R. v. T.Q.N.

Case Name

R. v. T.Q.N.

Ontario Court of Justice

Before: P. Kowarsky J.P.

Heard: August 28, September 16, 17 and 18, 2015

Judgment: October 5, 2015

Counsel:

• Crown Counsel: Ms. K. Nedelkopoulos
• Defence Counsel: Mr. M. Moon

Judicial Interim Release Hearing

Reasons for Judgment

P. KOWARSKY J.P.

A. Publication Bans

1. At the commencement of this bail hearing, both counsel for the Crown and for the accused requested that I impose two publication bans with respect to these proceedings. Accordingly, I imposed a Publication Ban under section 517(1) and a further Publication Ban under section 486.4 of the Criminal Code.

2. Pursuant to section 517(1) the evidence taken, the information given or the representations made and the reasons given or to be given at this Bail Hearing, shall not be published in any document or broadcast or transmitted in any way before such time as the accused is discharged after a Preliminary Inquiry or if the accused is tried or ordered to stand trial, before the trial is ended.

3. Pursuant to section 486.4 the Court directs that any information that could identify any victim or any witness in this matter shall not be published in any document or broadcast or transmitted in any way.

B. Overview

4. In the evening of July 10, 2015, the accused hosted a party at his apartment in Toronto. About 12 people, males and females were present. Several of the females were sex-trade workers, who serviced men in the bedroom during the course of the evening. Alcohol and drugs were provided and consumed. One of the females apparently overdosed, and died in the apartment. The accused was arrested and charged with 11 criminal offences.

5. On August 28, 2015 the accused appeared before me seeking an Order for his judicial interim release. After a full-day hearing, it became apparent that a further three days would be required to complete the hearing. At the conclusion of the bail hearing on September 18, 2015, I reserved my judgment until today. These are my Reasons for Judgment.

C. The Charges

6. T.Q.N. is charged on 3 Informations with the following 11 offences all of which were allegedly committed on or about July 11, 2015, or as otherwise indicated:

Information 1

Criminal negligence causing the death of S.S. contrary to section 220 of the Criminal Code.

Information 2

Count 1: That the accused did recruit, transport and harbour a person, namely, M.B. for the purpose of exploiting or facilitating the exploitation of that person, contrary to section 279.01 subsection (1) of the Criminal Code.

Count 2: That the accused did receive a financial or other material benefit, namely a sum of Canadian currency, knowing that it was obtained by the commission of an offence under section 279.01 (1) of the Criminal Code.

Count 3: That the accused did receive a financial or other material benefit, namely a sum of Canadian currency knowing that it was obtained by the commission of an offence under subsection 286.1 (1) of the Criminal Code, contrary to subsection 286.2 (1) of the Criminal Code.

Count 4: That the accused did, for the purpose of facilitating an offence under subsection 286.1 (1), exercise control, direction or influence over the movements of M.B., contrary to section 286.3 subsection (1) of the Criminal Code.

Count 5: That the accused did knowingly advertise an offer to provide sexual services for consideration by posting an advertisement on the internet contrary to section 286.4 of the Criminal Code.

Information 3

Count 1: That the accused did possess a substance included in Schedule III, namely Benzylpiperazine (BZP), Trifluoromethylphenylpiperazine (TFMPP), for the purpose of trafficking, contrary to Section 5, subsection (2) of the Controlled Drugs and Substances Act.

Count 2: That the accused did unlawfully possess a substance included in Schedule I, namely methamphetamine, contrary to Section 4, subsection (1) of the Controlled Drugs and Substances Act.

Count 3: That on or about the 12th day of July 2015, the accused did possess a substance included in Schedule I, namely oxycodone, for the purpose of trafficking, contrary to Section 5, subsection (2) of the Controlled Drugs and Substances Act.

Count 4: That on or about the 12th July, 2015 the accused did possess a substance included in Schedule I, namely methamphetamine for the purpose of trafficking, contrary to Section 5, subsection (2) of the Controlled Drugs and Substances Act.

Count 5: That the accused did possess a substance included in Schedule III, namely Benzylpiperazine (BZP), Trifluoromethylphenylpiperazine (TFMPP), for the purpose of trafficking, contrary to Section 5, subsection (2) of the Controlled Drugs and Substances Act.

D. The Evidence for the Crown

7. The Crown called Detective D.M. His evidence may be encapsulated as follows:

a) He is the Officer in charge of this case with respect to the charge of Criminal Negligence causing death as well as the five charges under the Controlled Drugs and Substances Act, which have been delegated to the Provincial Crown for all purposes.

b) On Saturday, July 11, 2015 at about 9:20 am he received a service call regarding a sudden death at an apartment in Toronto. The ambulance and fire officers attended the scene where they located a young woman with vital signs absent. She was identified as 25-year-old S.S. He learned that there were four people at the scene at that time: the accused, J.S., M.B. and R.R. He took charge of the investigation, and had all four people brought to the police station. He personally interviewed the accused, and two other officers interviewed M.B. and R.R.

c) In his statement the accused told Officer D.M. that he is a tenant of the apartment where the incident occurred, and that on the previous night, July 10, 2015, he hosted a party there beginning at 8:00 pm. Nine people attended. S.S. (the victim) arrived at about 9:45 pm. A quantity of drugs was produced including ecstasy and powdered cocaine on a plate. Everyone consumed drugs and alcohol there.

d) Around 1:30 am the victim passed out with her eyes open, and at about 3:00 am while her eyes were open she vomited. He put ice on her head. He thought that she had overdosed, since J.S., the accused's friend, told him that the accused does that regularly. At 9:30 am, he called 911.

e) In her statement, J.S. told the officer that she and the victim are friends, and she had introduced the victim to the accused, who "regularly partys hard." At another party at the accused's residence on the night before the incident, the victim consumed drugs and alcohol until she passed out.

