INFORMATION AND COURT DETAILS
Information No.: 2811-998-15-25122-01/02
Court: Ontario Court of Justice
Heard Before: The Honourable Justice M. S. Felix
Location: Oshawa, Ontario
PUBLICATION BANS
IMPORTANT: Contents cannot be published, broadcasted or transmitted pursuant to s. 486.4(1) and s. 517(1) of the Criminal Code by the Honourable Justice R. J. Richards of the Ontario Court of Justice on December 16, 2013.
Information contained herein is subject to a publication ban pursuant to s. 539(1) of the Criminal Code of Canada by the Honourable Justice M.S. Felix of the Ontario Court of Justice on June 10, 2014.
PARTIES AND COUNSEL
Her Majesty the Queen
v.
Darius Bundy and Daylo Robinson
Appearances
- K. Polley – Counsel for the Crown
- J. Goldlist – Counsel for Darius Bundy
- M. Peck – Counsel for Daylo Robinson
REASONS FOR COMMITTAL
I am providing oral reasons concerning this preliminary hearing rather than adjourning for a period of time to compose more comprehensive and lucid reasons. I am doing this because the two gentlemen are in custody and I was greatly assisted by the written submissions of all parties. If I fail to refer to a particular piece of evidence it is not because I have not considered it. I am going to refer to the evidence to the extent that I need to in order to address the issues that I need to address.
PRELIMINARY LEGAL FRAMEWORK
Role of Preliminary Inquiry Judge
With respect to my role, I am quite cognizant that I am not the trial judge in this case. If I was the trial judge, I would be evaluating credibility; I would be deciding whether I believe people or whether I do not, and whether I accept their evidence. I am not doing any of those things here in this form.
The role of a preliminary inquiry judge has been set out but it is quite clear that s. 548(1) of the Criminal Code requires me to order the accused to stand trial if in my opinion there is sufficient evidence, and to discharge if on the whole of the evidence no sufficient case is made out.
Thus, what I am supposed to do is ask whether there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. Under this test a preliminary inquiry judge must commit the accused to trial in any case where there is admissible evidence which could, if it were believed, result in a conviction.
I am relying on Sheppard (1977), 1976 CanLII 8 (SCC), 2 S.C.R. 1067 and R. v. Arcuri, 2001 SCC 54 (CanLII), [2001] 157 CCC (3d) 21 S.C.C.
Direct Evidence vs. Circumstantial Evidence
It is not my role to assess the credibility of witnesses or weigh the evidence for competing inferences in determining whether there is sufficient evidence for committal. The test is the same whether the crown is relying on direct evidence or circumstantial evidence. However, in these two circumstances the approach is slightly different.
Where the crown is relying on direct evidence, as Madam Chief Justice McLaughlin explained in Arcuri at paragraph 31:
"By definition the only conclusion that needs to be reached in such a case is whether the evidence is true. It is for the jury to say whether and how far the evidence is to be believed. Thus, if the judge determines that the crown has presented direct evidence as to every element to the offence charged, the judge's task is complete. If there is direct evidence as to every element to the offence, the accused must be committed to trial.
Where the crown seeks committal on the basis of circumstantial evidence, the task of the preliminary inquiry judge becomes somewhat more complex. The question then becomes whether the remaining elements of the offence, that is those elements as to which the crown has not advanced direct evidence may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because with circumstantial evidence there is by definition an inferential gap between the evidence and the matter to be established; that is an inferential gap beyond the question of whether the evidence should be believed.
The judge must therefore weigh the evidence in the sense of assessing whether it is reasonably capable of supporting the inferences that the crown asks the jury to draw. This weighing however is limited. The judge does not ask whether she herself would conclude that the accused is guilty, nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence if believed could reasonably support an inference of guilt. This limited weighing means that inferences to be drawn from circumstantial evidence need not be compelling. They need not be easily drawn in order to be reasonable. If there are competing inferences, I instruct myself that that is for the trier of fact to resolve. A preliminary inquiry judge commits jurisdictional error when the judge weighs competing inferences or chooses amongst them. If the trier of fact could reasonably draw an inference based on the evidence then the matter should be left for their determination."
Justice Doherty in R. v. Morrissey, 1995 CanLII 3498 (ON CA), [1995] 97 CCC (3d) 193 O.N.C.A. 209 explains the process of inference drawing. He indicated:
"The trier of fact may draw factual inferences from the evidence. The inferences must however be ones which can be reasonably and logically drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation."
I am also cognizant of the fact that my role is not to engage in sort of a piecemeal analysis of the evidence. My role is to analyze the evidence as a whole.
Further support for this approach of course is found in R. v. Sazant, 2004 SCC 77 (CanLII), [2004] 3 S.C.R. 635, paragraph 16:
"So recently the Supreme Court of Canada confirmed the Sheppard test, confirmed that it is an error for me to commit someone for trial when there was no evidence on an essential element of a charge. And confirmed in paragraph 18 that the judge is not to assess credibility or reliability and where more than one inference can be drawn from the evidence, only the inferences that favour the crown are to be considered."
The Supreme Court of Canada cited the Ontario Court of Appeal in Campbell (1999), 155 O.N.C.A. 143:
"A preliminary hearing is not the form for weighing competing inferences or for selecting among them. That is for the trier of fact at trial."
So to make it perfectly clear to the two gentlemen before the court who may not have been following these authorities from the Supreme Court of Canada, I may not accept personally the theory of the crown or I may not accept the evidence of witnesses but that is not my function sitting here as a preliminary inquiry judge. Sitting here as a trial judge that is my function. So I instruct myself in that regard generally concerning this preliminary hearing.
