WARNING

The court hearing this matter directs that the following notice should 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

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

(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.

Court Information

Information No. 13 – ND0671

ONTARIO COURT OF JUSTICE (at St. Catharines, Ontario)

BETWEEN:

HER MAJESTY THE QUEEN

• and -

G.K.S.

Reasons for Judgment

Counsel:

• Mr. T. Shuster for the Crown
• Mr. M. Evans for G.K.S.

Order: An order has been made under s. 486.4 directing that any information that could identify the complainant, M.B., shall not be published in any document or broadcast or transmitted in any way.

Judge: NADEL, J.

Introduction

Introduction

1G.K.S. was arrested on February 23, 2013, on a complaint made by M.B. that he had forced her to prostitute herself and that he kept money that she made in that endeavour. He was also charged with numerous counts of breach of recognizance. Paragraph [6] contains a chart of the charges that are the subject of this judgment.

2This is essentially a "he said / she said" trial.

3Momentarily, I shall set out the respective submissions of the parties. First, however, I propose to chart and comment on the counts being tried.

The Charges

The Charges

4Where the Crown had an election it proceeded by indictment. The specific charges are listed below. They include two counts of what might be construed as allegations of pimping, three counts of assault with a weapon, two counts of threatening, three counts of assault and four counts of breach of recognizance.

Count	Section #	Allegation	Timeframe	Comments
1	s. 279.01	exercised control over M.B.'s movements for the purposes of exploiting or facilitating her exploitation	Between Nov. 1/12 and Feb. 22/13
2	s. 279.02	received a sum of money knowing that it resulted from the commission of an offence under s. 279.01(1) or s. 279.011(1)	As noted above
3	s. 267(a)	used a knife as a weapon in assaulting M.B.	Between July 1/12 and July 20/12	On April 10/14, on consent, the count was amended, to be between July 1/12 and Oct. 21/12
4	s. 264.1	threatened to kill M.B.	As noted above	Withdrawn at request of the Crown on April 10/14
5	s. 267(a)	used a plastic spatula as a weapon in assaulting M.B.	As noted above	As noted above – W/D
6	s. 266	assaulted M.B.	As noted above	As noted above – W/D
7	s. 266	assaulted M.B.	Between Nov. 1/12 and Nov. 15/12	On April 10/14, on consent, the count was amended, to be between Oct. 21/12 and Nov. 22/12
8	s. 267(a)	used a shoe as a weapon in assaulting M.B.	Jan. 26/13	On April 10/14, on consent, the count was amended to be between Nov. 1/12 and Feb. 22/13
9	s. 264.1	threatened M.B. with bodily harm	As noted above	Withdrawn at request of the Crown on April 10/14
10	s. 266	assaulted M.B.	Feb. 21/13	As noted above – W/D
11	s. 145 (3)	breach of recognizance, failing to KPBGB	Between July 1/12 and Feb. 21/13
12	s. 145 (3)	breach of recognizance, residence violation	Between Dec. 7/12 and Feb. 21/13	G.K.S. conceded guilt during his testimony
13	s. 145 (3)	breach of recognizance, curfew violation	Feb. 23/13	As noted above
14	s. 145 (3)	breach of recognizance, carry document violation	As noted above	As noted above

Amendments, Concessions and Admissions

Amendments, Concessions and Admissions

5As the foregoing chart details, the timeframes in counts 3, 7 and 8 were amended at trial to conform to the evidence of the complainant. At the conclusion of her evidence the Crown requested and the Court permitted counts 4, 5, 6, 9 and 10 to be withdrawn. Finally, the accused testified and, while he denied the balance of the allegations, he conceded that he was in breach of a recognizance and guilty of counts 12, 13 and 14. As expanded upon in the following section, the position of the defence was that count 11 was referable to the pimping allegations and as such it should be dismissed along with them.

The Submissions of the Accused

The Submissions of the Accused

6On behalf of the accused, Mr. Evans submitted that G.K.S. should be acquitted of all of the counts except the breach of recognizance allegations charged as counts 12, 13, and 14, which G.K.S. conceded that he committed. In Mr. Evans' submission, count 11 denotes a breach of recognizance by failing to keep the peace by virtue of committing the substantive offences alleged in counts 1 to 10. That submission is based upon the timeframe of the breach alleged in count 11. The commencement of that timeframe predates the existence of the recognizance that is the subject of counts 12, 13 and 14 and as such cannot be the recognizance referred to in count 11. (Moreover, I note that this recognizance was not proved in evidence.)

7Mr. Evans submitted that I should have a reasonable doubt about the guilt of the accused based upon the testimony of M.B.. In his submission, she was a witness whose testimony displayed substantial problems with its content, its lack of consistency and her demeanour in conveying it. Mr. Evans stressed that by her own admission she was a "con-artist," and he submitted that she conceded that she literally made her living from misleading people. Given admissions of that ilk and given the substance of her admission of other criminal activity, Mr. Evans submitted that she was a witness deserving of a Vetrovec warning.

8In lieu of making oral submissions about the troubling aspects of the complainant's evidence, Mr. Evans provided written submissions directing the Court to the various topics of concern and their location in the transcripts. Moreover, Mr. Evans highlighted the fact that despite repeated references to purported evidence contained in or disclosed by social media no corroborative evidence supporting these kinds of allegations was adduced. Further, in the defence submission, the complainant had a motive to mislead; namely, jealousy of G.K.S.'s new girlfriend and consequent anger at him for rejecting her.

9In contrast to the complainant, Mr. Evans submitted that G.K.S. gave his evidence in a straightforward manner; that he answered questions in cross-examination without hesitation; that his evidence was coherent and logical; and, that he was unshaken on cross-examination and maintained his innocence.

10Mr. Evans submitted that there are significant parallels between this prosecution and the one described in R. v. Johnson, 2011 ONSC 195 (CanLII). There, at paragraph [152] Hill J. noted that one of the complainants in that case was of Vetrovec character by, inter alia, making inconsistent statements under oath with respect to the prosecution in which she was giving evidence. That complainant had many other credibility deficits that do not parallel M.B.'s but M.B. admitted to other matters of dishonesty, which Mr. Shuster conceded required careful consideration by me.

11In addition, Mr. Evans submitted that the failure of the Crown to call evidence from witnesses to corroborate the allegations of the complainant, while not resulting in the drawing of any inference adverse to the Crown's theory, nonetheless does leave a gap in the evidence that is capable of contributing to the existence of a reasonable doubt. (See paragraph [156] of Johnson.) Given that this prosecution pits the word of the complainant against the word of the accused, that the complainant is an unsavoury witness and that there is no corroboration of her story, it would be dangerous and unsafe to convict based upon her testimony. In any event, that point is not reached since the evidence of the accused should be believed and even if not believed there is no basis to reject it so that the Court ought to have a reasonable doubt about his guilt.

The Submissions of the Crown

The Submissions of the Crown

12In inviting the Crown's submissions I asked Mr Shuster to help me with first, why I should reject the accused's evidence and not have a reasonable doubt based upon his denials and then, if I reach the third aspect of W.(D.), why I should accept her evidence.

13Mr. Shuster responded to the last question first. While conceding that the complainant's evidence ought to be approached with care he submitted that I ought not to mistake a brick for the wall. In his submission any piece of evidence when viewed in isolation may be susceptible to criticism; but, despite the matters that Mr. Evans submitted were shortcomings in the complainant's evidence, the Crown urged that if one looks at the whole fabric or canvas of the complainant's testimony, it is credible and can support the weight of proof beyond a reasonable doubt. This is particularly so given what Mr. Shuster referred to as "the dynamic" (sic) of the relationship between G.K.S. and M.B..

