R. v. Barreau, 2023 ONCJ 210

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court File and Parties

Date: May 21, 2023 Court: ONTARIO COURT OF JUSTICE Old City Hall – Toronto

BETWEEN: HIS MAJESTY THE KING — AND — KEVIN BARREAU

For the Crown: M. Newhouse For the Defendant: H. Aly and C. Rudnicki

Heard: May 11, 12, 18; August 9-11, 13; December 22, 2021 February 7, March 7-9, 14, 15, 16; May 6; December 5-9, 2022; April 11-14, 2023

Reasons for Judgment

RUSSELL SILVERSTEIN, J.:

A. INTRODUCTION

1Kevin Barreau is charged with five Criminal Code offences, alleged to have been committed against A.D. during the summer of 2017. They can be paraphrased as follows:

(1) recruiting, transporting, receiving, holding, concealing, harbouring and exercising control over A.D. for the purpose of facilitating her exploitation, contrary to s. 279.01;

(2) receiving a financial or other material benefit, namely a sum of money and sexual services, knowing that it was obtained by the commission of an offence under s. 279.01(1), contrary to s. 279.02

(3) procuring A.D. to offer or provide sexual services for consideration, contrary to s. 286.3

(4) for the purpose of facilitating an offence under s. 286.1(1), exercising control, direction, or influence over the movements of A.D., contrary to s. 286.3

(5) knowingly advertising an offer to provide sexual services for consideration, contrary to s. 286.4

2The Crown proceeded by indictment and Mr. Barreau elected to be tried by a judge of the Ontario Court of Justice.

3The trial was heard in a somewhat fractured fashion. Prior to trial, Mr. Barreau filed an application for a stay of proceedings, alleging several Charter breaches by arresting officers. In the context of that application, which was initially scheduled to precede the trial on the merits, P.C. Julie Rice, a witness subpoenaed by Mr. Barreau, brought an application to be excused from testifying based on a claim of privilege. That application became the first order of business. I dismissed P.C. Rice’s application. She immediately challenged my ruling in the Superior Court [1] and when it became clear that the challenge would take several months to be decided it was agreed by counsel for Mr. Barreau and the Crown to commence the trial of the charges on their merits.

4P.C. Rice also brought an application to be excused from testifying pursuant to s.700(2), alleging that her post-traumatic stress disorder (PTSD) would be unduly exacerbated if forced to testify. I excused her from testifying (see below).

5During the testimony of the complainant, A.D., I ruled regarding Mr. Barreau’s application to cross-examine her regarding sexual activity caught by s. 276 of the Criminal Code.

6These Reasons for Judgment explain (1) my ruling regarding P.C. Rice’s s.700(2) application concerning her PTSD, (2) my s. 276 ruling, in the context of (3) my decision to find Mr. Barreau guilty of certain offences (previously rendered orally), and (4) my ruling arising out of the Charter application for a stay of proceedings.

B. P.C. RICE’S APPLICATION TO BE EXCUSED FROM TESTIFYING ON ACCOUNT OF HER PTSD

7In 2019 P.C. Rice launched a civil suit against several defendants including, among others, the Toronto Police Service and several police officers including D.C. Chris Hoeller. P.C. Rice prepared a statement of claim that made allegations against D.C. Hoeller, which, if true, lent support to Mr. Barreau’s allegations, contained in his Charter application, that D.C. Hoeller called him a ni**er during his arrest. Mr. Barreau thus subpoenaed P.C. Rice to testify on his Charter application.

8P.C. Rice’s claim against the police was eventually settled and did not go to trial.

9Mr. Butt, counsel for P.C. Rice, brought an application pursuant to s.700(2) to excuse her from testifying and called one witness on the application, Dr. Peter Collins, whose testimony supplemented his report of April 27, 2021, attached as an exhibit to the affidavit of David Reeve, filed with the Notice of Application.

10Dr. Collins is a forensic psychiatrist currently employed at the Centre for Addiction and Mental Health (CAMH) and is an associate professor in the Division of Forensic Psychiatry at the medical school of the University of Toronto. He is considered an expert in PTSD. His expertise in the matter was not challenged.

11Dr. Collins was retained by Mr. Butt, counsel for P.C. Rice. According to Dr. Collins, Mr. Butt asked him to render an opinion as to whether P.C. Rice (1) has a health condition that prevents her from testifying; (2) if so, what accommodations might allow her to testify; and (3) what potential adverse health consequences can flow from obliging P.C. Rice to testify in her current condition.

12Dr. Collins met with P.C. Rice for 90 minutes prior to writing his report, and again shortly before testifying.

13Dr. Collins is not P.C. Rice’s treating physician. His examination of her confirmed her treating physician’s diagnosis of PTSD. He also reported that her PTSD is complicated by two other conditions: trigeminal and occipital neuralgia, and bladder incontinence.

14P.C. Rice’s PTSD was exacerbated by the mere prospect of testifying. She suffers from insomnia and frequent nightmares. She is hypervigilant, has trouble concentrating and gets no pleasure from experiences she used to enjoy. She is on several medications and is being treated by a neurologist, a psychologist, and a urologist. She receives psychotherapy, exposure therapy and behavioural therapy.

15In Dr. Collins’s opinion, P.C. Rice’s condition would be significantly exacerbated by having to testify, and no accommodation could mitigate this exacerbation. She would suffer a major setback in her PTSD if forced to testify.

16Dr. Collins further explained that PTSD is considered a major mental illness. Dr. Collins has assessed hundreds of PTSD patients and has become very aware of the common signs of malingering. In his opinion P.C. Rice is not malingering.

17In cross-examination Dr. Collins admitted that he had not spoken to any of P.C. Rice’s treating therapists, nor had he reviewed her medical records. His familiarity with PTSD allowed him, however, to conclude with certainty that she did indeed suffer from PTSD and to form an opinion as to what would be the result of her having to testify.

18I accept Dr. Collins’s testimony. It was delivered with candour and in a balanced fashion. It was uncontradicted.

19My discretion in this matter is governed by s.700 of the Criminal Code which provides as follows:

(1) A subpoena shall require the person to whom it is directed to attend, at a time and place to be stated in the subpoena, to give evidence and, if required, to bring with him anything that he has in his possession or under his control relating to the subject-matter of the proceedings.

(2) A person who is served with a subpoena issued under this Part shall attend

and shall remain in attendance throughout the proceedings unless he is excused by the presiding judge, justice or provincial court judge.

20There is a paucity of reported criminal cases where the issue of a witness’s PTSD has been advanced as a reason for excusing the witness from testifying. There are some civil cases where the issue has arisen and been dealt with by the application of common law rules, which rules, in my opinion, must govern my application of s.700, which sets out no statutory test for excusing a witness.

21In my opinion, whether to excuse a witness who suffers from PTSD from testifying, requires a nuanced, multi-step approach.

22The first question that must be answered is whether “the witness's health may be seriously jeopardized by attending and giving evidence”. Shears v Shears, 2012 NLCA 17; T.D. Bank v. Goldberger Holdings, [1999] O.J. No. 5325; R. v. Dufresne, 2018 ONSC (unreported).

23If and only if the answer to the first question is “yes”, the next question that must be answered is whether the constitutional right of the accused to make full answer and defence in a fair trial outweighs the witness’s right to be spared the pain of testifying. A related question is whether some accommodation can be reached that preserves the accused’s Charter rights and does not unduly injure the witness.

24Guidance as to the proper approach can be taken from the Supreme Court’s judgment in R. v. N.S., 2012 SCC 72 which involved the conflict between a female Muslim witness whose sincerely held religious beliefs forbade her from testifying in court without a face covering, and the accused who asserted a constitutional right to see her face while she testified at his preliminary inquiry.

25McLachlin J.A. said this at paras. 8 and 9:

The first task under a Dagenais / Mentuck-type inquiry is to determine whether, in the case at hand, allowing the witness to testify in a niqab is necessary to protect her freedom of religion. The second task is to determine whether requiring the witness to testify without the niqab is necessary in order to protect the fairness of the trial. This involves considering whether there are alternative measures for protecting trial fairness that would also allow the witness to exercise her religious practice. Finally, if there is a true conflict that cannot be avoided, it is necessary to assess the competing harms and determine whether the salutary effects of requiring the witness to remove the niqab (for example, reducing the risk of a wrongful conviction) outweigh the deleterious effects of doing so (for example, the harm from interfering with the witness's sincerely held religious belief): see Dagenais, at p. 878; Mentuck, at para. 32.

