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 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:
539. ORDER RESTRICTING PUBLICATION OF EVIDENCE TAKEN AT PRELIMINARY INQUIRY
(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry
(a) may, if application therefor is made by the prosecutor, and
(b) shall, if application therefor is made by any of the accused,
make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,
(c) he or she is discharged, or
(d) if he or she is ordered to stand trial, the trial is ended.
(3) FAILURE TO COMPLY WITH ORDER
Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Between:
Her Majesty the Queen
— AND —
Jerdaine Foster and Shamaree Salmon
Before: Justice J. De Filippis
Heard on: November 6–8, December 20, 2018 & March 14, May 9–10, 2019
Reasons for Judgment released on: May 17, 2019
Counsel
Mr. S. Doherty — counsel for the Crown
Ms. P. Seymour — counsel for Jerdaine Foster
Mr. C. Rosemond — counsel for Shamaree Salmon
Judgment
INTRODUCTION
1The defendants are each charged with five identical counts related to human trafficking, including allegations that the women in question were under 18 years of age, contrary to sections 171, 279.01, 279.02, 286.2, and 286.3 of the Criminal Code. In addition, Mr. Foster is charged with two counts of advertising an offer to provide sexual services for consideration, contrary to section 286.4, and with failure to comply with a probation order. Mr. Salmon faces an additional charge of failure to comply with an officer in charge undertaking. The defendants elected to have a preliminary hearing before me and a trial in the Superior Court of Justice.
2The following facts are not in dispute: On October 14, 2017 several police officers went to a motel in Niagara Falls in response to an anonymous call that suggested two teenagers were engaged in prostitution. On arrival, the police entered a room at the motel and located the two defendants and two young women; 17 year-old AC and 16 year old SB. On a table in the room was a large box of condoms. The defendants were arrested. Each one was in possession of two cell phones. Mr. Salmon also had $180.00 in cash. The two teenagers were taken to a police station and interviewed. These interviews were videotaped. These were played in court and a transcript of each was prepared and provided to me.
3SB and AC were served with subpoenas to attend this hearing but failed to do so. I issued warrants for their arrest and permitted the Crown to bring a late application to tender the prior statements of the young women, pursuant to section 540 of the Code. During the course of this preliminary hearing, SB and AC were arrested pursuant to the warrants and released. They subsequently attended all court appearances and testified. This made the section 540 application moot. However, the two witnesses recanted their prior statements. I allowed the Crown to cross-examine them, pursuant to subsection 9(2) of the Canada Evidence Act. SB and AC maintained their previous testimony and did not adopt their prior statements. As a result, the Crown applied to tender those prior statements for the truth, pursuant to the principled exception to the hearsay rule.
4Having regard to the history of these proceedings, the Crown's case rests on the application to admit the prior statements for their truth. If this application fails, the defendants must be discharged because the trial testimony of SB and AC does not implicate them and the balance of the prosecution evidence is insufficient to justify an order that they stand trial.
5I have concluded that the application to admit the prior statements given by SB and AC are admissible pursuant to the principled exception to the hearsay rule and that the defendants must be ordered to stand trial, as set out below. These reasons explain my conclusions.
THE ARREST OF THE DEFENDANTS
6As noted, the defendants were arrested after the police received an anonymous call about underage prostitution in Niagara Falls. Mr. Devinder Dayel is the manager of Canada Best Value Inn, a 64 room motel in that city. He testified, with reference to business records, that on October 13, 2017 rooms 209 and 232 were rented by "Foster, Jerd" and that "Jerdaine Foster" of Brampton was the registered tenant for room 120. Payment for the three units was made in cash at 103.24 per room per night.
7DC Sills is one of the several officers who attended at this motel. The police knocked on the door to room 120 and entered. The defendants, SB, and AC were present. He did not see clothing or suitcases in this room. He asked AC, "will I find you on backpage" and she replied, "yes". The officer testified that backpage is an online advertising platform that includes a section for escorts and others offering sex for sale. The officer, along with his partner, DC Langlais, searched the site and found revealing photographs, later admitted by SB and AC, to be of them. Both young women also admitted that they were selling sexual services at the motel. The officers took them to a nearby police station. Before departing, the officers accompanied Mr. Foster and the two women to one of the other rooms that had been rented by this defendant so that SB could retrieve her wallet and a sweater. DC Sill also testified that, while transporting the two young women to the police station, he and his partner stopped at Tim Horton's to get them some food and coffee. This was provided by the police as SB and AC did not have money to pay.