14According to the Crown, that dynamic was an unequal power relationship in which he exercised control over her through: (i) her affection for him; (ii) her desire to be a family and to rear their child together; and, (iii) assaults, insults and fear used to force her to prostitute herself when the carrot approach lost efficacy. In the Crown's theory, G.K.S. did not have respect for M.B. because she had been unfaithful to him with his best friend. In the Crown's theory being cuckolded severely wounded his pride at a time when he found himself without means, as a result of the death of his parents, the loss of his job, and the added responsibility of a child.

15In these circumstances he felt no compunction against forcing M.B. into prostitution. Doing so served his need for funds and fed his need for revenge. Moreover, in the Crown's submission the evidence of the accused strengthens the evidence of the complainant as G.K.S. corroborated aspects of the complainant's evidence; viz they lived in an isolated area of Brampton; that she fled that residence prior to giving birth and that photos of the complainant showing her to be working as a prostitute were sent to her mother.

16Mr. Shuster submits that given the complainant's history, (foster care for a time, a grade ten education, and motherhood at 18,) she is an immature and naïve person. While she scammed people using the internet, she admitted doing so and should not be disbelieved as a result of owning up to her frauds. Given her background, and her concession of fraudulent activity, the Crown submits that I ought to accept M.B.'s evidence that in her on-line communications with G.K.S. they spoke of "the game." She understood that to refer to fraudulent scams but learned that in Ontario it connoted prostitution. Further, I am asked to accept that G.K.S. had a girl (sic) at his apartment doing "his on-line stuff."

17I find several aspects of these submissions problematic. There is no corroboration of the substance of these aspects of their communications. Further, there is no explanation of what "his on-line stuff" meant, when those words were used by the complainant, other than referring to legitimate billing and record-keeping activities associated with G.K.S.'s Rogers Communications sales team.

18I am asked to find that the complainant was naïve to believe that she could come to Ontario and get a job with Rogers. Yet, she agrees that G.K.S. was working for Rogers and I find that he described in a credible fashion the door-to-door canvassers that he managed. Further, he said that the work of canvassing for new Rogers subscribers was not "rocket-science" and that M.B. had the opportunity to do it but that she did not persist because she did not like it. I see nothing incredible in that portion of G.K.S.'s evidence.

19In brief compass, the Crown asks me to assess the complainant's evidence on the basis that she is naïve and unsophisticated and hence capable of being manipulated by G.K.S.. As for G.K.S., the Crown says that for a variety of reasons, he wants to appear as "a wheeler-dealer, a big-shot, someone doing well"; that he wants to project success when his reality is different.

20In the Crown's theory the loss of G.K.S.'s parents while barely 30 left him, at a minimum, in an unstable emotional if not financial situation. That led to family pressures, (to leave work to attend a funeral in Jamaica,) which had a domino effect of causing him to lose his apartment and lose his position as a sales-team leader leaving him in a precarious financial position. With respect, this overstates depths of his financial circumstances. G.K.S. was able to continue working as a salesman for Rogers if he chose to do so, according to his testimony. He also had his sister's home in Brampton to live in and he had a brother living in Thorold, Ontario. That he was arrested while visiting the complainant at a hotel where she was prostituting herself by her own choice, without any pressure from him [1] is conceded by the Crown. G.K.S. was then detained on a breach of recognizance count in September of 2011 and not released until late January 2013.

21In the Crown's submission the couple were in desperate straits as M.B. was alone and without means and cut off from her family. In my view the evidence does not support that characterization of their position. The complainant had good relations with the family of the father of her first child and had previously obtained financial support, albeit of modest proportion, from them. There was no reason why she could not call upon them again or at least try to. There is and was public assistance available to indigent people. Her family was available to her on-line, at a minimum. With respect, her position was not as bleak as the Crown submits. On the evidence called I see no proof beyond a reasonable doubt that G.K.S. committed either of the pimping offences charged prior to his January 2012 release. Any acts of prostitution committed by M.B. prior to January of 2012 were not as a result of any crime committed by the accused. I shall deal with the assault allegations in due course.

22The Crown also urges that G.K.S.'s arrest and detention from September of 2011 until his release in January of 2012 was a significant aspect in the development of the couple's relationship. According to the accused, M.B. admitted to him that she had been unfaithful with his close friend, Andrew, while the accused was incarcerated. On the complainant's evidence G.K.S. knew she had been prostituting herself prior to him being detained in jail. [2] On his own evidence, he now knew that she had been unfaithful to him. Given his wounded ego from that betrayal he was unforgiving of her. Her faithlessness continually chafed and was the source of all of their arguments [3] resulting in his assaulting her and mistreating her and forcing her to continue prostituting herself. He did so not only for the money that she could earn and that he could enjoy but also because he wanted to demean her, to punish her and have her feel the pain the Crown says she caused him by failing to respect him. He felt wronged by her faithlessness and sought to get even by humiliating her to his financial benefit. I am asked to accept that he persisted in seeking the details of her betrayal; i.e., the nature of the sexual intimacy she admitted to with his friend. In Mr. Shuster's submission that persistence demonstrated the matter was on his mind. In short, he put her on the street to sell her body to demean her. Despite this foregoing theory, the Crown credits G.K.S.'s evidence that he wanted to be a part of the child's life.

23Mr. Shuster urges that as a matter of common sense and human experience G.K.S.'s distaste and dislike for the complainant explains why he forced her into prostitution. Equally, I am asked to apply common sense and human experience to find that the dynamic of this relationship, as described earlier, makes the complainant's evidence believable despite the deficits to her credibility pointed to by Mr. Evans. Yet, that interpretation only makes sense if I reject G.K.S.'s evidence or, at the very least, that I do not entertain a reasonable doubt based upon the defence submission that these charges, (other than the breach of recognizance counts,) are the product of an angry imagination motivated by jealousy.

24In my view, the most potent submission of the Crown is its attack on G.K.S.'s evidence that he knew nothing about M.B. prostituting herself. G.K.S. testified that it was very late in their relationship when he inadvertently discovered M.B. had used his telephone to produce ads seeking to sell herself on something called backpage.com. He said that this was the first time he learned that she had been prostituting herself. He said that he found this out as a result of the complainant's failure to properly log out of his phone. I agree with the Crown that G.K.S.'s denial that he knew nothing of M.B.'s prostitution activities until that point is untrue and I reject that testimony. I do so for several reasons which I shall set out in no particular order.

25First, the only reason for G.K.S. to send evidence of M.B.'s prostitution to her mother, as he concedes he did, that makes sense to me, is that he wanted to prevent M.B. from leaving Ontario and returning to her mother's home. That is to say, he was attempting to prejudice the complainant's mother against her. Whether he wanted to keep her here so that he could have access to the child that he believed he had fathered or whether he wanted to keep her here so she would continue working as a prostitute or whether it was some combination of those two reasons, (or indeed for some other reason,) I need not yet decide.

26Second, I find it incomprehensible and unbelievable that the complainant would use G.K.S.'s phone to access the internet to produce ads as part of her work as a prostitute without his knowledge that she was selling herself. There is no suggestion that she attempted to wipe out her use history on the phone. He says that she must have simply forgotten to log out or failed to log out properly. Either case demonstrates that she had no reason to hide her use of his phone for that purpose; i.e., he knew of her work as a prostitute.

