Procedural issues central to successful sex trafficking appeal

Law360 Canada (December 2, 2024, 2:39 PM EST) --

John L. Hill

Ontario Court Justice Christine Malott described Zuhair Gorges as “a violent man with a criminal record full of violent offences,” according to a report in the Windsor Star. Gorges was convicted of kidnapping, assault, assault with a weapon, uttering death threats and exercising control to facilitate exploitation — a human trafficking offence.

The newspaper report described a 10-hour ordeal in which a woman, who cannot be identified by court order, was zip-tied and forced by a man into a house blindfolded with a knife at her side. A second man inside supposedly burned her with cigarettes, carved the letter “Z” into her cheek and held her head underwater. The trial judge is also reported to have said that this May 2018 event has handed the victim a life sentence and “this event has essentially ruined her life.” Justice Malott imposed a six-and-a-half-year sentence but credited him 999 days for the 666 days spent in pretrial custody. Of the 45 months remaining, three more months were credited to him for time served during the COVID-19 pandemic.

Gorges appealed his convictions. The Ontario Court of Appeal heard the appeal on Dec. 22, 2023. It released its decision on Nov. 28, 2024 (R. v. Gorges, 2024 ONCA 857).

Gorges’s argument on appeal was that the trial judge improperly used s. 276 of the Criminal Code as a shield to ignore the complainant’s evidence about being a sex worker and also erred in assessing the complainant’s credibility.

The trial judge’s reasons for entering a conviction were that she viewed the complainant as credible and reliable. The trial judge explained away inconsistencies in the complainant’s testimony as being due to the trauma she sustained. The complainant had admitted lying to the police out of concern for her family’s safety. She had also lied about where she had been picked up.

Gorges’s girlfriend had been his co-accused at trial, but the charge of assault rested on the complainant’s statement that the girlfriend had ordered the facial cutting. That charge was dismissed because the judge did not believe significant material inconsistencies relating to the girlfriend’s involvement or her evidence about threats to her family. Further, the trial judge did not accept that the kidnapping extended over 10 hours and that the complainant had been beaten throughout that time. Nonetheless, the convictions were entered because the trial judge found these discrepancies minor.

The appeal court found that excluding evidence relating to the complainant’s being a sex worker was a significant breach of procedural fairness, amounting to a miscarriage of justice and necessitating a new trial. However, the Court of Appeal used the case to discuss how s. 276 of the Code should be considered in light of the recent R. v. A.M., 2024 ONCA 661, case.

The A.M. case had not been decided when the Gorges trial concluded. The trial judge assumed that s. 276 applied categorically to all proceedings where an accused is charged with a sexual service or human trafficking offence. Gorges was not charged with offences listed in s. 276. When a listed offence is implicated in the proceeding, it must be determined on a case-by-case basis if the section applies to restrict the admissibility of evidence regarding a complainant’s prior sexual activity.

Trial judges remain as gatekeepers to prevent accused persons from adducing evidence from complainants that improperly engage myths and stereotypes (R. v. Barton, 2019 SCC 33).

The A.M. decision also refused to apply the curative proviso of Code s. 686(1)(b)(iii) when cross-examination has been improperly curtailed. The trial judge’s approach in Gorges was procedurally unfair in that she excluded all the complainant’s evidence that touched on her involvement in the sex trade based on her perception that to do so would involve acceptance of the twin myths that a complainant’s prior sexual behaviour has made the complainant more likely to consent to the questionable sexual activity or has made the complainant less credible.

Much of the defence counsel’s cross-examination at trial involved the complainant’s work as a dominatrix in Toronto and work in a Windsor strip club. The Crown did not challenge this questioning, and the trial judge did not interject.

The written submissions delivered to the trial judge on closing by the defence and the Crown relied on the complainant’s responses when questioned about her work in the sex trade. The key consideration was the complainant’s credibility. While it is laudable that the trial judge did not accept any conclusion based on the twin myths, it was unfair to reject testimony that impeached the witness’s credibility. The judge ought to have ruled on admissibility when the questions were asked (R. v. Kutynec, (1992), 70 C.C.C.(3d) 289 (Ont. C.A.); R. v. Enden, 2007 SKCA 100). Defence counsel had no opportunity to address the admissibility issue. This caused a miscarriage of justice. Trial fairness was compromised (R. v. Tayo Tompouba, 2024 SCC 16), and the curative proviso should not be available (R. v. Arradi, 2003 SCC 23). A new trial becomes necessary.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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