f) Detective D.M. testified that "From my knowledge, at some point during the night, T.Q.N. presented a plate. And on the plate there was a brownish white powder substance. And 'twice he brought it to S.S..' On the second instance, he told her that 'this is pure cocaine.'"

g) J.S. said that at the party on July 10th, when the incident occurred"a high quantity of alcohol and several lines of powdered cocaine were consumed. In addition, the victim was dipping her finger into a bowl of ecstasy. But she did not know who brought the drugs and alcohol to the party, which ended at 1:30 am. The victim was lying on the couch, making 'growling sounds.' Her eyes were 'rolled back in her head.' S.S. had a bleeding nose, and J.S. and the accused wiped her face.

h) J.S. told the officer that the accused had told her that he was also high, and had "consumed ecstasy and cocaine." However, in the accused's statement to the officer, he said that he did not consume any drugs.

i) At about 7:00 am on July 11, she and the accused became worried because the victim "had no pulse and wasn't breathing." At around 9:07 am on July 11, the accused called 911.

j) M.B. gave two KGB statements to two human trafficking officers, and made further utterances to the officers while being escorted to a hotel that day. She and R.R. were at the party on July 10. The accused placed two lines of what he stated to M.B. to be straight pure cocaine on the table although M.B. did not think that it was cocaine 'as it had a brownish colour to it.' The two of them consumed drugs. M.B. felt like her entire body was on fire. She vomited uncontrollably and had to shower to cool off from the burning sensation caused by the consumption of drugs. She said that J.S. was "partying hard with a plate in her hand, and she was doing blow, which the officer explained was slang for snorting cocaine, and she did three or four lines of 'molly' which is slang for ecstasy. When R.R. came to the police station, she appeared to be sick so he had an ambulance come and take her to the hospital, and she returned later that evening.

k) After their initial investigation, M.B. and R.R. contacted M.B.'s mother who resides in Ontario. Police officers then took the three of them to a nearby hotel. At that time, M.B. told the officers that she had responded to an escort ad that was placed by T.Q.N., on a website called backstage.com. The accused paid for her flight to Toronto, and he picked her up from the airport. The ad stated that it was "for high end call girls" who would be housed in condominiums.

l) When M.B. arrived at the accused's apartment, she felt that she had been misled because he was running a 'low level escort business.' She, R.R. and S.S. were 'immediately put to work, and they were all doing tricks out of a single bedroom, and sometimes all at the same time.'

m) M.B. also stated that before the police responded to the 911 call, T.Q.N. 'cleaned up' and hid 'a quantity of drugs downstairs.' Subsequently, the police located a quantity of drugs hidden inside a dumpster at the rear of the accused's apartment.

n) Detective D.M.'s shift ended at around 2:00 pm on July 11, and Detective R. took over. Detective R. was informed by M.B. and R.R. that 'they had been procured by the accused and brought to Toronto from the province in which they resided for the purpose of being prostitutes.'

o) On Sunday July 12, R.R. provided a formal KGB statement to investigators from the Human Trafficking section of the Toronto Police Services. She had jewellery in the accused's safe. T.Q.N. did give her the key to the safe. On July 12, the police executed a search warrant and seized a further quantity of drugs and drug paraphernalia from the apartment and the safe.

p) The Crown submitted a Toxicology Report dated August 4th 2015 with respect to the body of the deceased. The Report was accepted into evidence and marked Exhibit #1. The Report indicates that a quantity of morphine was detected in the femoral blood as well as another drug known as TFMPP/BZP. These drugs are apparently synthetic alternatives to ecstasy. Detective D.M. explained that the detection of morphine represents a prior use of heroin. However, the Report notes that the presence of morphine "could cause death" without a definitive statement as to whether it actually did cause death in this case. Further details will be provided when the Pathology Report of the post mortem becomes available. The witness conceded that the charge of Criminal Negligence Causing Death is based on the belief that the victim died of an overdose of drugs. Until the results of the post mortem are received, this is the belief of the police.

q) The Crown submitted three photographs taken by the police: Exhibit 2(a) illustrates the rear of the accused's apartment, including the dumpster where the drugs were found. The dumpster is about five feet away from the staircase leading to the unit. Exhibit 2(b) is a close-up photograph of the quantity of drugs that were located in the side panel of the dumpster. Exhibit 2(c) is a photograph depicting all five baggies of drugs found in the dumpster.

r) The police obtained a laboratory analysis from Health and Welfare Canada with respect to all the drugs that were seized. The Report reveals that the following drugs were identified: TFMPP, BZP, Methamphetamine and Oxycodone, all controlled substances. The Certificate of Analysis was tendered and entered as Exhibit #3.

s) Exhibit #4 is the accused's Criminal Record, which he admitted for the purposes of the Bail Hearing. In 1998 he was found guilty in a Youth Court of Break and Enter and Commit, and possession of break in instruments. The disposition was a one-year probation order for each offence to run concurrently. In 2002, he was convicted of impaired driving and sentenced to pay a fine of $750.00, probation for one year and a driving prohibition for one year.

t) In his cross-examination, defence counsel attacked the credibility of M.B. in that in her first KGB Statement, she was not completely forthcoming, saying nothing about the accused having brought her from her province of residence, that she was already a prostitute and a meth addict when she answered the accused's ad on the web. Her reason given for this was that while she was giving her statement, the accused was sitting and waiting in the lobby of the police station to be investigated, and she felt intimidated, and was afraid to implicate him too much. Defence counsel questioned the intimidation issue. If she was so intimidated, he said, why would she then leave the police station and go over to the accused at the hotel where he had been taken while his residence was being protected as a crime scene, and request the key to the safe, which the accused willingly gave her?

u) In her subsequent utterances to the police who were transporting her to the hotel, M.B. revealed further significant information implicating the accused. She did inform the police that she does have a background in prostitution, and that she was not forced to come to Toronto to continue with her escort /prostitution work. She did this on her own free will.

v) The Police seized the deceased's cell phone, and are awaiting forensic examination results.

w) Forensic analysis of the baggies of drugs seized did not reveal any of the accused's fingerprints. There is as yet no evidence that the accused received any money from anyone for anything in relation to the charges. M.B. had told the police that the accused told her that "he hid some drugs downstairs." However, there is as yet no forensic evidence to corroborate that statement. The detective acknowledged that of all the drugs which were seized, no heroin was found.