27Third, he admits he knew she was working as an escort. He says that he believed her when she told him that that work did not involve sex. M.B. had a grade ten education and is far from eloquent. There is nothing about her presentation or demeanour that suggests her conversation could entertain for minutes let alone hours. I find it unbelievable that her work as an escort was not intended to end in sex. In my view, G.K.S. would and did know that too.

28Fourth, while the complainant was an awful witness, for many of the reasons that the defence points to below, I believe her basic story. That story is that she loved G.K.S. and wanted to please him and keep him happy; that she had very limited means to support herself and resorted to prostitution to do so and that G.K.S. knew of and encouraged her to make money that way.

29In the result, I reject his evidence that he did not know M.B. was working as a prostitute both in Brampton and in Niagara Falls. I find that the reason that he denied knowing she was working as a prostitute, particularly in Niagara Falls, was to attempt to distance himself from his involvement in her work as a prostitute and to distance himself from his encouragement of her continuing to work as a prostitute.

30Mr. Shuster suggests that G.K.S. attempted to control M.B. by isolating her. I do not accept that. Little in the way of substantive detail about where they lived in Brampton was adduced. The cost of that residence, as opposed to any other residence, was not identified. On her own evidence, she left the house on multiple occasions. Most importantly, no allegations of pimping are referable to that time period. Mr. Shuster suggests this "isolation" of her was by design to preclude her from betraying him again. In my view, this suggestion was never put to G.K.S. and I reject it. Mr. Shuster suggests that the violence the complainant says G.K.S. inflicted was inflicted to control her relationships with others so that she would not betray him again. Again, with respect, I do not accept this submission. That suggestion, like much of the Crown's theory, puts a psychological interpretation on the evidence offered under the guise of common sense or human experience. Significantly, in my view, it was submitted without the facts or inferences upon which that view is based having been squarely put to the accused while he was testifying.

31Further, the Crown persists in submitting that M.B. was naïve and therefore easily manipulated by G.K.S.. While she may well have been, (as she herself acknowledged,) prepared to believe his promises of a life together, I do not think that naïve is an apt adjective to describe the complainant. The word has multiple definitions some of which may apply superficially to M.B. [4] but, according to her evidence, she is a graduate of the school of hard knocks and by her own admission has carried out frauds and thefts on-line and in person. In addition she decided to prostitute herself while they lived in Brampton. She may be many things but I reject naïve as an apt characterization of her.

32When Mr. Shuster turned to the two main offences charged, (what I have compendiously referred to as the pimping charges,) he submitted that G.K.S. reached out through the internet to M.B.. The implication is that he enticed her to come to Ontario and enticed her to come with prostitution in mind. But, that was not the evidence of either of them. Nonetheless, I do accept that he knew about her work as a prostitute and I accept her evidence, especially given his history in sales, that he discussed business aspects of her sexual services with him.

33I accept that the complainant discussed her proposed acts of prostitution with the accused, including the types of acts she was prepared to commit and the level of fees that she would charge. Once again, given G.K.S.'s admitted experience in sales, that evidence makes sense to me. I accept, at a minimum, the complainant's evidence that she engaged in marketing discussions with G.K.S. and received his advice about safe sexual practices. Whether there was more to their interaction around prostitution and whether that conduct amounts to an offence or offences is a matter still to be determined. It is the Crown's submission, that if I accept M.B.'s evidence about violence inflicted and about confrontations between them leading to her prostituting herself, then the requirements of s. 279.01 are met.

The Approach Suggested by R. v. W.(D.)

The Approach Suggested by R. v. W.(D.)

34If I believe G.K.S.'s denials I must find him not guilty of all of the counts other than 12, 13 and 14. If I do not reject his denials then I would still harbour a reasonable doubt and must perforce give him the benefit of that reasonable doubt. (See R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.)

35I do not have a reasonable doubt about the pimping counts based upon his testimony. I reject his denial that he did not know that M.B. was engaged in prostitution. I have explained my reasons for doing so at paragraphs [24] to [29] of these reasons. In addition, there are several other aspects of his testimony that I find unbelievable. Once again in no particular order, all of the following aspects of his testimony cause me to doubt its veracity.

36To begin with he says that he voluntarily gave up his job as a sales team manager with Rogers, which also meant giving up the apartment that came with the job. He says that he gave up that position and perquisite so that he could go to Jamaica to attend the funeral of his father. Yet he did not go. He says that he did not go because he needed a bail variation to allow one of his sureties to go with him and that that was not available. It was not clear to me whether a surety would not come or the Crown would not vary the bail. Regardless, it does not seem credible to me that he would voluntarily quit his job and lose the income and the apartment that came with it before he had confirmed arrangements to go to the funeral. In any event, he spent some weeks in Brampton after leaving his job without leaving for Jamaica. He clearly had the opportunity to travel to Jamaica but did not take it, despite testifying that he felt compelled to go. It cannot be that he felt constrained to stay in Canada because of his bail terms in light of his admission that he ignored a number of his bail obligations despite having just spent several months in jail for an allegation of breaching a recognizance. Given all of that I do not believe his evidence that he quit his job to attend his father's funeral in Jamaica. This finding does not, however, advance the case for the Crown. It is merely incredible testimony that I reject.

37While G.K.S. gave his evidence in a quiet and calm manner, there are many aspects of it that I have difficulty with for a variety of reasons. For example, he maintains that he was surprised by M.B.'s arrival in Ontario and thought that she would only be coming for a visit. That seems quite inconsistent with having offered to get her a job before she came out, if he believed she was only coming for a visit.

38I have even more difficulty accepting that his description of his relationship with M.B. was accurate. He said all of the following:

• when she came to Ontario they were not yet boyfriend and girlfriend; rather, they were just talking to each other and getting to know each other;

• she stayed with him for under a week, during which time they were intimate on one occasion;

• she then "took off" without any prior notice to him; but, about three weeks later she called to say that she was pregnant and he "could be" (sic) the father;

• they moved to Brampton together in August of 2011 when he "quit" his job to go to his father's funeral in Jamaica;

• he lived with her for a short time in his sister's home in Brampton before directing her to leave that home at his sister's insistence;

• when he was visiting her at a motel room into which she had moved, and where he says that he did not know she was prostituting herself, he was arrested for being in breach of an existing recognizance;

• during his approximately four and a half months in detention he spoke to her by telephone every day;

• she would visit him regularly and sometimes twice a week;

• he knew she wanted to be in a relationship with him and he told her that they could be, ("okay, we can be together.");

• he told her to try and get a place with his friend Andrew;

• upon his release on January 31, 2012 he moved into the apartment she had rented with his friend Andrew at his instruction;

• they were intimate upon his release;

• at some point after their congress he asked and she admitted she had been unfaithful to him with his friend Andrew;

• as a result they "broke up" and she moved out;

• shortly thereafter she told him she was pregnant and once again he believed he was the father;

• he convinced her not to get an abortion because he would be there for her 100% because he "was not going to be one of those guys not there for his child."

39In cross-examination G.K.S. said that his impregnating M.B. was planned, that he wanted to start a family and that they talked about starting a family while he was in jail. [7] In my view, G.K.S. attempts to present himself as an honourable man, a man who wants to be a good father to the child he has created. His behaviour belies his words. While there are many types of family arrangements and while "relationships" can take many forms, G.K.S.'s description of the inception and development of his relationship to M.B. cannot be accurate.