8DC Sills interviewed AC and DC Langlais interviewed SB. Both were challenged by the Defence about the manner in which they did so. They denied allegations that they were coercive, unfair and misleading. In testimony before me, AC and SB provided a different account of their experience with these officers.
THE POLICE INTERVIEWS WITH AC AND SB
9The transcript of the statement given by AC is 70 pages in length. She was advised that the interview would be recorded by audio and video. The essence of her statement is as follows: She is from Hamilton and came to visit Niagara Falls with SB and the defendants. Mr. Salmon is her boyfriend. She was 16 years old and he was 23 years old at the time. They stayed at Canada's Best Value Inn. Several rooms were booked by Mr. Foster. The latter also posted photographs of the two women on backpage, offering sexual services with a cell phone contact number. The advertisement described her 19 years old and with a false name. She described the sexual services provided and the money earned from encounters with certain men, including $60.00 received for "hand jobs" and "blow jobs" and $180.00 for "full intercourse". AC noted that on the day the police intervened, she had earned $180.00 for sexual intercourse but did not engage in this act as the man was unable to do so. AC was dependent on Mr. Salmon to get back home: "….I'm assuming they're going back to Hamilton tonight hopefully. And if not, they'll get me home anyways, right?"
10AC stated that she had been selling sex in Niagara Falls for several months and always came to the area with Mr. Salmon. She had earned between three and four thousand dollars on a few visits during the previous summer. She described it as "easy money". AC said she and SB relied on the defendants to protect them: "…we have like our boyfriends who are there for us and like someone we can trust…like that can take care of us, whatever…"
11AC told the police that all proceeds, including that earned on the date in question, went to Mr. Salmon because she did not trust herself to save it: "I spend my money…. I take enough money-, I get enough money for me, for me, for me to be able to get lunch, um, bussing as well. Bussing is l get for free with the John Howard program, so." She added that Mr. Salmon has never been violent toward her and that he is not her "pimp"; "Actually, he's the very first boyfriend that I've had that actually respected me…he makes me feel better about myself".
12The transcript of the statement given by SB is 62 pages in length. It begins with a reminder by DC Langlais that they were in a police station and notice that the interview would be video and audio recorded "to get a true account of the information you and I are talking about". The essence of her statement is as follows: She came from Hamilton to visit Niagara Falls with AC and the defendants. Mr. Foster is her boyfriend. She was 17 years old and he was 24 years old at the time. She stayed in room 120 at the "Canadian Motel" with him. The night before the police intervention she was in rooms 209 and 232 at the same motel. All the rooms were rented by Mr. Foster. The latter also posted photographs of her on backpage, offering sexual services with his cell phone as the contact number. SB explained that she and Mr. Foster both used that phone to answer calls from potential customers. The advertisement described her as 19 years old and with a false name. SB described the sexual services provided and the amount she charged; "half an hour's like $100..an hour is $200…there's like restrictions…first of all, no bareback…everything with a condom…I will kiss them…they don't touch me…they don't eat me or nothing like that…just sex, suck their dick, that's it". She said she had one client the day before and earned $200 and that AC had earned $180 that day.
13SB stated she, like AC, had been selling sex for about two months and had earned about $1,000. All proceeds were held by Mr. Foster; "I break bread [share]…he doesn't have a job or anything at the moment". Mr. Foster handles the money: "..he's good with money. He wants to save money, it's me that wants to go spend all the money. I ask him to give me money". SB explained that there was nothing wrong with this arrangement, that she does not have a bank account, and that the arrangement whereby Mr. Foster held all her income is "just like having a bank account".
14According to SB, neither she nor AC had engaged in prostitution before meeting the defendants. When asked "What boyfriend would actually make their girlfriend do this", SB answered, "I don't know". She acknowledged that she knew it is wrong but "I like and I love him". SB stated that Mr. Foster had not forced her into selling sex and that if she stopped, "he'd be upset, but like there's really nothing he can do…it's my choice". SB said that Mr. Foster's role was to protect her; "That's why we got the hotel room from like across so he could see. Just if anything happens…he's not my pimp or anything".