7. The Crown called Detective D.C. from the Toronto Police Services Sex Crimes and Human Trafficking Unit. Detective D.C.'s evidence may be summarized as follows:

a) On July 12, 2015 he and his officers attended the police station after learning that the police were considering laying charges against T.Q.N., including crimes that he had advertised on a website for escorts to come to Toronto, and work as call girls under his administration. And further that he would arrange for transportation, pay for their flights to Toronto, and pick them up from the airport. He would also provide hotel rooms or condominiums for them. He conceded that R.R. had informed the Human Trafficking Division that she was in the sex trade in her province of residence, that she had told the accused that she really didn't want to come to Toronto, but she would try it out for a week, and could leave if she wanted to.

b) He interviewed M.B. and R.R. who told him that when they arrived at the accused's residence, they realized that sex was to take place in that apartment. They told the police that the accused had said that they would have to consume drugs. He testified that drugs are often an element of multifaceted control. Drugs often incapacitate the call girls, and depending on the actual drugs consumed, it "makes them…more prone to do the type of work in the sex industry that they may not normally have agreed upon….there might be a pressure to do anal intercourse or other fetishes that they would not normally wish to perform."

c) He told the court that drugs also have a significant impact from "a debt perspective." One of the key elements of control, he said, is for traffickers to build up large debts for drugs or clothing or housing which they provide, thereby requiring the call girls to continue to perform sex acts for the financial gain of the traffickers in order for them to repay these debts.

d) On July 12 Detectives S.T. and A. from Human Trafficking interviewed M.B. and he and Detective R.H. interviewed R.R. who provided a KGB Statement. She stated that she lives outside Ontario and has worked in the sex trade industry before coming to Toronto.

e) M.B. had given Detective S.T. a link to a website and emails between her and the accused. On July 16, 2015 Detective D.C. viewed that website. He used a snipping tool to take photos of the images on the website. The photos were of 18 females associated to that organization. Each one also had her profile associated with her photo. He noticed a photo of R.R. and one of M.B. He also checked another very popular site and obtained some 'hits' for services in the sex industry with an associated phone number which is the phone number provided to the police by T.Q.N., and from which he had made the 911 call. There were options to call or to email. When he 'ran' the phone number of the accused, he came across other adds for sexual services.

f) A collection of screenshots from the website, which allegedly include M.B. and R.R, was submitted into evidence by the Crown and marked Exhibit # 5. M.B. had apparently posted some of her own photos. This collection reflects numerous girls lying or standing in sexually provocative positions. Some of these photographs appear to have been taken at the accused's apartment by virtue of some of the background depictions. R.R. and M.B. informed the police that some of these photos were indeed taken in the accused's bedroom.

g) R.R. told the police that she and the accused had discussed their financial arrangements so that she would get $70.00 and he would get $30.00 for every $100.00 that she earned.

h) The accused together with two other men, S. and M. picked her up from the airport. She was very unhappy with the sleeping arrangements because he had promised her a hotel room or a condominium, and it was not clear where she was going to sleep when they arrived at his residence from the airport. On the night that she arrived which was Thursday July 9th, there was a party at the accused's residence hosted by him. There were seven or eight people there. She said that the accused brought cocaine and heroin, and a lot of drugs and alcohol were consumed there. At that party the deceased was intoxicated from drugs and alcohol consumption; she soiled herself, and R.R. helped clean her up. The following morning, July 10, she went with the accused to pick up M.B. from the airport, and brought her back to the accused's apartment.

i) That night, on July 10, the accused hosted another party at his apartment. A number of people arrived. The accused offered her and M.B. drugs, although she never actually saw him consume drugs. He put some drugs on a plate, and told them that it was pure cocaine. But she was not sure because the powder had a brownish colour which is not consistent with cocaine. After ingesting that drug, she and M.B. became overheated and very sick. They went into a cold shower to try and cool down. She could not identify the drugs which she consumed there because she had never had such a severe effect from drugs before. Only one of the two bedrooms was used because the other one was locked.

j) R.R. said that after the deceased's body had been taken away, the accused asked M.B. whether she wanted to go back to her sex work, and he would provide her with a hotel room.

k) The police do not allege that T.Q.N. was controlling the deceased in the sense that she was a victim of human trafficking. Consequently, no charge is being laid against the accused in relation to the deceased, pertaining to human trafficking.

l) During cross-examination defence counsel proffered that the current legislation indicates that "a woman who is involved in the sex trade as a prostitute is a victim of exploitation." In response, Detective D.C. stated: "I pursue human trafficking investigations on a case by case basis on all the facts and circumstances that are presented to me." In support, he quoted verbatim, section 279.01 (1) of the Criminal Code, which provides as follows:

"Every person who recruits, transports, transfers, receives, holds, conceals, or harbours a person, or exercises control, direction, or influence over the movements of a person for the purpose of exploiting them, or facilitating their exploitation, is guilty of an indictable offence."

m) The allegations are that the women provided the sex to the accused's clients, who paid the accused; thereby the accused received a material benefit. However, R.R. did not see any girls paying money to the accused. Further, R.R. stated that she had not observed anyone talking about "moving drugs."

