WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
. . . 486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Between:
Her Majesty the Queen
— AND —
Dimitri Majdalani
Haven Schmidt-Fabian
Before: Justice K.L. McKerlie
Heard on: November 16, December 6 and 20, 2016
Reasons for Judgment released on: March 1, 2017
Counsel:
- Joseph Perfetto — counsel for the Crown
- Andrew Vaughan — counsel for the defendant Dimitri Majdalani
- Derek Johnson — counsel for the defendant Haven Schmidt-Fabian
MCKERLIE J.:
Charges
1The accused, Dimitri Majdalani and Haven Schmidt-Fabian, are jointly charged with six offences relating to the complainant, MCW, occurring between March 1 and April 5, 2016. The offences are as follows:
Unlawfully recruiting and exercising control, direction or influence over the movements of MCW, for the purpose of exploiting or facilitating her exploitation, contrary to s. 279.01 of the Criminal Code of Canada;
Receiving a financial or other material benefit, knowing that it was obtained or derived directly or indirectly from the commission of an offence under s. 279.01, contrary to s. 279.02(1) of the Criminal Code;
Advertising sexual services, contrary to s. 286.4 of the Criminal Code;
Receiving material benefit from sexual services, contrary to s. 286.2(1) of the Criminal Code;
Procuring MCW for the purpose of facilitating an offence of providing sexual services for consideration, contrary to s. 286.3(1) of the Criminal Code;
Without lawful authority, unlawfully confining MCW, contrary to s. 279(2) of the Criminal Code.
2In addition, Dimitri Majdalani is charged with the following two breaches of his July 24, 2015 probation order, contrary to s. 733.1(1) of the Criminal Code:
Failing to keep the peace and be of good behaviour; and
Failing to comply with the term that required him not to be involved in any way in the escort industry, either by associating with persons who are known to him as prostitutes or exotic dancers, or managing such people.
Issue
3The issue is whether the Crown has discharged its onus of proving beyond a reasonable doubt every essential element of each offence. The onus of proof is on the Crown and never shifts. The accused, Dimitri Majdalani and Haven Schmidt-Fabian, are presumed to be innocent and are not required to prove or disprove anything.
4The Crown's case consisted of the testimony of the complainant MCW and the testimony of the investigating officer, Stratford Police Service Detective McGregor. Mr. Majdalani did not call any evidence. Ms. Schmidt-Fabian's case consisted of the testimony of the complainant's sister, K.W., the testimony of Stratford Police Service Officers Bentley and Burrows and the testimony of the accused, Ms. Schmidt-Fabian.
5In their written submissions, counsel focused their submissions on issues respecting the credibility and reliability of the testimony of the complainant, MCW.
Evidence of MCW
6MCW is twenty years old and the parent of a child born in October 2015. She has a grade 11 education and has never been employed. At the beginning of 2016, her means of support were Ontario Works and the Child Tax Benefit.
7MCW testified that in March 2016 she began prostituting by working with Haven Schmidt-Fabian and Dimitri Majdalani. She met Ms. Schmidt-Fabian at the residence of her friend and neighbour, Edwin Baltis, who is Ms. Schmidt-Fabian's stepfather. The two women "hung out" together. Ms. Schmidt-Fabian told her that she was "escorting". They became friends and added each other on Facebook. A few weeks later Ms. Schmidt-Fabian messaged her to see if she wanted to start escorting as well. MCW's response was, "Yeah, it sounds like a good idea".
8MCW used the terms prostituting and escorting interchangeably. Ms. Schmidt-Fabian preferred the term escorting.
9MCW testified that she ended up going to the Rosecourt Motel with Ms. Schmidt-Fabian and Mr. Majdalani. She did not have a vehicle and they took her to the Rosecourt Motel in their vehicle. They gave her advice and tips about how to get started in prostitution. They told her they were going to be there for her protection if she were to be hurt by a client.
10Ms. Schmidt-Fabian and Mr. Majdalani had a room at the Rosecourt Motel. The arrangement was that if Ms. Schmidt-Fabian was using the room, MCW would work from her apartment. If Ms. Schmidt-Fabian was not using the room, MCW would use the room at the Rosecourt Motel.
11Ms. Schmidt-Fabian also explained how to use the Backpage website to advertise. She told MCW how to post ads on Backpage with photos and contact information. Ms. Schmidt-Fabian had a user account and could post MCW's ad on her ad as well.
12MCW provided her telephone number to Ms. Schmidt-Fabian and Mr. Majdalani. They did not discuss money or pricing until after MCW completed her first call in mid-March.
13MCW posted ads on Backpage. The ads contained sexually suggestive photographs. She used her cellphone to take photographs of herself and other photographs were taken by her boyfriend. Prospective clients responded to the ads via the internet and she received notifications on her cell phone.
14MCW testified that her first appointment took place in an apartment complex parking lot in mid-March. She received a text on her cell phone requesting an outcall in which she would go out and meet the client. Mr. Majdalani and Ms. Schmidt-Fabian drove her from the Rosecourt Motel to the parking lot location. MCW earned $60.00, which she was allowed to keep on that occasion. However, after that first transaction, both Mr. Majdalani and Ms. Schmidt-Fabian told her she had to turn over to them all the money after every client.
15Between the first transaction in the parking lot in mid-March and April 5, 2016, MCW estimated that she had five to eight more appointments. Some were at the Rosecourt Motel and others were at her apartment.
16If the appointment was at the Rosecourt Motel, Mr. Majdalani and Ms. Schmidt-Fabian would pick her up at her apartment and take her to the Rosecourt. MCW's boyfriend would babysit her daughter at the apartment. She did not take her child to the Rosecourt Motel. Mr. Majdalani and Ms. Schmidt-Fabian would leave the motel room and go out to their vehicle. The client would knock on the door, put the money on the table, the transaction would be concluded and then MCW would turn the money over to Mr. Majdalani.
17If the appointment was to take place at her apartment, MCW notified Mr. Majdalani and Ms. Schmidt-Fabian by text message. She explained that after the first transaction when she was allowed to keep the $60.00, Mr. Majdalani and Ms. Schmidt-Fabian told her that if she did not give them all the money she received, she would get hurt. They knew where she lived. She was scared not to tell them about the appointments and thought they would show up at her apartment and harass her if she did not notify them of her appointments. She testified that every day she received harassing text messages telling her to make money for them.
18As to what happened to the money she earned after the initial appointment, MCW testified that she would give the money to Mr. Majdalani and he would put it in his pocket. As to why she turned over the money, MCW testified that they told her they were saving it up for her benefit. She was not permitted to keep any money other than the $60.00 for the initial outcall.
19MCW testified that Ms. Schmidt-Fabian and Mr. Majdalani wanted her to be available 24/7, texted her constantly and did not like that she was not always available. She stated that she was not always available because she was a mother and wanted to spend time with her child.
20MCW testified that she continued to communicate with them because she was scared that if she stopped, they would show up at her apartment. She testified that she did not want to carry on with the arrangement. She felt she was being used because she was having sex with men and not getting anything out of it. However, she did not confront Ms. Schmidt-Fabian and Mr. Majdalani because she was scared that they would hurt her if she said anything.
21On April 5th, 2016, MCW was at home with her daughter. She asked Ms. Schmidt-Fabian and Mr. Majdalani for a ride to Walmart. They drove her to Walmart. She brought her daughter with her. She spent about 45 minutes shopping. She estimated that she filled eight to ten shopping bags and also had a box of diapers.
22She told Ms. Schmidt-Fabian and Mr. Majdalani that she wanted to go back to her apartment after she was done shopping. Instead, they told her they were taking her to the Rosecourt Motel because they wanted her to make them money that day. MCW did not want to go to the Rosecourt because she had her daughter with her. She confirmed they were both speaking to her and described them as very controlling and mean.
23Ms. Schmidt-Fabian and Mr. Majdalani told her to hand over her cell phone so they could post the ads and have control of the clients. She gave them her cell phone. She explained she was scared to not follow their instructions particularly because she had her daughter in the vehicle. She did not say anything to them because they already knew she planned to go home and they did not want to go along with her plan.
24When they arrived at the Rosecourt Motel, they all went directly to another room that had already been arranged by Mr. Majdalani and Ms. Schmidt-Fabian. They told MCW to go into the room. She was scared. She carried her child and the car seat into the room. Ms. Schmidt-Fabian and Mr. Majdalani carried in her shopping bags. MCW testified that it was cold out and she was not in a position to run off carrying her child in the car seat.
25Mr. Majdalani and Ms. Schmidt-Fabian had possession of her cell phone and kept passing it back and forth between them. They told her if she did not make money that day, she was going to get hurt.
26Mr. Majdalani told her that she was only to get up from the bed if her daughter needed a bottle or a diaper change. She described his mood as controlling and ignorant. Both Ms. Schmidt-Fabian and Mr. Majdalani told her she had to make money that day because she had not made enough. She believed that she had no choice but to stay in the motel room.
27MCW testified that she knew that Mr. Majdalani and Ms. Schmidt-Fabian were posting ads using her cell phone and that any replies to the ads would be by text message to her cell phone. There was no requirement for a password.