Applying this framework involves answering four questions:

1. Would requiring the witness to remove the niqab while testifying interfere with her religious freedom?
2. Would permitting the witness to wear the niqab while testifying create a serious risk to trial fairness?
3. Is there a way to accommodate both rights and avoid the conflict between them?
4. If no accommodation is possible, do the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so?

26In my opinion, as Mr. Butt argued, the N.S. test, as modified, is the test to apply in the case of witnesses with PTSD.

27Having accepted Dr. Collins’s evidence, and with no evidence to the contrary I am left satisfied that the answer to the first question is yes: P.C. Rice's health may be seriously jeopardized by attending and giving evidence.

28As for whether permitting P.C. Rice not to testify would create a serious risk to trial fairness, the answer is: yes, to some degree. P.C. Rice’s anticipated evidence, if true, is strongly supportive of Mr. Barreau’s Charter application. He will testify on that application that D.C. Hoeller called him a nier during Mr. Barreau’s arrest. P.C. Rice is expected to testify that D.C. Hoeller called her a “nier lover” while both worked at 51 Division. That having been said, it must be recognized that P.C. Rice’s proposed evidence does not go to Mr. Barreau’s guilt or innocence. Nor is it evidence that directly corroborates his testimony. If P.C. Rice’s evidence had been of the nature just described my decision to excuse her from testifying would likely have been different.

29I now turn to the third question, which in Mr. Barreau’s case comes down to whether an admissible and appropriate alternative to P.C. Rice’s viva voce testimony can be fashioned.

30During Dr. Collin’s evidence it became clear that P.C. Rice’s condition would not be unduly exacerbated by her providing an affidavit swearing to the truth of the allegations in the statement of claim. Mr. Butt, in submissions, assured the Court that P.C. Rice would be content to provide such an affidavit and to respond to limited written interrogatories, as an alternative to viva voce cross-examination.

31Crown counsel argued that an affidavit with interrogatories did not, in the circumstances of this case, meet the Bradshaw threshold for admissibility of such hearsay. She conceded necessity, considering my ruling that P.C. Rice would not testify, but she argued that the threshold reliability criterion was not met. R. v. Bradshaw, 2017 SCC 35.

32In my view, the circumstances of this case support the admissibility of an affidavit with interrogatories.

33First, it must be recalled that the evidence in question is being offered by the accused. Thresholds for admissibility should be relaxed when the evidence is, broadly speaking, exculpatory. R. v. Seaboyer, , [1991] 2 S.C.R. 577, at paras. 37-46.

34Second, there is some corroboration that contributes to the substantial reliability of P.C. Rice’s allegation against D.C. Hoeller, to wit, (i) P.C. Zarabi Majd’s, testimony, (ii) the racist taunts against P.C. Rice found on the walls of 51 Division, and (iii) the fact that the Toronto Police Service paid P.C. Rice over $1 million to settle her complaint. See my earlier ruling in R. v. Barreau, [2021] O.J. No. 7314.

35Finally, having heard evidence that P.C. Rice is currently anxious to return to work as a police officer, I conclude that this significantly reduces the likelihood that she would now make false allegations against fellow police officers. Her sworn allegations of racism against fellow police officers, now that her civil claim has been settled, are very much against her own interests.

36I invited Crown counsel to submit interrogatories, which she did. I rejected the first set of interrogatories as too broad. Eventually, all counsel agreed to a substitute set of interrogatories.

37In the result, I ruled the affidavit with interrogatories admissible on the understanding that I, as trier of fact on the Charter application, will need to consider the Crown’s limited opportunity to test this evidence when assessing the weight to be accorded to P.C. Rice’s affidavit.

C. THE TRIAL ON THE MERITS AND THE S.276 APPLICATION

38Ms. Newhouse called two witnesses on the trial proper: the complainant A.D. and her father, J.D. The Crown tendered several documents, most notably electronic communications between A.D. and Mr. Barreau.

39Mr. Barreau testified in his own defence and called no other evidence.

40In brief, A.D. testified that she met Mr. Barreau in June 2017 and that he persuaded her to provide sexual services to others for money during that summer. He then went on to participate in the business of her provision of sexual services – communicating with the clients, driving her to dates, securing her accommodation and keeping her earnings.

41Ms. Newhouse alleges that Mr. Barreau unlawfully procured A.D. and then took on a role in her sale of sexual services to exploit her and commit several other offences, including human trafficking.

42While Mr. Barreau admits that A.D. did indeed provide sexual services to others for money that summer, and further admits that he assisted her in that regard, he denies having persuaded her to do so and denies having exploited her or having committed any of the alleged offences.

(a) A.D.’s testimony

43What follows is a chronological review of what I find are the salient aspects of A.D.’s testimony in-chief.

44At the time of her testimony, A.D. was a 23-year-old part-time university student.

45A.D. met Mr. Barreau one evening in June 2017 when she was 19 years old and living with her parents in Gatineau, Quebec. She was unemployed at the time. She and her friend K. discovered Mr. Barreau and his friend Mathieu on Instagram and decided to visit them in Montreal.

46Mr. Barreau and Mathieu were hosting some people at an upscale two-bedroom condominium in the Port section of Montreal. A.D. and K. went to this gathering. A.D. spent most of the evening speaking to Mr. Barreau. K. spent the evening speaking to Mathieu. A.D.’s conversation with Mr. Barreau led her to believe that the two men lived there.

47A.D. and Mr. Barreau spoke at length. Their discussion eventually turned to the topic of what each was doing for a living and what they aspired to. Mr. Barreau told her that he made his living from joint ownership of some barbershops and from credit card fraud. A.D. told Mr. Barreau that she had very little money and was going through a rough time with her parents. The topic of “sugar-babying” came up. A.D. was considering sugar-babying, which she understood to involve young women spending time with older men in exchange for money. It did not necessarily involve sex. A.D. knew some women who were engaged in this. Mr. Barreau suggested that A.D. consider escorting (prostitution) or stripping since they paid well. He said that his former girlfriend had worked for him as an escort. He offered to help A.D. in these endeavours and said that they could make good money together. A.D. made it clear that she was not interested in either of those pursuits and that exchanging sex for money with strangers was not something she would ever do. She told him that she would be interested in participating in credit card fraud with Mr. Barreau. She had participated in credit card fraud in the past.

48At the end of the evening A.D. and Mr. Barreau went to bed together. A.D. was somewhat intoxicated. A.D. told Mr. Barreau that she needed to get her nails done. Mr. Barreau reached into a drawer in the bedside table and gave her $200. [2]

49A.D. and K. left together the next morning. A.D. returned to her parents’ home and continued to communicate, mostly electronically, with Mr. Barreau. She still was not interested in escorting, but she began to consider stripping and asked Mr. Barreau several questions as to what that would entail. He said that he had changed his mind about her stripping, saying it wasn’t lucrative enough. He again recommended that she start escorting. When she reiterated that she didn’t want to have sex with strangers, he said that she could decide what sexual activity she would sell, suggesting that she could limit it to blow jobs, for example, although she wouldn’t make much money. She said that she would probably be comfortable doing that.

50One day, approximately two weeks before July 1, 2017, while with her mother, A.D. was on the phone with Mr. Barreau and she decided she would start escorting with him. They were supposed to start the following weekend, but A.D. was menstruating that weekend and thus could not start until the weekend after that. She was also still feeling ambivalent. She decided to try escorting mostly because she was desperate for money. Mr. Barreau was not pressing the idea on her. She nonetheless felt that he was “putting the idea in her head” and was being “manipulative”.

51As the target date for the start of escorting approached (the Canada Day weekend), Mr. Barreau reminded A.D. that he had lost a lot of money on the prior weekend’s hotel bill, and that she had better be serious about the plan. Mr. Barreau had decided that the escorting would take place in Toronto. A.D. sensed Mr. Barreau’s frustration and she did not want to disappoint him, which played into her decision to begin escorting that first weekend in July.

52Mr. Barreau picked A.D. up in Ottawa on or about June 29. They drove back to Montreal where they spent the night at Mr. Barreau’s condominium.

53The next morning, she, Mr. Barreau and Mathieu took pictures of her which Mr. Barreau explained he would be posting on an advertising site for escorts called “Backpage” which A.D. was familiar with. Mr. Barreau went on to compose these ads which he showed her from time to time.

54With A.D. at the wheel, they drove to Toronto the next day with Mathieu, arriving late in the evening. On route, A.D. continued to express her reservations about having sex with strangers. Mr. Barreau downplayed those concerns and reminded her that that was what escorting was all about. She proposed that they split the proceeds of her escorting 50/50. Mr. Barreau said that if they did that, she would have to pay her own expenses. He told her he would be keeping all her money and would pay for all her needs. She felt intimidated and agreed. One of the reasons she felt intimidated was that at one point during the trip she had reached out and touched his face. He responded by slapping her.