40There are many weaknesses in the evidence of M.B. but her evidence about the nature of their domestic relationship rings true to me. G.K.S.'s version is inaccurate and untrue. He strung her along and kept her hoping for a future for them together. He says, but I do not accept, that he made it clear to M.B. that they were not a couple, that they were not together and still broken up despite him wanting to "be there for the child."

41Another example of his willingness to lead M.B. on occurred in the late fall of 2012 when he broke up with his other girlfriend for a time. He testified that because he had broken up with his girlfriend in November and December of 2012, and because he took M.B. out for dinner on New Year's, he believes she "took the impression that [they] could get back together" but he did not want that.

42His take on what he was doing was that he "just wanted her just to be okay with [him] working and [he] had no problem with her dating other guys and other stuff like that. [He] just wanted pictures for the baby, like a family picture, so when the baby gets older he could like look back and see that we had pictures together, like [he] didn't want the kid to know that [they] were breaking up right off from the get-go type of thing. [He] just wanted to build a foundation strong before [he] continued with [his] personal life with like other girls and stuff like that." G.K.S. said that they never sat down to talk and "work on their relationship." My view is that the accused was emotionally fraudulent toward M.B..

43I find that G.K.S. was merely leading her on. By his own admission he knew M.B. wanted to be in a romantic relationship with him. While he testified that he had a new girlfriend he remained living with M.B. and they continued to have sex together on and off until he says that they stopped doing so because he did not want her "to grow any feeling towards [him] so [he] gave her space." That behaviour of engaging in sexual relations with the complainant makes it clear to me that he wanted what he saw as the best of both worlds; i.e. two women at his disposal.

44G.K.S. said that he and the complainant argued a great deal as she wanted to be with him and he didn't want to be with her so that there were times when the complainant would get fed up and leave for two or three weeks and then without notice just show up. He says that he accepted this behaviour because he "wasn't going to be an "asshole" to her" and he allowed her back and gave her the bedroom, while he slept on the couch.

45In view of his description of their relationship, I reject his testimony that he went searching for M.B. during the early morning hours of August 17, 2012 because he was concerned about her safety. That was the date when M.B. called the police to complain of being abused by him. G.K.S. testified that he knew that she left that night and he said that as it was dark when she left, after waiting for her to return for about 45 minutes, he and Andrew went looking for her because he was concerned about her safety because she was pregnant and not familiar with the area. I do not accept that testimony. According to him, she had been taking off while pregnant for weeks at a time. If concern for her safety was his real motivation for searching for her he would not have waited for almost an hour. His explanation for looking for her in this fashion is incredible.

46There are other elements of his evidence that make no sense to me and which I reject as untrue. For example, when he found her at the gas station about to use the payphone on August 17, 2012 he said that she was crying and refused to get in his car and return to their apartment. He attempted to explain her demeanour as evidence of her being unhappy with the location of their apartment and as being the result of some undefined tension that he says he noticed between her and Andrew. He went on to testify that he surmised that tension was the result of "something was going on between them." Yet while he berated and rejected M.B. for being unfaithful to him with his old friend Andrew while he was in jail, he says that he never raised the subject with Andrew. Even stranger, once she had made her disclosure of infidelity G.K.S. testified that he needed a day "to process everything" and then decided that he had been friends with Andrew for so long that he instructed her to tell Andrew that she had disclosed her infidelity with him to G.K.S.. G.K.S. went on to say that he stopped talking to M.B. until the day after the baby was born. Clearly this last portion of evidence is not accurate and his other recollections and interpretations are incredible and inconsistent.

47In short, I simply do not believe G.K.S.'s evidence as it relates to M.B. and their relationship. He was dishonest with her emotionally. He went through the form of intimacy with her but without feeling any of the complex emotions or responsibilities that make intimacy between people a valuable and meaningful enterprise. [8] However, my rejection of G.K.S.'s evidence in this regard does not advance the case for the Crown. Rejecting the accused's evidence does not prove or demonstrate the truth of any contrary evidence. It simply reduces the clamour from an opposing chorus, so to speak, which may permit an uncluttered consideration of the contrary evidence given by the complainant. Given the submissions of the defence, I now turn to consider the challenges to her evidence.

The Challenges to the Evidence of the Complainant

The Challenges to the Evidence of the Complainant

48Mr. Evans helpfully provided numbered written submissions identifying the areas and aspects of the evidence of M.B. that in his submission detracted from her credibility as a witness. I propose to review those matters following the numbering used by Mr. Evans.

49Item No. 1. "She is by her own admission a con artist." That is to say, the defence submits that the complainant is "exactly the kind of unsavory witness that would mandate a Vetrovec warning." Counsel made reference to his cross-examination of the complainant on March 4, 2014 (hereafter Transcript 1) culminating in her admission, at page 78, that she was a con-artist.

50M.B. admitted that she would lie to people she would hang around with and tell them that she needed money for something and take the money she extracted by her lies. This is something she did in Alberta when she needed money. She said that when she moved to Ontario she obtained money by defrauding people that she connected with through on-line dating sites. Using her middle name to avoid being identified she would befriend older men and ask them to send her the money so that she could afford to visit them. She would direct them to send her money to a local Money Mart office in the name of her alias and, of course, never make the trip that her victim had paid for. Given that pattern of behaviour M.B. agreed that she was a "con-artist".

51Item No. 2. "Lying for Lying's sake." M.B. knew people in Kitchener, Ontario. The father of her first child had family there and she had visited that city on a prior occasion. She did not tell G.K.S. that she knew anyone in Kitchener. [9] However, Mr. Evans suggested to M.B. that she had a reason to lie to G.K.S.. He suggested that "one of the reasons" (sic) that she hid this resource was so that she could get G.K.S. to support her and secretly supplement her income from her secret source. While that suggestion was not accepted it does not confirm that she was lying for the sake of lying, as submitted, but does confirm she would and did lie to G.K.S..

52Item No. 3. Mr. Evan's third submission is merely a reiteration of Item No. 1 with the following addition; that he suggests the complainant contradicted her testimony by stating in her police interview that she began perpetrating the travel money fraud in Alberta even before she arrived in Ontario. In my view that suggestion was not adopted by the complainant and the portion of her police statement referred to does not say what counsel suggested.

53Item No. 4. M.B. testified that she was scamming people for money before she came to Ontario. Paraphrasing her evidence she admitted that she would ingratiate herself to someone and then milk them for what she could get from them. This is clearly an admission of selfish, premeditated and discreditable behaviour; but, as described it appears to be on a very modest scale. As I hear her describe this behaviour, she would chum around with someone for the day and attempt to have that person spend money on her and then leave when her "friend's" money was spent.

54Item No. 5. This is a matter of serious proportion. M.B. admitted that she would create a false identity on a dating site and arrange to meet men. Initially, M.B. testified that she would not have sex with these men but they would "give" (sic) her money despite that. When challenged by Mr. Evans and confronted by her prior police statement she conceded that she would steal their money by directing them to take a shower before any sex. When they left to do so she would steal their money and flee. In her testimony she insisted this was a scam concocted by the accused although she did not make that accusation in her police statement.