28MCW testified that she did not want to work as a prostitute on April 5th. She did not post any ads on the afternoon of April 5th, 2016 and did not have access to her cell phone while she was at the Rosecourt. Mr. Majdalani and Ms. Schmidt-Fabian maintained control of the cell phone. MCW identified exhibits 1A, B, C & D as Backpage ads, which were posted using her cellphone and contained photographs which were stored on her cell phone. The ads show the date of April 5, 2016. The posting times for the ads were: 3:07 pm, 3:39 pm, 5:23 pm and 5:25 pm.
29The plan was for Ms. Schmidt-Fabian and Mr. Majdalani to take the child from the room when a client arrived. However, there were no responses to the ads posted that afternoon. Eventually, the battery died on MCW's cell phone and the cell phone was returned to her. She did not know where Mr. Majdalani and Ms. Schmidt-Fabian went when they left the room. They did not say whether she could leave or not.
30MCW took advantage of their absence and used the room phone to call her mother and ask her mother to pick her up as soon as possible. It was the first time that she had been left alone in the room that day. Her mother arrived within five minutes. As to the time, MCW testified it was pretty late and it was dark outside.
31When asked if her mother knew about her line of work, MCW replied, "She didn't until that night, no". When she called her mother she told her mother that she was in danger and her mother had to get there as soon as possible. After she got into her mother's vehicle, she explained it to her mother. She testified that her mother was "freaking out" and went to the office to ask who had rented the room.
32MCW testified that she was scared that Mr. Majdalani and Ms. Schmidt-Fabian would see her leaving. She did not look for them or their vehicle. She explained that she didn't care to look. She just wanted to leave.
33After they left the motel, her mother expressed concern that she had been using drugs that day and refused to let MCW take her daughter out of the vehicle when they arrived at her apartment. MCW denied using drugs that day. I note that K.W., Constable Bentley and Sergeant Burrows testified that they did not detect any sign of drug or alcohol use by MCW on the night in question.
34MCW was very upset with her mother. She described a "huge scene" at her apartment which ended when her mother took her daughter away in her vehicle. MCW went up to her apartment, charged her phone for twenty minutes so that she could make a phone call and called the police. Her purpose in calling the police was to have her daughter returned to her care.
35When Constable Bentley arrived at her apartment, MCW also told the officer about what happened that night at the Rosecourt Motel. She testified that after what she had experienced at the Rosecourt, she wanted the police to arrest Mr. Majdalani and Ms. Schmidt-Fabian and also wanted the police to get her daughter back from her mother.
36She testified that she told the officer what happened at the Rosecourt and also told the officer that she wanted her mother to return her daughter. She indicated that Constable Bentley did not seem to care. She described the officer as rude and trying to put words in her mouth. The officer appeared to be of the view that MCW was willing to be at the Rosecourt that day. MCW attempted to explain that she was willing on previous occasions, but not on that specific date.
37Constable Bentley left without taking a statement from MCW or asking her to attend the station to provide a statement. The officer returned later that night in the company of a male officer, who asked to hear what happened. MCW testified that she told the officers what had happened, but they did not seem to care and were not really listening to her. She was not able to clearly and accurately convey the events to the police officers because they kept interrupting her.
38The officers did not give her a form for writing out a statement, nor did they ask her to attend the station to provide a statement or direct her to victim services. She indicated that they did not seem to care that she had been held against her will or that her daughter had been involved.
39MCW testified that she also called the Children's Aid Society that night to explain the situation and ask for assistance in having her daughter returned to her care. She stated, "My mom actually ended up getting in trouble from the police for taking my daughter, and from the CAS as well". Her daughter was eventually returned to her care that night.
40MCW testified that after April 5th, 2016, she continued to work as a prostitute, but had no further contact with Ms. Schmidt-Fabian or Mr. Majdalani. On April 26th, she responded to an outcall at the Arden Park Hotel. As it turned out that call was part of a human trafficking project by the Stratford Police Service. Instead of a client, MCW encountered police officers in the hotel room, who immediately assured her she was not in any trouble. When asked if she was being controlled by anyone, MCW explained at that moment no one was controlling her, but she had experienced that situation in the past. She then told Detective McGregor what happened to her and he took her to the police station and conducted a video statement. She commented that he actually listened to her and actually cared.
41MCW testified that she was present quite a few times when Ms. Schmidt-Fabian was providing sexual services at the Rosecourt Motel. She testified that Ms. Schmidt-Fabian also turned over the money she received to Mr. Majdalani.
42MCW was cross-examined thoroughly and at great length. Cross-examination by counsel for Ms. Schmidt-Fabian established the following:
MCW had a good relationship with her mother and sister, who both live in Stratford. She saw them regularly, but did not call on them for favours because she did not need their help and did not really want them to know what she was doing.
In December 2015, MCW came to the attention of the Children's Aid Society as a result of conflict with an ex-boyfriend, who lived with her until January 2016. Neighbours reported verbal arguments. The CAS visited every two weeks. She understood that she might lose custody of her daughter if she did not follow the parenting plan. Her mother was aware of her involvement with the CAS.
MCW did not recall the details of her first meeting with Ms. Schmidt-Fabian. They spent a couple of hours together. Ms. Schmidt-Fabian was friendly and told her she made good money working as a prostitute. Subsequently, Ms. Schmidt-Fabian reached out to her and not the other way around.
The first time MCW engaged in prostitution was in the apartment complex parking lot, which was the first day she met Mr. Majdalani. After the first transaction in the parking lot, Ms. Schmidt-Fabian and Mr. Majdalani told her they wanted her to use their room at the Rosecourt Motel and that she would be working for them.
MCW posted ads on the Backpage website, including her phone number, the location and photographs. She did not know how many ads she posted, but indicated that there were "a lot". She posted ads every couple of hours because that is what Ms. Schmidt-Fabian and Mr. Majdalani told her to do if she wanted to have more clients.
MCW did not ever pay for a room at the Rosecourt. She understood that Ms. Schmidt-Fabian and Mr. Majdalani were living at the Rosecourt. She estimated that she used their room at the Rosecourt four times in a three week period and used her own apartment about the same number of times. Ms. Schmidt-Fabian and Mr. Majdalani preferred that she use the room at the Rosecourt because then they knew they would get the money right after the transaction. They were worried she would keep the money when she used her own apartment.
For the first transaction, Ms. Schmidt-Fabian and Mr. Majdalani drove her to the parking lot, stayed in the parking lot during the transaction and drove her home afterward. The transaction was completed in the client's vehicle. MCW posted the ad, set up the transaction and set the price. She was not worried about her safety because Mr. Majdalani and Ms. Schmidt-Fabian were right there. Mr. Majdalani and Ms. Schmidt-Fabian did not take any of the money from that first transaction.
The second transaction was two or three days later. Before the second transaction, she had a conversation with both Mr. Majdalani and Ms. Schmidt-Fabian about the fact that she was now expected to work for them. She did not remember how that conversation came about or where it took place. Both Ms. Schmidt-Fabian and Mr. Majdalani attended her apartment and both had been inside her apartment. As to the content of their conversation, MCW replied, "Just basically that I was to have sex with men and they were to get the money or I was going to get hurt".
As to how she determined if the motel room was available for her use or if it was already being used by Ms. Schmidt-Fabian, MCW explained that she was often at the Rosecourt when she received a call. She would simply look over to them and ask if she could use the room. On the days she was at the Rosecourt, she would spend two to three hours there. If the call came when she was at her apartment, she would call Ms. Schmidt-Fabian or Mr. Majdalani. They picked her up and took her to the Rosecourt if the room was available. They always knew if she had a transaction because she would check with them first. Her boyfriend Jeremy lived with her and took care of her child when she had appointments at the Rosecourt or at her apartment.
Prior to April 5th, MCW was under pressure from Mr. Majdalani and Ms. Schmidt-Fabian with respect to making money. They harassed her regularly by text messages. They sent her text messages day and night. The content of the messages was that she needed to get on with making money, that she had not made enough money and they were concerned that she was making money and not turning it over to them. The police did not ask to see the text messages on April 5th and she did not ever show the police officers the text messages. Her phone service had been cut off by the time she was interviewed by Detective McGregor.
April 5th, 2016 was the only occasion that Mr. Majdalani and Ms. Schmidt-Fabian had obtained a separate room at the Rosecourt for MCW. They both came to pick her up and waited at Walmart for her to finish shopping. There was no discussion about going to the Rosecourt until after they got back into the vehicle.
She did not recall which accused took the cell phone from her while they were in the vehicle. She saw them passing the cell phone back and forth in the motel room, but could not see what either of them was doing with the phone. She was not given access to her cell phone until after the battery died. She figured out that they had posted ads when she saw the ads at a later date.
She recalled telling Detective McGregor that her cell phone was taken away from her in the motel room, but it was her position at trial that they took her cell phone away while they were driving her to the motel.
Mr. Majdalani and Ms. Schmidt-Fabian kept her in the motel room for a number of hours and remained with her in the room. They told her that they would take the child out to the vehicle and sit with her when she was conducting a transaction in the motel room. She did not know if they still had their own room at the motel. She agreed that in her videotaped interview she expressed uncertainty when she said, "They were going to take the baby with them, I guess, to their car, probably, and go and sit and wait." When asked why she used the words "probably" and "I guess" if that is what they had told her, MCW stated, "I don't know why I said that".