n) Still under cross-examination, detective D.C. testified that there is no evidence at this time that the accused was living off the avails of prostitution. However, when the Search Warrant of the premises was executed, much was seized, which potentially could trigger such a charge being laid. He also noted that he had viewed the video of M.B.'s interview with the Human Trafficking Unit, in which she stated that the clients were serviced in the bedroom of the accused's apartment, and that T.Q.N. collected all the cash from the sexual services that the girls provided, and held on to it because they were obliged to repay him for the plane tickets which he had provided. M.B. had also told the police that she had texted the accused while at the party on July 10, about allowing her to get a hotel room, but "he got mad." She was also concerned that she "would get in trouble" because she didn't want to do what was expected, such as "deep French kissing and bare back blow jobs."

o) According to Detective A's notes, M.B. said that the accused took the money from the four clients that she had serviced because he believed that she owed him $240.

p) Defence counsel indicated that the website being relied upon by the Crown does not advertise sexual services; it expressly states that the "persons involved here are for companionship only." The detective responded that although it does specify prices for in-calls and out-calls, he is not relying solely on the internet advertising, but also on statements provided by M.B. and R.R. that they were required to provide sexual services. He said that when there is an ad in relation to individuals who have declared being involved in the sex industry"that suggests to me that that advertisement is in fact an advertisement for sexual services." The detective also noted that the website advertising is bifurcated, setting out one segment suggestive of prices for sexual activities, and a second section setting out prices for acting only as companions.

q) Detective D.C. testified that at this time he has no evidence other than the statements from M.B. and R.R. that the accused supplied them with the air tickets to Toronto, but the police are endeavouring to obtain records from the airline. He also conceded that there is no evidence that the accused behaved or threatened to behave violently towards M.B. or R.R.

r) In regard to the element of deceit, the detective testified that in addition to the accused's failure to provide the hotel or condominium accommodation, R.R. stated that "It was so crazy here; I didn't think I could leave."

E. The Synopsis of M.B.'s Second KGB Statement

8. The Crown submitted a synopsis of the second KGB Statement provided by M.B. It was authored by Detective S.T. in relation to the five sex related charges. The synopsis was entered into evidence, and marked Exhibit 6. The salient features are as follows:

a) M.B. who resides in another province, located an advertisement for escort services and contacted the accused by email. The accused told her that she could earn between $2000.00 and $5000.00 a week if she was open to providing a range of sexual services to clients. The accused would pay for her flight to Toronto, although she would be required to reimburse him eventually, and he promised to provide her with her own condominium in downtown Toronto.

b) The accused together with a driver and R.R. picked her up from the airport, and brought her to the accused's residence. The accused provided R.R. with seductive lingerie, and then took photographs of her, creating an escort advertisement for her. M.B. provided the accused with photos of herself; the accused uploaded them to his on-line escort web page.

c) The accused told M.B. that –

• Every Thursday and Friday male clients would come to his apartment, and that she was required to provide sexual services to them.
• On other days of the week, she was to provide outcalls.
• He would charge the clients $140.00 for half an hour, and $200.00 for a full hour of sexual services.
• All monies would be paid by the clients to him, and he would give her 60% of the earnings.

d) The accused made a phone call directing that females be brought to his apartment. Two females were brought, one of whom was S.S., who had been working for the accused as an escort providing sexual services. As more people arrived at the party, the accused offered various narcotics to M.B. and the other females. M.B. advised that through her experience in the sex industry she recognized this as a method used by procurers to get escorts addicted in order to take control of them. Initially, she said, narcotics are given free of charge but then the escorts are required to provide sexual services to pay for the drugs. The accused offered her MDMA as well as green unstamped ecstasy pills, which she refused.

e) The accused brought out a plate of a powdered substance, which he offered to her and the others. S.S. snorted that substance. M.B. did not because she was able to detect that it was laced with a foreign substance.

f) As clients arrived the accused told M.B. to provide sexual services to four men, which she did, but received no money from the accused for these acts. After arriving at the accused's apartment, she decided that she wanted to do one sex service out-call to get money to rent a hotel room. She did not specifically say that the accused prevented her from leaving the apartment, but she indicated that she felt that she could not leave.

g) The accused brought out a red plate with two lines of a brown powdered substance, which he said was MDMA. M.B. and R.R. snorted a small amount and immediately became very ill, very hot, and began to vomit. They both went into a cold shower for about an hour. Thereafter, M.B. observed S.S. holding the red plate and snorting the powder.

h) When M.B. awoke at around 9:00 am, paramedics were in the apartment attending to S.S. who was later pronounced dead. M.B., R.R., J.S. and the accused were taken to the police station to provide statements to the police. While they were in the lobby of the police station, the accused informed her that he had woken up at about 7:00 am, checked on S.S., and found that she was not breathing. He said that, he then cleaned the apartment and hid narcotics "downstairs." Then he called 911.

i) After the accused learnt that S.S. had died, the accused booked a hotel room at the Comfort Inn, and asked M.B. to continue to work for him there.

F. The Plan of Release

9. Defence counsel outlined the plan of release as follows:

a) The primary and residential surety would be the accused's father, who is unemployed, recovering from cancer, and attends the hospital at least once a month.

b) The accused's brother and sister, who live about 15 or 20 minutes away from the father, would be the supplementary sureties so that if the father becomes ill or is hospitalized, the accused could stay with his sister 'for a few days,' sleeping on the living room couch.

c) The accused would be under house arrest except while in the company of any one of his sureties.

d) However, if the father is no longer able to have the accused live with him, neither the brother nor the sister could have the accused reside with them permanently.