ANALYSIS BY COUNT
I have also reviewed the law as it pertains to the counts before the court and what I am going to do is go count by count and provide my reasons. It is the only logical way that I could keep track of what I was doing.
Count 1
There will be a stay of proceedings as per the crown attorney's direction.
Count 2 – Procuring (s. 212(1)(h))
Relates to an allegation of procuring pursuant to s. 212(1)(h) of the Criminal Code of Canada referencing J.M.
I have reviewed the law as it pertains to all of the applicable sections in this preliminary hearing.
S. 212(1)(h) sets out: for the purposes of gain, exercises control, direction or influence over the movements of a person in such a manner as to show that he is aiding, abetting or compelling that person to engage in or carry on prostitution with any person or generally. That is the offence of procuring according to that section.
I was startled by the lack of a great number of authorities in this area but the crown has provided one very persuasive authority with respect to this section and that is the case Perreault, (1996) 1996 CanLII 5641 (QC CA), 113 CCC (3d) 573, the Quebec Court of Appeal held:
"The element of control refers to invasive behaviour which leaves little choice to the person. This therefore includes acts of direction and influence. There is the exercise of direction over the movements of a person when roles or behaviours are imposed. The exercise of direction does not exclude the person being directed from having a certain latitude or margin for initiative. The exercise of influence includes less constricting actions. Any action exercised over a person with a view to aiding, abetting, or compelling that person to engage in or carry on prostitution would be considered influence. In order to establish this offence, the crown must adduce evidence that for the purpose of gain, the defendant exercised control or direction or influence over the movements of a person such that the defendant is aiding, abetting or compelling to engage in or carry on prostitution with any person or generally which I interpret to mean at large."
Evidence of J.M.
J.M. testified via video link. I will not recount every aspect of her evidence. I listened to her evidence carefully. I have also had the benefit of technology in this courthouse. I have been able to access the actual record that was heard in this court and I have listened to it a second time.
It is clear that J.M. went to meet up with her friend N.P. in Oshawa. She stayed in a hotel room with Mr. Robinson and Ms. N.P. She observed N.P. provide money to Mr. Robinson on many occasions. On one occasion he said it was for the hotel. She did not initially contribute to the cost of the hotel and after four days she testified that Daylo Robinson told her to start working in prostitution to pay her way or else she would have to leave. She told the court that she had given up her housing in Woodstock and felt she had to comply.
When Mr. Robinson first suggested it, she laughed at him. She testified he did not take kindly to this; he took it as an insult. He took her phone and used pictures of her to create Back Page ads. She directly observed one of those ads. She was advised of others by N.P. She had no say as to what was placed in the ad. The ad contained explicit details as to the services provided and the cost for such services. Mr. Robinson indicated the cost was $100.00 for a half hour, $180.00 for the hour. Later on he advised her to cut down the time to 15 minutes to get more customers serviced. N.P. was also working in prostitution.
Ms. J.M. testified that Mr. Robinson kept them working all night and early into the morning hours. She believes that he took her only piece of ID at some point because it was missing after a call and because when she asked for it to get smokes he freaked out and told her she was mouthy. She did not directly observe him take her ID but she drew that inference.
He kept the money that she earned. The first couple of times she kept the money then he said he needed it for the hotel room cost then finally he took it all except for the money that she held back from him. She testified that at the Quality Inn she made $500.00 and Daylo took it all. Overall she estimates that she made $2,000 and she testified that the majority of this money went to Daylo.
She talked about how she would ask N.P. to speak to him to obtain money for food. When business was good they had the opportunity to eat better. She was afraid of him having observed him severely assault a woman named Rebecca in the washroom. There was the example of Rebecca who was insubordinate in tone or words, he would threaten her.
Daylo also smacked her in the mouth. When Daylo would get mad, Darius would have to get involved and prove himself to Daylo. She also testified that Darius never beat up Rebecca as bad as Daylo did, but he did cause a bruise.
With respect to this witness, she was not assaulted by Mr. Robinson. He did get in her face and he once threatened to choke her.
He threatened N.P. to break her jaw and the witness described how N.P. had just met up with her father and described the defendant uttering death threats, grabbing the back of her hair, saying, "You may as well say goodbye to J.M now, you're never going to see people again."
This witness' goal was to save enough money to go home. She testified that N.P. was providing the money she earned as well.
Things came to a head at the Holiday Inn in Durham Region. She was in a room with Daylo and N.P. in the 200's on the second floor. Rebecca, Darius and Staxx were in another room. She and N.P. paid for the rooms in terms of the funds, but Daylo had gone to the front desk.
There was a description of some sort of conflict with N.P. and as a result she and N.P. created a plan whereby they would leave. The idea was there would be a two-hour client and this would give them time to leave. Ms. J.M. packed up everything as N.P. was too scared to do so. Ultimately they were caught. As a result, Daylo told her she would have to leave and make her own way. He had her money and her ID. As a result, she recounted how she went to security in the motel or hotel, told them what was going on and told them there was a gun in the room. She was fearful for her safety. She was fearful for the safety of Ms. N.P.
She also testified about Darius Bundy. She said that he was nice to her and he treated her like a human being.
Findings on Count 2
Ms. Peck properly concedes that there is some evidence that Ms. Robinson aided and abetted Ms. J.M. and that he received some financial gain. But it is submitted that the element of control, direction or influence over the movements of Ms. J.M. is lacking. I find there is direct evidence of this element based on the facts outlined. Even if I am wrong about direct evidence on this point, the foundation for the inference is present.
I find there is some evidence that Daylo Robinson committed an offence contrary to s. 212(h) of the Criminal Code of Canada. There is some evidence that he, for the purpose of gain, exercised control or direction or influence over the movements of Ms. J.M. He was aiding, abetting or compelling her to engage in or carry on prostitution. He will be committed for trial on count 2.