55Item No. 6. Mr. Evans submits that at p. 20 of Transcript 1 the complainant testified that G.K.S. pushed her into prostitution. In fact she did not say that in that passage. [10] In my view these answers do not demonstrate or imply that the accused pushed M.B. into prostitution. The most that she implies here is that he attempted to make her feel guilty about being indebted to him and about somehow causing him to lose his employment. [11] Significantly, later in her testimony M.B. admits that she alone made the decision to begin prostituting herself.

56Item No. 7. According to the complainant, less than two months after G.K.S. was released on bail in January of 2012, while they were living together at […] in Brampton each of them was receiving welfare. During that period, she alleges that G.K.S. took four or five of the welfare cheques that she received. Mr. Evans notes that there is no corroboration of that allegation. (G.K.S. testified that her welfare cheques were deposited directly into her bank account.) Mr. Evans goes on to submit that even were I to accept the complainant's evidence, this was not money derived from prostitution in any event.

57Item No. 8. The complainant related an incident in which she left the apartment to get a cold treat and while doing so ran into an acquaintance and socialized with that male friend. She was, she says, searched for by the accused, found and forced to leave and return home with him. Upon her return she says that the accused brandished a steak knife, pressed it onto her leg and threatened her against leaving again without his permission. Mr. Evans notes that these allegations are completely uncorroborated despite the existence of a corroborative witness, the male acquaintance, who was not called.

58Item No. 9. The defence position is that M.B. fabricated these allegations because she was jilted by G.K.S. and was jealous of his new girlfriend. In support of that submission Mr. Evans points to various passages from the complainant's testimony in support of this submission. [12]

59Item No. 10. Mr. Evans submits that there is a contradiction in M.B.'s evidence concerning how and when she began to prostitute herself. In her cross-examination she claimed to have begun working as a prostitute in November of 2012 after the birth of her second child and that she did so as a result of the accused. At page 42 of Transcript 1 the complainant testified that it was the accused's idea for her to "work", i.e., prostitute herself in Niagara Falls. That evidence is inconsistent with and contradicted by her testimony that she alone made the decision to prostitute herself in Brampton in the summer of 2011. In support of this submission Mr. Evans points to Transcript No.1 at page 42:

Q. M.B, when did you start to work as a prostitute?

A. As soon as my stiches healed.

Q. Okay, so that would be in what then of 2012?

A. Like end of November.

Q. Okay, and whose idea was it for you to start working as a prostitute?

A. Well, G.K.S. was the one that said we were going to Niagara Falls because we, we had to leave Alex's place.

Q. Okay, did you do any of that work in Brampton?

A. Yeah I tried a few times, but realistically I, I went and I just didn't answer the phone.

Q. Whose idea was it for you to start that work?

A. I don't recall that one. … I believe that one was on me because I wanted to get away from him, so realistically I just said that I was going to go work so I can get a few hours away from the guy at the hotel.

60Item No. 11. As noted above, while M.B. admitted that it was her idea to begin prostituting herself in Brampton, she also said that while she did the "ads and everything" [13] she would delete the calls and tell G.K.S. that she did not get any. That is inconsistent with her subsequent testimony at Transcript 1 page 103:

Q. So you were or were not selling sex for money when you were at the Motel 6 in Brampton?

A. Yeah.

Q. You were?

A. Yes.

While this appears to be a clear contradiction, she also testified that G.K.S. would come collect the money she made and that he was fully involved in editing her ads and obtaining the credit cards required to pay for those ads "cause he said that he knew what guys wanted to read." [14]

61Item No. 12. The complainant testified that she was selling herself at the end of November or the beginning of December of 2012 and ending about a week before February 23, 2013 and earned $1,700.00. Mr. Evans submits that figure makes no sense, because at another point in her testimony she said that on a good night she could earn between $700.00 to $900.00.

62Item No. 13. Mr. Evans noted that M.B. received some support from her first child's family while she lived in Kitchener. She told G.K.S. that these funds came from acts of prostitution. Counsel submits that there is no reason for her to have misled G.K.S. about how she came into possession of these funds, especially given that she concedes G.K.S. never asked her to "do anything". [15] As Mr. Evans phrased it, "for no rational reason" she told G.K.S. the source of her funds was from prostitution. The Q and A of this sequence is too long to quote but reference can be made to page 94 of Transcript 1 at line 26 through to page 96 at line 16. M.B.'s testimony here is incredible, despite her suggestion that G.K.S. had mentioned prostitution at some point and despite her explanation that she was too overwhelmed in speaking to the police and so only spoke to the "main points" for why she was speaking to them. Significantly, she confirmed that while in Kitchener G.K.S. said nothing to her about prostitution.

63Item No. 14. Counsel submitted that the complainant contradicted herself by first testifying that she tried to lead the accused to believe that she was interested in him romantically when they met on-line and then said the opposite. Transcript 1, page 83 and be compared to Transcript 1, page 84.

Q. Okay, so if I got this straight, you're talking with G.K.S. online. Are you trying to make it seem like there's some kind of romantic connection with G.K.S.?

A. No, I wouldn't think so.

Q. So why, why are you and Duop [16] laughing at G.K.S.?

A. I have no idea.

Q. So you're misleading him about the possibility of a romantic interaction? Is that a fair way to put it? You're leading G.K.S. to believe that you're interested in him romantically?

A. He did the same thing. [17]

64Item No.15. In this submission Mr. Evans notes that the complainant's testimony (i) concerning her reasons for coming to Ontario, (ii) what she said to Duop about doing so and (iii) how that testimony compares to her police statement is rife with inconsistency or incoherence. The following references to several passages from Transcript 1 and the Transcript from April 10, 2014 (hereafter Transcript 2) demonstrate the force of these submissions.

Transcript 1, page 84, commencing at line 18:

Q. …did you tell Duop why you're coming to Ontario?

A. Yeah.

Q. What did you tell him?

A. That I was going to be helping G.K.S. with Rogers …

Transcript 1, page 86, commencing at line 4:

Q. … I thought that there was a plan that you were going to come to Kitchener to take care of his aunt that was going to be kind of a job for you. Is that right? No?

A. No because I told him when I got there that his aunt, he told me that, oh, maybe you can help my aunt and I said okay and then he gave me the number, so when I got there I called her to see when she needed my help and she would be able to know where to contact me, and where she stays wasn't too far from G.K.S.'s condo.

Q. And if [Duop] knew you were coming to Ontario surely, because the two of you are a couple at the time, he's going to say why are going to Ontario? Right?

A. Not really, he really didn't ask.

Q. That makes no sense whatsoever.

A. It's not supposed to.

Transcript 2, page 2, commencing at line 10:

Q. And what is it that you told [Duop] about why you were coming to Ontario?

A. That I was gonna be helping [G.K.S.] with, that I was going to work and. I really didn't give him a reason why, he didn't ask.

Transcript 1, page 87, commencing at line 14:

Q. And you didn't say to him when you had this conversation with him, I'm going to visit …

A. No because …

Q. … your aunt or to see this G.K.S. guy that I met online that you were laughing at, making fun of, and telling lies to. Nothing, you don't tell him why?