10. T.Q.N's father, V.D.N., with the assistance of the Vietnamese Interpreter, testified as follows:

a) He is 62 years old and resides in a two-bedroom apartment owned by his other son, H.Q.N., in Toronto where he has been living for more that 15 years. The accused can reside in the second bedroom, where he lived for a number of years until some two years ago, when he moved into another apartment with his friend.

b) He has a medical condition for which he is getting treatment, and goes to the hospital regularly, at least once a month so that the Doctor can monitor his condition, which is cancer. He has been in remission for four years.

c) His only income is from government assistance. His only asset is $1000.00 which he has in the bank, and is prepared to pledge as security for his son's release on bail. He does own a car, and can drive the accused to court and elsewhere when required.

d) He is prepared to call the police if his son is in breach of any of the conditions of his bail.

e) Under cross examination he testified that he speaks very little English so that if he could not secure the assistance of either of his two other children to call the police, he would be prepared to call 911 himself.

f) Although he does not pay rent, he does pay $300.00 per month towards the electricity, maintenance and upkeep of the condominium.

g) When asked by the Crown in what capacity the accused was employed prior to the motor accident, he replied that the accused had not told him.

h) With respect to his remaining two children who are also proposed sureties, he testified that his older son works night shift, and his daughter "got married" and lives on her own. She attends school, but he is not sure what she is studying. His daughter has a five-year-old son.

i) Although he does not have a Criminal Record, after significant prodding by the Crown, he eventually admitted to having been arrested several times, dating back to 1996 and ending in 2007, but he had never been convicted. He has a government licence to clean homes. On numerous occasions he has cleaned homes which had been used as marihuana grow-ops.

j) He has no idea with whom his son resides, and has never been to that apartment. The Crown suggested that he doesn't have much knowledge of what his son has been doing for the past few years, to which he replied: "I know a little. I talk to him on the phone."

k) He believes that the accused would listen to him because he has done so in the past.

10. The accused's 25-year-old sister, M.N. testified as the second proposed surety. Her evidence may be summarized as follows:

a) She is a 25-year-old single mother with two young children, aged five and three, who lives with them in a two-bedroom basement apartment in Toronto, having moved there two months ago.

b) She does not have a car nor a driver's licence. She visits her father about once a month. He lives a half an hour away by bus.

c) She is unemployed, but looking for a part-time job, having last worked when she was 19-years-old prior to her first pregnancy. She is planning to go to college in January either full-time or part time to study social work, and will apply for OSAP from the government.

d) Her income is from Social Welfare, and she receives about $1000.00 a month. She also receives the Baby Bonus which amounts to about $1100.00 a month. Her monthly rental is $900.00. She has savings of about $1700.00, which she is prepared to pledge as security for the accused's release on bail, and to call the police if he breaches any of the conditions of release. Her father will be the primary surety, and she and her older brother would take turns when needed. The accused could stay over at her apartment using the sofa in the living room for a couple of nights in an emergency, but other than that, he could not reside with her.

e) The father of her children does not contribute any money towards their support, although his mother helps a little with clothing and "knick knacks."

f) Her five-year old goes to school by bus; she walks her younger child to day-care in the same school as her older child attends. At about 3:30 pm, she picks her kids up from school, and walks them home.

g) During the day, she is busy with grocery shopping, cleaning, cooking, and generally preparing for the week. While her children are sleeping at night she relaxes and watches television.

h) She knows that her father lives in a rented apartment, but does not know who owns it. Neither does she know anything about whether or not her father was ever arrested on allegations of criminal activity. She has no knowledge of the accused's involvement with the criminal justice system, including the fact that he does have a criminal record. Although she was not even a teenager when these findings of guilt were made, she has never even heard about any of that since then.

i) With respect to her relationship with her accused brother, she testified that "we have our ups and downs, but fairly good." She has no idea where he lives nor whether he is or has been employed, and what, if anything he did or does for a living. The last time she lived in the same house as the accused was when she was 16-years-old. In response to the Crown's comment: "So you really didn't know what he was up to" she replied "No."

11) The third proposed surety was H.N., the accused's old brother. He was born in Vietnam, but has been in Canada most of his life, and is a Canadian citizen. His evidence is essentially as follows:

a) He lives with his roommates and his common law wife in a rented two-bedroom apartment in Toronto.

b) He has been employed as a machine operator at a candy factory for 13 years, and his hours are 7:00 am to 3:00 pm Monday to Friday. During March and July, he often works overtime, until 7:00 pm.

c) He visits his father two or three times a month but speaks with him on the phone more regularly. Seven years ago, he bought the apartment in which his father lives for $118,000.00, and has an outstanding mortgage of $80,000.00 in respect of which he pays $620.00 per month. He is also in the process of paying his ex-wife back for the financial assistance which she rendered in relation to the purchase of the condominium, and he is precluded from selling it by virtue of an agreement with his ex wife. Consequently, he is not able to pledge his equity in the condominium as further security for his brother's release from custody.

d) He has no idea what his father's income is or from where it is derived. Although his father does not pay him rent, he does contribute $380.00 per month towards hydro and maintenance.

e) His driver's licence is under suspension, and has been for a number of years. He continues to pay off the balance owing for his P.O.A. fines, which amounts to about $5000.00 at present.

f) He does have savings of $3,500.00 in mutual funds, and is prepared to pledge that amount as security for his brother's release.

g) He has never been to any of the accused's apartments except the one in which he now lives on one occasion a year and a half ago.

h) He has no idea whether or not the accused is or has been employed. He knows nothing about the accused's life because although they speak on the phone from time to time, the accused refuses to reveal anything about his private life. In this regard, the exchange between the Crown Attorney and this witness is as follows:

Crown: Do you know when the last time was that he [the accused] worked?

Witness: No, I don't.