After calling the police on April 5th, she called the CAS and then called her mother to tell her that she had called both the police and the CAS. She called the CAS because she knew the CAS would have to give their approval to have the child returned to her.
MCW denied telling Constable Bentley she made up the story about being held against her will at the Rosecourt Motel. She stated, "I definitely did not tell her that". She recalled the officers indicating that they did not believe what she was telling them. She indicated that much of what was in the officers' notes was in error.
MCW confirmed that she was not engaged in prostitution before meeting Ms. Schmidt-Fabian and Mr. Majdalani. She agreed that she was already involved with the CAS, but clarified that such involvement had nothing to do with prostitution. She readily admitted that she was worried that the CAS would take the child away if they found out about the prostitution. However she pointed out that on April 5th, "I told the police straight up what was going down". She agreed that she told them she was being forced that day and held against her will.
She denied the suggestion that during the questioning by the police on April 5th she changed her story, told the officers she had made it up and admitted that she voluntarily went to the motel room that day and had asked them to rent the room for her.
MCW was adamant that she was not concerned that the police would arrest her for prostitution because as she put it prostitution is not illegal, nor is advertising yourself for prostitution.
MCW agreed with the suggestion that her relationship with Mr. Majdalani and Ms. Schmidt-Fabian was strained. They were taking her money and threatened her and she felt trapped. As to why she called the people who were harassing her and threatening her for a ride to Walmart, she testified that her sister does not drive and her mother was working. She emphasized that she took her daughter to Walmart because all she planned to do was go shopping, not go to the Rosecourt Motel.
43Cross-examination by counsel for Mr. Majdalani established that:
As a teenager, MCW dropped out of school, left home and moved to a shelter. She used marijuana daily. She also abused methamphetamine for several years until she found out she was pregnant in March 2015. She regularly smoked marijuana at Ms. Schmidt-Fabian's step father's residence, but denied any knowledge that his residence was a known drug hangout for hard drugs. She acknowledged there were often lots of people at the residence.
MCW acknowledged that she violated the subsidized housing rules by permitting her boyfriends to reside at her residence.
The CAS became involved because of her neighbours' reports of conflict with an ex-boyfriend. He moved out in January 2016, which the CAS viewed as positive. She started a new relationship, but the CAS did not want her new boyfriend around the child either. When she eventually found out that her new boyfriend had a prior history of sexual offending as a youth, she ended the relationship. However, until she learned of that prior history, she ignored the direction of the CAS in that respect. She knew the CAS did not want him around her child, but did not know why. She later learned that because he was a youth, the CAS was not permitted to disclose the information without his consent. When he eventually told her, she broke up with him.
The CAS took her child in the middle of May and now both she and her child reside with her sister. She no longer uses drugs, including marijuana, and submits to drug testing for the CAS.
MCW resumed prostituting a few days after April 5th, maybe the day after. She resumed posting ads on Backpage, found a babysitter for her daughter and completed the transactions at her apartment. Her babysitter ended up calling the CAS and informing the CAS she was prostituting and the CAS took action. She explained that the CAS did not know she had been prostituting until the night of April 5th, when she called them and told them she had been forcibly confined for the purpose of prostitution. At that point they told her if she continued, she would lose her child.
She denied allegations that she used cocaine with Ms. Schmidt-Fabian and that she had taken her child to the Baltis residence.
She also denied the allegation that she lied to the police or at least gave them several different stories about the events of April 5th. She denied that she made up a story to provide an excuse as to why she was prostituting herself.
Evidence of Detective McGregor
44I now turn to the testimony of Detective McGregor, whose involvement began on April 26th, 2016 as a result of a proactive police project to assist sex trade workers. He explained that by responding to Backpage ads, the police arranged various appointments at a hotel room. When the sex trade worker entered the room, the officers identified themselves as police officers, explained that the worker was not being detained and was not in trouble and then offered assistance and support to that person. In that connection, the officer met MCW on April 26th, 2016 and then took a videotaped statement from her.
45Detective McGregor arrested Ms. Schmidt-Fabian on May 5th, 2016 and conducted a videotaped interview of Ms. Schmidt-Fabian. The defence conceded that the statement was voluntarily given and it was adduced as part of the Crown's case. In the statement, Ms. Schmidt-Fabian admitted that she has escorted, but indicated that she has never had a pimp. The following exchange took place at the end of the statement:
A. Give me the charges. I picked up that ho, if that's what you are trying to say. I am the one who exploits people, okay.
Q. Okay.
A. You want to charge somebody, charge me.
Q. So you did it?
A. I did it. I picked up the girl like I told you, I put her in the room. It was under my name. It was me, me, me, me, me, me.
Q. Not Dimitri.
A. Nothing to do with him. Good job though. Always pin it on a man, not even a man would say - it's hilarious.
Q. Why would you do that?
A. Why, because I want money just as much as that bitch does, common sense.
Evidence of K.W.
46I now turn to the defence evidence called by the accused, Haven Schmidt-Fabian.
47The first witness called by Haven Schmidt-Fabian was the complainant's sister, K.W., who testified that her mother brought the child to her residence and the child stayed with her for approximately four hours on the night in question. Ms. K.W. contacted the police and also the CAS to let them know what had taken place and her concerns for the child's welfare.
48Ultimately, MCW came and picked up her daughter at approximately 2:00 am. MCW appeared upset, tired, and angry, but not under the influence of alcohol or drugs.
Evidence of Constable Bentley
49The second defence witness was Stratford Police Service Constable Bentley, who testified that on April 5th, 2016, she attended MCW's residence with respect to a child custody complaint. MCW reported that her child had been taken by her mother without her consent and she wanted the police to return the child to her.
50Constable Bentley testified that MCW provided information that the accused persons had picked her up earlier in the afternoon so that she could go shopping at Walmart with her child. They then took her to the Rosecourt Motel and held her against her will for several hours. They were trying to have her become a prostitute. The accused persons then simply walked out, let her go, and she called her mother for a ride home.
51Constable Bentley testified that she was concerned about that narrative because MCW implied she had been held against her will, yet indicated that she was left alone in the room. The officer thought she could have simply got up and left. When she put that to her, MCW indicated that she had her baby and a lot of stuff from Walmart and could not just leave that behind.
52Constable Bentley attended Ms. K.W.'s residence where the child was staying and determined it was a perfectly safe place for the child. She also went to the Rosecourt Motel and spoke to Ms. Schmidt-Fabian, who admitted that she and a male person had picked up MCW, taken her to shop at Walmart and brought her back to the motel. They obtained a room for her because MCW needed time to contemplate her relationship with her boyfriend and have some time with her child.
53After speaking to Ms. Schmidt-Fabian, the officer returned to MCW's residence and spoke to her again in order to clarify the two stories and make a final decision on where to go from there. MCW was more concerned about the child and wanted the child returned to her. When Constable Bentley tried to convince her that given the late hour it was better for the child to stay with Ms. K.W., MCW disagreed. She had already been in touch with the CAS.
54At that point, Constable Bentley brought up her discussion with Ms. Schmidt-Fabian and the information she received. The officer testified that then MCW said she lied and made it all up. When asked what she lied about and made up, the officer replied, "about being held hostage and the prostitution".
55Constable Bentley did not undertake any further investigation. She testified that she did not believe either MCW or Ms. Schmidt-Fabian. She believed there was some truth to some of it, but not all of it and her concern that night was the child and the safety of the child.
56Under cross examination, Constable Bentley confirmed that she arrived at MCW's residence at 8:40 pm and attended Ms. K.W.'s residence at 9:41 pm. She described MCW as very upset and hostile. She was mad at her mother for taking the child and angry that the police were not going to simply go over, take the child, and bring her back. Constable Bentley indicated that MCW's priority that evening was to get her child back and the other events appeared secondary to her.
57The officer's notes of that first meeting with MCW were a little less than three pages in her notebook. She did not take a statement from MCW or ask her to write a statement. She did not review her notebook entries with MCW or ask her to sign the notes or otherwise confirm their accuracy. The officer thought that the notes were made after she left MCW's apartment.
58The officer confirmed that in her notes she referred to "different versions of events" from MCW, but the notes were not detailed in terms of what those versions were. When asked to recount the different versions, the officer testified that she did not recall exactly. She stated, "I just know that they would change slightly to … kind of make you think a little bit". During their second meeting, MCW indicated that she made it up. The officer did not ask her why she lied about the allegations.
59The officer agreed that MCW provided information to her that Haven and Dimitri were trying to force her into prostitution. Constable Bentley specifically confirmed that MCW provided the following details to her:
- She asked Ms. Schmidt-Fabian for a ride to Walmart.
- Ms. Schmidt-Fabian and a male person had taken her to Walmart.
- Ms. Schmidt-Fabian and the male person took her to room 9 at the Rosecourt Motel.
- They held her there for hours against her will.
- Her phone was taken.
- Eventually Ms. Schmidt-Fabian and the man left.
- MCW then used the room phone to call her mother to come to the motel to pick up her and the child.
- Her mother came to the motel and picked her up.
60As to her testimony that MCW gave two different versions of events, in cross-examination the Crown asked Constable Bentley what was the second version. She replied, "The version that she relayed to me was not the same version she relayed to her mother". The officer agreed that MCW did not give her, meaning Constable Bentley, two different versions of events.