55Mathieu and Mr. Barreau tried to get her to work that night, after they checked into the Trump Hotel, but she was too tired, and it was agreed that she would start the next day. On no other occasions did A.D. ever tell Mr. Barreau that she did not want to work.

56As her escorting began it was Mr. Barreau who set her rates for sexual services.

57On July 1 A.D. was sick. Mr. Barreau was not very sensitive to her illness and drove her to another hotel to begin working. She took her “first ever client” and then two more that day. Mr. Barreau set up the appointments with the clients, either by text or by phone, when she was busy with another client. She earned approximately $600 that first day and turned it all over to Mr. Barreau. A.D. worked in a similar manner for the next two days.

58A.D. returned to her parents’ home sometime shortly after that first weekend in Toronto. She stayed there for a few days and was then picked up by Mr. Barreau and driven back to Montreal where she stayed for about a week with him, while working “like a dog” as an escort, after which they both drove back to Toronto to work again. During the visit to Montreal, she and Mr. Barreau decided it would be a good idea for them to live together, given their business partnership. All the proceeds from her sex work were turned over to Mr. Barreau.

59On some occasions clients would expect services she was not comfortable performing, such as sex without a condom. The clients would point out that her Backpage ad offered said services. A.D. concluded that Mr. Barreau was advertising services she had told him she did not want to perform.

60Throughout the duration of their working relationship Mr. Barreau determined her working hours. Whenever she complained he would get angry. Mr. Barreau imposed a “three strike” system where after three strikes A.D. would be punished. One such punishment involved forcing her to do 20 push ups and then suck his toes. He threatened to stick her face in his feces. He was angry that she had engaged in sexual activity with other men, one of them being Mathieu.

61After the intervening week in Montreal, A.D. and Mr. Barreau drove back to Toronto where it was expected she would work. Once there, Mr. Barreau flew back to Montreal leaving A.D. with his car. She continued to work in his absence. Upon his return she turned over all the money she had earned in his absence (approximately $2,000). He then drove to Hamilton with her because he believed there was money to be earned there.

62Later, on the day they arrived at a hotel in Hamilton, when Mr. Barreau was not with her, A.D. received a visit from the police who had pretended to be a prospective client.

63A.D. had been instructed by Mr. Barreau that should she ever be confronted by the police she was to deny being an escort. He told her that while nothing would likely happen to her, he would get arrested. So, when questioned by the three police officers, who appeared to know everything, including Mr. Barreau’s name, A.D. at first denied it all. The police then told her that her father had seen her Backpage ad. She felt mortified and began crying. She then agreed to accompany the police, who took her to Covenant House, a shelter in Toronto. The police told her that they had apprehended Mr. Barreau but had let him go. They told her that it was up to her whether to press charges. She was reluctant to at first, thinking she had voluntarily agreed to work as an escort, but she changed her mind the next day and gave a 2–3-hour video statement to police under oath.

(b) The text messages

64A long series of text messages exchanged between A.D. and Mr. Barreau were filed as an exhibit. What follows are some general observations and A.D.’s interpretations of those text messages that don’t speak for themselves.

65The 62 pdf pages of text messages are often not complete conversations. Information was often exchanged by Snapchat and these Snapchat exchanges were not in evidence. Resorting to Snapchat was Mr. Barreau’s idea. He felt it was less likely to attract the attention of the police.

66According to A.D., and as the texts make clear, Mr. Barreau was the boss of the sex work operation, and A.D. felt she needed his permission to spend any of the money she had earned, even for condoms or a cheap dress. She would sometimes ask permission to take a shower. In referring to a particular text she wrote at p. 17 of the exhibit (“going to sleep a bit now”), A.D. explained that she felt she had to ask Mr. Barreau for permission to take a break from working.

67On a couple of occasions Mr. Barreau warned A.D. not to do certain things and she apologized. He warned her that she better not lie to him.

68Prices for sexual services were set by Mr. Barreau. He also forbade her from servicing non-white customers. On one occasion he forbade her from going downstairs in the hotel and on one occasion he directed her to go to a particular hotel to do outcalls.

69The texts also make clear that A.D. was enthusiastic about earning as much money for the business as she could.

(c) The cross-examination of A.D.

(i) The s. 276 ruling

70During a break in A.D.’s cross-examination Mr. Aly filed a s. 276 application to cross-examine A.D. on three particular areas, all of which potentially engaged s. 276.

71Mr. Aly sought a ruling permitting him to cross-examine A.D. (and eventually lead evidence from Mr. Barreau) in the following areas:

a. the details as to why A.D. had sexual intercourse with the Mr. Barreau on the first day they met.

b. why and how A.D. decided to have sex in exchange for money with a man she had met on “seeking Arrangements” in June of 2017 before she had agreed to “work” for the accused.

c. the inconsistency between A.D.’s statement to police and her testimony as concerns the nature of her relationship with Mr. Barreau.

d. the sexual nature of the ongoing relationship between A.D. and Mr. Barreau.

72Counsel, Ms. A. Chaisson, was appointed for A.D. She made submissions on A.D.’s behalf.

73I issued a ruling by email which I said I would explain in these reasons for judgment. The email said:

Mr. Aly will be allowed to cross-examine Ms. A.D. regarding: (1) her testimony regarding her decision to have sex with Mr. Barreau on the evening they first met, including the details surrounding the $200 she says she received from Mr. Barreau that night, or the next morning; (2) the sexual activity she told police she had with the man she met on “Seeking Arrangements” and; (3) the inconsistency between her statement to police and her testimony as concerns the nature of her relationship with Mr. Barreau.

I will carefully control the cross-examination to ensure that it remains within the confines of the law as set out in the Criminal Code and relevant jurisprudence.

This ruling is, of course, subject to amendment and revision depending on how the evidence evolves.

74As concerns the sexual encounter between A.D. and Mr. Barreau, Mr. Barreau would naturally want to testify about the details of this first encounter to give context to his account of their relationship. If indeed it was a sex for money transaction, as it was expected he would testify, that would be relevant to the truth of A.D.’s testimony that she did not want to escort because of her aversion to sex with strangers. It would also be relevant to the Crown’s theory, as supported by A.D.’s testimony, that it was Mr. Barreau who convinced her to engage in sex for money after she had returned to Ottawa.

75As concerns the “Seeking Arrangements” evidence, based on her statement to police, there was good reason to believe that if asked, A.D. would testify that she had exchanged sex for money with a client she had met on Seeking Arrangements before agreeing to work for Mr. Barreau. This is relevant to the very same issues articulated in the preceding paragraph.

76As concerns the ongoing sexual relationship between A.D. and Mr. Barreau, the fact of the sexual relationship is not, in my view, relevant to any issues in the trial. However, any inconsistencies between A.D.’s statement to police and her testimony that relates to the nature of their relationship is sufficiently relevant to her credibility to be a permissible line of cross-examination, even if that inconsistency explicitly or implicitly implicates sexual activity between them.

(ii) The salient aspects of A.D.’s cross-examination

77At around the time she met Mr. Barreau, A.D. was experiencing significant tension in her relationship with her parents and was anxious to leave home. She was also anxious to make money – as much as she could. She was prepared to do almost anything to get money.

78Two to eight weeks before meeting Mr. Barreau she had created an account on “Seeking Arrangements” under the name Anastasia. She was attracted to the quick money she could make there. A.D. understood that Seeking Arrangements was a website where men expected to receive sexual services from young women in exchange for money or gifts. She nonetheless hoped that she could benefit from Seeking Arrangements without having to have intercourse with men on the website. She did not want to have sex with strangers.

79A.D. explained her prior experience in credit card fraud. When she was 18 or 19 years old, she had collected credit card data from friends and acquaintances on behalf of a “central scammer”. These friends and acquaintances were complicit in the scheme and were all supposed to benefit from it.

80When she got caught, she confessed to her father who helped her concoct a false story for the bank.

81A.D. had heard about “Backpage” but hadn’t done any research into it. She learned the details about escorting from Mr. Barreau.

82Mr. Barreau encouraged her to think twice before moving out of her parents’ home and told her that she ought not to if doing so was too emotional for all concerned.

83Once she started working with Mr. Barreau, she became adept at lying to her parents and hotel staff. She admitted that she was willing to lie to get what she wanted.