Crown: Is he pretty secretive?

Witness: Yes.

Crown: Well, do you know why?

Witness: I don't know why.

Crown: Have you tried to ask him questions about what he is doing?

Witness: I asked him, but I don't know why and he never tells his personal stuff.

Crown: Okay, so is it fair to say that your family really doesn't know what your brother's been doing since he moved out from his dad's house?

Witness: That I don't know, but for myself, I don't know.

i) The accused may live with his father in the 2nd bedroom but he has no place for the accused to live with him. He will assist with supervision in emergency situations, if needed, and would call the police if his brother breaches his bail. He lives about a 15-minute drive from his father's residence, and although he does not drive, his common law wife does have a car, and could help if required.

j) He will contribute towards the supervision of his brother as he expressed it: "Check up on him, call him, come to my dad's place, ensure that he's there." In the event of an emergency situation arising with respect to his father, he would have to make a request to his employer a day before, in order to be given a day off to deal with his brother.

G. The Onus of Persuasion

12. Pursuant to section 515(6)(d) of the Criminal Code, the onus is reversed with respect to the two charges of possession of methamphetamine for the purpose of trafficking per counts 2 and 4 of Information #3 as set out in paragraph 6 hereof. With respect to those two charges, the accused is required to satisfy the court on the primary, secondary and tertiary grounds that on a balance of probabilities, his pre-trial detention is not justified.

13. With respect to all the other charges, the onus is on the Crown to satisfy the Court that on a balance of probabilities, the pre-trial detention of the accused is justified on any one or more of the three grounds set out in section 515 (10) of the Criminal Code.

14. The Crown's concerns are on the secondary and tertiary grounds.

15. With respect to the secondary ground section 515(10)(b) of the criminal Code provides that an accused may be ordered to remain in pre trial custody:

where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice

16. In order to render my decision I am compelled to consider all the circumstances including the apparent strength of the Crown's case against the accused on the charges in the case at bar.

H. The Apparent Strength of the Crown's Case

17. During the course of this hearing it has become apparent to me that there are indeed significant deficiencies in the Crown's case with respect to several of the charges. I do not propose to mention all of them, but by way of a summary:

a) While there is no Pathology Report yet with respect to the deceased, the Toxicology Report indicates that the femoral blood examination revealed the presence of only Morphine and Dextromethorphan. The Toxicologist concluded that "Morphine can arise either through administration of the drug itself or as an active metabolite of heroin, and its presence in blood or urine indicates prior administration of heroin. Having regard to the circumstances at the party where she died, it may well be inferred that she died from an overdose of drugs, but such an inference is not appropriate for me to make at this early stage of the criminal proceedings.

b) There appear to be significant inconsistencies with respect to M.B.'s two KGB statements and her utterances to the police.

c) The police did locate the drugs which were said to have been hidden by the accused "downstairs" after the deceased already had no vital signs. However, the forensic examination of the packages that were found does not reveal any of T.Q.N's fingerprints. Nonetheless, the Certificate of Analysis from Health Canada Drug Analysis Service, dated July 29, 2015, Exhibit #3, refers to the package of drugs delivered by the police on July 22. The analysis indicates that the baggies submitted (which the police located in the dumpster) had been examined, and were found to be Schedule III – TFMPP/BZP as well as Schedule I Methamphetamine and Oxycodone, most of which are alleged to have been provided by the accused at the party on July 10, 2015.

d) There appear to be further deficiencies in the Crown's case with respect to the charges involving human trafficking, in relation to recruiting and harbouring for the purpose of exploitation under section 279.01 (1) of the Criminal Code; in particular, whether the Court is able to find at this stage, that the accused exercised control, direction or influence over the movements of M.B. under section 286.3 (1) of the Criminal Code having regard to the evidence provided by both M.B. and R.R.

e) Furthermore, there remain important aspects of the drug trafficking charges, particularly whether there is any evidence other than the drugs being in the baggies, which would support a conviction of possession for the purpose of trafficking.

18. These are a just a few examples of my concerns in relation to the apparent strength of the Crown's case with respect to some of the charges. There are more, but I don't propose to detail all of them in the three Informations comprising the 11 charges, in order to reach a conclusion regarding the accused's application for bail.

19. I am satisfied that there are indeed significant triable issues, raised by the defence and often acknowledged by the Crown, which will have to be dealt with by the Trial Judge in due course. At this stage of the criminal proceedings against the accused I am unable to determine the apparent strength of the Crown's case. In R. v. E.T., [2006] O.J. No. 1446, a decision of MacDonell J. then of the Ontario Provincial Court, prior to his appointment to the Superior Court Bench, the Court found the apparent strength of the Crown's case to be neutral. In the words of justice MacDonell:

On the basis of what is before this court, it is not possible to come to any view as to the likelihood of those issues being determined one way or the other. To put it another way, it is not possible at this stage to determine whether the case connecting the applicant to the offences is weak, strong or somewhere in between.. I therefore regard "the apparent strength of the Crown's case" as a neutral consideration on this application.

20. Similarly, for the reasons which I have given, I am not able to make a realistic determination of the apparent strength of the Crown's case on the eleven serious charges which the accused is facing. My conclusion, therefore, is that I will treat "the apparent strength of the Crown's case" as neutral for the purposes of these proceedings.

I. A Consideration of "All the Circumstances"

21. Having reached this conclusion with respect to the apparent strength of the Crown's case under the secondary ground, I must now consider all the circumstance pursuant to section 515 (10) (b), including a determination of whether there is any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice.

22. When considering the issue of substantial likelihood, the court is mandated to make an assessment with optimum consideration given to the strength, adequacy and reliability of the plan of supervision, which I will do in due course.