15When asked what her mother would say if she knew what her daughter was doing, SB replied as follows:
Probably disappointed just 'cause like every parent would be but…she can't really tell me anything…it's kind of her fault I started doing this…she kicked me out. I needed money, I needed fast money. Dude, I literally had nothing. You have no idea, I literally left my house with nothing. You're gonna make me cry if I start thinking about it.
THE TESTIMONY OF AC AND SB
16AC testified that she began an intimate relationship with Mr. Salmon in the summer of 2017. She was 16 years old and in in high school at the time. They met in downtown Hamilton. She learned that he was 23 and she told him her age. Her friend, SB, met Mr. Salmon in the same area around this time.
17According to AC she went to Niagara Falls on October 13, 2017 with SB and the defendants to "have a good time…I had a lot of clients there, Niagara Falls, right.. [SB] and I engaged in prostitution". I need not detail the testimony by AC. Suffice it to say that she provided a narrative that is in material conflict with her prior statement to police and, with a few exceptions, amounts to a recantation. AC acknowledged that her age prevented her from registering the motel rooms in her name but could not recall who did so or what the arrangements were; "it is not something I really cared about". She said that, while in Niagara Falls on the dates in question, they entertained clients while their boyfriends slept in other rooms. She provided vague answers about why there was a need to be in separate rooms. She insisted that she had posted her photograph on backpage, not Mr. Foster. AC gave confusing and conflicting evidence about how she arrived in Niagara Falls and how she intended to return to Hamilton. AC stated that she is "not happy" the defendants are being prosecuted based on her statement to police. She said she lied to them so her parents would not learn what she had been doing.
18SB testified she met Mr. Foster in Hamilton when she was 17 and he was 24. They were both aware of each other's ages. On October 13, 2017, the pair, along with AC and Mr. Salmon went to Niagara Falls. They booked themselves into two rooms. However, the next day, a third room was rented so that she and AC "could do their thing…while the guys could chill and sleep" in the others. SB testified that she and AC had gone to the city to earn income from prostitution and did so on the nights in question. She eventually agreed that Mr. Foster rented the rooms and confirmed that on the first night she earned $200 and AC had received $180 from the sale of sexual services. Apart from this, her testimony is a recantation of her prior statement to police. When asked if she was trying to be honest with the police, SB replied, "I was scared shitless, I was trying to protect myself because my parents didn't know".
19In friendly cross-examinations by Defence counsel, AC and SB elaborated on the foregoing testimony: Both felt the police were rude, oppressive, and misleading. They agreed that neither were put to their oath or warned about the consequences of giving false information. Both also agreed that they disclosed what they felt the police wanted to hear, without regard for the truth, and with the sole objective of protecting themselves and preventing disclosure of their activities to their parents. For the purposes of this preliminary inquiry, there is no reason to detail this testimony. It will suffice to state that it exonerates the defendants: SB and AC insisted they acted alone, without exploitation by the defendants and that, if either man knew what they were doing, neither one facilitated or benefited from it.
THE ADMISSIBILITY OF THE PRIOR STATEMENTS OF AC AND SB
20The interviews given to the police by AC and SB are presumptively inadmissible because they out of court statements offered for the truth. However, where the hearsay dangers are minimal and exclusion of the statements would impede accurate fact finding, it may be admitted. One of the routes to admission is the principled exception to the hearsay rule. This requires that the twin criteria of necessity and threshold reliability are met on a balance of probabilities: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787.
21Necessity is established when the evidence in question is reasonably necessary to prove a fact in issue and includes situations in which the witness is unable or unwilling to provide an accurate and frank recital of events: R. v. F.(W.J.) (1999), 1999 CanLII 667 (SCC), 138 C.C.C. (3d) 1 (S.C.C.). "Unwilling" usually means the witness has recanted or professes not to remember anything. It is agreed that necessity is made out in this case.
22Threshold reliability is established when the hearsay is sufficiently reliable to overcome the dangers arising from the difficulty of testing it. This can be accomplished by showing there are adequate substitutes for testing truth and accuracy (procedural reliability) or there are sufficient circumstantial guarantees that the statement is inherently trustworthy (substantive reliability). The former can be established by substitutes for traditional safeguards, such as a video recording of the statement, the presence of an oath, and a warning about the consequences of lying. Substantive reliability depends on an assessment of the circumstances in which the statement was made and any evidence that confirms or conflicts with it. See generally, R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865.
