R. v. Moradi, 2016 ONCJ 842

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code , which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subpara-graph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 OFFENCE —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE CITATION: R. v. Moradi, 2016 ONCJ 842 DATE: December 8, 2016. COURT FILE No.: Newmarket 15-09466 BETWEEN: HER MAJESTY THE QUEEN — AND — KRISTOPHER JONATHAN MORADI

Before Justice Joseph F. Kenkel Heard on December 5,6,7, 2016 Judgment delivered December 8, 2016. Mr. M. Dionne....................................................................................... counsel for the Crown Mr. E. Ghebrai .................................................................................. counsel for the accused KENKEL J.: Introduction [ 1 ] The complainant was a university student who decided to leave school and engage in prostitution as a way to make quick money. She discussed her plan with a friend and he found another girl to work with them.

After a few weeks the complainant tired of waiting for her friend who worked at another job. She was approached by two men in a car in Scarborough who asked her to get in and work for them. She didn’t know either man but she went with them. Her life since has been one of exploitation and poverty. [ 2 ] While working in London at a motel the complainant received a text from a Ms. Najafi. The complainant had known Ms. Najafi when they were much younger. The complainant agreed to leave London and return to York Region to work in the sex trade with Ms. Najafi. She worked jointly with Ms.

Najafi and her boyfriend Kris Moradi for three months out of motels in York Region. While they all had active roles she believed that Mr. Moradi was in charge. [ 3 ] Counts 1-4 on the Information charge Mr. Moradi with human trafficking and sexual exploitation offences under sections 279.01 , 279.02 , 286.4 and 286.3 of the Criminal Code . He is further charged with two counts of Sexual Assault contrary to s.271 and two counts of Possession Under s.354(1).

The Crown’s case rests upon the evidence of the complainant, admissions by the accused in his statement to police and circumstantial evidence including motel records and a PDF book found on the accused’s laptop computer. Both parties agreed that credibility is the central issue in the case. [ 4 ] The Crown concedes that the Sexual Assault alleged in count 5 should be dismissed. Credibility of the Complainant [ 5 ] The complainant described a life of poverty and exploitation by numerous men and women while she worked in the sex trade.

She left university to make easy money but ended up drifting from motel room to motel room making money for others. Her evidence is assessed in the context of the difficult and destructive lifestyle she described.

Some frailties in her evidence are reasonably explained by her experiences and her evidence overall cannot simply be disregarded for those shortcomings. [ 6 ] However, even making allowance for the experiences of the witness and her difficult situation, there are many aspects of her evidence and her demeanor in court which are not reasonably explained by her circumstances and which cause me to approach her testimony with great caution: • There are dozens of internal contradictions on significant points throughout the complainant’s evidence.

Her testimony was such that the Crown did not refer to it in final submissions. Instead the Crown’s case focused on the statement of the accused and those portions of the statement that confirmed some portions of the complainant’s evidence. One example - the contradictions in relation to the acts of sexual assault alleged in Count 5. The complainant at times testified that the acts of oral sex were compelled, but at other times said they were consensual and she denied having said otherwise. Those contradictions led the Crown to concede that count 5 must be dismissed.

The internal contradictions detract significantly from the credibility and reliability of the complainant’s evidence. • The complainant was a strong and confident witness but her demeanor at trial was often sarcastic, mocking of the defence and unresponsive to questions by both counsel. She repeatedly argued with defence counsel and at times attempted to take control of the cross-examination by questioning the lawyer. She was reminded of her simple task to listen to the questions carefully and give truthful answers, but she was often unable to focus on what was being asked.

She left the witness stand during her testimony but was able to return after a break. The complainant’s demeanor detracted from her credibility as a witness. • The complainant at times expressed a lack of memory about details of the events in question. Even in her statement to police given shortly after the two months in question her account was rambling and she mentioned a lack of memory on certain points.

While her circumstances may well have interfered with her ability to record and recall details of events, I find that detracts from the reliability of her evidence overall. [ 7 ] I have significant concerns about the credibility and the reliability of the complainant’s evidence. In reviewing that evidence in the context of all of the evidence at trial I find I’m able to accept only those portions of the complainant’s evidence that are confirmed by other credible evidence or circumstance. Credibility of the Accused [ 8 ] The accused did not testify and the defence did not call evidence.

The accused did make a statement to police on arrest which the defence concedes was voluntary. Both parties referred to portions of that statement in submissions.

[ 9 ] Admissions made in a statement by an accused often have probative value where the admitted facts are contrary to the position taken by the defence at trial. They are found reliable in that context without cross-examination. It’s not required that the admission be against the declarant’s interest at the time he or she made the statement as would be the case for an “admission against interest” which is a separate theory of admissibility. J W Strong ed. McCormick on Evidence 5 th ed. (West Group 1999) Vol 2 Ch 25 p 138 .

I find a number of admissions by the accused to be credible on this basis and as consistent with other evidence at trial. [ 10 ] I find I can place little weight on the self-serving portions of the statement where the accused tried to encourage the officer to drop or modify the charges. Those statements were not made under oath and were not subject to cross-examination at trial. They are not supported by other evidence.

The fundamental importance of cross-examination in determining the credibility and reliability of evidence was arguably demonstrated by the defence in relation to the Crown’s central witness in this case. Human Trafficking and Sexual Exploitation Counts 1-4 [ 11 ] Counts 1 and 2 allege that the accused exercised control over the complainant to exploit her and received financial benefit as a result.

Exploitation is defined in s.279.04(1) of the Criminal Code as causing someone to provide labour or a service by engaging in conduct that could cause the person to believe that that their safety would be threatened if they failed to provide that service. Use of force, deception and coercion are among the factors that the court must look at – s.279.04(2). [ 12 ] The complainant left London to work with Ms. Najafi. She testified that all three of them had roles in the business but that she felt Ms. Najafi had a dominating personality.