61In her notes, Constable Bentley recorded that MCW admitted that she lied to the police initially but then backtracked and stated she was held against her will and was being forced into prostitution. During the second police attendance, the officer confirmed that MCW maintained that she was held against her will that day and was being forced into prostitution. The officer then added, "She also stated that she had lied about the entire thing", but also backtracked and said she was being held against her will.
62On the date in question, Constable Bentley was focused on sorting out the issues with the child. Her priority was the safety of the child, which was also MCW's priority. The officer acknowledged she was skeptical when she heard that the man and woman simply left the room.
63Constable Bentley confirmed that during her interactions with MCW she did not have any concern that MCW was under the influence of drugs or alcohol. She also did not have any concern respecting MCW's ability to care for her child and the officer did not call the CAS.
64When Constable Bentley attended the Rosecourt Motel, her inquiries about room 9 led her to room 11. When the officer knocked on that door, Ms. Schmidt-Fabian stepped outside to speak to her. Ms. Schmidt-Fabian shut the motel room door behind her and would not allow the police to enter the room.
65The April 5th registration card for room 9 was under the name Dimi Mazi. The number of guests listed was one plus one and the room was rented for one day. Nothing was filled out for the room rate. The registration card for room 11 was under the name Haven Schmidt-Fabian, which Ms. Schmidt-Fabian confirmed under cross-examination. It was dated March 8th, 2016 and showed room rental for one month at a rate of $1,200.00.
66Ms. Schmidt-Fabian told the officer that she knew MCW through a mutual friend. When the officer spoke to Ms. Schmidt-Fabian, she confirmed the details about the ride to Walmart, that MCW was at the motel for hours, and Ms. Schmidt-Fabian heard arguing when MCW's mother picked her up. Ms. Schmidt-Fabian also told the officer that her boyfriend Dimitri or Dimi had paid for room 9 for MCW, but had left earlier in the evening.
Evidence of Sergeant Burrows
67The next defence witness was Stratford Police Service Sergeant Burrows, who testified that he was peripherally involved in the April 5th, 2016 investigation in his capacity as road supervisor. As he put it, "One of my officers was involved in a matter at the Rosecourt regarding a child and I attended there to ensure we located the child". He indicated that the substance of his conversation with MCW was with regard to her child, the whereabouts of her child and the involvement of the CAS.
68Sergeant Burrows confirmed that he made a note that "when confronted with her lies, she continued to lie". When asked what lies he was talking about, Sergeant Burrows did not recall and did not have any notes in that respect. He indicated that he did know that MCW was evasive and added that lies is maybe a strong word, but her story was certainly changing. In that regard, he noted that MCW spoke of the CAS already knowing where the child was. He did not recall the issue of confinement coming up during the conversation. Under further cross-examination, the officer confirmed that the reference to lies was only in reference to the child. MCW was making claims that her mother abducted the child and that her mother had the child against her will. He recalled that when he pushed the issue, MCW said that she had already talked to the CAS.
69Sergeant Burrows confirmed that based on the information he received from Constable Bentley he believed that there was nothing truthful about MCW's story before he even met MCW at her residence. His concern was the safety of the child.
70Sergeant Burrows made the determination that they had to return the child to MCW. Constable Bentley disagreed with that assessment and was of the view that it was in the child's best interests to stay with her aunt's overnight. Rather than follow Sergeant Burrow's direction, Constable Bentley sought input from the Staff Sergeant on duty, who directed her to follow Sergeant Burrow's direction and return the child.
71As to his testimony that MCW's stories changed drastically within a short period of time, Sergeant Burrows could not provide any specifics. He agreed it was possible that she expanded on her story. He described the conversation between Constable Bentley and MCW as one in which they did not see "eye to eye". Sergeant Burrows confirmed that MCW did not ever admit to him or to Constable Bentley in his presence that she made up a story about being held against her will.
Evidence of Ms. Schmidt-Fabian
72I now turn to the testimony of the accused, 22 year old Haven Schmidt-Fabian, who confirmed that she met MCW at the home of Edwin Baltis, her mother's boyfriend. Ms. Schmidt-Fabian was initially staying at the Baltis residence, which she described as a known party house for cocaine, marijuana and pills. In February or March 2016, she moved to the Rosecourt Motel because she realized that Mr. Baltis was not a good person to be around.
73Ms. Schmidt-Fabian testified that she was selling and doing coke at the time and did some coke with MCW. She was surprised that MCW brought her baby to the Baltis residence given its reputation as a drug house. Ms. Schmidt-Fabian indicated that when they met, she talked about herself and how she took care of her family. MCW was intrigued by her work as an escort. MCW described herself as more of a "party girl", which Ms. Schmidt-Fabian described as exchanging sex for drugs instead of money. That discussion occurred after they did a line or two of coke.
74As to how she formed her impression that MCW was a party girl, Ms. Schmidt-Fabian testified that MCW told her she liked to party and liked to have fun. She stated, "So, in lingo when you have been working, a party girl means the girl that … will have sex with you for drugs. It's not about money". As noted by the Crown, that suggestion was not put to MCW during her lengthy cross-examination.
75Ms. Schmidt-Fabian testified that her next communication with MCW was when MCW messaged her via text. She did not remember how they exchanged numbers. She thought MCW might have obtained her number from Mr. Baltis. MCW wanted to visit Ms. Schmidt-Fabian's mother, but Ms. Schmidt-Fabian did not have room in her car to drive both MCW and her baby to the retirement home. Ms. Schmidt-Fabian then recalled an earlier prior interaction in which MCW messaged her about buying a line of coke.
76Ms. Schmidt-Fabian did not recall when their next communication occurred. She believed MCW messaged her asking for tips or advice to make her a little more noticeable. She stated, "I guess she was already doing her own thing… She was a party girl, right. So she had that, but she'd rather make money, so she was asking me angles or certain sentences to say to make [herself] more appealing to people". Ms. Schmidt-Fabian gave the example of advising MCW not to post nude photographs on the Backpage website, but did not remember the specific conversation. She described herself as more experienced than MCW.
77Ms. Schmidt-Fabian testified that she told MCW to just send the photographs to her and she would tell her yes or no. MCW sent her the photographs and she provided feedback. MCW told her that her boyfriend helped take the photos and they had been taken right then and there. Ms. Schmidt-Fabian stated, "I believe she told me something along the lines that she's already made an ad, and she's already been doing this, because she has been working out of her apartment". She stated that MCW did not tell her what kind of clients and they could have been party clients. She told MCW it was not safe to bring clients into her residence where her child lived.
78The next interaction between them was an occasion in which they arranged to obtain some marijuana. Ms. Schmidt-Fabian stated that her own family is known for selling marijuana from their house, but MCW knew people who had better marijuana so she periodically talked to MCW about obtaining good marijuana.
79As to the events of April 5th, 2016, Ms. Schmidt-Fabian testified that she received a Facebook or text message from MCW in the morning asking her to rent a motel room because she had a client at 5:00 pm. MCW indicated that she needed to go to Walmart and then wait for a baby sitter. Ms. Schmidt-Fabian picked her up, they went to cash MCW's cheque, went to Walmart and then decided to go to the Rosecourt Motel.
80Ms. Schmidt-Fabian then stated:
"Okay, so I should actually clarify. She told me beforehand, like I mentioned, that she had a five o'clock appointment. She already asked me for the room, so before I even went to go pick her up, I should have added, I already got the room for her. So, she already knew that the room was ready there for her. … I actually asked my boyfriend at the time, because I was getting ready, to go pay for the room for me, but they knew me, so, yeah."
81Ms. Schmidt-Fabian identified Mr. Majdalani as her boyfriend. She explained that she had been staying at the Rosecourt Motel for quite a while.
82She stated that she drove MCW to the Rosecourt Motel and gave her the room key. MCW grabbed her things and they each went to their own rooms. Ms. Schmidt-Fabian then headed out to get more marijuana. In the parking lot she encountered one of MCW's friends, who was supposed to pick up the child. Ms. Schmidt-Fabian pointed the friend to MCW's room and then drove away with Mr. Majdalani. They were gone for about three hours and drove to Mississauga to get marijuana. She returned to the Rosecourt Motel just as it was getting dark outside. She saw MCW and her mother arguing in the parking lot. She did not intervene. She saw MCW's mother go to the office. When MCW left, Ms. Schmidt-Fabian went to the office to get her money back for MCW's room.
83Ms. Schmidt-Fabian testified that she and Mr. Majdalani did not take MCW's cell phone and did not post ads on her behalf. She did feature MCW on her own page in what she described as a "shout out". She also denied taking money from MCW.
84As to her videotaped statement to the police, Ms. Schmidt-Fabian described her mood at the time of the statement as shocked, outraged and anxious and indicated that her "bipolar was kicking in".
85At trial, Ms. Schmidt-Fabian adamantly denied forcing MCW to prostitute for her and denied threatening her.
86Under cross-examination by counsel for Mr. Majdalani, the following exchange occurred:
Q. Did you spend a lot of time with MCW and with Dimitri at the same time?
A. No.
Q. How many times would that have even happened?
A. I have no idea. I don't know.
Q. Did it happen?
A. No. …if anything, he may have been in the car when we pitched on weed. I think he may have been in the car for that.
Q. Okay.
A. But, and the day in question for Walmart, he may have been in the car, yeah.
Q. He was in the car that day, right?
A. Yeah.
Q. But apart from that, was there any contact as far as you knew?
A. No, I'm very jealous.
87Ms. Schmidt-Fabian confirmed that she told MCW that Mr. Majdalani was her boyfriend.