Count 3 – Procuring (s. 212(1)(d))
I have reviewed a number of decisions, R. v. Burton, 2013 O.J. No. 1748, R. v. Barrow (2001), 155 CCC (3d) (Ont. C.A.); R. v. Deutsch (1983), 1983 CanLII 3484 (ON CA), 5 CCC (3d) 41; R. v. Bennett, 2004, O.J. No. 1143.
These authorities make it clear that to procure means to cause or to induce or to have a persuasive effect upon conduct alleged. There is some evidence that Ms. J.M. had not engaged in prostitution prior to meeting Mr. Robinson. I have not forgotten the cross-examination of Ms. Peck suggesting otherwise, but the point is the cross-examination questions were not adopted as evidence.
I find that Ms. J.M. came to Durham Region and was induced or persuaded to engage in prostitution; that N.P. provided guidance does not negate the inducement of Mr. Robinson.
Based on the testimony of J.M. as outlined above, I find there is some evidence that Mr. Robinson committed the offence outlined in count 3. He will be committed for trial on count 3.
Count 4 – Receiving Proceeds of Prostitution
There is some evidence that the money obtained by J.M. was obtained through the commission of criminal offences contrary to s. 212(1)(h) and s. 212(1)(d) of the Criminal Code of Canada. Robinson acquired this money from her. He will be committed for trial on count 4.
Count 5
Ms. Peck properly concedes committal on this count. Mr. Robinson will be committed for trial on count 5.
Count 6
Similarly on count 6. Mr. Robinson will be committed for trial on count 6.
Counts 7, 8, 9
Ms. Peck concedes committal concerning counts 7 and 8. The crown seeks committal against Mr. Bundy regarding count 7. Mr. Robinson will be committed for trial on counts 7 and 8.
The crown requests a discharge with respect to count 9. Both defendants will be discharged on count 9.
Count 10 – Prohibited Weapon
I read the able argument of Ms. Peck. I have not seen the impugned item. I looked at the photos that are exhibits here and I cannot make out any information disclosed on the face on the canister. I do not know what is inside of that item, it has not been tested. I don't have any evidence as to what is inside that can. As such, how can I be satisfied that there is direct evidence that that item, whatever it is, meets the definition of prohibited weapon. Had I evidence from witnesses that it was used or some sort of smell or some sort of indication in that respect, there would be circumstantial evidence and direct evidence of that. I do not have that in this case and consequently I do not need to actually rule on the issues outlined by Ms. Peck in her argument.
I am not satisfied there is direct evidence that the item pictured in the exhibit is a prohibited weapon and as such I am obliged to discharge Mr. Robinson on count 10.
ANALYSIS OF FIREARM EVIDENCE – COUNT 7 (BUNDY)
With respect to Mr. Bundy, I have considered the following evidence applied to count 7. This requires me to go through some extensive analysis regarding the firearm.
The report of analysis on the items seized has been filed on consent. The only issue to resolve is possession.
In addition, exhibit 7 or it might be exhibit 8 is the prohibition order. That issue is conceded as well.
In order to analyze this issue, I have to address a number of witnesses. I will begin with J.B.
Evidence of J.B.
J.B. testified that in Nova Scotia there was a shotgun on the floor in the living room where she was living with Daylo and Darius. The shotgun was one and a half to two feet long. She did not remember exactly what it looked like. She said it was black and brown she thought. She was not sure how many barrels there were. It had a little something for a handle but she was not familiar with shotguns. She does not know how it arrived in the residence in Nova Scotia; however, she testified that it was Darius and Daylo who brought it into the residence.
Darius told her one day that he and Daylo split 50/50 on it. She testified in direct examination that she observed both Darius and Daylo to handle the shotgun; that they did not say why they had it; that Darius told her they went to shoot it off to see if it works a couple of times, but did not ultimately tell her the results of that investigation. She did not see bullets or shells.
She was in Nova Scotia for approximately two months, spent a week in Montreal and then went to Durham. She testified that the shotgun came to Durham as well but she does not how it arrived. She saw it in the hotel room shared with Bundy and Robinson. It was in a black bag, a black duffle bag. She saw the shotgun in the bag and she testified, her direct testimony, was it was the same shotgun as she observed in Nova Scotia. She further testified that a person named Staxx was a friend of Darius and Daylo held the bag or touched it. She did not observe anyone else touch it. The gun never came out of the bag to her knowledge.
She further testified in direct examination, once again, a second time, that the duffle bag shotgun came from Nova Scotia to Durham but she did not see who brought it. She testified that she had no concerns about the gun, did not pay attention to it, no one said why they had it in the hotel room.
She was cross-examined by Ms. Peck. In cross-examination, she again indicated she saw a gun in Nova Scotia and in Durham and that she did not see it in Montreal. In cross-examination she indicated again, twice, that the gun was left on the floor in the living room in Nova Scotia. It was in a black bag in Nova Scotia. It was suggested to her that it was not always in the black bag and the witness answered, "No, I guess. Sometimes the bag was open, sometimes it was closed." She testified that she never saw Bundy handle the bag nor Robinson, just Staxx. She did not see the gun outside the bag in their hands. When Staxx was handling the bag it was closed. She did not see Staxx touch the gun. She did not see either accused handle the bag or firearm.
At 12:24 p.m. the day of her testimony, according to the court record, she was cross-examined by Ms. Peck, and she was asked about a statement that she made to the police that Darius was in charge and Daylo was second in command. She was asked in cross-examination what she meant by this and she testified that they, the two of them, are together all the time. She agreed with the suggestion of the notion of a hierarchy. She was asked what led her to believe that hierarchy and she said, "One follows the other and the other follows the other." She confirmed that the hierarchy was Bundy, Robinson, Staxx. She did not see Bundy instruct Robinson, however she was present for Bundy instructing Staxx to hold the gun. This occurred in Durham. She could not recall the exact day.