84When A.D. first encountered the police, she did not tell them that Mr. Barreau had influenced her decision to do sex work. Nor did she tell them that he had forced her to do anything or had threatened or struck her. She explained that she was confused. She felt guilty blaming Mr. Barreau when she had voluntarily embarked on escorting. The police tried to convince her not to blame herself, and that she was a victim in her scenario. The police told her that it was up to her whether to implicate Mr. Barreau. They did not pressure her to do so.

85Even after A.D. decided to tell the police about Mr. Barreau’s role, she never told them that he had struck her. After explaining to the police that a pimp was “a guy in charge of a girl who works” she told police that Mr. Barreau was not her pimp. Nor did she tell them about the time when Mr. Barreau forced her to work on their first trip to Toronto, despite her being sick to her stomach.

86Over the course of her escorting A.D. never told her friends that she had been pressured or that she had made a bad decision. Rather, she told them that things were “going great” and that she honestly believed that to be the case when she told them as much.

87She told police that on the weekend when Mr. Barreau went to Montreal without her, and she continued to work in the Toronto area she did not feel any pressure to work.

88When asked if, after Mr. Barreau’s apprehension by police, she told a friend named Steven that if Mr. Barreau gave her $10,000, she would fix his charges, she said she could not recall if she had said that. When counsel suggested that her answer meant that she could not deny it and that she may have said it she said she didn’t know.

89During her stint as an escort, A.D. asked a friend of hers named Alyssa to join Mr. Barreau and her in the business. A.D. said she did so at Mr. Barreau’s request.

90Mr. Barreau gave A.D. the choice between splitting the proceeds of her work 50/50, where she paid her own expenses, or giving him all the money with him taking care of all expenses. She chose the latter.

91A.D. denied that she was attracted to Mr. Barreau and denied knowing that he was attracted to her or had romantic feelings towards her.

(d) J.D.’s testimony

92J.D. is A.D.’s father. J.D. testified as to A.D.’s sudden change in behaviour in late May of 2017. A.D. had been an accomplished student and water polo player. In high school she had exhibited a lack of confidence in her appearance and lost a lot of weight. She lived with her parents and two siblings in Gatineau, Quebec. Prior to the end of May 2017, she had diligently pursued part-time employment and was scheduled to attend York University in the fall.

93Beginning around the end of May 2017 A.D. had stopped showing up at her part-time job and was let go. A.D. began to leave home unexpectedly and began lying to her parents about her activities. She had made several new friends whom J.D. did not recognize. She failed to attend a family funeral that J.D. would have expected her to attend, given how close A.D. was to the brother of the deceased.

94On or about July 19, 2017, A.D.’s friend K. told J.D. that A.D. was “being pimped out” by a man named Kevin Jones. J.D. immediately contacted the police in Ottawa and eventually was put in contact with Officer Chris Hoeller of the Toronto Police Service (TPS). J.D. sent him a Toronto hotel receipt he found in A.D.’s purse, which she had left behind last time she had left.

95On July 22 J.D.’s wife found A.D.’s Backpage ad and showed it to J.D. who forwarded it on to police in Toronto, who soon located A.D.

(e) Mr. Barreau’s testimony

96Mr. Barreau was 25 years old when he testified – 20 years old at the time of his dealings with A.D., at which time he was earning between $5,000 and $20,000 conducting credit card fraud.

97A.D. and her friend came to his condo on June 4, 2017. He spent most of the evening speaking to her. He told her about his credit card fraud. She told him that she was a “working girl”. He took that to mean that she was providing sexual services to men for money, which she confirmed. He denied encouraging her to do this work as she was already doing so on her own.

98They ended up in his bedroom where he went to kiss her neck. She made it clear to him that if he wanted to have sex with her it would cost him $200. He paid her and they had sex. She left the next afternoon.

99They continued to communicate with each other on Instagram and Snapchat. He drove to Ottawa on June 28 with the intention of travelling to Toronto with her. She had a meeting with officials at York University and he wanted to conduct credit card fraud in Toronto. He brought her back to Montreal.

100She, Mathieu, and he soon travelled to Toronto from Montreal by car. They spent three days there. He conducted fraudulent transactions and she sold sex from a different hotel. He was not involved with her escorting or its proceeds. He denied that she was ill that weekend.

101Upon returning to Montreal A.D. stayed with Mr. Barreau for 10 days. He was growing emotionally attached to her. During this period A.D. was escorting (doing out calls) without his involvement.

102At no time did Mr. Barreau ever punish A.D. by making her do push-ups or making her suck his toes. He never struck her or threatened her. She left the apartment after they argued. He was angry that she had had sexual contact with two of his friends.

103A.D. apologized to him and returned to his apartment around July 16 or 17, 2017. They returned to Toronto and spent a few days there where again he conducted his fraudulent business and she escorted. She asked him to book rooms for her and deal with some of her clients and he agreed. He did not force her to escort and didn’t care what she did. He returned to Montreal, and she stayed in Toronto to escort. He flew back to join her in Toronto on or about July 24.

104After his arrest he received a communication from A.D. to the effect that if he gave her $18,000, she would “drop the charges”. He had not yet been charged and he was not interested in the offer.

(i) The Cross-examination of Mr. Barreau

105Mr. Barreau testified in 2020 in another proceeding. He admitted to telling several lies at that time. In 2020 he denied that Mathieu was involved in fraud when in truth he was. In 2020 he testified that he did not live at the condominium where he met A.D. In this trial he admitted that that was a lie. In 2020 he testified that Mathieu did not live there when in fact he did. When asked why he lied Mr. Barreau said that he was not ready for the questions in 2020. He expected to be asked about issues relevant to his 11(b) application. As concerns some of his 2020 testimony, he admitted that some of his answers were “preposterous”.

106There were several conversations with A.D. that Mr. Barreau purported to recall in his trial testimony that he claimed not to recall in his 2020 testimony. He also claimed in 2020 not to recall any of their trips to Toronto.

107In 2017 Mr. Barreau filed a tax return but did not declare any of his fraud income.

108Mr. Barreau denied being involved in taking A.D.’s pictures for use in her Backpage ads.

109According to Mr. Barreau, every communication he had with A.D.’s clients about the sexual services on offer were based on her instructions.

110Mr. Barreau admitted to warning A.D. against taking black clients. He explained that this was because he had grown up in a dangerous black neighbourhood.

111He denied telling her what to charge the clients. These were merely suggestions on his part. He denied ever being “in charge” of her escorting.

On the many occasions when A.D. asked if it was alright to do something she was merely seeking his opinion.

112He would sometimes hold her money if she was going to see a client, but he always gave it back to her.

113He spent a lot of time and money helping her service clients. He did this because of how much he liked her.

(f) Issues and Analysis

114What follows is a discussion of the principal issues identified by the parties in their submissions.

(i) The credibility of Mr. Barreau

115I start by saying that I do not accept Mr. Barreau’s testimony. He is an admitted fraudster who also admitted to lying under oath when testifying in 2020. Where he denies lying in 2020, I do not believe that denial.

116His answers on cross-examination were extremely evasive at times, especially concerning his attitude towards A.D.’s black clients.

117His innocent explanation for the many electronic conversations with A.D. while she was working are preposterous. His explanations concerning his use of his own credit card and his instructions to A.D. concerning her activities at various hotels made little sense.

118His explanation of Mathieu’s role and his own in composing advertising was rife with inconsistencies.

119I find that Mr. Barreau’s testimony is so devoid of credibility that it does not, alone or in the context of all the evidence, raise a reasonable doubt as to his guilt.

(ii) The credibility of A.D.

120The Crown’s case rests principally on the evidence of A.D. Her credibility is of cardinal importance.

121A.D. delivered her testimony in a frank and unpretentious fashion. I do not think that demeanour should play a large role in credibility determinations, but it bears noting that there was nothing in A.D.’s demeanour that stood out as suggesting that A.D. was being less than forthright.

122It is critical to note the degree to which the text messages confirm A.D.’s testimony. Not only does that support the credibility of the portion of her testimony that intersects with the texts, but it also supports the credibility of her uncorroborated testimony.

123A.D. was quick to avoid blaming Mr. Barreau for the sordid mess she engaged in. She accepted much of the blame, admitting that she could have said no and that she was quite enthusiastic about making money. She admitted her feelings for Mr. Barreau.

124It is true that A.D. did not make some of her more serious allegations against Mr. Barreau when she first met police and when she gave a long statement the next day. She testified that when she met police, she was still quite ashamed of the degree to which she agreed to be an escort. She was still in Mr. Barreau’s thrall and felt guilty about co-operating with the police. That explanation makes sense and I believe it.

125A.D. admitted her prior fraudulent dealings with other people’s credit card data, although with some hesitation. This prior criminal behaviour, and her lack of candour in her responses concerning that behaviour detract from her credibility, but I nonetheless believe her as concerns her testimony regarding the details of her relationship with Mr. Barreau.