88Ms. Schmidt-Fabian testified that she had never been in MCW's apartment and only knew her boyfriend Jeremy as being a drug addict who came to the Baltis residence. She only met MCW's daughter once at the Baltis residence and then again on the day they went to Walmart. She stated that the only reason the child was allowed in the car was because MCW promised that she had a babysitter for the 5:00 pm appointment.
89As to getting the room for MCW, she testified that she thought MCW asked her because they were friends and MCW knew that she had money.
90As to the advice she gave MCW respecting marketing herself, Ms. Schmidt-Fabian testified that she told her to stop posting naked photos and advertise under the category "big beautiful woman".
91Under cross-examination by the Crown, Ms. Schmidt-Fabian identified the registration card for her stay at the Rosecourt Motel together with a photocopy of her Visa card and health card, which she used for identification. The registration card is dated March 8th, 2016 and shows rental for a month at the rate of $1,200.00 paid by a combination of cash and debit. It shows three room numbers: 9, 11 and 5.
92Ms. Schmidt-Fabian confirmed that on April 5th, 2016, she spoke to Constable Bentley at the Rosecourt Motel. She was arrested one month later on May 5th and participated in a videotaped interview with Detective McGregor. She was released on bail. On August 19th, 2016, she returned to Stratford and requested to speak to Detective McGregor again. She attended that day at her own initiative in the company of her lawyer in order to provide a written version of events because there were things she wished to clarify.
93During that interview, Ms. Schmidt-Fabian indicated she told MCW that she had been previously trafficked. She believed that was the source of the story that MCW made up to tell the police. It was the first time Ms. Schmidt-Fabian conveyed that information to the police and she made no mention of it during her interactions with the police on April 5th or May 5th.
94The Crown suggested that when she spoke to Detective McGregor in August, she told him that she had never prostituted before. She replied, "I'd like to see that written". When her statement was put to her in which she said that she had never had sex with men for money, Ms. Schmidt-Fabian admitted that she recalled giving that answer.
95When the Crown pressed her on the discrepancy, Ms. Schmidt-Fabian replied, "I can understand why you see that. I don't know what to say".
96Ms. Schmidt-Fabian admitted that on April 5th, she told Constable Bentley that the reason she got a room for MCW was so that MCW could ponder her future with her boyfriend. However, she acknowledged that in her August statement to Detective McGregor, she said that MCW had called her because she had an appointment. Her explanation was that she was trying to protect MCW and didn't want her to "get busted for working".
97When it was put to her that MCW had accused her of confining her against her will, Ms. Schmidt-Fabian indicated that she still wanted to be nice to MCW. She felt bad for MCW that she had to stoop so low. Ms. Schmidt-Fabian knew she had done nothing wrong herself and that the police would believe her.
98When asked if she still wanted to be nice to MCW when she was arrested and held in custody in May, she replied "No". Nevertheless, she admitted that she did not tell Detective McGregor that she booked a room because MCW had an appointment.
99Ms. Schmidt-Fabian confirmed that she asked Mr. Majdalani to go to the front desk and ask them for a second room for the night because they were known at the front desk. As to what was stopping MCW from calling the motel to book a room, she replied that MCW did not have a credit card. When it was put to her that she had gestured as if it had been a cash transaction, Ms. Schmidt-Fabian replied, "I'm already a well-known person there, so they trust me to have a second room".
100When pressed on whether the credit card was the problem, Ms. Schmidt-Fabian replied that she was guessing or assuming. She then stated, "Actually, I didn't ask why she didn't want to get the room on her own. To be honest, it never really dawned on me". When it was put to Ms. Schmidt-Fabian that on her evidence she took MCW to cash a cheque and MCW could have paid for the room herself, she replied that her guess was because it was the child's money.
101When asked if she was repaid by MCW, Ms. Schmidt-Fabian replied that no, she actually went back to the motel and asked for her money back because MCW didn't spend more than an hour there. The motel gave her $40.00 back.
102When asked why she did not ask MCW for the money after she cashed the cheque, Ms. Schmidt-Fabian replied, "She didn't owe me money". When pressed, she replied, "I guess essentially because she wanted the room, she owed me money, but I'm not, I don't know, I'm not a jerk".
103As to her testimony that she saw MCW's brown haired babysitter driving a blue car on April 5th, 2016, Ms. Schmidt-Fabian admitted that she did not mention the babysitter to Constable Bentley on April 5th or to Detective McGregor on May 5th or August 19th. The first time she mentioned the babysitter was at trial. In the context of the allegation that Ms. Schmidt-Fabian was holding MCW against her will at the Rosecourt Motel, it defies logic and common sense that she would not have told Detective McGregor that the babysitter, a close friend of MCW, saw her leave the motel.
104Ms. Schmidt-Fabian confirmed that Mr. Majdalani booked the extra room and then the two of them went to pick up MCW at her apartment building. She was the driver. She did not tell Detective McGregor that she and Mr. Majdalani went to Mississauga looking for drugs on April 5th. Instead, she told the officer that a friend came and picked up Mr. Majdalani.
105As to her explanation for telling Detective McGregor that a friend took Mr. Majdalani to Mississauga and then dropped him off at the Rosecourt Motel later that day when she testified at trial that she drove Mr. Majdalani around that day, Ms. Schmidt-Fabian stated, "I lied". As to why she would lie about that, she stated she had no idea.
106The Crown suggested she wanted to distance herself from Mr. Majdalani because she knew he was on a term of probation not to have anything to do with the escort industry. Ms. Schmidt-Fabian replied, "I don't know".
107The Crown also suggested that in her May 5th statement to the police she was doing as much as she could to distance Mr. Majdalani from the allegations. She replied, "I only cared about myself". When it was put to her that she told the officer she did everything on her own, Ms. Schmidt-Fabian indicated that she blacked out with rage at that point in the interview. She told the officer to stop asking her questions about Mr. Majdalani.
108Ms. Schmidt-Fabian admitted that she was an escort, a term she prefers to prostitute. She denied forcing MCW into the escort industry, but admitted that in May she told the officer, "I picked up that ho. If that's what you're trying to say, I'm the one who exploits people, okay". Her explanation was that she was using sarcasm and was not telling the truth.
109Ms. Schmidt-Fabian admitted that she said to the officer, "you want to charge somebody, charge me". She described herself as someone not in a proper mental state, who clearly needed medication and most likely blacked out with rage. In reference to her behaviour during the videotaped statement on May 5th, Ms. Schmidt-Fabian indicated that she was ashamed of herself and did not even recall how she behaved until she watched the video.
Submissions
110Defence counsel submit that MCW's testimony was incredible and does not have sufficient probative value to discharge the Crown's onus of proof beyond a reasonable doubt.
111Specifically, counsel for Ms. Schmidt-Fabian submits that MCW could not recall details of certain events within her own narrative, that there were inconsistencies and contradictions between the content of her trial testimony and her statements to the police, that there were a number of logical inconsistencies in her narrative of events and that she had a motive to fabricate. He further submits that:
MCW was involved in prostitution on her own volition and any allegation made to the contrary either prior to or on the date of April 5, 2016 is part of an elaborate story to hide the fact that she was acting as a prostitute. The complainant engaged in this course of conduct in order to prevent Child and Family Services, with whom the complainant was already involved on a regular basis, from taking her child.
112Counsel for Mr. Majdalani submits that:
The complainant knew that her mother was going to tell the CAS about what had transpired that night when her mother took her granddaughter away from her… The complainant knew that her mother would tell the CAS or the police that the complainant had been at the Rosecourt Hotel when her mother picked her up. The complainant knew that the CAS or the police would suspect her involvement with prostitution at the Rosecourt Hotel because of the reputation of the establishment. The complainant feared that the CAS would not allow the child to come back to her if the CAS suspected that she was voluntarily prostituting herself that night at the Rosecourt Hotel. The complainant had to fabricate a believable story that would keep her voluntary prostitution activities secret. …
This false story had to make it appear that her prostitution at the Rosecourt was not a voluntary choice. The complainant fabricated a story involving the accused that would get her off the hook with the C.A.S. and therefore allow her to keep her daughter.
113In his submissions, counsel for Mr. Majdalani also emphasized that:
… the version of events put forward by the complainant during this trial is a version of events that the complainant has previously admitted is a fabrication, according to Stratford Police Officer Bentley.
The complainant's evidence on the matters in issue has been inconsistent and is not worthy of belief. The complainant was not believed initially by experienced law enforcement officers. The complainant should not be believed now. It would be highly dangerous and an error to accept her version of events as constituting proof beyond a reasonable doubt of any of the charges before the Court.