She never saw Robinson touch the gun. She saw him touch the bag in Nova Scotia. She confirmed again that Mr. Bundy spoke about testing the gun. She did not hear Mr. Robinson saying or talking about testing the gun.
In re-examination, she told the crown that Staxx handled the gun in Durham. She was asked, "Did anyone other than Staxx?" She said, "Daylo handled it and Darius went to go test it to shoot it off." She said she saw Staxx handle it once in the hotel. He carried it out of the hotel room, didn't see it after that. She told the court that it was in Oshawa at a motel or hotel that Darius instructed Staxx to hold the gun.
Evidence of S.P.
Another witness in this preliminary hearing was S.P. She testified on this issue that she went through a duffle bag, "It was mine, Daylo and Staxx. A dark coloured duffle bag in which all of our stuff was on the floor." She found a gun. She is not sure exactly what it was, it was maybe about a foot long, it was not a revolver. It was not like a police gun, it looked longer and old. It had a wooden handle and had some metal silver. She thinks it had two barrels but she could not remember. In court, she made two circles with her hands indicating barrels.
She understood the gun was for protection. She is not sure but she thinks it was Staxx's bag but then she said she does not remember whose bag it was. When asked why she was not more inquisitive essentially a summary of her evidence is she did not want to get into trouble. She thought it would cause issues if she brought it up, "If I was supposed to know about it..., she said, "...they would have told me."
At the end of April, Daylo went down to Nova Scotia. When he was in Nova Scotia he mentioned something about protection, but he did not mention a gun specifically. He said that, "We need to build up our reputation so that people don't mess with us." This was after the robbery.
In cross-examination, she indicated that she believed the gun belonged to Staxx; that she never saw that bag before Robinson returned with Staxx from Nova Scotia. She said that Staxx typically carried this bag when switching hotels. She never saw anyone handling the gun. She never saw Robinson or Darius touch the gun. There were no threats to use the gun and no references about the gun.
In cross-examination by Ms. Goldlist, she indicated she never saw Darius with the bag or in the room; it only showed up when Staxx showed up.
She testified about Daylo asking to send money to buy a gun, money to bring Staxx back and then something about protection. And she confirmed that she did not see the duffle bag at the bus shelter.
Evidence of Sergeant Valks
Sergeant Valks confirms that there was in fact a gun in Room 208. He dumped a large black duffle bag, I have seen the pictures, the gun was approximately 15 to 20 inches, sawed off, had electrical tape. He did not prove the gun safe; he secured the room and advised other officers of what he located. He did not understand there were any weapons in Room 220 at the Holiday Inn.
Evidence of P.C. Jeffrey Hoover and P.C. Ashworth
P.C. Jeffrey Hoover testified well on this issue. P.C. Ashworth did the entry video, the S.O.C.O. video and search. There was a sawed off shotgun with a duffle bag, bear spray, and a Holiday Inn receipt; he filed with the photographs.
Evidence of Holiday Inn Employee
Finally, a Holiday Inn employee in this preliminary hearing filed exhibits that make it clear that Mr. Bundy rented Rooms 208 and 220. That witness also had interaction with Mr. Bundy at the hotel and had received ID of Mr. Bundy at the hotel. That witness told us that you cannot see the doors to the second floor to Rooms 208 and 220 but that from her vantage point she could see and she knew that Room 208 was to the left when you got off the elevators and Room 220 to the right. She identified Mr. Robinson. She indicated he was in Room 208 based on her observation of the elevator. While it is unclear from her evidence it is a reasonable inference she was referring to Room 208. She did not actually observe him going through the door of Room 208.
She confirmed some information about how the hotel was advised about a gun in the room. She basically confirmed a lot of that information on cross-examination by Ms. Goldlist.
Evidence of J.M. Regarding Firearm
Finally J.M., she is the one who as I already indicated made plans to try to break away from these two with N.P. When that did not work, as I have already outlined and I will not repeat, she spoke to a security lady at the hotel and she told the security lady that Daylo had a gun. She told us that at the Quality Inn, Daylo refused to pack his own stuff, "It is the woman who has to pack the stuff," and that is how she saw that there was a sawed off gun in the bottom of the duffle bag and that he had bear spray.
She said that Daylo took the gun out of the bag and put it in a recycling bag and hid it in the woods. He hid it in a tree line with the bag and there was a little bag that he always moved with the gun. He would go into the woods for two or three minutes and put leaves and stuff on top.
In summary, this employee adduced business documents linking Darius Bundy with an Edmonton, Alberta address to the rental of Room 220 and Room 208 as disclosed in Exhibits 3, 4, 5 and 6. This witness had some interaction with Mr. Bundy and could place him at the hotel.
Based on her observations of the second floor, Mr. Robinson was associated with Room 208 because when you get off the elevator Room 208 is on the left; when you get off the elevator Room 220 is on the right. She indicated that Mr. Bundy had a driver's licence ID when he rented the room and she observed Mr. Bundy going in the direction of Room 220.
Analysis and Findings on Count 7
Again, I remind myself of the law as I outlined at the beginning of this preliminary hearing judgment. When the crown is relying on direct evidence, the task of the preliminary inquiry judge is quite straightforward.