(g) The Simple Procuring Charge

126Count 3 alleges the crime of procuring, the pertinent part of which is set out in s. 286.3 as follows:

Everyone who procures a person to offer or provide sexual services for consideration…. is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years.

127To procure is to cause, induce, or have a persuasive effect upon the offering and provision of sexual services. R. v. Gallone, 2019 ONCA 663 at para. 61; R. v. N.S., 2022 ONCA 160 at para. 97.

128The Crown must prove that Mr. Barreau intended to induce or persuade A.D. to provide sexual services for consideration. R. v. Gallone, supra, at para 63.

129I accept A.D.’s testimony to the effect that she was reluctant to have sex with strangers. She had dabbled in sugar babying but had not yet considered having sex with anyone for money before meeting Mr. Barreau, who, that night began his campaign to persuade her to become a sex worker. That campaign was waged by Mr. Barreau throughout June of 2017. Mr. Barreau explained to A.D. with a view to persuading her, that sex work was where the real money was. When she expressed doubts and concerns, he assuaged them. When they went to Toronto together for the first time, the message he gave her was that she had better not let him down and that they needed to make money.

130The fact that A.D. had indeed had sex for money once, before beginning to do so as a member of Mr. Barreau’s team, does not detract from Mr. Barreau’s criminal liability for procuring. R. v. Bennet, , [2004] O.J. No. 1146, at para 51.

131Nor, in my view, does the sexual encounter with that man undermine the credibility of her assertion that she was not enthusiastic about the kind of lifestyle that Mr. Barreau was proposing, i.e., the full-time exchange of sexual intercourse with strangers for money. It was Mr. Barreau’s persuasion that convinced her to sell her body to strangers on a practically full-time basis.

(h) The Human Trafficking Charge

132Count 1 alleges the crime of human trafficking which is set out in s. 279.01 as follows:

(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 and liable

(a) to imprisonment for life and to a minimum punishment of imprisonment for a term of five years if they kidnap, commit an aggravated assault or aggravated sexual assault against, or cause death to, the victim during the commission of the offence; or

(b) to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of four years in any other case.

(2) No consent to the activity that forms the subject-matter of a charge under subsection (1) is valid.

133I have already found that the Crown has proven the crime of procuring. I am also convinced beyond a reasonable doubt that Mr. Barreau transported A.D. and harboured her, having driven her to Toronto. Montreal and Hamilton, and purchased or provided shelter there.

134I am also convinced beyond a reasonable doubt that Mr. Barreau exercised control, direction or influence over A.D.’s movements. I accept her testimony that it was Mr. Barreau who decided where and when she would work, what she would charge and whom she would service. He would often put pressure on her to perform sex work when she was ill or tired. She may well have acquiesced to this direction and pressure in some measure, and enthusiastically shared Mr. Barreau’s money-making goals, but he was the director of operations. Mr. Barreau was in a position of power vis-à-vis A.D. and he took advantage of that position of power. See R. v. Gallone, 2019 ONCA 663; R. v. Sinclair, 2020 ONCA 61 and R. v. N.S., 2022 ONCA 160.

135To secure a conviction on this count the Crown must go further and prove beyond a reasonable doubt that Mr. Barreau procured or exercised control for the purpose of exploiting A.D. or facilitating her exploitation.

136The term “exploiting” finds its definition in s.279.04 which reads:

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.

(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.

137In R. v. Sinclair, supra, at paras. 14-15 the Court of Appeal sets out the proper approach to this section:

The fourth element is that the accused so causes the complainant to provide or offer 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”. Actual exploitation is not necessary. The fourth element is assessed on an objective basis. Safety includes protection from psychological harm:

Circumstances that might be relevant when assessing whether conduct could reasonably be expected to cause a complainant to fear for their safety might include:

• the presence or absence of violence or threats
• coercion, including physical, emotional or psychological
• deception
• abuse of trust, power, or authority
• vulnerability due to age or personal circumstances, such as social or economic disadvantage and victimization from other sources
• isolation of the complainant
• the nature of the relationship between the accused and the complainant
• directive behaviour
• influence exercised over the nature and location services provided
• control over advertising of services
• limitations on the complainant’s movement
• control of finances
• financial benefit to the accused, and
• use of social media to assert control or monitor communications with others.

138I accept A.D.’s testimony regarding Mr. Barreau having slapped her once and imposing a three-strike punishment regime to squelch any opposition on her part. I accept her testimony that Mr. Barreau was always pushing her to make more money, even when she was sick. He flattered her when she performed up to his expectations and got angry when she did not.

139Mr. Barreau would often advertise services that she was not comfortable performing and leave it to her to work out this difficulty when her customer arrived.

140The details of their relationship, seen through the lens of the guidance provided by the Court of Appeal in Sinclair, make it abundantly clear that Mr. Barreau engaged in conduct that, in all the circumstances, could reasonably be expected to cause A.D. to believe that her safety would be threatened if she failed to provide, or offer to provide sexual services as he prescribed.

141Mr. Barreau is guilty of human trafficking.

(i) The Facilitating another offence Charge

142Count 4 alleges a different breach of s. 286.3, the pertinent part of which reads:

Everyone who …., for the purpose of facilitating an offence under subsection 286.1(1), recruits, holds, conceals or harbours a person who offers or provides sexual services for consideration, or exercises control, direction or influence over the movements of that person, is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years.

143As I have already explained, the evidence convinces me beyond a reasonable doubt that Mr. Barreau did indeed recruit and harbour A.D. I have also found that he exercised control, direction or influence over her movements.

144Proof of guilt on this count as set out in the information also requires proof beyond a reasonable doubt that Mr. Barreau, in doing the alleged criminal acts referred to in the preceding paragraph, did so “for the purpose of facilitating an offence under s. 286.1(1)”. The Crown must prove that this was one of Mr. Barreau’s goals.

145I am not convinced of this.

146Section 286.1(1) reads as follows:

Everyone who, in any place, obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person is guilty of…

147This section targets the clients of sex workers (often referred to as “johns”) not sex workers themselves. Much as Mr. Barreau’s dealings with A.D. and her clients had the collateral effect of helping these clients achieve their purpose, it cannot be said that this was one of Mr. Barreau’s purposes. He was, I find, concerned only with making money for his operation. The success of A.D.’s clients was a required step in his plan, but it cannot be said that it was the “purpose” of his activity.

(j) The Material Benefit Charge

148Count 2 alleges a breach of s. 279.02 which reads:

279.02 (1) Every person 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 279.01(1), is guilty of

a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or

(b) an offence punishable on summary conviction.

149I entirely accept A.D.’s testimony that she turned all her earnings over to Mr. Barreau. I also find that Mr. Barreau was not holding this money on her behalf for safe keeping. He used it for his own benefit, only giving A.D. what he thought she needed or deserved according to his whim.

150I have already concluded that the Crown has proved that Mr. Barreau committed an offence under s.279.01(1)

151The Crown has thus proved the material benefit count beyond a reasonable doubt.

(k) The Advertising Charge

152Count 5 alleges a breach of s. 286.4 which reads:

Everyone who knowingly advertises an offer to provide sexual services for consideration is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) an offence punishable on summary conviction.

153I entirely accept A.D.’s testimony that it was Mr. Barreau who took care of advertising her sexual services. He oversaw the creation and placement of the Backpage ads. The Crown has proved this offence beyond a reasonable doubt.

D. THE STAY APPLICATION

(a) Introduction

154Mr. Barreau was arrested in Hamilton on July 25, 2017, by a team of plainclothes TPS officers, one of whom was D.C. Chris Hoeller. Mr. Barreau’s Charter application, which, as a procedural necessity was heard after the trial on the merits, makes essentially three allegations against the team of arresting officers:

• The police lacked reasonable and probable grounds for his arrest/detention.
• The police denied his repeated requests for access to counsel.
• D.C. Hoeller audibly referred to Mr. Barreau as a ni**er during the arrest.

155Mr. Barreau swore an affidavit and testified about the arrest. In support of his allegation against D.C. Hoeller he led the evidence of two police officers, P.C. Firouzeh Zarabi-Majd and P.C. Julie Rice, both of whom had worked at 51 Division at or around the same time that D.C. Hoeller worked there.

