Court File and Parties

COURT FILE NO.: 16-01471 DATE: 20170630 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – ANDRE EVANS Defendant

Counsel: Jennifer Gleitman, for the Crown David Parry, for the Defendant

HEARD: June 5-7, 9, 12-15 and 20, 2017

REASONS FOR JUDGMENT

WARNING

An order restricting publication in this proceeding has been made under ss. 486.4(1) and s. 486.6 (1) and (2) of the Criminal Code. These sections of the Criminal Code provide as follows:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(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).

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

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15

Boswell J.

I.

[1] The Crown alleges that Mr. Evans was a pimp; that he procured two young females to become prostitutes; that he exploited them; and that he assaulted them. They further allege that he possessed marijuana and cocaine for the purpose of trafficking in those substances. Finally, they allege that he possessed a sawed-off rifle, which is a prohibited weapon, without being licensed to possess it and, moreover, that he stored it carelessly. All of these charges, and more, are laid out in a fifteen count indictment.

[2] Mr. Evans initially elected to be tried by a judge and jury. He re-elected to be tried before a judge alone. The trial took place over about two weeks between June 5 and 20, 2017.

[3] The following are my reasons for judgment.

[4] I have divided these reasons into a number of sections. First, I will outline the evidence of the two complainants, KJ and AB, regarding their relationships with Mr. Evans. I will then proceed to an examination of the charged offences, describing additional evidence as and when required. I will organize my discussion of the charges along the following lines: the procurement offences; the human trafficking offences; the assault and harassment offences; and finally the weapons and drug offences.

[5] I begin with a review of the evidence of KJ, the first complainant.

II.

KJ

[6] KJ was born in […], 1993 and is now 24 years old. She left high school when she was 18, two credits short of completing grade 12. She lived in Brampton with her father and worked at Pizza Pizza during high school.

[7] She said she met Mr. Evans when she was 18. I found that KJ was not always precise with her dates and times. I took from her evidence that she met Mr. Evans right around the time she left high school. He was also living in Brampton. KJ was introduced to him through a friend.

[8] KJ testified that she moved in with her sister in Mississauga for a while and Mr. Evans used to visit her there. She said he used to talk to her about something she could do to make more money and said they could “build an empire together”. She said he did not go into detail and she did not know what he was talking about at first.

[9] During her examination-in-chief, KJ testified that she went to Toronto and “disappeared” for a bit. She said she moved in with her cousins and otherwise cut off all contact with her family and friends. This “disappearance” lasted for a couple of months, though the total time she lived with her cousins was about four months. She said she worked in retail while living with her cousins.

[10] She went on to say that she resumed contact with Mr. Evans through Facebook. She was in a tough spot, she said, and he told her they could work together as partners. It was at this point that she began to work as an escort. She said she had never been involved in escorting before.

[11] Under cross-examination, however, a somewhat different picture emerged. KJ confirmed that she had testified during the preliminary hearing that she had been kidnapped by two people and forced into prostitution. She had no contact with family or friends during this time. This was, she said, right after high school. In her trial testimony she agreed that what she had said at the preliminary hearing was true. She agreed that when she started working with Mr. Evans it wasn’t her first time working as an escort. This evidence directly contradicts, of course, her earlier testimony that she had never been involved in escorting before.

[12] Defence counsel also confronted KJ with her police statement. She agreed that she told the police that she had never escorted before. She explained here that when she spoke to the police she had completely, totally forgotten about the first experience. She wanted to get it out of her head.

[13] She was consistent in cross-examination about reaching to out to Mr. Evans to help her out. She said she called him for help and he came and picked her up at a hotel. It was at this point that he brought up the idea of her escorting. They talked about it together; about going into business together. She could not remember much about their initial conversation, but she understood that she would be able to keep what she made.

[14] She testified that Mr. Evans took her to La Senza and paid for her to get outfits. He said she would have to pay him back out of what she earned. He arranged a hotel for her. He took pictures of her and posted them online.

[15] In direct examination she said that she was nervous and scared. Mr. Evans told her all the rules: no black guys; guys had to pay as soon as they arrived; no kissing; everything had to be done with a condom. He gave her the rates: $120 per ½ hour or $220 for 1 hour. In cross-examination, she admitted that she already knew the rules, given her earlier experience in the escorting business.

[16] KJ guessed she made about $500 on her first day escorting for Mr. Evans. She said he came and picked up the money. She said he told her that once she got to $500 he would come and get the money. That arrangement continued throughout their working relationship.