I was addressing J.M.'s evidence before we broke. She told the security lady at the hotel that Daylo Robinson had a gun in his room. She testified that Daylo refused to pack his own stuff as it is the work of the women who must pack the stuff. She said that Daylo had a sawed off shotgun and bear spray. She testified that Daylo took the gun out of the bag and put it in a recycling bag and hid it in the woods. He had a little bag that went along with the gun. She testified that Staxx also handled the gun. She did not see anyone else touch the gun.
She indicated that she asked Daylo why he had it and he said it was to protect the women. She subjectively did not accept this because it was her perception that neither of these gentlemen cared about her or the women.
She confirmed in cross-examination that she did not see Darius Bundy with the gun and she did not see the gun until packing. The gun was in the room she shared with Daylo and N.P.
When considering all of this evidence with respect to count 7, I am considering that Ms. J.B. testified that both defendants touched the gun in Nova Scotia. I recognize that on this point, she flipped and flopped. When she was cross-examined, she gave that evidence away when she was directly examined, she maintained it again. While I am troubled by that flip flop, it is my respectful view that that is for the trier of fact to evaluate. The trier of fact evaluates the witness's evidence and determines what is in fact what happened.
Ms. J.B. also testified that Darius and Daylo went 50/50 on the gun as I outlined; that Darius told her he went to test the gun and shoot it off, and she testified she gave direct evidence, that the same firearm arrived in Durham. She also testified that Darius gave direction to Staxx to hold the firearm as I outlined earlier.
This is quite pivotal in that a direction to a third party is some evidence of knowledge, possession and control. If that is true, it is a reasonable inference that the jury could accept that proposition with respect to Mr. Darius Bundy. The direct evidence of J.B. is corroborated by the direct evidence of the other witnesses concerning the placement, movement, location and ultimate seizure of the firearm. While it may also be true that Staxx was in possession of this firearm, this is not an issue for me to weigh as a preliminary hearing justice.
I am satisfied that the firearm described in Nova Scotia, and I am satisfied as a preliminary hearing justice that there is some evidence based on Ms. J.B. that that same firearm was in Durham. Again, I instruct myself that I am not the trial judge. Were this a trial other considerations would be in play. The trier of fact will resolve these issues. It is forbidden for me to do so.
Based on my considered view of the evidence and my obligations, I will commit Darius Bundy to trial on count 7.
REMAINING COUNTS
Count 11
Mr. Robinson will be discharged on count 11 at the request of the crown there being no direct evidence in any event.
Counts 12 and 13
Ms. Peck has properly conceded committal on counts 12 and 13. Mr. Robinson will be committed for trial on counts 12 and 13.
Counts 14 and 15
The crown has directed madam clerk to record a stay of proceedings with respect to counts 14 and 15. That will be noted on the information.
Count 16
The crown invites the court to discharge on count 16 in relation to N.P. This is so ordered.
COUNTS 17 AND 18 – PROCURING (S.P.)
Count 17 and 18 relate to S.P. I will not repeat the analysis of the law outlined above.
Ms. S.P. testified that Mr. Daylo Robinson brought up a conversation about easy money. He told her that girls back home in Nova Scotia do it, prostitution, that there is nothing wrong with it, and he hinted that girls sell themselves for money.
She met this gentleman at the local library. She did not want to go home and he did not have anywhere to go. They were sleeping in a bus station shelter. They discussed how to get out of the situation. There was an emotional connection, a sort of boyfriend/girlfriend relationship at first. She indicated with respect to Mr. Robinson, "He told me everything I would need to know. What do to, how to go about it, he would text the people for me, get the guy to come, get the money up front was his instruction." He advised her to do pretty much what they want. He gave her information about how other girls worked in the business. He did not force her to do bareback because she was uncomfortable. Although he did not directly force her to perform acts, it was her subjective belief that he had arranged the services with the clients prior to her arrival. She testified that he set the expectations with the client. She was aware that posting an ad that essentially indicated anything goes, communicating by text message along the same line, then changing the rules when the client arrived, was not a good idea. There were no quotas. She could refuse and at times she did.
She testified that she drifted into providing services that she did not want to provide. He advised her that she charged for the time rather than the acts that way you cannot get in trouble. The rates were $60.00 for the half hour and $100.00 for the hour. There were out calls. He established the amounts. She testified she did not know what was reasonable to ask.
When they moved to a hotel, Mr. Daylo Robinson told her they could increase the rates to $80.00 or $100.00 for the hour because, "We had a hotel we could charge more." When she addressed concerns about police he told her, "You can't get in trouble. It's not illegal. You're selling time not your services."
He at times responded to the ads they sent up on Plenty of Fish and later Back Page, and she also responded to some of the text messages.
At first, money was used for food and the hotel room. She testified that, "Once we had a hotel room; he would hold on to it and make sure nothing would happen to it."
He did not assault her. Even though she related an episode where he speculated about what she would if he bottled her in the head. She maintained that he never assaulted her or threatened her. Daylo told her that she needed to get her dad to relax and control the situation. As a result, she had coffee with her dad. Her dad, we heard evidence, it was the understanding of this witness, had notified the police and told the police there was a gun as well. This instruction from Daylo was designed to get dad off of her back.
She told us that her ex-boyfriend saw the ads on Back Page and recognized her. She went and talked to him. Daylo caught wind of this, heard the phone, and told her boyfriend, "If you call my girl again, you owe me a thousand dollars," and they had a fight about it.
I am satisfied that this evidence meets the test as set out earlier with respect to count 2. Mr. Robinson will be committed for trial on counts 17 and 18.
COUNTS 19-27
Mr. Robinson will be discharged on counts 19, 20, 21, 22, 23, 24, 25, 26 and 27.
COUNT 28 – HUMAN TRAFFICKING (S. 279.01) – J.B.
Section 279.01 sets out this offence in count 28. This is a challenging area of the evidence on this preliminary hearing.