A. No, were at a rough part of our relationship and he didn't care to know. We just needed space away from each other.

Q. And you didn't bother to tell him?

A. He didn't ask, so.

Transcript 1, page 93, commencing at line 1, (where a portion of M.B.'s police statement is read to her by Mr. Evans,):

Q. 'So can you describe for, describe that for like the reasoning behind that and why did you make that choice?' And your answer was, 'My reason to come was because first, my ex prior to this family is in Kitchener and I was actually own, suppose he paid my way this way because I was supposed to come take care of his aunt and I thought, okay, well, he's there so I can just talk to him and, you know, like, hang out with him and whatever. And when I got there I made him think that I didn't know anybody and just to see how it would really go and then I used to lie to him saying that I was doing a trick or whatever, but really I was at my first ex parents' house and, you know, anything I needed they would give me. So I would tell them, well, I need $80 and let's go back and I'd be like, made it seem like something else.' So from that it sound like what you told the, the ex was that you're coming here to take care of his aunt and that's why he paid your way.

A. M-hmm, yeah but that was on the phone. That wasn't before I left. It was after I got here.

Q. He, I'll go back to your words. "He paid my way this way because I was supposed to come take care of his aunt". He paid your, paid your way because you're supposed to take care of the aunt means that he paid your money in Alberta, paid that money to you in Alberta …

A. M-hmm.

Q. So why, why did you tell me something different earlier?

A. How is it something different? This is all past tense the way I'm explaining it. It's not like I knew it when it was happening because I didn't even know G.K.S. was in Kitchener until I got to Toronto.

A. It's not two different things when I'm talking about the past. Because at the time of me leaving, he didn't ask questions why I was coming or whatever.

65Item No. 16. Mr. Evans submits that M.B. testified that she called G.K.S. when she was half-way to Ontario and then resiled from that answer.

66Item No. 17. Mr. Evans submits that M.B. invented an anecdote about being exposed to prostitution by the accused but that this event was not part of her prior testimony and first referred to in cross-examination. Moreover, this vignette is inconsistent with her prior testimony that the accused never suggested that she prostitute herself while they lived in Kitchener.

Transcript 1, pages 98 to 99, commencing at line 8:

"Q. Okay, and one thing we know you're not doing when you're in Kitchener is prostituting yourself, right?

A. No because the time one guy [18] wanted me to how it would go down and whatever, he took me to a hotel where another girl was working, some Asian girl, and he said, oh do you think you can handle that or do you think you can do this? I'm like, I don't know. And then I said, oh, I'll just stick to what I know.

Q. I'm sorry. You completely lost me there. Once time when you were in Kitchener some guy takes you to some hotel?

A. G.K.S. took me, not some guy.

Q. Okay, have you ever talked about that before … to the police?

A. Oh, no, that I just recalled now when I thought about the, if I ever worked in Kitchener.

67Item No. 19. Mr. Evans submits that the complainant was inconsistent about violence in their relationship. Initially she alleged that the accused did not become physically violent to her until after he was released from jail in January of 2012. However she also contradicted that by saying that while he would not rough her up prior to September of 2011 by pinning her down to a bed to get her to listen to him. Confusingly, she did not consider that behaviour as constituting being rough or laying his hands on her since he just pinned her down so she would "stop freaking out."

68Item No. 20. Within the space of a moment she said two inconsistent things. When asked if she took any trips out of the Province of Ontario while G.K.S. was incarcerated she said no. Immediately thereafter when asked if she went to Montreal she said that she did so for one month. [19]

69Item No. 21. Mr. Evans submits that M.B. made several other contradictory or inconsistent statements as follows. She testified that G.K.S. was assaulting her and treating her poorly in Brampton during the late summer of 2011 and that they had money problems but in her police statement she said the opposite. Likewise, she testified that G.K.S. forced her to prostitute herself in Brampton but in her police statement she said it was her idea to prostitute herself in Brampton and that G.K.S. would not be there if that's what she wanted.

Transcript 2, pages 13 to 14:

Q. No, I'm asking, was he forcing you to prostitute yourself while you were in Brampton?

A. Yah, he said that was the only option we had.

Q. He was treating you poorly?

A. Uh hmm.

Q. Right? And from what you say, assaulting you?

A. Yah.

Q. And this is, this would be August, September or something like that?

A. I believe so.

Q. And then he ends up getting arrested?

A. Uh hmm.

Q. And he's in custody until January?

A. Yah.

Transcript 2, page 15:

Q. Okay. So down near the bottom the officer says: 'So, from June to February he treated you …' and then you jump in and say: 'Yah, he treated me okay because like we were both getting our own money so we just all we were pitching food and ...' And then the officer goes on: 'so how did you get your money?' [20]

Further, at page 17 and following of Transcript 2, M.B. said that "[G.K.S.] never bothered [her] to do it {i.e., prostitute herself}. I was the one that wanted to do it when we were in Brampton in the hotel. …That's why he said that, oh well, I'm not gonna be here. And then one day I begged him to come see me."

70Item No. 22. Mr. Evans next noted that while she testified that she told the police that G.K.S. assaulted her, (at page 30 of Transcript 2,) the police report filed as Exhibit 17 contradicts that testimony.

Q. … And when you talked to the police did you tell the police that you had been assaulted that night?

A. Uh, yah. … I told them that I got assaulted earlier in the evening and that's why they took me to the Milton shelter away from Peel Region just so I, for my safety.

However, the police report filed as Exhibit 17 dealing with this incident states that she told the police that no assault or threats occurred.

71Item No. 23. Mr. Evans stresses that the Crown has failed to produce or exhibit any social media or computer messages that ought to be available if what the complainant says is credible.

72Item No. 24. The defence contends that there are two distinct and powerful motives to explain the lies about G.K.S. that M.B. is telling. First, it is clear that M.B. is jealous about being thrown over for a new woman in G.K.S.'s life. Second, the defence alleges that these allegations are attempts by M.B. to preclude G.K.S. from obtaining custody of their child.

73Item No. 25. Mr. Evans reminds me that the photographs that show bruising on M.B. are not corroborative of her testimony as they are not independent of it and in and of themselves do not shed any light on when force was inflicted on her, by whom and in what circumstances.

74Item No. 26 and Item No. 27 are a summation and reiteration of the many points that have been submitted previously. Mr. Evans submits that M.B.'s testimony was riddled with contradictions and inconsistencies between both her evidence and her police statement also given under oath. He urges that when confronted with these inconsistencies the complainant twisted and tortured the common meanings of words and phrases in an effort to resolve these contradictions and maintain that she was not being inconsistent. Given these foregoing submissions, the defence contends that it would be dangerous to rest a conviction on the testimony of this witness.

The Pimping Counts

The Pimping Counts

75While I have been calling counts 1 and 2 "the pimping counts," s. 279.01(1) and s. 279.02 appear in the Code under the heading "Kidnapping, Trafficking in Person, Hostage Taking and Abduction". Count 1 on this information charges that between November 1, 2012 and February 22, 2013 at the City of Niagara Falls did exercise control over the movements of M.B. for the purpose of exploiting or facilitating the exploitation of her, contrary to s. 279.01(1) of the Code.

76This section, as particularized in the information before me, requires the Crown to prove that during the identified timeframe G.K.S.: (i) exercised control over the movements of M.B.; and, (ii) that he exercised control over her movements for the purpose of exploiting her or for the purpose of facilitating her exploitation.

77Exploitation is defined in s. 279.04. For the purposes of this prosecution G.K.S. would exploit M.B. if he caused her to provide or offered to provide a service by engaging in conduct that, in all the circumstances, could reasonably be expected to cause her to believe that her safety would be threatened if she failed to provide or failed to offer to provide the service. Here the "service" is prostitution.

78In determining whether G.K.S. exploited M.B., inter alia, I may consider whether he (a) used or threatened to use force or some other form of coercion; (b) used deception; or (c) abused a position of trust, power or authority.