156Mr. Aly, counsel for Mr. Barreau, argues that these officers’ testimony supports Mr. Barreau’s testimony as concerns his allegations against D.C. Hoeller. P.C. Zarabi-Majd and P.C. Rice both describe 51 Division as a sexist and racist work environment where the sexism and racism of male rank and file officers victimized them and fellow female officers and was condoned by the largely male officers in charge. Both also make individual allegations against D.C. Hoeller that Mr. Aly argues prove that D.C. Hoeller is indeed an anti-black racist.

157Mr. Aly seeks a stay of proceedings.

(b) The Evidence of Mr. Barreau

158Mr. Barreau’s evidence consisted of an October 21, 2020, affidavit in French, supplemented by his viva voce testimony in English.

159Mr. Barreau was arrested inside a Shoppers Drug Mart in Hamilton on July 25, 2017. He was thrown to the ground and handcuffed by three or four plainclothes officers, one of whom was D.C. Chris Hoeller.

160Another officer read him his rights to counsel, and he asked to speak to a lawyer several times. That request was not honoured.

161Mr. Barreau was searched. The police took his phone and his money. He was placed, still handcuffed, in the back of a Hamilton Police vehicle.

162Approximately 30-40 minutes later he was removed from the police car. A black Hamilton police officer remained at the wheel of the Hamilton police car. The arresting officers were approximately five meters away, as he stood between them and the police car. He heard one of them say that A.D. did not want to make a statement and that they had to let Mr. Barreau go. He then heard D.C. Hoeller say something to the effect that “this nier didn’t run” or “get away”. He is certain that D.C. Hoeller used the word nier. D.C. Hoeller said this in English, which Mr. Barreau understands fluently, even though his first language is French.

163D.C. Hoeller approached Mr. Barreau and told him to go back to school and that as a Quebecker he would be abused in an Ontario jail. Mr. Barreau was let go shortly thereafter.

(i) Cross-examination

164Mr. Barreau became aware of P.C. Zarabi-Majd’s allegations when he read her affidavit which was sworn in September 2020. This was after he had testified on his 11(b) Charter application in July 2020. When asked if he first became aware of P.C. Rice’s allegations against D.C. Hoeller, as contained in the Zarabi-Majd affidavit, upon reading that affidavit he said he did not recall.

165When asked if he was sure that D.C. Hoeller used the word ni**er he said he was “pretty sure” and that it was unmistakable.

166When testifying in July 2020 on his 11(b) application, Mr. Barreau referred to his interaction with police at the time of his July 2017 arrest but said nothing about D.C. Hoeller’s use of the word nier. He explained this by saying that he knew that his racial profiling motion would come later and thought that the Crown would not be interested in what he had to say in this regard. He was “saving it for the racial profiling motion”. In re-examination on the 11(b) motion Mr. Barreau was specifically asked if he felt that the police had treated him differently and unfairly because he is black. He said nothing about the word “nier” in his response. During the Charter stay motion he admitted that it would have been logical to include this information in his answers at the 11(b) hearing, but that he had chosen, in consultation with his legal team, not to raise it until the Charter stay motion.

167When it was suggested to him that his first mention of D.C. Hoeller’s use of the word ni**er only came after he had learned about P.C. Rice’s allegations in September 2020, after the 11(b) hearing, Mr. Barreau said that he had told three of his former lawyers, Mr. Foda, Mr. Warsoff, and an unnamed lawyer in Montreal. None of these three individuals was called to testify on the Charter application.

(c) The Evidence of P.C. Firouzeh Zarabi-Majd

168With the consent of the parties, P.C. Zarabi-Majd’s prior testimony before me was imported into the Charter application. A summary of that evidence can be found in my earlier judgment regarding the subpoena to P.C. Rice: R. v. Barreau, [2021] O.J. No. 7314 at paras. 9 – 16.

169P.C. Zirabi-Majd began her police career in 2008. She was at 51 Division from 2009 – 2018.

170She supplemented her earlier testimony about the sexism and racism at 51 Division and recounted instances of racism directed at P.C. Rice’s choice of a black romantic partner and her decision to adopt a black child. She would often see P.C. Rice crying at work. Several photos of racist derogatory comments, posted at 51 Division and aimed at P.C. Rice, were filed as exhibits.

171She described two instances of D.C. Hoeller’s behaviour. At one time P.C. Zirabi-Madj was dating an officer named Brian Porter. On one occasion Porter showed her a group electronic chat between Porter, Hoeller and several others. In the chat, a copy of which was filed as an exhibit, D.C. Hoeller says to the others: “Is Effys bush all brillowy like a black chick?” Effy is short for P.C. Zirabi-Madj’s first name.

172On another occasion, in 2014, P.C. Zirabi-Majd agreed to drive D.C. Hoeller and another officer home from work. She accepted an invitation to accompany them inside at which point D.C. Hoeller asked if she would have sex with him. She refused and he then asked whether it was because she “doesn’t like white guys”. He then blocked her exit and told her: “if you don’t fuck us both I will tell everyone that you did”.

173P.C. Zirabi-Majd teamed up with P.C. Rice and another female officer in April 2019 and retained a lawyer to sue the Toronto Police, the Police Board and several officers. Mediation ensued and the lawsuit was not proceeded with. The defendants offered each of the plaintiffs $1.3 million. P.C. Rice accepted the settlement and signed a non-disclosure agreement. P.C. Zirabi-Majd refused the settlement offer and instead chose to continue her fight against sexism and racism in the TPS.

174P.C. Zirabi-Majd has been and continues to be extremely critical of the TPS’s response to her complaints. Eventually the Professional Standards Branch of the TPS began an investigation. P.C. Zirabi-Majd has by and large refused to cooperate with that investigation, even though she has been ordered to do so and disciplined for refusing.

(d) The Affidavit of P.C. Julie Rice

175P.C. Rice was born June 29, 1977. She joined the TPS in 2004 and was transferred to 51 Division in 2014. She has been off work since 2017 because of PTSD.

176In April of 2019 she, P.C. McInnis and P.C. Zirabi-Majd retained a lawyer to pursue a claim against various defendants. A draft statement of claim was prepared setting out in detail P.C. Rice’s allegations of sexism and racism levelled at her during her time at 51 Division. In her affidavit, which I admitted in lieu of her viva voce testimony, she swears to the truth of all the allegations in the draft statement of claim.

177According to P.C. Rice, because she was a female officer, because she had a black romantic partner, and because she had adopted a black child she was singled out and brutally mistreated by the largely male corps of officers at 51 Division. When she complained the mistreatment intensified.

178The most significant paragraph in P.C. Rice’s statement of claim as concerns Mr. Barreau’s Charter application is paragraph 39, which reads:

As before, fellow officers, Police Constables Chris Hoeller and Greg Reid, routinely called Rice a “ni**er lover”. When she reported this to Sergeant Charles Lee neither officer was disciplined, and no action was taken.

(e) The Evidence of D.C. Chris Hoeller

179D.C. Hoeller has been an officer with the TPS since April 2005.

180He started at 51 Division and stayed there until 2014 when he went to the human trafficking project for a year. He then returned to 51 Division until 2016 then returned to human trafficking where he stayed until late 2018. Because of P.C. Zarabi-Majd’s complaint about the group text referred to above he was removed from human trafficking and went to the Guns and Gangs task force where he now continues to work.

181He was assigned as lead investigator when police learned from A.D.’s parents that they had learned from one of A.D.’s friends that she was working as an escort for someone named Kevy Jones. A.D.’s parents had sent a copy of A.D.’s escorting advertisement to the TPS. D.C. Reynolds discovered that Kevy Jones was an alias for Mr. Barreau.

182Pretending to be a prospective client, D.C. Hoeller set up a meeting with A.D. at a motel in Hamilton. He and officers Heitzner, Goulah and Reynolds converged on the motel in separate cars On July 25, 2017. Their goal was to inquire into A.D.’s safety and if she disclosed criminal activity by Mr. Barreau, arrest him if he was at the motel.

183Once there, they saw a Cadillac SUV with A.D. at the wheel and a black man in the passenger seat. The two switched places and A.D. went into the motel while the man parked the SUV nearby. Sgt. Heitzner maintained surveillance on the SUV while the other three detectives entered the motel.

184At 20:41 hrs they knocked on her room door and identified themselves as police officers. She seemed shocked at first but let them into the room.

185She began by telling them that she was working on her own as an escort. After about 15 minutes, after being told that the police had spoken to her father and that they believed she was not working on her own, she confessed that she was being forced to work by the man in the SUV who had all her money. She told them that much of her property was in the SUV.

186They discussed the notion of her making a formal statement, but she did not feel ready to do so at the time. She agreed to leave with the officers at 22:15 hrs. She was handed over to Sgt. Heitzner who was going to speak to her further. The other three detectives contacted Hamilton police for back up and set out to detain the black man in the SUV and ascertain his identity, which they soon did inside a nearby Shoppers Drug Mart at 22:26 hrs. He was placed up against the wall and handcuffed to the rear.