23Defence counsel emphasize the traditional safeguards for procedural reliability and point to the absence of an oath and warning about the consequences of giving false evidence in this case. Both counsel also urge me to reflect on the fact that AC and SB are teenagers who provided statements without the benefit a lawyer or the presence of a parent. Moreover, the young women testified that they felt intimidated and lied to protect themselves. It is argued that in these circumstances, the hearsay statements do not meet the test for threshold reliability.
24The Crown submits that two of the three indicators of formal reliability are present in this case; a video recorded statement and availability of the witness for cross-examination. In arguing that the absence of the oath or solemn affirmation (with a warning about the consequences of lying), is not fatal, the Crown takes comfort in R. v. Trieu, 2005 CanLII 7884 (ON CA), [2005] O.J. No. 1083, a decision of the Court of Appeal for Ontario. The majority held that of the three "ideal" indicia of reliability, the oath is least important and can be compensated for by other evidence that the declarant appreciated the solemnity of the occasion (of the prior statement) and external reliable evidence that confirms the out of court statement. In this regard, it is asserted that the prior statements by AC and SB are consistent with each other and supported by external evidence. As such, they meet the test for threshold reliability.
25I agree with the position of the Crown and make the following additional observations: Although neither AC nor SB were put to their oath or solemn affirmation (and warned of the consequences of lying), both were obviously aware they had been taken to a police station to be interviewed, on video, about unlawful activities. It was impressed on both young women that the police were concerned about their safety and interested in learning the truth about the events at the motel in Niagara Falls. These factors incorporate a level of formality into the proceedings; this was not a casual conversation that happened to occur over coffee at Starbucks. Moreover, it is significant that the two statements are materially consistent and that a few points of commonality are confirmed by other evidence.
26AC and SB provided a consistent narrative about when and where they met the defendants and how they came to be with them in Niagara Falls, including these facts: Mr. Foster rented several rooms and posted revealing photographs of them on backpage – a website used by sellers and buyers of sex. The advertisement provided false names and lied about their age. Both men waited – "chilled out" – in other rooms while these young women sold sex to customers who contacted them through the online advertisement Both young women gave all the proceeds from prostitution to the defendants, including $180 that AC earned after one customer requested sexual intercourse.
27There is external evidence in support of a few points in the statements given by AC and SB. The hotel manager confirmed that Mr. Foster rented the rooms. There was a large box of condoms in room 120. Police found photographs of AC and SB on the backpage website. Police seized $180 from Mr. Salmon, the boyfriend of AC.
28I am persuaded that the Crown application to admit hearsay as truth must succeed. My conclusion that the statements in question meet the test for threshold reliability (i.e. admissibility) has no necessary implications about ultimate reliability (weight). As the court observed in Bradshaw, the distinction between threshold and ultimate reliability is crucial. As a judge sitting at a preliminary inquiry, my primary concern is about the former – subject to my duty to determine if a trial is warranted and the limited weighing of evidence that I am permitted to do in that regard. As I will explain, the admission of the prior statements of the two women, along with other evidence, is sufficient to justify an order to stand trial.
THE OFFENCES
29As previously noted, the defendants are charged with 10 identical counts (i.e. each defendant is charged with five counts with respect to AC and SB respectively). They are charged individually with other counts.
30Counts 1 and 9 charge the defendants with violating section 279.01(1) of the Code; that is, human trafficking:
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 ...
By virtue of section 279.01(2), consent by AC and SB is irrelevant; the law does not permit them to agree to be trafficked or exploited.
31Exploitation is defined in section 279.04 (1):
For the purposes of sections 279.01 to 279.03, 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.
32Counts 2 and 10 charge the defendants with violating section 279.02 (2) of the Code; that is, obtaining a material benefit from trafficking a person under 18 years of age:
Everyone who receives a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under subsection 279.011(1), is guilty of an indictable offence ...
33Counts 3 and 11 charge the defendants with violating section 286.2(2) of the Code; that is, obtaining a material benefit from sexual services provided by a person under 18 years of age:
Everyone who receives a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under subsection 286.1 (2), is guilty of an indictable offence...