79In considering the evidence of M.B., I propose to sift it first to see whether M.B. alleged or the evidence otherwise demonstrates that G.K.S. exercised control over her movements during the charge period since that is a necessary element of the offence charged. If the evidence does not show that G.K.S. exercised control over her movements or if that cannot be inferred from her evidence beyond a reasonable doubt then G.K.S. is entitled to an acquittal on that count regardless of whether it could be said that his behaviour towards her was exploitive.

80M.B. gave evidence of being unlawfully detained by G.K.S.. She testified that her movements were controlled by him while she lived with him in Brampton prior to the timeframe alleged in count 1. Moreover, that control was not directed to or designed to facilitate prostitution. Despite that earlier control over her movements, I am unable to conclude to the exclusion of any reasonable doubt that G.K.S. "exercised control over the movements of" M.B. as alleged during the timeframe of count 1. Given the many frailties in her evidence, her testimony is incapable of meeting the test of proof beyond a reasonable doubt on this count. She made so many inconsistent statements about when she discussed prostitution with G.K.S. and so many inconsistent statements about when, how and why she first prostituted herself that I simply cannot rely upon that testimony to conclude that G.K.S. controlled her movements. [21] Equally, M.B. testified that she decided to work for King Tuts Escorts. [22]

81While M.B. and G.K.S. travelled from Brampton and moved into a motel room in Niagara Falls, that movement does not meet the gravamen of the section, in my view. Moreover, her work as an "escort" for King Tuts Escorts, which seems to me to be merely a cloak for working as a prostitute, was her idea. While, she went on to say, "G.K.S. was the one who said that when we got out there that he knows her and she works for King Tuts and then all I had to do was meet her boss, show her my I.D. and on the side I will do the Kings Tuts and then I'd work from the room, a separate room, like out of Amanda's room," I do not find beyond a reasonable doubt that G.K.S. controlled that decision. My doubt resides: (i) in her earlier testimony on this issue; (ii) in her earlier inconsistencies generally on the issue of prostitution; (iii) in her recovered – I'm just recalling this now – memories; and, (iv) in the run-on nature and lack of punctuation in the testimony quoted above.

82Further, the evidence does not disclose that M.B. was a drug addict or an alcoholic and that G.K.S. preyed upon any substance dependency to control her and force her into prostituting herself. Equally, while they had a toxic relationship, as I shall discuss below, the evidence does not support a finding, at least not a finding beyond a reasonable doubt, that M.B. was beaten or coerced into prostituting herself by G.K.S.. As noted in the prior paragraph, I cannot come to any conclusion beyond a reasonable doubt that G.K.S. committed the offence particularized in count 1.

83In R. v. Johnson, 2011 ONSC 195 (CanLII), at paragraph 2 Hill J. notes that "[t]he world of exotic dancing and strip clubs is not only notoriously linked to prostitution and common bawdy house criminality but also to an underworld of individuals, usually predatory males, who recruit and control by fear the women engaged in these ventures. For these working women, the lines between freedom of choice, dependency, coercive control and exploitation are often blurred." Johnson was such a case and there are elements of emotional dependency, assaultive abuse and exploitation woven into the relationship that developed between G.K.S. and M.B.. In my view, G.K.S. preyed upon and exploited M.B.'s affection for him. He exercised direction and influence over her movements, as I shall describe below. However, I have a reasonable doubt that his assaultive behaviour towards her was directed at or designed to enforce her to continue prostituting herself so that no breach of s. 279.02, (count 2,) was committed by G.K.S..

84That is to say that I have a reasonable doubt that his direction and influence over her acts of prostitution were exploitive, as that word is defined in s. 279.04. I have accepted for the purposes of this analysis that G.K.S. exercised direction or influence over M.B.'s movements, i.e., over her acts of prostitution. If that exercise of direction and control was exploitive then he would be guilty of count 2, the s. 279.02, charge because he clearly received money from her that she earned through prostituting herself.

85That direction or influence would be exploitive under s. 279.04 if he behaved towards her in a manner that, in all the circumstances, reasonably could be expected to cause M.B. to believe that her safety or her youngest son's safety would be threatened if she failed to prostitute herself. However, I have a reasonable doubt about that because M.B. repeatedly said that the violence G.K.S. inflicted upon her was invariably a venting of his anger and resentment towards her because of her betrayal of him with his friend Andrew.

86Count 2 charges a breach of s. 279.02 of the Code. Specifically that between November 1, 2012 and February 22, 2013 at Niagara Falls G.K.S. received money [23] knowing that it resulted from the commission of an offence under s. 279.01(1). I accept and find that G.K.S. took money from M.B. that she had earned by prostituting herself. In addition, I accept and find that he offered encouragement, support and assistance in the development of her prostitution business sufficient to amount to the exercise of direction or influence over her movements, (i.e., engaging in prostitution,) as required by s. 279.01(1). I have accepted that his behaviour, his direction and influence meets that level for the purposes of this analysis, particularly given that no Charter challenge to s. 279.01 based upon vagueness or over-breadth was mounted.

87I also accept M.B.'s evidence that she sold her sexual services while under the influence of G.K.S. and to a more limited extent pursuant to his directions concerning the use of condoms and her pricing of the sexual acts she was prepared to engage in.

88I note that count 1 was particularized to charge that G.K.S. exercised "control" over M.B.'s movements during a specific period for a specific purpose. For the reasons noted previously I have a reasonable doubt about whether G.K.S. exercised control over the movements of M.B. during that period for an exploitive purpose. In my view, while count 2 is limited by a timeframe, (i.e. the period during which the couple lived in Niagara Falls,) it was not particularized or limited to a particular mode of transgressing s. 270.01. Hence, a conviction could follow if the evidence proves to the requisite degree that G.K.S. committed the offence of receiving money from M.B. as a consequence of behaviour proscribed by s. 279.01. That prohibited behaviour includes exercising direction or influence over the movements of a person for the purpose of exploiting that person.

89Direction can be defined [24] as:

noun

1. the act or an instance of directing. …
2. a line of thought or action or a tendency or inclination: the direction of contemporary thought.

Influence can be defined [25] as:

noun

1. the capacity or power of persons or things to be a compelling force on or produce effects on the actions, behavior, opinions, etc., of others: He used family influence to get the contract.
2. the action or process of producing effects on the actions, behavior, opinions, etc., of another or others: Her mother's influence made her stay.
3. a person or thing that exerts influence: He is an influence for the good. …

90I believe M.B.'s evidence that she received direction from G.K.S. about how to carry out her sex-trade activities, that is to say, he directed her movements in that regard. That direction (about what to charge for her sexual services and to ensure that her clients used condoms,) was important, despite being limited. More significantly, I additionally find that he exerted influence over M.B.'s movements; viz her continuing to prostitute herself once they moved as a couple and family to Niagara Falls.

91I accept the evidence of M.B. that she loved G.K.S. and that he was able to influence her choice to continue to engage in prostitution. She testified and I accept that he told her, in effect, that they had no financial choice but for her to prostitute herself. Moreover, she testified and I accept that when she did not prostitute herself to earn money, he became difficult to live with. He used his emotional behaviour towards her to influence her movements, i.e., to continue to prostitute herself. She was, I find, to a substantial extent under his sway in that regard. He influenced her to continue prostituting herself, (both positively by encouraging her and assisting her in that activity [26] and negatively by being surly to her when she was not bringing in enough money to satisfy him.) So, in my view he was morally exploitive. But, as I determined above at paragraph [84], the evidence does not establish to the exclusion of any reasonable doubt that he was criminally exploitive of her as defined by s. 279.04.