187Mr. Barreau was placed in the back of a Hamilton Police scout car driven by officer Sterling, who is black. Mr. Barreau was then arrested by D.C. Reynolds while D.C. Hoeller updated Sgt. Heitzner, either on the phone or by radio.

188On Sgt. Heitzner’s instructions, Mr. Barreau was released at 23:06 hrs after he and the SUV were searched. He had about $1,600 on him and a pink iPhone, both of which were seized.

189It was the policy of the human trafficking unit not to arrest and criminally process a suspected human trafficker without first obtaining a statement from the victim. A.D. had yet not provided one.

190D.C. Hoeller denied ever using the word nier during Mr. Barreau’s detention. He also denied ever calling P.C. Rice a nier lover.

191D.C. Hoeller arranged shelter for A.D. in Toronto and met her the next day when she provided a video statement.

192D.C. Hoeller described his motivation in the June 2018 group chat as him “inappropriately pressuring Brian Porter about who he was dating”. i.e., P.C. Zarabi-Majd. He was concerned that officer Porter and P.C. Zarabi-Majd were on the same platoon at 51 Division, even though D.C. Hoeller had not been on that platoon or at 51 Division since January 2016. D.C. Hoeller admitted that the text was “completely inappropriate”, “inexcusable” and “highly disrespectful”. He said that he had learned from the experience and that it was a “one time thing”. He was 38 years old at the time.

193D.C. Hoeller did not agree that the comment was racist. He was not trying “to stereotype or describe all black pubic hair”.

194D.C. Hoeller described one contentious incident with P.C. Rice. She had asked him to type a warrant application for her and he said he couldn’t before his supervising detectives arrived, which resulted in her making outlandish and ridiculous allegations against him to their superiors. She alleged that he refused to help her because she sleeps with black guys.

195He was familiar with her statement of claim and said that while some of her allegations about what was going on at 51 Division were true, the allegations against him were not. He denied ever witnessing either P.C. Rice or P.C. Zarabi-Majd personally sexually harassed at 51 Division although he admitted seeing racist and sexist posters on the walls about P.C. Rice. Even though he was considered a leader at C platoon he did not remove these posters from the wall but did tell his supervisor, Remy Smedly whom he saw removing them.

196D.C. Hoeller admitted getting a lift from P.C. Zirabi-Majd to D.C. Kotzer’s home. He denied doing what she alleges but admitted asking her why she had dated a certain officer, calling him a “fucking asshole”.

197He confirmed that he was familiar with racist and homophobic group chats emanating from C Platoon after his departure.

198P.C. Zarabi-Majd had a reputation of being difficult to work with. P.C. Rice was somewhat distrusted and had a reputation of being a strong advocate for gang members.

(f) The Evidence of D.C. Jason Reynolds

199Officer Reynolds assisted D.C. Hoeller in confirming Mr. Barreau’s identity in the investigation that was begun after A.D.’s father contacted Toronto police and supplied them with some information.

200D.C. Reynolds decided, once Mr. Barreau had identified himself in the Shoppers Drug Mart, that there were sufficient grounds to arrest Mr. Barreau for human trafficking which he did once he was removed from the drug store. The fact that A.D. appeared anxious and fearful, had chosen to leave with the police that evening and that Mr. Barreau was holding her money contributed significantly to the grounds for arrest.

201When asked if Mr. Barreau was taken to the ground in the Shoppers Drug Mart, he said he did not recall that, but that it might have occurred.

202D.C. Reynolds told Mr. Barreau that he had the right to consult counsel. When asked if he wanted to speak to counsel, Mr. Barreau did not say that he did. D.C. Reynolds answered questions about Mr. Barreau’s response several times in his testimony by saying that Mr. Barreau “never insisted” on speaking to a lawyer.

203D.C. Reynolds had no note of ever asking Mr. Barreau if he wanted to speak to a lawyer but testified that that was simply an error on his part. He would have made a note if indeed Mr. Barreau had asked to speak to a lawyer, because that would have raised all sorts of logistical problems. According to D.C. Reynolds, no-one he has ever arrested “on the road” has ever said yes in response to the question: do you want to speak to a lawyer now.

204D.C. Reynolds was surprised when Sgt. Heitzner decided to release Mr. Barreau. D.C. Reynolds felt they had enough evidence to bring him to the station and to formally charge him.

205D.C. Reynolds never heard D.C. Hoeller utter the word ni**er during Mr. Barreau’s detention, or ever in the five years they worked together. He explained in detail how D.C. Hoeller would have had to be “out of his mind” to do so, given how easily such transgressions usually come to light, and that officer Sterling, a black officer, was nearby. He also testified that he knew D.C. Hoeller well and that he would never say such a thing.

(g) The Evidence of Sgt. Rob Heitzner

206At the time of Mr. Barreau’s arrest and release Sgt. Heitzner was the lead detective on this investigation. He waited in his car watching the SUV while the other three officers went to speak to A.D. When he learned that A.D. was going to leave the room with those officers, he decided to take A.D. in his car and leave the other three officers to deal with Mr. Barreau and the SUV. He directed them to detain Mr. Barreau pending further investigation. He did not instruct them to arrest him. Shortly after learning that they had indeed arrested Mr. Barreau he instructed them to release him. While he felt that there were reasonable grounds to proceed with charges, he didn’t want to do so without a statement from A.D.

207A.D.’s safety was his primary concern. He admitted that by not arresting Mr. Barreau he lost the opportunity to have her protected from him by the imposition of a bail order.

208He never heard D.C. Hoeller utter the word ni**er.

(h) The Evidence of D.C. Anthony Goulah

209D.C. Goulah participated in the original entry into A.D.’s motel room and in the detention of Mr. Barreau in the drug store. He then concentrated on searching the SUV, which included seizing and photographing A.D.’s property found therein.

210He was not with D.C. Hoeller between the detention and the release. He never heard him utter the word ni**er.

(i) The Credibility of the Witnesses

211I have already expressed my difficulties with Mr. Barreau’s credibility as concerns his trial testimony. I did not accept Mr. Barreau’s trial testimony. I found him to be an admitted major fraudster who also admitted to lying under oath when testifying in 2020. Where he denied lying in 2020, I did not believe that denial. His answers on cross-examination in his trial testimony were extremely evasive. I found much of his testimony to be preposterous. I found Mr. Barreau’s testimony so devoid of credibility that it did not, alone or in the context of all the evidence, raise a reasonable doubt as to his guilt.

212Even though his testimony on the Charter application was more forthright on its face, my observations of his trial testimony are pertinent to my assessment of his testimony on the Charter application. My concerns about his credibility are exacerbated by the fact that he did not mention D.C. Hoeller’s alleged utterance when asked while testifying in 2020 about his treatment by police.

213That said, some of his Charter evidence finds some support in the other evidence on the application. I will deal with those aspects of his testimony in the next section of these reasons.

214As concerns P.C. Zarabi-Majd, my assessment of her credibility as concerns her evidence on P.C. Rice’s motion to quash her subpoena remain pertinent to an assessment of her testimony on the Charter application. As I said in R. v. Barreau, [2021] O.J. No. 7314, her cross-examination on that motion made it clear that P.C. Zarabi-Majd is on a mission to publicly air the vicious sexist and racist treatment she says she suffered at the hands of her police colleagues and superiors over the years. In pursuit of that goal, she surreptitiously tape recorded the mediation proceedings even though she was contractually bound not to. She assumes that P.C. Rice wants her story told and is sharing P.C. Rice’s story, even though she’s been told that P.C. Rice does not want to go public with her allegations. She is deeply suspicious of government and the judicial system as concerns its treatment of allegations of racism and sexism. She thinks nothing of signing contracts without any intention of abiding by her obligations under those agreements.

215I reiterate that I would be reluctant to rely on her uncorroborated testimony.

216Certain critical aspects of her account are, however, corroborated and I will address them in the next sub-section of these reasons.

217As concerns the testimony of D.C. Hoeller, he answered questions in a responsive manner. He was not combative and his remorse for his composition of the offensive text regarding “Effy’s bush” seemed genuine. That said, I find his reluctance to acknowledge the racist overtones of that text to be disturbing.