34Counts 4 and 12 charge the defendants with violating section 286.3(2) of the Code, namely, procuring with respect to a person under the age of 18:
Everyone who procures a person under the age of 18 years to offer or provide sexual services for consideration or, for the purpose of facilitating an offence under subsection 286.1(2), recruits, holds, conceals or harbours a person under the age of 18 or provides sexual services for consideration, or exercises control, direction or influence over the movements of that person, is guilty of an indictable offence…
35Counts 5 and 13 charge the defendants with violating section 171 of the Code; that is, allowing a person under 18 to engage in unlawful sexual activity in a premises occupied by them:
Every owner, occupier or manager of premises, or any other person who has control of premises or assists in the management or control of premises, who knowingly permits a person under the age of 18 years to resort to or to be in or on the premises for the purpose of engaging in any sexual activity prohibited by this Act is guilty of an indictable offence…
36Mr. Foster is charged in counts 6 and 7 with knowingly advertising sexual services for consideration, contrary to section 286.4 of the Code. He is also charged with failure to comply with a probation order for not keeping the peace and being of good behaviour.
37Mr. Salmon is charged with failure to comply with an officer in charge undertaking by not residing at a specified address.
THE TEST WITH RESPECT TO COMMITTAL FOR TRIAL
38There is no controversy about the applicable legal principles. The Court of Appeal for Ontario had occasion to reiterate them in R. v. Wilson, 2016 ONCA 235:
[21] The test for committal is well settled: is there any evidence on which a reasonable jury properly instructed could return a guilty verdict? A preliminary inquiry judge must commit the accused to stand trial "in any case in which there is admissible evidence which could, if it were believed, result in a conviction": United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067, at p. 1080.
[22] The test is the same whether the evidence is direct or circumstantial. However, with circumstantial evidence, there is an inferential gap between the evidence and the matter to be established. The question becomes whether the elements of the offence to which the Crown has not advanced direct evidence may reasonably be inferred from the circumstantial evidence.
[23] The preliminary inquiry judge must therefore engage in a limited weighing of the evidence to assess whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This does not entail considering whether he or she would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. Rather, the preliminary inquiry judge asks whether the evidence, if believed, could reasonably support an inference of guilt: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at paras. 1 and 23.
[24] Any reasonable interpretation or permissible inference from the evidence, beyond conjecture or speculation, is to be resolved in the prosecution's favour. At the preliminary inquiry stage, if more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered: R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 18. To weigh competing inferences is to usurp the function of the trier of fact: R. v. Clarke (2002), 2002 CanLII 44997 (ON CA), 159 O.A.C. 221, at para. 4.
THE COUNTS FOR WHICH THE DEFENDANTS MUST STAND TRIAL
39The admissibility of the prior statements to police by the young women was argued orally before me. In an effort to expedite matters, all agreed that while I reserved to consider those arguments, the parties would provide me with written submissions about committal for trial – assuming those statements to be admissible (otherwise, as already noted, the defendants must be discharged). I have reviewed the written submissions carefully.
40Counsel for Mr. Salmon submits that "[t]o the extent that it might be found that Mr. Salmon travelled with his friends to Niagara Falls, there is no evidence that this was for any purpose enumerated in s. 279.01(1)". Counsel for Mr. Foster echoes this point in arguing there is no evidence that the defendant exploited the young women. Subject to my comments below, I cannot accept these submissions. It will suffice to respond to the rest of counsel's arguments by noting that they effectively address other inferences from the evidence that might exonerate the defendants. For example, counsel for Mr. Foster submits that there is no direct evidence that the defendant knew money given to him from SB came from prostitution. However, that is what SB told the police and one reasonable inference, given all the circumstances, is that Mr. Foster knew the source of the funds. Another example: Counsel for Mr. Foster argues that when SB said her boyfriend would be "upset" if she stopped "work", there is nothing to suggest "she was referring to work done from providing sexual services". Since the purpose and focus of the lengthy police interview with SB concerned her role in the sex trade, one reasonable inference is that SB was, indeed, referring to her role in providing sexual services. I could cite other examples. The point is this; assuming the validity of these submissions, they are a matter for the trial court and cannot assist the defendants at this preliminary hearing.