23. Let me endeavour to encapsulate 'all the circumstances' as I understand them from the evidence which I heard during the four full days of this bail hearing.

24. The accused resides in a two-bedroom apartment in Toronto. He has one bedroom; the other is rented to or by someone else, who locks that room when he or she is not there. Detective D.M. testified that the accused told him on July 11, that he had hosted the party the previous night. In the words of the accused: "A quantity of drugs was produced including ecstasy and powdered cocaine on a plate. Everyone consumed drugs and alcohol there."

25. When I questioned him about his employment situation, the accused said that he used to work part-time with his friends doing moving and restoration work, but two months ago he injured his back and neck in a motor collision. He now receives ODSP and attends rehabilitation therapy for his injuries.

26. A man of 34 who told police that he has a grade 11 education, has apparently done nothing other than that part-time work. This, in and of itself, strains credulity. I have no information or evidence that he ever actually had regular, lawful employment. Not one member of his family who testified, has any idea what sort of employment he ever had.

27. Listening to the evidence, and hearing the analysis of the website concerned, by Detective D.M. and the Crown Attorney, I am of the view that he is indeed involved in advertising and arranging for women to come forward and work for him as call girls in the sex trade industry. On the front page of the website, submitted and marked Exhibit #5, the telephone contact number to be used by interested parties is listed. It's the number which the accused provided to the police and from which he made the 911 call in regard to the deceased. In addition, there is a photograph of a scantily clad woman in a sexually suggestive stance. The penultimate two pages of Exhibit #5 contain 18 photographs of women in sexually suggestive poses. Their names have been blocked out however for these proceedings. The last page provides the rates with the caption: "We're glad you're interested in meeting with one of our upscale companions. Here are the donations we request for your entertainment. The rates are non-negotiable." The rates seem to be bifurcated as follows:

INCALL half hour 140; 1 hour 180; Overnight 6 hour 900

OUTCALL half hour 160; 1 hour 240; Overnight 6 hour 1200

In my view, this part refers to the charges for sexual activities and not for companionship, and the numbers refer to dollars.

In the second part of the page there is a section stating –

COMPANIONS ONLY

INCALL 40/hour OUTCALL 60/hour minimum 3 hours.

It strains common sense to be expected to believe that the whole page refers to charges for companionship only. Interestingly, the so-called "donations" for the services to be rendered are "not negotiable."

The accused's telephone number is listed on that page as the number to contact in order to make the arrangements for the services being offered.

28. According to the evidence of both M.B. and R.R. the accused had promised in email correspondence that the work would be high-end call girl work, and that they would be housed in their own condominiums or their own hotel rooms. I believe that this was the incentive that attracted the two of them, both admitted sex trade workers, to come to Toronto.

29. I find to be trustworthy and credible that the accused picked those two women up from the airport, one on July 9th and the other on July 10, 2015, and brought them to his apartment to be put to work as prostitutes in circumstances where he would be paid by the clients and they would get an agreed percentage of such earnings, after paying him back for the airfares.

30. I also accept that these two women were very upset when they realized that this was not a high-end sexual services operation, but exactly the opposite. I also believe that at the party on July 10th, M.B. serviced four clients in the accused's bedroom, and that he received payment without sharing any of it with her.

31. I accept as credible the information provided to the police that the accused generally hosts such parties every Thursday and Friday night, that alcohol and prohibited drugs are provided to the party-goers, even though I am not clear on who actually brings the drugs and the alcohol. However, both M.B. and R.R. made statements to the police that the accused put a plate of several lines of drugs on a table, and that they and the deceased did partake in snorting some of those drugs. In addition, I accept their statements to the effect that they are admitted drug users, but that immediately after taking small amounts of those drugs, they both became very ill, vomited, and were so felt like their bodies were on fire. They both had to take long showers at the apartment in order to try and cool off.

32. Furthermore I accept as credible and trustworthy that the accused cleared up the apartment and then hid the remaining drugs somewhere down the stairs of his apartment, and that the police located a number of baggies of drugs, although the accused's fingerprints were not found on those bags.

33. I am also satisfied that somewhere in the vicinity of 1 am on Saturday morning, July 10, the deceased became extremely ill, appeared not to be breathing, and that the accused waited until around 9:00 am before calling 911.

34. All of these circumstances satisfy me that at the very least the accused is a pimp who is heavily involved on a regular basis in arranging for clients to meet sex workers for sex, and that he receives his income therefrom.

35. These circumstances and findings must be seen against the backdrop of the evidence that none of the proposed sureties is privy to any aspects of his private life, his friends or associates or the type of employment he has had since leaving school.

36. Exhibit #4 is the accused's Criminal Record, which I note is rather dated, and that the convictions are not connected to the charges which he is now facing.

J. The Rights of the Accused

36. The foundation of our criminal justice system is the presumption of innocence, so that the accused is innocent until such time as he has been found guilty by a court of competent jurisdiction of committing the offences.

37. Section 11(e) of the Charter of Rights enshrines an accused's constitutional right not to be denied reasonable bail without just cause, and Section 7 of the Charter accords to an accused the right not to be deprived of his liberty or security except in accordance with the principles of fundamental justice.

38. The abundant jurisprudence with respect to these rights clarifies that:

Imprisonment prior to trial should be the last resort.

See R. v. Hajdu (1985), 14 C.C.C. (3d) 563 (Ont.H.C.)

Pre-trial detention is extra-ordinary in our system of criminal justice.

See R. v. Bray (1983), 2 C.C.C. (3d) 325 (Ont. C.A.)

There are no categories of offences for which bail is not a possibility.

See R. v. Blind (1999), 139 C.C.C. (3d) 87 (Sask. C.A.);

R. v. Framboise, [2005] O.J. No. 5785 (Ont. C.A.)

Bail will be denied only in a narrow set of circumstances.