114The Crown submits that MCW's evidence, while not flawless, is nonetheless compelling testimony that is internally inconsistent and corroborated in some respects. The Crown addressed the defence submission that the complainant fabricated a story so that she would not lose custody of her child as follows:
Admittedly at first blush, the defence position has some appeal. However, upon further consideration, this Court ought to recognize some fundamental problems with this theory. There are at least two. First, if all the complainant wanted was her child, she was entitled to that without any need to explain to the police why she was at the Rosecourt—she had sole custody of the child. … The defence premises its allegation of motive to fabricate on the notion that it was plain to all that she was engaged in the sex trade. However, an objective review of the evidence supports the opposite. Without the complainant raising the issue of prostitution, what evidence was there at the time the complainant's mother and the police arrived to suggest that she was engaged in the sex trade. Put another way, there is nothing to suggest that it was clear to the police or anyone else that the complainant was involved in the sex trade on April 5, 2016, that required her to provide an explanation at all. Moreover, if, as the defence suggests, the circumstances did in fact call out for an explanation, it makes little if any sense that the complainant would call her mother to assist her.
Secondly and perhaps the most significant event that belies any suggestion that the complainant fabricated the confinement at the Rosecourt Motel is that on April 26, 2016, she recounted this April 5, 2016 event to Detective McGregor. …By April 26, 2016, 21 days had passed from the incident at the Rosecourt Motel. There was no evidence that the investigation was being pursued by the police nor was there any indication that the CAS was calling upon the complainant to explain what had occurred on April 5, 2016. There was no evidence to suggest that continuing the so-called false allegation was of any benefit to the complainant… The complainant was not under arrest for prostitution related offences. She would not have had to continue a false story about being forced into the sex trade in order to extricate her from liability. …On April 26, 2016, Detective McGregor was clear that there were no legal consequences pending and did not mention reporting anything to the CAS. …. The complainant knew that what she was doing on April 26, 2016 was legal and that she was not in trouble. There would be no need to present a false narrative about April 5, 2016.
Analysis
115The starting point in the analysis of the trial evidence is the presumption of innocence. The accused, Dimitri Majdalani and Haven Schmidt-Fabian, are presumed to be innocent and are not required to prove or to disprove anything, including any motive to fabricate. In addressing the defence submissions that MCW did have a motive to fabricate, I emphasize there is absolutely no burden on the defence to establish such a motive.
116The onus of proof is on the Crown and never shifts. The standard of proof is high - proof beyond a reasonable doubt. Any reasonable doubt on any issue must be resolved in favour of Mr. Majdalani and Ms. Schmidt-Fabian. I am mindful that the principle of reasonable doubt applies to issues of credibility and reliability as well as to issues of fact.
117The test for determining proof beyond a reasonable doubt where credibility is in issue was set out by the Supreme Court of Canada in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 at paragraph 758:
If I believe the evidence of the accused, I must acquit;
If I do not believe the evidence of the accused, but am left in reasonable doubt by it, I must acquit; and
Even if I am not left in reasonable doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt of the guilt of the accused.
118In assessing the credibility and reliability of the witnesses, I take into account their ability to make observations, their capacity to remember and describe clearly the events in question, issues of bias and interest, the completeness, consistency and reasonableness of their testimony and the manner in which it was given in both examination-in-chief and cross-examination.
119I am alert to the danger of equating credible demeanour with reliability and accuracy. As succinctly summarized in the following passage from Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.) at pp. 256-257:
The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. … the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.
120I am mindful that the testimony of each witness must be carefully scrutinized not only on its own merits, but also in the context of the totality of the trial evidence. As emphasized by the Ontario Court of Appeal in R. v. Gostick (1999), 1999 CanLII 3125 (ON CA), 137 C.C.C. (3d) 53 at paragraphs 14-16, the credibility and reliability of the complainant's evidence must be tested in the context of all of the other evidence together, particularly where the Crown's case depends solely on the unsupported evidence of the complainant and the principal issue is that witness' credibility and reliability. I am also mindful of the Court's warning respecting the danger of accepting the evidence of a complainant on the basis of demeanour and then subtly and improperly shifting the onus to the accused to give some explanation as to why the complainant would lie.
Assessment of Ms. Schmidt-Fabian's Evidence
121I turn first to the evidence of the accused, Haven Schmidt-Fabian. Counsel for Ms. Schmidt-Fabian submits that although her evidence was "confusing and highly emotional", it is consistent with an individual who was merely assisting someone about whom she was concerned. He states:
She was imparting her superior knowledge of the prostitution trade in order to assist MCW whom she thought was putting herself in danger and not effectively marketing herself. Any admission the Crown wishes to rely upon … need to be looked at in light of her obvious state of mind at the time she was making them and in the context of her statement as a whole.
122There were a number of significant inconsistencies between Ms. Schmidt-Fabian's trial testimony and the information she provided to the police on May 5th and August 19, 2016, particularly as to why she arranged a motel room for MCW on April 5, 2016.
123Ms. Schmidt-Fabian's testimony that she was only trying to be nice to MCW and wanted to protect her from "getting busted" was incredible, particularly given that Ms. Schmidt-Fabian had been arrested and was in police custody when she was interviewed on May 5th, 2016. At trial, she testified that the reason she had booked the room was because MCW had a 5:00 pm appointment with a client at the motel, but admitted that was not what she told the police on May 5th.
124Ms. Schmidt-Fabian's testimony that she paid for MCW's motel room because MCW did not have a credit card was incredible in all the circumstances, particularly given her testimony that she had taken MCW to cash a cheque prior to the shopping trip to Walmart. When pressed about the credit card explanation, Ms. Schmidt-Fabian became tripped up on the earlier details of her story wherein she had indicated she gave Mr. Majdalani cash to rent the room.
125In the context of being charged with unlawful confinement, making a statement to the police on May 5th and then making a further appointment to speak to the police on August 19th, Ms. Schmidt-Fabian's testimony that she encountered the babysitter or friend of MCW in the motel parking lot as she and Mr. Majdalani were leaving for Mississauga, yet did not divulge that information until trial, was entirely incredible and defied logic and common sense. It appeared that Ms. Schmidt-Fabian invented that scenario on the witness stand.
126Ms. Schmidt-Fabian's account appeared invented in an attempt to provide an innocent explanation as to why Mr. Majdalani rented a motel room for MCW on April 5th and why they brought MCW and her daughter to the motel room.
127Ms. Schmidt-Fabian's allegation that MCW had previously worked as a "party girl" was not put to MCW during her very lengthy cross examination, nor was the allegation that MCW had arranged for a friend or babysitter to meet her at the Rosecourt Motel.
128Ms. Schmidt-Fabian's trial testimony that she and Mr. Majdalani went to Mississauga looking for drugs on April 5th was inconsistent with the version of events provided during her May 5th videotaped statement wherein she indicated that a friend came to pick up Mr. Majdalani at the Rosecourt Motel on April 5th. Her explanation was that she lied on May 5th, 2016, but she denied it was an attempt to distance herself from Mr. Majdalani or distance Mr. Majdalani from the allegations. She stated that she had no idea why she lied about that detail.
129During her May 5th interview, Ms. Schmidt-Fabian attempted to shield Mr. Majdalani from the allegations and take responsibility herself. For example, she stated, "I did it. I picked up the girl like I told you. I put her in a room. It was under my name. It was me, me, me, me, me, me". She now characterizes her apparent admissions as the product of sarcasm and being in a highly emotional state.
130At trial, Ms. Schmidt-Fabian admitted that she was involved in the sex trade. In her prior videotaped interview, she clearly stated that she never had sex with men for money. When confronted with that inconsistency, Ms. Schmidt-Fabian admitted the inconsistency and replied, "I don't know what to say".
131In summary, Ms. Schmidt-Fabian did not present as a credible or straightforward witness. The content of her trial testimony was not compelling and did not survive the scrutiny of cross examination. As she attempted to navigate the inconsistencies in her prior versions of events, Ms. Schmidt-Fabian's testimony became somewhat fluid to the point that it appeared she was inventing new details on the witness stand.
Assessment of MCW's Evidence
132I now turn to my assessment of the testimony of the complainant MCW. I have approached her testimony with considerable caution, particularly given the conclusions expressed by Officers Bentley and Burrows that she lied, changed her story, and backtracked during their interactions on April 5th, 2016.
133It is clear that Constable Bentley did not, in the words of Sergeant Burrows, see "eye to eye" with MCW. Constable Bentley did not want to return the child to MCW because she thought given the late hour it was better for the child to remain with Ms. K.W., notwithstanding there was no basis to refuse to return the child to her mother, MCW.
134On the night in question, MCW's clear priority was to have her child returned to her home. The officers' focus was also on the whereabouts of the child. Given that focus, which coincided with MCW's primary concern, the officers spent far less time and effort investigating the allegation that MCW had been taken to the Rosecourt Motel against her will. They did not take a statement from MCW, nor ask her to review any contemporaneously made notes.
135On the night in question, MCW was angry and upset. It was a confusing situation. The officers appeared to have difficulty gleaning what had happened. They did not have the luxury of judicial reflection or the organized presentation of evidence. They failed to understand that MCW had willingly engaged in prostitution on a prior occasion, but not this occasion. They also failed to understand what MCW was telling them when she said the perpetrators were trying to have her become a prostitute. She was explaining a scenario whereby she had been taken to the motel room against her wishes, but ultimately no clients attended and she did not provide any sexual services that evening.