218As concerns D.C. Reynolds, I have difficulty accepting any of his evidence that is not corroborated. His denial regarding D.C. Hoeller’s use of the word ni**er was delivered more in the form of advocacy than in simple response to questions. The lacuna in his notes regarding rights to counsel, along with his incredible assertion that no one he has ever arrested on the street has asked to speak to counsel lead me to reject his testimony regarding his exchange with Mr. Barreau concerning access to counsel. His credibility was further damaged by his constant use of the word “insisted” which struck me as an attempt on his part to avoid simply answering questions on this subject.

219Adjudging P.C. Rice’s credibility is difficult as her evidence comes in the for of an affidavit. She was not cross-examined viva voce, although she did incorporate answers to interrogatories into her affidavit. There is nothing in her affidavit that is patently unreasonable such as to defy belief, yet the critical aspects of her affidavit are contradicted by D.C. Hoeller.

220Many of her allegations concerning the sexism and racism at 51 division are corroborated by P.C. Zarabi-Majd, D.C. Hoeller, and photographs of offensive material scattered about 51 Division.

221I accept all aspects of the testimony of D.C. Goulah and Sgt. Heitzner that are not contradicted. In so far as Mr. Barreau testified that D.C. Hoeller called him a ni**er while communicating with them, their evidence is contradicted, and I will address this in the next sub-section.

(j) Findings of Fact

222Ultimately, I must decide whether Mr. Barreau has convinced me, on a balance of probabilities, that the breaches he alleges did occur. More particularly:

• Did the police arrest him without reasonable grounds?
• Did he ask for counsel and was ignored?
• Did D.C. Hoeller refer to him as a ni**er?

223This exercise requires a consideration of a large body of evidence, some of which supports Mr. Barreau’s allegations and some of which does not. The burden of proof on Mr. Barreau (proof on a balance of probabilities) does not apply to each fact in issue, but rather only to the ultimate question as to whether the alleged breaches occurred.

224As concerns Mr. Barreau’s allegation that he was arrested without probable grounds, I am satisfied that indeed, the police had the requisite grounds for his arrest, both objectively and subjectively.

225From the objective standpoint, A.D.’s parents had supplied the police with convincing evidence that A.D. was in the sex trade. This was augmented by information from A.D.’s friend, K., that A.D. was working for a pimp whose name, Kevy Jones, was an acknowledged and published pseudonym for Mr. Barreau. A.D. told police that he had her money and she agreed to leave the motel with them.

226Mr. Aly argues that the decision to release Mr. Barreau proves that the police did not subjectively believe they had the requisite grounds for the arrest. Why release Mr. Barreau, he asks the police, if you believe you can arrest and process him, especially if the principal goal of the police was to protect A.D?

227It must be recalled that it was D.C. Reynolds that converted the investigative detention of Mr. Barreau into an arrest. He was privy to all the information that supported the objective grounds for the arrest. He thus had the necessary subjective grounds as well. It was Sgt. Heitzner that decided to release Mr. Barreau, and as odd as that decision may seem, Sgt. Heitzner’s state of mind when he ordered Mr. Barreau’s release is not relevant to D.C. Reynolds state of mind when D.C. Reynolds arrested Mr. Barreau.

228As concerns rights to counsel, I reject D.C. Reynolds’ account and accept Mr. Barreau’s testimony that he asked for counsel and that his request was ignored. D.C. Reynolds’ lack of notes, his preposterous assertion that no one he has ever arrested has asked for counsel immediately upon arrest, and his constant use of the word “insist” lead me to conclude that he is hiding the truth from the Court. Mr. Barreau’s testimony on this issue was reasonable and is not contradicted by credible evidence.

229As concerns Mr. Barreau’s allegation that D.C. Hoeller called him a ni**er, Mr. Aly argues for a step-by-step approach to this issue. First, he argues that the evidence of a sexist and racist environment at 51 Division while D.C. Hoeller worked there is overwhelming. There are photos of sexist and racist posters and other writings, all of which corroborate the evidence of P.C. Rice and P.C. Zirabi-Majd about what life was like at 51 Division. Indeed, Mr. Aly points out, D.C. Hoeller himself corroborates this.

230This toxic environment, he argues, supports the evidence of P.C. Rice that D.C. Hoeller called her a ni**er-lover at 51 Division. This in turn, along with D.C. Hoeller’s sexist and racist text about “Effy’s bush”, support Mr. Barreau’s allegation.

231Put another way, the argument goes: 51 Division was full of sexist and racist police officers from top to bottom. D.C. Hoeller was one such racist officer. He wrote the text about “Effy’s bush”. He used the word ni**er at 51 Division when referring to P.C. Rice’s romantic partner. The Court should thus accept Mr. Barreau’s testimony that he used it against him.

232Beginning with the first assertion i.e., that 51 Division was a breeding ground for racism and sexism, I have no difficulty making that finding based on the evidence presented on this motion. The evidence of P.C. Rice, P.C. Zarabi-Majd, the photos, and to a great degree, D.C. Hoeller’s testimony support such a conclusion.

233As concerns the next critical question, i.e., to what degree, if any, does D.C. Hoeller have racist tendencies, the evidence is mixed.

234To start with, D.C. Hoeller denies the allegation. D.C. Reynolds offers some character support to D.C. Hoeller’s denial, although I put little stock in D.C. Reynolds’ testimony.

235As concerns the text: “Is Effy’s bush all brillowy like a blk chick”, I start by remarking that comparing another person’s pubic hair to a Brillo Pad is demeaning in the extreme. To suggest that all Black women have such pubic hair demeans all Black women. What’s more, insofar as the text was D.C. Hoeller’s way of musing over the appearance of P.C. Zarabi-Majd’s pubic hair, it must be noted that P.C. Zarabi-Majd is not a black woman. Reference to black women’s pubic hair in this text was completely gratuitous.

236Ultimately, the text reveals a strange and troubling preoccupation with skin colour. To construct the text in question was extremely rude and insensitive and clearly sexist (which I don’t feel I need to explain), but is it racist?

237I believe I can take judicial notice of the fact that it is a common trope that black people have coarser pubic hair than do white people. To thoughtlessly buy into this trope, which I find is what D.C. Hoeller did, is not the kind of overt racism we sometimes encounter, but rather is an example of buying into a pejorative racial stereotype that belies a negative regard for Black people.

238In any event, whether one calls the text racist or whether one chooses to describe D.C. Hoeller as a racist are not the questions I need to answer. I must ask myself whether the text increases the likelihood that D.C. Hoeller called P.C. Rice a nier lover and increases the likelihood that he called Mr. Barreau a nier. In my view it does increase the likelihood that D.C. Hoeller behaved as alleged by both parties, although it does not itself prove that he did either.

239When I examine the evidence of P.C. Rice, the circumstances surrounding the arrest, Mr. Barreau’s testimony (bearing in mind my adverse credibility findings), D.C. Hoeller’s clear denials, the evidence of the other arresting officers, the text, and the 51 Division atmosphere I come to the conclusion that it is quite possible that D.C. Hoeller called P.C. Rice a nier-lover and quite possible that he called Mr. Barreau a nger, but I am not convinced that either of these alleged events is more likely to have occurred than not. Most importantly, Mr. Barreau’s allegation that D.C. Hoeller called him a ni**er has not been proven on a balance of probabilities.

(j) The Law and its Application to the Findings of Fact

240Mr. Aly sought a stay of proceedings based on Mr. Barreau’s allegation against D.C. Hoeller. He concedes that in the absence of a finding in Mr. Barreau’s favour on that issue, the law does not support a stay of proceedings as a remedy for the remaining alleged Charter breaches, even if proved.

241Having found a Charter breach in the failure of police to honour Mr. Barreau’s request for counsel, the question becomes what, if any remedy, is appropriate in the circumstances.

242There is no evidence upon which the Crown relied at trial that could have attracted a s. 24(2) remedy of exclusion.

243A sentence reduction is, however, an available remedy for a violation of an accused’s Charter rights during investigation and arrest. See R. v. Nasogaluak, 2010 SCC 6.

244I will thus give Mr. Barreau some sentence credit as a remedy for the s. 10(b) breach and I will hear submissions at the sentencing hearing as to the appropriate credit.

E. CONCLUSION

245The stay application is dismissed.

246Convictions will be registered on counts 1, 2, 3, and 5.

247An acquittal will be registered on count 4.

248Sentencing credit for the s.10(b) breach will be addressed at the sentencing hearing.

Released on May 21, 2023 Justice Russell Silverstein

Footnotes:

1My ruling, R. v. Barreau, [2021] O.J. No. 7314 was upheld by Copeland J. in R. v. Barreau, 2021 ONSC 5694, whose judgment was upheld by the Court of Appeal in R. v. Barreau, 2021 ONCA 918

2Earlier in her examination in-chief A.D. had testified that he gave her the money before she went to bed.