See R. v. Pearson, [1992] 3 S.C.R. 665.

K. Analysis

39. I have given careful consideration to the extensive case law provided by both defence counsel and the Crown Attorney. Needless to say, I am bound by the judgments of our higher courts, and have taken into account the relevant findings of those courts. However, it is well documented in our jurisprudence that every case must be dealt with independently, and on it's own merits, with due regard to all the particular circumstances of the case at bar.

40. Having considered all the circumstances, the final question is whether the plan of release is sufficient to attenuate my concerns and to reduce them to an acceptable level.

41. Defence Counsel appropriately referred to the decision of the Supreme Court of Canada in R. V. Morales, 17 C.R. (4TH) 74 (S.C.C.) in which Lamer C.J. as he then was, held as follows with respect to the issue of "substantial likelihood":

"While it is undoubtedly the case that it is impossible to make exact predictions about recidivism and future dangerousness, exact predictability of future dangerousness is not constitutionally mandated."

And further, Lamer C.J. clarified this issue in the following dictum:

"Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail, but only those who pose a 'substantial likelihood' of committing an offence or interfering with the administration of justice and only where this substantial likelihood endangers the protection or safety of the public."

42. Defence counsel submitted that this latter statement of Lamer C.J. means that when considering the substantial likelihood of the accused's committing further offences, the learned Chief Justice meant that the concern should be whether the accused will commit violent crimes, and that in this case there is no evidence that the accused committed any violent crimes in the past.

43. However, I do not accept the reasoning of defence counsel. C.J. Lamer specifically used the words "where this substantial likelihood endangers the protection or safety of the public." In my view, this refers to any kind of criminal activity which potentially could endanger the protection or safety of the public. I find that the accused appears to be involved in criminal activity involving pimping, prostitution and drugs, all of which endanger the protection and safety of the public. And since I know of no lawful employment which the accused has or has ever had, the concerns are that he will continue with this type of work.

44. It is well documented that the lure of the lucrative nature of providing or trafficking in drugs results in a tremendously high level of recidivism. But the danger of drugs such as cocaine, ecstasy and marihuana to the physical, mental and emotional health and financial well being of the public is overwhelming. Lives and families are ruined and destroyed by drug addiction. In R. v. Pearson, [1992] 3 S.C.R. 665 the Supreme Court of Canada held that the constitutionality of the reverse onus provisions with respect to drug trafficking does not violate the accused's rights under sections 7, 9 or 11(e) of the Charter.

45. As far as the plan of release is concerned, the father is to be the primary surety with the sister and brother assisting in the periphery. I have no issue with respect to the paucity of the finances of each proposed surety. It is true that the amounts which the three proposed sureties are prepared to pledge are minimal, particularly in a case such as this where the number and seriousness of the charges is so extensive. Frankly, I also have doubts about whether any of them would ever actually have enough funds if an Order of Forfeiture was made, in light of the financial restraints and commitments that particularly, the brother and sister have. But there is more to consider in a case such as this than the quantum pledged. Of paramount importance is the strength and adequacy of the plan of release.

46. I am prepared to give the benefit of the doubt to the father that he was somewhat confused by many of the Crown's questions despite the fact that he was being assisted by the Vietnamese interpreter, and that his memory was wanting in regard to the number of times he has been arrested in the past although he did testify correctly that he has no Criminal Record. But even when he spoke about his other son and his daughter, either there is a lack of knowledge or an element of confusion. He said that his son works night shift, although the son testified that he works during the day. He said that his daughter "got married, attends school and has a five year-old son. This was inconsistent with the evidence of the daughter, who indicated that she never married, that she does not attend school, and that she also has a three-year-old daughter.

47. In my view, the plan of release is extremely weak and insufficient to reduce my concerns on the secondary ground to an acceptable level. The father speaks virtually no English so that even if he did want to report to the police that his son was breaching his bail, he would not be able to communicate that to the police notwithstanding his evidence that he would call the police if such a situation arose. The plan suggests that he could call 911 and simply say 'police'. Firstly, I don't believe that his son's breach of bail would be a matter of such urgency that 911 should be called. Secondly, I don't believe that by simply saying "police" without anything further, it would be sufficient to have the police attend his residence. And even if the police did so respond, what would happen? He would somehow impart to the police that his son is nowhere to be found and thereby breaching his bail. And what should the emergency services do in such a case? I don't believe that anything would be done other than perhaps to indicate that the call, in and of itself, was a waste of time and resources.

48. Calling his older son or his daughter, in my opinion, would also not solve the problem because depending on the time of day, the sister is busy with her children, and perhaps with a part-time job and/or her studies. The older son works, and again depending upon when the breach occurs, he would be at work, and required to give a day's notice of his intention to take a day off.

49. Furthermore, since the father virtually speaks no English, and may have to attend a hospital more than once a month, there would in all likelihood be no-one to supervise the accused until such time as his sister or brother was able to make arrangements to assist with supervision temporarily.

50. Moreover, I am convinced that the accused will still be able to use a telephone and a computer while on house arrest. His father will have no idea what he is doing, saying or typing, and the accused would be equipped to continue his criminal activities in one way or another even while on house arrest.

51. For these reasons I am not satisfied that the plan of release is sufficient. I am persuaded, on a balance of probabilities, that the Crown has met her onus on the secondary ground.

52. Having come to such a conclusion I do not believe that it is necessary for me to delve into the provisions of the tertiary ground, and their potential applicability in this case.

53. Finally, my Order is that T.Q.N. be held in pre-trial custody until such time as he has been dealt with according to law.

L. Statement Under Section 515(13) of the Criminal Code

54. In making this Order, I have considered the safety and security of every victim revealed in these proceedings.

P. Kowarsky J.P.