Legal Framework
The relationship between Ms. J.B. and Mr. Darius Bundy was defined by the fact that Ms. J.B. was a sex trade worker and continued to pursue that line of work after meeting Mr. Bundy. Of course I'm cognizant that sex trade workers are entitled to the protection of the law. I do not find that her employment or prior employment meant that she consented to the arrangement, and even if I was inclined to do so, s. 279.01(2) informs me that consent is irrelevant.
S. 279.04 of the Criminal Code provides guidance to the court with respect to exploitation and provides a non-exhaustive list of factors that the court may consider. This section is not a pre-requisite to proof of the substantive 279.01 count. While there must be the purpose of exploitation to ground a conviction under s. 279.01, Ms. Peck's contention that it is an "essential element" as it is defined in s. 279.04 is with respect not correct in my view.
The evidence of Ms. J.B. is that they were together and making money together. She perceived that she and Mr. Bundy were in a romantic relationship; there was no quota or direction from Mr. Bundy on how much to work. I note parenthetically that this may not be surprising. She had been working in the sex trade for a period of time before even meeting Mr. Bundy. She initiated the contact with Mr. Bundy.
She testified that Mr. Bundy's job was to take the money minus any holdback concealed by the witness. She said it was his idea to take the money. She was asked did she have concerns about giving him the money. He sometimes told her to give him the money; she sometimes wanted to give him the money. Even when she did not want to give him the money, she did as this was described as being part of the gain; the gain being guys getting girls to work for them and taking the money. He did not work for the money. His job was to take the money.
She testified that he could be aggressive or rude if she did not give him the money. He assisted her with pictures for ads at her request and participated in what was described by her as brainwashing games which included taking the money that she earned.
She specifically indicated that he pushed her around, threatened her and stuff and tied her down to the floor. In Durham Region, he pushed her around, pulled her hair and wanted her to keep working to keep making money. She testified that if she did not work, he would get aggressive or could become bad or bitchy.
She testified that she gave him her ID. He took possession of this ID. I have to check my notes but I believe it was a SIN card and a health card. When it was requested back from him, she testified that he challenged her concerning the request asking her if she was running off and he did not return the items. Mr. Bundy said, "What do you need it for? Why are you asking for it? Are you running off?" She testified she was too scared to leave. She testified that he referenced a phrase "cop caller". She subjectively perceived this as a threat to her by him that he would get people after her. This is because of a previous event known to her and Mr. Bundy. She testified that Mr. Robinson was not involved in-chief.
Analysis
I have to examine whether Mr. Bundy exercised control, direction or influence over the movements of J.B. for the purpose of exploiting her or for the purpose of facilitating her exploitation. As I indicated, she gave him most of the money.
The assault with the hair iron was referable to him sleeping with another woman, but it could still inform per perceptions of him and his capability to inflict violence upon her.
He retained her ID. When she did not work and make money there was a negative stance from him and when she wanted to leave he referenced the cop caller incident and this was perceived by a threat.
There was no direct evidence with respect to Mr. Robinson until Ms. Peck cross-examined this witness. And the crown is not seeking committal against Mr. Robinson, but this evidence is relevant as well to the views of J.B.
She was asked by Ms. Peck about her statement in May to the police, and the statement that Darius was in charge and Daylo was second in command. She was asked what she meant by this and she testified that they are together all the time. She agreed with the notion of a hierarchy, that one follows the other, and the other follows the other; that's what led her to the conclusion. She did not see Mr. Bundy instruct Robinson but she did see Mr. Bundy instruct Staxx to hold the gun. This occurred in Durham but she could not recall the exact dates.
Relevant Case Law
In R. v. Deutsch, 1986 CanLII 21 (SCC), 1986 S.C.J. No. 44, the Supreme Court of Canada outlined the focus of these sections of the Criminal Code that we are dealing with. In paragraph 17:
"The evil to which s. 195(1)(a) is directed is procuring or soliciting, not the actual act of sexual intercourse itself. The provision is parallel to and of the same kind as that in s. 195(1)(d) which makes it an offence to procure or attempt to procure a person to become a prostitute although prostitution itself is not a crime. Indeed this would appear to be true of all of the offences created by s. 195. They are directed to conduct which is designed to encourage or promote conduct which is not itself criminal. If fault be found with that legislative policy, it is for Parliament to make the necessary changes not for the court to do so. By giving the word "illicit" in s. 195(1)(a) as it was at that time, I should say, parenthetically, such a restricted meaning as not only to give s. 195(1)(a) a very limited if not improbable application but also to restrict very severely for the application of other important provisions of the Criminal Code for the protection of girls and women in which the words "illicit sexual intercourse" are used."
In R. v. Bennett, 2004 CanLII 36124 (ON CA), 2004, O.J. No. 1146, the Ontario Court of Appeal addressed a situation where a person previously engaged in prostitution was procured. And the Ontario Court of Appeal rejected in paragraphs 50, 51, 52, 53; in summary, the Court of Appeal rejected the once a prostitute forever a prostitute argument.
In R. v. Perreault, (1996) 113 Criminal Code of Canada (3d) 573, I have already quoted the Quebec Court of Appeal on this issue.
Finally, R. v. Beckford, 2013, O.J. No. 371, Madam Justice Miller held at paragraphs 35 and 36:
"I disagree. The words 'For the purpose of exploiting them or facilitating their exploitation' used in subsection s. 279.01 and s. 279.011 clearly require that the purpose component is necessary to both exploiting and facilitating exploitation for the offence to be made out. I also find as in Khawaja, the human trafficking provisions of the Criminal Code, must be interpreted with regard to their legislative purpose specifically to prevent and combat trafficking in persons and to criminalize conduct when committed intentionally. And not to punish individuals for innocent, socially useful or casual acts, which absent any intent, indirectly contribute to the trafficking of persons."