92Despite her concession that much of the money that she earned from prostitution was spent by G.K.S. to pay for their hotel room, to purchase food and necessities for their child and to buy clothing for M.B. "to look good" in her sex-trade work, he also used that money for his own purposes. That was her evidence and as I have already said, I believe it and I accept it. All of that is merely to repeat that I am satisfied that G.K.S. exercised direction or influence over her movements sufficient to have breached s. 279.02 if his influence and direction was criminally exploitive as defined by s. 279.04. On the evidence called that has not been proved to the exclusion of any reasonable doubt and G.K.S. is not guilty on count 2.

93In arriving at the foregoing decision I have not ignored Mr. Evans' submissions that, not to put too fine a point on it, M.B. was an awful witness. Even Mr. Shuster conceded that I ought to assess her evidence with care. The defence submits that her evidence requires a Vetrovec self-charge and on that basis none of her evidence ought to be accepted unless and until it is corroborated by other independent evidence.

94Given these submissions concerning the unreliability of the complainant's evidence and the concession of the Crown to similar effect and based upon my own assessment of her evidence, I have given myself the "clear and sharp warning" required of a Vetrovec-type witness. I am acutely alert to the frailties of M.B.'s evidence. I have focused on those aspects of it that are inherently unreliable. Much of her evidence may be suspect because of her self-admitted fraudulent and theft-related behaviours, but also because of her motives to do ill to G.K.S.; viz jealousy for being cheated upon by him, anger at being lied to by him about their prospects for a future together and fear that publication of her acts of prostitution could alienate her from her family and her children and that she could potentially lose custody of her second son.

95Beyond these concerns M.B.'s evidence was replete with illogic, contradictions and fractured vocabulary, tense and syntax. Her evidence was exasperating to listen to and note down on first hearing and that exasperation only deepened on reading her evidence in transcript form. Indeed, as I have previously ruled, her evidence cannot support proof beyond a reasonable doubt on count 1 or count 2.

96I am fully aware that it is dangerous to rely upon the unsupported evidence of an unsavoury witness. Equally, as I have noted earlier, I appreciate that as a self-admitted fraudster and thief her credibility is suspect and that she has ample motive to be antagonistic towards G.K.S. and to wish him ill.

97Nonetheless and despite this myriad of faults there is substantial independent corroboration of the whole arc of her relationship with G.K.S. (from meeting on-line, to living together in Kitchener, to moving to Brampton, to his arrest and detention in Brampton, to their relationship while he was detained on an allegation of breach of recognizance, to their living together once again in Brampton, to their living with Andrew in Kitchener and in Brampton, to her fleeing their second apartment in Brampton, to her pregnancy, to their reunion after the child's birth, to their move to Niagara Falls, to her work as an escort for King Tuts Escorts, to her use of his telephone to submit advertisements supporting her work as a prostitute.) All of that is corroborated by G.K.S.'s own evidence. In addition, the various photographs of sites of injury on her person have the potential to be corroborative of her complaint of being assaulted. Admittedly, that is not necessarily the case. Bruising may occur from an accidental fall, for example and even if the bruises are the result of an intentional application of force there is no independent evidence that G.K.S. inflicted them. Worse yet for the Crown there is evidence from Exhibit 17, (the Peel Police Occurrence Report,) that clearly contradicts M.B.'s testimony about whether she complained of assaults by G.K.S. on that date to the police.

98Despite the frailties in her evidence that I have canvassed above and despite Exhibit 17, I have no doubt that G.K.S. assaulted M.B. with some regularity during the periods of time that they lived together in Brampton and in Niagara Falls. [27] At the risk of falling prey to the same criticism that I made respecting Mr. Shuster's use of a non-expert opinion-based analysis, M.B.'s description of the violence in their relationship resonates with me and with my assessment of that relationship based upon her description of it. It was clearly emotionally exploitive and physically violent. In a very inarticulate and somewhat concrete fashion she described a cycle of jealousy and anger from G.K.S. that bloomed into assaultive behaviour against her followed by "broken promises" (sic) and reconciliation [28].

99Without quoting all of M.B.'s testimony about the assaults that she says were inflicted upon her by G.K.S., she said, inter alia, the following:

• When we were in Niagara Falls there was an incident that happened in the bathroom where he took me to the shower and tried to burn me with hot water. He would like, use a shoe to hit me in the face and my nose was bleeding. He didn't really care what he did to me as long as he got his anger out. And then, then after, which are the pictures that you guys have, my face, that I took, then he would start with being nice to me for a while 'cause he knew he had to leave for work." [29]

• Q. … You also said that, one of the words you used was you said he fought you. What did you mean by that?

  A. As in he would, like, punch me in my face; he would, like, choke me; he would, like, grab somewhat my hair by, like, he would grab my ponytail. [30]

• Well, one time he hit me with an egg turner on, my forehead. … like a spatula … this is before, while I was pregnant, but I wasn't really showing yet … [31]

• Then he got mad and started an argument and the baby was in the living room with Alex and, and he like, yeah, and it escalated to him grabbing me and throwing me down and he, like, kneeled on me. … like put his knee on my chest and on my stomach. [32]

• So every time he got mad it always evolved around Andrew. He had a, a shoe and he was, like, hitting me in the face with it even though I was telling him the right answers. He wouldn't stop until I told him, yes, I did, yes, this, whatever questions he was asking me. If I didn't tell him what he wanted to hear, he would hit me in the face. [33]

100I accept M.B.'s evidence that she was assaulted by G.K.S. and I accept her evidence that the assaults were prompted by G.K.S.'s jealousy that M.B. had had a sexual liaison with G.K.S.'s good friend Andrew while the three of them lived in Kitchener during the summer of 2011.

101M.B.'s evidence concerning the timing of these assaultive events is suspect, that is to say, undocumented and imprecise. The number of the events was not identified with any precision either. She complains, and I accept, that on occasion G.K.S. hit her with or touched her with objects, amounting to assault with a weapon, (a knife, a shoe, a spatula,) but for the most part she complains that he punched her in the face, and with a towel wrapped around his "wrist" (sic) to avoid leaving bruises. These complaints amount to a continuing complaint of assaultive behaviour between the same parties over an extended period of time.

102R. v. R.I.C., [1986] O.J. No. 1087 (C.A.) stands, inter alia, for the proposition that several acts of … assault involving the same parties at successive times are capable of being treated as one transaction for the purposes of a count in an information. Given the frailties and imprecision of the complaints I would have found G.K.S. guilty of one count of assault level one, by indictment, for the whole course of assaultive behaviour complained of. However, this matter was not raised by counsel or by me during their submissions and I am not prepared to do so given that; (although it seems to me to be the proper way to treat the matter on sentence, subject to considering any submissions to the contrary by counsel.)

103In the result I find G.K.S. guilty on counts 3, 7, 8, 12, 13, and 14. He is found not guilty on counts 1 and 2 for the reasons previously explained and he is found not guilty on count 11 for the reasons submitted by Mr. Evans at paragraph [6] and because the earlier recognizance was never proved.

Dated at St Catharines this 27th day of June 2014

Signed: "J.S. Nadel, (O.C.J.)"