At times the complainant ended up agreeing to do things she didn’t really want to do. Although she worked with Ms. Najafi, the complainant testified that she given “subtle” indications that Kris Moradi was in charge. She testified that she believes Ms. Najafi and Mr. Moradi kept all of the $28,000 she estimates she made. When she didn’t get the monies owed to her, the complainant left Mr. Moradi and Ms. Najafi to work with another pimp. She worked with a group of 12 girls in upscale hotels in Toronto. Things didn’t work out there so she contacted Ms. Najafi and Mr.

Moradi again and went back to work with them. [ 13 ] The complainant’s evidence with respect to her relationship with Ms. Najafi and Mr. Moradi was confusing and at times internally contradictory on central points. She testified to elements of exploitation and some aspects of control, but at other times seemed to describe a consensual joint enterprise where her central complaint was that she didn’t get her due. She was often not responsive to questions on these points and as a result it’s difficult to assign weight to her evidence.

Credible external evidence supports her testimony that she received some financial assistance from Mr. Moradi, but the allegation of control has not been proved beyond a reasonable doubt. I make the same finding in relation to count 4 for the same reasons. [ 14 ] Count 3 alleges the accused advertised an offer to provide sexual services on Backpage.com. The complainant is immune from conviction for her

part in engaging in that advertising by virtue of s.286.5(1)(b). There’s credible evidence obtained from a forensic search of a computer used by the accused that shows that Backpage ad in relation to the complainant was accessed from that device. The complainant testified that the accused posted the ad. The accused told police that he looked at the ad but did not post them. [ 15 ] The complainant was particularly argumentative and unresponsive to questions during this portion of the evidence.

Her testimony that the accused posted the Backpage ad must also be considered along with her statement to police that she told the accused the business plan and that she “had these programs” that would assist. On the whole of the evidence, it’s possible that the accused was involved in posting the ads. In my view it’s also possible that the complainant or Ms. Najafi posted the ads without his involvement. The complainant was well versed in the business by then and she testified that her services had always been advertised on the Backpage site.

Sexual Assault Count – 6 [ 16 ] The complainant’s evidence about the sexual assault at trial was substantially different from the account given in her statement to the police. She’s consistent in saying that in 2015 she only had intercourse with the accused once. At trial she said he “busted through the door”, said “bend over” and raped her. She described him as happy at the time with no reason to be upset with her. [ 17 ] In cross-examination it was shown that in her statement to police the complainant gave a different, more detailed account. She gave a different account of what led up to the intercourse.

She mentioned that she was sore from having performed unusual sex acts with her boyfriend the day prior. She told the accused it hurt while they were having sex and he stopped and they changed positions. She said he didn’t respond to her protests until “a half hour later” but other parts of her evidence suggest a faster change of positions to the one she chose.

Even though the statement to police was just days after the alleged incident, her testimony at trial regarding that alleged incident began with the admission, “I actually don’t remember too well”. [ 18 ] In cross-examination the complainant’s responses to questions gently put were mocking, sarcastic and unresponsive. She often sought to control the process by responding to questions with questions and bickering with defence counsel. The complainant’s demeanor detracted substantially from her credibility as a witness.

Important questions regarding certain details of the incident went unanswered. [ 19 ] The Crown concedes that the complainant’s evidence was internally contradictory with respect to the allegation of acts of forced oral sex in count 5. The complainant at times said that oral sex with the accused was forced upon her, but other times said that all of the oral sex was consensual, “I never said it wasn’t”, apparently unaware of the contradiction.

The fact that the complainant’s evidence varied so much on fundamental points I find detracts from the credibility of all of her evidence including her testimony related to the remaining sexual assault. [ 20 ] In his statement to police the accused denied raping the complainant. He said they had sex when they were 17 which was something the complainant referred to as well.

As explained above, the accused’s denial was never subject to cross-examination and I find I can place little weight on that evidence. [ 21 ] Unlike other portions of the complainant’s evidence, this aspect of her testimony is not supported by external evidence. The evidence as a whole leaves significant concern about the reliability of the complainant’s testimony on this point. It is possible that she had intercourse with the accused without her consent, but the evidence does not support that finding beyond a reasonable doubt.

Possession of Stolen Property – Count 7 [ 22 ] The Crown has proved that the accused possessed the complainant’s cellphone knowing that it had been obtained by others during a theft accompanied by violence. Even though the accused may have purchased the phone for the complainant, the evidence does not support a “colour of right” nor would that defence apply in these circumstances. Possession of Stolen Property – Count 8 [ 23 ] On arrest the accused was found to be in possession of $322. The Crown alleges that the monies were the proceeds of his prostitution business with the complainant.

In his statement to police, the accused explained that he’d recently received a welfare payment of $370 and this was the money remaining. His statement on this point was not contradicted by welfare records or other evidence. The complainant testified in cross-examination that she made $3000 to $3500 per week working for the accused and she kept none of it. She agreed that $28,000 was a fair estimate of the total amount that went to the accused. The fact that the police recovered just that small amount is consistent with the explanation provided in the accused’s statement.

It doesn’t preclude the notion that he kept monies elsewhere or with another party, but there’s no evidence of that. Although the accused was not subject to cross-examination, I find his statement on this point along with the evidence of what was obtained during the execution of the search warrant leaves a reasonable doubt on this count. Conclusion [ 24 ] I find that the Crown has failed to prove beyond a reasonable doubt the charges alleged in counts 1,2,3,4,5,6,8. Those charges will be dismissed. The accused is found guilty on count 7. Released: December 8, 2016. _____________________________ Justice Joseph F.

Kenkel