136Cross-examination of the officers established that they could not justify their hastily drawn conclusion that MCW provided different versions of events. They could not identify the alleged differences and did not document any specific differences. It appears that the generically described differences referred to by the officers had to do with the whereabouts of the child and what was known by the CAS. As aptly noted in the Crown's written submissions, "the investigation conflated two aspects, namely the alleged confinement and complainant's desire to have her child returned to her". I find that the officers did not understand the situation correctly and did not accurately record their interactions with MCW.
137In both examination-in-chief and cross-examination, MCW presented as an unsophisticated and straightforward witness, who testified in a very matter of fact manner. She acknowledged prior drug use and a history of poor choices without minimization or equivocation. She answered questions spontaneously and did not attempt to tailor her answers to a specific theory of events. Her answers were direct and responsive to the questions asked. She was not evasive, nor did she attempt to avoid difficult questions. She did not shy away from providing information or admitting facts that portrayed her in a less flattering light.
138I have attempted to capture the essence of each witnesses' testimony in my summary of evidence, but it is difficult to adequately express the nuances of the lengthy cross examination of MCW, which spanned two days. The questions and answers on pages 24 to 26 of the December 6th, 2016 transcript are a particularly good example of MCW's very direct and straightforward testimony under cross examination.
139During cross examination, MCW asserted herself with an unsophisticated confidence that came from simply answering the questions without trying to advance any particular agenda. She answered questions spontaneously and in an unguarded fashion without the slightest hint that she was first weighing how her answers would fit with the Crown's theory of the case. She did not minimize her own poor decision making as it related to involvement with boyfriends, ignoring direction from the CAS and prostituting from her apartment.
140The content and manner of MCW's testimony was compelling and survived the scrutiny of very thorough and lengthy cross-examination. Her evidence was not perfect, but it was not shaken in any material respect. Taken as a whole, her testimony was both internally and externally consistent. The minor inconsistencies in her testimony arose from the timing or sequence of events and not the events themselves. For example, whether Mr. Majdalani and Ms. Schmidt-Fabian took her cell phone away in the vehicle or the motel room and when she had started using methamphetamine and for how long.
141MCW recalled and described clearly how events progressed, but did not remember details such as the locations, dates or specific content of her communications with Ms. Schmidt-Fabian and Mr. Majdalani. Her lack of recall in that respect appeared consistent with her somewhat unstructured life and was not indicative of fabrication or lack of credibility and reliability. The ultimate significance of some of those details would not have been apparent at the time the events were occurring. MCW did not embellish or invent details to attempt to bolster her evidence.
142In summary, I have approached MCW's testimony with considerable caution, not only because of the evidence of Officers Bentley and Burrows, but also because of her admissions respecting prior drug use, her admissions respecting poor choices as to associates and their contact with her child, and her inability to pinpoint some of the specific details respecting her contact with Mr. Majdalani and Ms. Schmidt-Fabian.
143I have considered those factors both individually and collectively. After a careful review of the totality of the evidence, I am satisfied that the testimony of Officers Bentley and Burrows does not provide a basis to reject MCW's trial testimony for lack of credibility or reliability, nor does it raise a reasonable doubt.
144There was no indication that MCW was under the influence of drugs on April 5th, 2016. She was appropriately focused on her child and did not want to be taken to the Rosecourt Motel with her child. At the first opportunity, she called her mother for assistance. She did not hesitate to contact the police or the CAS when her mother subsequently refused to allow the child to remain with her.
145I accept the Crown's submission that MCW did not, in fact, have a motive to fabricate. MCW was prepared to stand up for herself with both her mother and the police. She called the police and the CAS because her mother took her child. There was no need to fabricate a story about being forced into prostitution. She had custody of the child. There was no need to explain to the police why she was at the Rosecourt Motel. If she was attempting to hide voluntary prostitution from her mother, she would not have called her mother to pick her up. If Ms. Schmidt-Fabian in an act of kindness had arranged a room for MCW at her request and had been driving her about that day, there would have been no need to seek emergency help from her mother.
146In all material respects, MCW's testimony was internally and externally consistent. The content of her testimony was compelling as was the manner in which she responded to questions in both examination-in-chief and cross-examination. I accept her testimony as both credible and reliable.
147In applying the three part test in R. v. W.D., I have assessed the testimony of each witness on its own merits and in the context of the totality of the trial evidence. For the reasons given, I do not believe the testimony of the accused, Haven Schmidt-Fabian, nor does her testimony have sufficient probative value to raise a reasonable doubt. I am also not left in a reasonable doubt by the testimony of Officers Bentley and Burrows. On the evidence of MCW, which I do accept, I am convinced beyond a reasonable doubt of the following findings of fact:
Around the beginning of March 2016, Ms. Schmidt-Fabian befriended MCW and talked to her about prostitution. They added each other as friends on Facebook.
Ms. Schmidt-Fabian messaged MCW to inquire if she wanted to start prostituting. MCW agreed that it sounded like a good idea.
MCW spent time with Ms. Schmidt-Fabian and Mr. Majdalani, whom Ms. Schmidt-Fabian identified as her boyfriend.
Together they gave her advice and tips about how to get started as a prostitute, including advertising on the Backpage website. They told her they would be there for her protection if she were to be hurt by a client. MCW gave her cell phone number to them.
MCW, with the assistance of her boyfriend, used her cell phone to take sexually suggestive photographs of herself for the Backpage ads. Ms. Schmidt-Fabian gave MCW advice about the photographs, the content of the ads and posting the ads.
When a prospective client responded to an ad, MCW received notification on her cell phone.
MCW set up her first appointment as an outcall in which she met the client in his vehicle at an apartment complex parking lot. She set the price herself, which was $60.00. Ms. Schmidt-Fabian and Mr. Majdalani did not discuss money with MCW until after she completed that first call.
Ms. Schmidt-Fabian and Mr. Majdalani drove her to the parking lot in their vehicle and waited for her in the parking lot while she completed the transaction in the client's vehicle. She kept the $60.00 that she received on that occasion.
Ms. Schmidt-Fabian and Mr. Majdalani had a room at the Rosecourt Motel. From time to time, MCW had contact with them at the Rosecourt Motel and also at her apartment. She did not have a vehicle. Ms. Schmidt-Fabian and Mr. Majdalani drove her back and forth from her apartment to the Rosecourt Motel.
After the first transaction in the parking lot, MCW started working as a prostitute with Ms. Schmidt-Fabian and Mr. Majdalani. They pressured her to be available for appointments and to make money. They told her she had to turn over to them all the money she received from each client, whether the transaction took place at the Rosecourt Motel or at her own apartment. They told her that if she did not turn over all the money she received, she would get hurt. She notified them of the appointments. She was scared to not tell them about the appointments. This was not a scenario of a Ms. Schmidt-Fabian and/or Mr. Majdalani simply helping out a friend or demonstrating concern for a friend.
The arrangement was that MCW would use the room at the Rosecourt Motel if Ms. Schmidt-Fabian was not using the room. If the room was in use, MCW would conduct the transaction in her own apartment.
MCW had approximately five to eight appointments or calls between the first transaction in the parking lot and April 5th, 2016, being the day she contacted the police.
After each appointment, MCW turned over the money to Mr. Majdalani, who put the money in his pocket. She was told the money would be saved for her benefit, but she did not, in fact, receive any of the money paid by the men with whom she had sex. She felt she was being used because she was having sex with men and not getting anything out of it. She did not confront Ms. Schmidt-Fabian or Mr. Majdalani because she was scared they would hurt her if she said anything.
On April 5th, 2016, MCW requested that they drive her to the Walmart store so she could go shopping. She did not intend to go to the Rosecourt Motel that day and brought her child with her to Walmart.
Ms. Schmidt-Fabian and Mr. Majdalani took MCW and her child to the Walmart store in their vehicle. After she finished shopping, they took her to the Rosecourt Motel against her wishes and without prior notice.
Unbeknownst to MCW, Ms. Schmidt-Fabian and Mr. Majdalani had rented an additional motel room for MCW to work from that afternoon and evening. The room was rented under a name used by Mr. Majdalani. Mr. Majdalani and Ms. Schmidt-Fabian took MCW and her child to the motel room and told her if she did not make money that day, she was going to get hurt.
Once they were in the motel room, Mr. Majdalani told MCW not to get up from the bed unless she had to attend to her daughter. Mr. Majdalani and Ms. Schmidt-Fabian told her that she had to make money that day because she had not been making enough. MCW believed that she had no choice but to stay in the motel room with them.
Ms. Schmidt-Fabian and Mr. Majdalani took possession of her cell phone. They passed the phone back and forth, but she could not see what they were doing with it. They did not return the cell phone to her until later that night after the cell phone battery died. When the cell phone was of no further use to them, Ms. Schmidt-Fabian and Mr. Majdalani left the room.
Ultimately, no customers attended during the time MCW was in the motel room against her wishes.
MCW did not know where Mr. Majdalani and Ms. Schmidt-Fabian went when they exited the motel room. They did not say anything to her about whether she could leave. MCW took advantage of their absence and used the room phone to call her mother for assistance.
MCW later learned that her phone had been used that afternoon to post Backpage ads using the sexually provocative photographs she had stored on her phone. The ads were posted at 3:07 pm, 3:39 pm, 5:23 pm and 5:25 pm, at a time when MCW did not have access to or possession of her cell phone. She did not post the ads in question. MCW saw Ms. Schmidt-Fabian and Mr. Majdalani passing her phone back and forth between them, but could not see what they were doing with it. There was no requirement for a password.