Ms. Goldlist respectfully submits that in order to prove the offence in her written submissions the purpose component is necessary to both exploiting and facilitation exploitation for the offence to be made out. I do not support this interpretation of this section. I am not certain that the learned justice in R. v. Beckford intended this interpretation.
Statutory Interpretation
Having regard to the basic principles of statutory interpretation, it is clear that s. 279.01 provides two alternative routes to proving the offence. A plain reading of the section reveals that the conduct outlined in s. 279.01 must be for the purpose of (1) exploiting them or (2) facilitating their exploitation. This is why the word "or" is placed between the two alternative routes. In other words, the section does not require that the crown prove that the defendant exploited them and facilitated their exploitation. The purpose component is required with respect to either route chosen. The evidence as I indicated is challenging with respect to this witness.
Mr. Bundy did not recruit, did not transport, transfer, receive, hold, or conceal the complainant. Is there some direct evidence that he harbored her in the hotel rooms? There may be. Is there some evidence that he exercised control, direction or influence over her? For the reasons that I have outlined, in summary, he wanted her to make money. She happened to be in the sex trade business. She worked and gave him the money, sometimes she gave it to him because she wanted to; sometimes not; sometimes because he asked for it. She traveled with him; she travelled without him. Even when she travelled, she kept in touch via text message. There were times when Ms. J.B.' movements were completely free. She certainly was not physically restrained for the entire time period or unlawfully confined but that is not the end of the matter. What of the power and balance in the relationship?
S. 279.04 has a set of non-exhaustive factors for the trier of fact to consider. One of them is the abuse of power in a relationship. Would a jury receive instruction on this factor? I don't know I am not relying on s. 279.04 alone in coming to a determination on this count.
I once again remind myself that I am not sitting as a trial judge addressing proof beyond a reasonable doubt. I would have some concern about her credibility, but having regard to the test at this stage, is there some evidence? I find that the evidence meets that minimal test. I find that there is some evidence that Bundy exercised control, direction or influence over Ms. J.B. I find that there is some evidence that he did so for the purpose of exploiting her or facilitating her exploitation, i.e. working in the sex trade voluntarily and providing the money to him due to his exercise of control over her.
I have listened to her evidence carefully and it meets the minimal threshold required. It is for the trier of fact to weigh this evidence and determine whether or not this offence is made out. Mr. Bundy will be committed for trial on count 28.
The crown is seeking committal of Mr. Bundy with respect to count 28 regarding J.B. and with the amendment as sought.
COUNT 29 – RECEIVING MATERIAL BENEFIT (S. 286.2)
I have addressed the evidence around the provision of money. Once again, my role is simply as a preliminary hearing judge. There is direct evidence of this offence based on my extensive account of the complainant's evidence. Mr. Bundy will be committed for trial on count 29, the amendment to read "sum of money".
COUNT 30 – WITHHOLDING IDENTIFICATION DOCUMENTS
She provided him with her ID for the purpose of him keeping it. He kept it and did not want to give it back. As outlined in these reasons, he challenged her when she wished for it to be returned. Once again, there is some evidence on this count. Mr. Bundy will be committed for trial on count 30.
COUNTS 31, 32 AND 34
Mr. Bundy will be discharged on counts 31, 32, and 34.
COUNT 33
He will be committed for trial on consent on count 33.
ADDITIONAL COUNTS REQUESTED BY THE CROWN
Now I must address the additional counts requested by the crown based on the evidence heard at the preliminary hearing.
The crown has filed a document entitled "Proposed Wording for Additional Charges". I previously directed madam clerk to attach this document to the information for reference purposes. I am hoping to address this in a way that makes it clear for everyone. I am following the counts as outlined on that document.
Count 35 (Additional Count Number 1) – Human Trafficking (S. 279.01) – J.M. – Robinson
Based on the analysis as I outlined under count 2, and having regard to my role as a preliminary hearing justice, the evidence received on count 2 is also direct evidence of an offence contrary to s. 279.01. I will not repeat my reasons. For those reasons Mr. Robinson will be committed for trial on this count.
The crown seeks committal regarding s. 279.01 against Darius Bundy based on the evidence of Ms. J.M. at the preliminary hearing. This is an additional count that the crown seeks.
Ms. J.M. testified that Darius Bundy was nice to her and treated her like a human being. There is no direct evidence in terms of her viva voce direct evidence as against Mr. Bundy.
As a preliminary hearing justice, I am required to consider direct evidence, circumstantial evidence, and also consider reasonable inferences. I have already outlined my role with respect to inferences and crown theories earlier in this judgment. The crown submits that there is a reasonable inference to draw in relation to this count.
Essentially based on the fact that Mr. Bundy rented a hotel room in his name, he was either a principal harboring Ms. J.M. knowing that Mr. Robinson's purpose was to commit an offence under s. 279.01 or that he aided Mr. Robinson's exploitation of her as a party to the offence.
Mr. Bundy was engaged in one operation with respect to prostitution. Mr. Robinson was engaged in another operation with respect to prostitution. The crown's submissions aptly describe them as parallel operations. I note in addition given that I am not to consider the evidence in a piecemeal fashion, I am to consider all of the evidence I have heard, I have heard that at most relevant times they were together in the various hotels, that they travelled together, the East Coast, Montreal and Durham Region. I have heard as well that Staxx was common denominator; a common element between them.
