the accused received fellatio from the complainant on two occasions in his car”, if the parties are unable to reach agreement on this area in an Agreed Statement of Facts, I would allow some limited questioning to the extent it pertains to the complainant and applicant disagreeing that they had a sexual relationship, as this could go towards the complainant’s credibility.

[38] The central debate about the merits of allowing evidence of the sexual aspects of the relationship to be explored are as follows. The Crown argues that, on the defence theory of the case, the complainant has brought forth these trafficking allegations because he no longer wished to have a romantic relationship with her. The Crown argues that whether or not the complainant and applicant had sex makes no difference or a negligible difference, and the defence theory is simply a variation of the classic “woman scorned” trope that has long been criticized. The defence disagrees and argues that specifying what happened during the relationship including the applicant’s version of two sexual encounters with the complainant qualifies and colours the competing versions of the relationship. In other words, even though prior sexual activity is being raised, its purpose is not “twin-myth” based reasoning, but rather to test the competing narratives which goes to a central issue – what kind of relationship the parties had and how it ended.

[39] I tend to agree with defence and find that, notwithstanding that the content of the evidence about the relationship may include some sexual components, excising this will represent a distortion to a proper understanding of the relationship between the applicant and complainant.

Decision

[40] The s. 276 application is allowed in part for the reasons provided.

Pinto J.

Released: December 13, 2024