The last contact MCW had with Mr. Majdalani and Ms. Schmidt-Fabian was on April 5th, 2016. Several days later, MCW posted ads and prostituted on her own without the involvement of Mr. Majdalani or Ms. Schmidt-Fabian. On May 5th, 2016, she responded to a call at the Arden Park Hotel and encountered Detective McGregor who was conducting a proactive project to assist sex trade workers.
Application of Law to Facts
148I now turn to the specific elements of the six offences for which Mr. Majdalani and Ms. Schmidt-Fabian are jointly charged.
149Section 279.01(1) and (2) of the Criminal Code provide that:
(1) 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. …
(2) No consent to the activity that forms the subject-matter of a charge under subsection (1) is valid.
150Section 279.02(1) makes it an offence to receive a financial or other material benefit from the commission of an offence under the section 279.01(1).
151"Exploitation" is defined in section 279.04, which provides:
(1)…a person exploits another person if they cause them to provide, or offer to provide, labour or a service by engaging in conduct that, in all the circumstances, could reasonably be expected to cause the other person to believe that their safety or the safety of a person known to them would be threatened if they failed to provide, or offer to provide, the labour or service.
(2) In determining whether an accused exploits another person under subsection (1), the Court may consider, among other factors, whether the accused:
(a) used or threatened to use force or another form of coercion;
(b) used deception; or
(c) abused a position of trust, power or authority.
152In R. v. A.A., 2015 ONCA 558 (CanLII), [2015] O.J. No. 4016, at paragraphs 70-86, the Ontario Court of Appeal provides the following guidance respecting the requisite fault element and the relationship between the definition of exploitation under section 279.04 and the purpose requirement under the human trafficking provisions in section 279.01 and section 279.011(1) of the Criminal Code:
[70] Section 279.04 instructs us that one person exploits another if they cause that other person to provide labour by doing something that, in all the circumstances, could reasonably be expected to cause the other person to believe that their safety … would be threatened if they failed to provide the labour. On a straight-up reading of this definition of exploitation, three conclusions emerge:
i) the expectation of the specific belief engendered by the accused's conduct must be reasonable, thus introducing an objective element;
ii) the determination of the expectation is to be made on the basis of all the circumstances; and
iii) the person's safety need not actually be threatened.
In essence, for there to be exploitation, an accused's conduct must give rise to a reasonable expectation of a particular state of mind in the victim.
[71] …the term "safety" that appears in s. 279.04 is not limited to the state of being protected from physical harm, but also extends to psychological harm. ...
[80] The conduct requirement [in section 279.01] may be established in several ways including exercising control, direction or influence over the movements of another person.
[82] The fault element of the offence consists of two components. First, the intent to do anything that satisfies the conduct requirement. …Second, the purpose for which the conduct … is done. Specifically, section [279.01(1)] requires that the accused act with the purpose of exploiting or facilitating the exploitation of that person. The purpose element … extends beyond the intentional conduct that is the actus reus of the offence to what could be described as the object an accused seeks to attain, or the reason for which the conduct is done or the result intended.
[83] …what is meant by "exploiting" and "exploitation" in section [279.01(1)] is informed by section 279.04, a provision that acts like a definition.
[84] While section 279.04 defines exploitation in the context of the offence of human trafficking, the fault element in section [279.01(1)] focusses on an accused's purpose in exercising control, direction or influence over the movements of a person... It is of no moment to proof of this ulterior fault element that an accused fails to achieve his purpose.
[85] In other words, no exploitation need actually occur or be facilitated by the accused's conduct for an accused to be convicted of human trafficking. …
[86] Thus, where human trafficking is a charged offence, the Crown needs to prove - along with the conduct … - that the accused acted with the purpose of exploiting the complainant or facilitating his or her exploitation. … Both exploitation and facilitation of exploitation … relate to an accused's state of mind, his or her purpose in engaging in prohibited conduct. …
153In the present case, the Crown has discharged its onus of proving beyond a reasonable doubt that Ms. Schmidt-Fabian recruited MCW as a prostitute and that Mr. Majdalani and Ms. Schmidt-Fabian exercised control, direction and influence over MCW's movements for the purpose of exploiting her. They caused her to work as a prostitute in circumstances where she reasonably felt that she would be harmed if she failed to provide the services. They pressured her and, in fact, threatened that she would be hurt if she did not provide sexual services. They directed her to post ads. She was required to report her appointments to them and turn over the money to Mr. Majdalani after each client. In fact, after the initial transaction, MCW did not receive any money from the sexual services she provided under their control, direction and influence.
154Mr. Majdalani and Ms. Schmidt-Fabian knew where she lived. They attended her apartment from time to time. She did not have her own means of transportation. Mr. Majdalani and Ms. Schmidt-Fabian transported her to and from the Rosecourt Motel to provide sexual services. They exercised control, direction and influence over MCW's movements for the specific purpose of exploiting her.
155Mr. Majdalani and Ms. Schmidt-Fabian caused MCW to provide sexual services by engaging in conduct that in all the circumstances reasonably caused her to fear for her safety if she did not comply with their demands that she provide those services. She called the police and successfully extricated herself from their influence on April 5th, 2016. The fact that MCW worked as a prostitute on her own terms after April 5th, 2016 is irrelevant to the analysis and does not raise a reasonable doubt.
156The Crown has discharged its onus of providing beyond a reasonable doubt all the essential elements of the offence under section 279.01(1) of the Criminal Code with respect to Mr. Majdalani and Ms. Schmidt-Fabian. Likewise, the Crown has discharged its onus of proving beyond a reasonable doubt that Mr. Majdalani and Ms. Schmidt-Fabian procured MCW for the purpose of providing sexual services for consideration, contrary to section 286.3(1) of the Criminal Code. Accordingly, I find Mr. Majdalani and Ms. Schmidt-Fabian guilty on Counts 1 and 5 of the Information.
157After each appointment, MCW turned over the money to Mr. Majdalani, who put the money in his pocket. MCW did not receive any of the money paid by the men with whom she had sex. The Crown has proven beyond a reasonable doubt that Mr. Majdalani received a financial benefit from his commission of an offence under section 279.01(1), which is an offence contrary to section 279.02(1) of the Criminal Code, and also that he received a financial benefit contrary to section 286.2(1) of the Criminal Code. Accordingly, I find Mr. Majdalani guilty on Counts 2 and 4 of the Information.
158Given her relationship with Mr. Majdalani, it is probable that Ms. Schmidt-Fabian received a direct or indirect financial benefit, but there was not sufficient evidence upon which to make that finding on the standard of proof beyond a reasonable doubt. I find Ms. Schmidt-Fabian not guilty on Counts 2 and 4 of the Information.
159Count 3 is the offence of advertising sexual services, contrary to section 286.4 of the Criminal Code. The trial evidence establishes that on April 5th, 2016, ads were posted on the Backpage website when MCW's cell phone was in the possession of Mr. Majdalani and/or Ms. Schmidt-Fabian and not in the possession of MCW. On the totality of the trial evidence, the Crown is unable to discharge its onus of proving beyond a reasonable doubt whether the ads were posted by Mr. Majdalani or by Ms. Schmidt-Fabian or by both of them. All three scenarios are equally probable. Accordingly, I find Mr. Majdalani and Ms. Schmidt-Fabian not guilty on Count 3.
160The last jointly charged offence is Count 7, the offence of unlawful confinement contrary to section 279(2) of the Criminal Code. As succinctly summarized in Watt's Manual of Jury Instructions:
To intentionally confine another person is to physically or coercively restrain that person contrary to her wishes, thereby depriving that person of her liberty to move from one place to another. Confinement is an unlawful restriction on liberty for some significant period of time. … The accused must intend to restrict the complainant's freedom to move about.
161The trial evidence establishes that Mr. Majdalani and Ms. Schmidt-Fabian transported MCW to the Rosecourt Motel against her wishes and directed that she enter the room and remain on the bed unless she was attending to her daughter. They also took away her access to her cell phone. Their actions clearly constituted control, direction and influence over MCW's movements within the meaning of ss. 279.01 and 286.3(1) of the Criminal Code. I accept MCW's testimony that she did not feel she could leave the motel room and waited until she was left alone in the room to call her mother for assistance. However, the conditions under which MCW remained in the motel room were not explored sufficiently during her examination-in-chief to discharge the Crown's onus of proving beyond a reasonable doubt the aspect of physical or coercive restraint. The entirety of the circumstances fit squarely within the scope of the offences under ss. 279.01 and 286.3(1) of the Criminal Code, which I have previously addressed. Accordingly, I find Mr. Majdalani and Ms. Schmidt-Fabian not guilty on Count 7 of the information.
162Finally, I turn to the two additional breach of probation charges against Mr. Majdalani. The Crown has proven beyond a reasonable doubt that Mr. Majdalani failed to comply with the provisions of his probation order that required him not to associate with persons known to him to be prostitutes and failed to keep the peace and be of good behaviour, contrary to s. 733.1(1) of the Criminal Code. Accordingly, I find Mr. Majdalani guilty on Counts 8 and 9 of the Information.
Released: March 1, 2017
Signed: "Justice K. L. McKerlie"