41At a minimum, the evidence in this case establishes the following facts:
The defendants were aware that AC and SB were under the age of 18;
The young women began selling sexual services after meeting the older defendants and had been doing so, in Niagara Falls, in their company, for several months;
On the date in question, the defendants accompanied AC and SB to the hotel where the sexual services were provided;
Mr. Foster rented the rooms where the sexual activity occurred;
Mr. Foster posted advertisements on the internet to attract customers for both AC and SB;
The young women relied on the defendants' protection; in this regard, the defendants waited in nearby motel rooms while AC and SB sold sexual services to customers;
All of the earnings from the sex services provided by the young women, on the date in question, and on prior occasions, were retained by the defendants; on being transported to the police station, AC and SB had to rely on the police to purchase food and coffee for them;
There were no clothing or other personal effects belonging to the young women in the room used by them to provide sexual services; on being taken away by the police, SB retrieved her sweater and wallet from another room rented by Mr. Foster;
AC and SB were dependent on the defendants to return to their homes in Hamilton; they did not have a motor vehicle or money for public transportation.
42In this case, the significant issue with respect to the elements of the offences is "exploitation". The courts have clarified that in cases of human trafficking, the Crown must show an accused (1) exercised control, direction or influence, (2) over a person, (3) for the purpose of exploiting or facilitating the exploitation of that person.
43In R. v. A.A., 2015 ONCA 558, the Court of Appeal for Ontario held that exploitation is determined by an objective assessment based on all the circumstances. The subjective belief by a complainant is relevant, but not conclusive. More important is the defendant's state of mind in exercising control, direction, or influence over the movements of a person. The Crown must prove the defendant acted with the purpose of exploiting the complainants or facilitating their exploitation. In this regard, the Crown need not prove that actual exploitation occurred; "Both exploitation and facilitation ... relate to an accused's state of mind, his or her purpose in engaging in the prohibited conduct…not the actual consequences of the accused's behaviour for the victim".
44The minimum established facts referred to above is a basis upon which a reasonable jury, properly instructed could convict the defendants with respect to counts 1 and 9 (human trafficking). There may be competing reasonable inferences that could lead to a different result but I am obliged to act upon those inferences that are most favourable to the Crown; that is, there it is reasonable to conclude the defendants acted in concert for the purpose of exploiting their respective girlfriends as prohibited by, and within the meaning of, section 279.01(1).
45It follows from my comments in the preceding paragraph that both defendants must also be committed for trial with respect to counts 2 and 10 (obtaining a material benefit from trafficking a person under the age of 18), counts 3 and 11 (obtaining a material benefit from the sexual services provide by a person under the age of 18) and counts 4 and 12 (procuring a person under the age of 18). It also follows that Mr. Foster must face trial with respect to counts 6 and 7 (knowingly advertising sexual services for consideration) and count 8 (failure to comply with a probation order by not keeping the peace and being of good behaviour).
46The defendants are charged, in counts 5 and 6, with allowing unlawful sexual activity by a person under the age of 18 in a premises occupied and controlled by them. As already noted, SB and AC told police they engaged in such activity in rooms rented by Mr. Foster. The hotel manager confirmed that at the date in question, the rooms in question, were registered to, and paid for, by a person named "Foster, Jerd" and "Jerdaine Foster". Moreover, DC Sills testified that property, including a wallet, belonging to SB was retrieved from Mr. Foster in one of these rooms. As such, it is reasonable to conclude he occupied and controlled the rooms and will face trial accordingly.
47The Crown argues that Mr. Salmon should also be ordered to stand trial with respect to these counts. The evidence shows he occupied one or more rooms but he must also exercise control. The Crown argues that this is shown, with respect to room 120, by the fact that Mr. Salmon answered the door when the police knocked and allowed them entry. I agree with counsel for Mr. Salmon that there is no merit to this submission. A reasonable jury, properly instructed, could not conclude that these actions by the defendant demonstrate control or assistance in control. He could not be found guilty of counts 5 and 6.
48At the time of these events, Mr. Salmon was bound by an undertaking to reside at an address in Toronto. He failed to comply while residing in a motel room in Niagara Falls.
RESULT
49Mr. Foster is committed for trial on counts 1, 2, 3, 4, 6, 7, and 8. Mr. Salmon is committed for trial on counts 9, 10, 11, 12, and 14. He is discharged with respect to counts 5 and 6.
Released: May 17, 2019
Signed: Justice J. De Filippis
Footnote:
During submissions I suggested that Mr. Foster was also subject to an order to stand trial for making and distributing child pornography. I have reviewed the exhibits in question – photographs posted on a website that offers sexual services for sale – and am persuaded that they do not meet the definition of child pornography.