A jury hearing this trial as it is currently set out in this preliminary hearing would hear that Bundy and Robinson worked together from various witnesses. They would observe that these two gentlemen complemented each other; that they worked together. For example, Ms. J.B. indicated that Mr. Robinson was in the same business as Mr. Bundy and was working S.P. Could a jury reasonably find that Mr. Bundy rented rooms pursuant to the business that he and Mr. Robinson were engaged in? Could the jury find that he was either a party or a principal? I find that a jury could draw that inference. A jury could find that the rental of the rooms is too remote from the business. A jury could find that it was not his purpose to exploit the women or facilitate that. A jury could find that there were multiple purposes in renting the rooms.
Again, for the reasons I have outlined already in this judgment, I am to draw the inference suggested by the crown if it is reasonable and available based on the evidence. Once again, I am not the trial judge weighing or considering what I think about those inferences. It is a reasonable inference available to a jury. A trier of fact will consider all of the evidence and determine whether in fact the offence is made out.
Mr. Bundy will be committed for trial on this new count number 35.
Mr. Bundy will also be committed for trial on Count 2 on the information based on the analysis in my reasons.
Count 36 (Additional Count Number 2) – Receiving Material Benefit (S. 286.2) – Robinson
Based on my analysis outlined in these reasons, there is direct evidence of Mr. Robinson receiving a material benefit namely a sum of money. I am obliged to commit him for trial on this count.
Count 37 (Additional Count Number 3) – Withholding Identification Documents – Robinson
Based on my analysis outlined in these reasons, there is some evidence that he withheld the identification documents belonging to J.M. He will be committed for trial on this count.
Count 38 (Additional Count Number 4) – Robinson
It is my understanding that committal has been conceded by counsel, it is properly conceded, and Mr. Robinson will be committed for trial on this count.
Count 39 (Additional Count Number 5) – Robinson
Committal is properly conceded it is my understanding and Mr. Robinson will be committed for trial on this count.
Count 40 (Additional Count Number 3) – Assault – Bundy
There is an additional count number 3 referencing Mr. Bundy on page 2 on the crown's list of additional charges which would be numbered count 40.
It is the crown's perception that Mr. Bundy conceded committal on this count with respect to an allegation of assault against Rebecca.
MS. GOLDLIST: Yes there is an agreement that there is a concession of committal on the assault simpliciter against a woman named Rebecca.
THE COURT: Given that concession he will be committed for trial on additional count 3 which is on page 2 that will be numbered 40.
Count 41 (Additional Count Number 4) – Procuring (S. 212(1)(h)) – Bundy
For the reasons outlined with respect to count 28, I find there is some evidence of the offence contrary to s. 212(1)(h) and accordingly Mr. Bundy will be committed for trial on this count.
CLARIFICATION OF COUNTS
MS. GOLDLIST: And can I just clarify because I was a little late, Mr. Bundy in terms of Counts 1, 2 and 7, he was committed on count 2 as I heard Your Honour. Is it the case that he was discharged on counts 3 and 4 and 5 and 6 do not apply to him? Did I record that correctly?
THE COURT: What did I indicate madam clerk have you recorded it on the information as we have gone along?
COURTROOM CLERK: I have recorded it on the computer and I have a blank for Mr. Bundy for counts 3 and 4.
MR. POLLEY: Count 3 I don't believe he was committed on.
THE COURT: I have by my chart, I have Mr. Robinson that committal was sought with respect to Mr. Robinson is that correct?
COURTROOM CLERK: That's correct.
MS. GOLDLIST: So Mr. Bundy will be discharged because he's currently charged with that offence so we need to clarify which counts will be discharged and which will he will be committed?
THE COURT: Yes I understood the crown to seek committal on Robinson only. He will be discharged on count 3 and count 4.
COURTROOM CLERK: Count 8, I have committal for Robinson, and there is no indication for Bundy?
THE COURT: Bundy is discharged.
COURTROOM CLERK: Count 10, discharged for Robinson, no indication for Bundy?
THE COURT: Mr. Bundy will be discharged on count 10.
MS. GOLDLIST: 10 and 11 correct?
THE COURT: 10 and 11.
MR. POLLEY: Yes.
COURTROOM CLERK: Count 17, I have committal for Robinson and no indication for Bundy?
THE COURT: The crown is seeking committal as against Robinson only. Mr. Bundy will be discharged.
COURTROOM CLERK: On count 17?
MR. POLLEY: I don't think he was charged?
MS. GOLDLIST: Yes he was.
COURTROOM CLERK: On count 17, it was originally Mr. Robinson and it was amended to add Mr. Bundy on June 10th.
MR. POLLEY: Just Mr. Robinson on 17 and 18.
THE COURT: So Mr. Bundy will be discharged on 17 and 18.
MS. GOLDLIST: And 16 as well, exercising control over Ms. N.P.?
THE COURT: Yes.
COURTROOM CLERK: Counts 28, 29 and 30, I have committal for Bundy and is that as well for Mr. Robinson?
THE COURT: Committal for Mr. Bundy only.
COURTROOM CLERK: Mr. Robinson is discharged on 28, 29 and 30?
THE COURT: Yes.
COURTROOM CLERK: Thank you.
MATTER CONCLUDED
CERTIFICATE OF TRANSCRIPT
FORM 2 – CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))
Evidence Act
I, Christine Shermeto, certify that this document is a true and accurate transcript of the recording of R. v. Bundy and Robinson in the Ontario Court of Justice, held at Oshawa, Ontario, on July 4, 2014, taken from Recording No. 2811-406-20140704-091602-10-FELIXMA, which has been certified in Form 1.
February 2, 2015
Christine Shermeto, Court Reporter
Certificate of Transcript (rev.03/04)
Transcript Ordered: October 28, 2014
Transcript Completed: January 21, 2015
Ordering Party Notified: January 21, 2015