[17] KJ testified that she continued to work as a prostitute in the same format for about three years. She lived out of hotels. She was working seven days a week. She made between $1,000 and $1,700 per day. Whatever she made she turned over to Mr. Evans. He told her she was expected to make $5,000 or more per month. She would have to ask him if she needed money for food or clothes or anything else.

[18] At first she was okay with turning over her money to him. He was supposed to be safekeeping it. He told her they were partners and that they were working together to build an empire. As time went by it became apparent to her that he was just keeping her money. She did not feel good about it.

[19] She said she continued to work for Mr. Evans, however, and turned over all of her money to him, because he said if she tried to leave he’d find her and put her six feet under. This made her feel very scared, so she never tried to leave. Mr. Evans had told her when they were just friends in Brampton that he had shot someone once.

[20] KJ testified that when she was working in hotels she did not have contact with her family members. She has not spoken to her mother in years. She did not really keep in contact with her father during this period, though he would occasionally text her to see how she was doing. She no longer kept in contact with her friends. She said Mr. Evans would not allow it. If she wanted to see a family member, he would tell her she had to work.

[21] Under cross-examination she said that she sometimes did go and hang out with friends, but she did it behind Mr. Evans’ back. She said she had many friends in high school and kept in touch with some of them through Facebook. She had both a Facebook and Instagram account and access to them through a cell phone and laptop computer. She had a friend named Dawn that she spent time with. She would see an ex-boyfriend from time to time. And she had another friend in Fredericton that she went and visited.

[22] KJ testified that after working for about three years out of hotels as a prostitute, she needed a break. She said she told Mr. Evans she needed a little break and he got mad, but agreed to it. She said he told her “you’re still going to be mine” and that she was still going to be working. She stayed with her cousins again during this break period which she said was about 4 to 5 months long. It was during this time that she travelled to Fredericton to visit her friend.

[23] After living with her cousins for a while KJ began to work in massage parlours. She said Mr. Evans suggested stripping to her, but she did not feel comfortable with that. She told him that if he made her strip she would run away. She said he responded that he would come and find her and, if he had to, he would drag her to the strip club.

[24] Mr. Evans found her a massage parlour to work at in Brampton, called Utopia. She said she gave massages with “happy endings”. The basic service was a nude body slide together with manual stimulation. She also did extras which included blowjobs and intercourse. She said she worked in massage parlours in Brampton for about a year.

[25] Under cross-examination, she agreed that she had been robbed once while working in a hotel. She said two guys came into her room; ransacked it; beat her up; and took her phone. She agreed that working in massage parlours was safer. There was better control over who got in and there were other people around.

[26] At some point in the spring or summer of 2014, Mr. Evans located a condominium in Mississauga and they leased it under KJ’s name. She said Mr. Evans didn’t want anything under his name and told her she could help build her credit this way. They moved into it together. They had a roommate, R.G. who was a nurse. The condo was a two bedroom unit. KJ and Mr. Evans shared a room and R.G. occupied the other one. They shared the expenses. The rent was paid in cash and receipts were given in her name. She got the cash from a safe Mr. Evans kept in his closet in the bedroom of the condo.

[27] KJ said she felt like she was Mr. Evans’ number one girl when they got the condo together. She felt like his girlfriend, except in a business way. She did not consider him to be her boyfriend, but rather her pimp: someone who was there for her and would protect her and someone she had to give all her money to.

[28] Once they started living in Mississauga, KJ began to work at massage parlours in the Mississauga area. She also began driving Mr. Evan’s BMW, while he began to drive a Porsche. The Porsche was originally registered in her name. Her dad told her that he thought that was a bad idea, so the ownership got transferred into Ms. R.G.’s name.

[29] Ms. R.G. testified that during the time she and KJ were both living in the Mississauga condo they would hang out together. She said they might go to restaurants or nightclubs. They went to yoga together; went to the mall together; grocery shopped together; and they’d get their nails done together. She said that KJ would go out a lot on her days off work. Ms. R.G. said she had the same sort of friendship with AB, though she said she hung out with AB even more than she did with KJ.

[30] After residing for some time in Mississauga, KJ transitioned from massage parlour work to stripping. She said she did so because Mr. Evans wanted her to gain experience in all fields. He wanted her to ultimately work with him recruiting girls to work for them. She said she was initially prepared to do it. She felt good about it, she said. She wanted to go somewhere in life and have money.

[31] She began to work at Club P[…] in Vaughan, stripping and doing extras for cash. She was still giving all her earnings to Mr. Evans.

[32] Eventually KJ began to believe that Mr. Evans was just taking her money and nothing was coming from it. She said she expressed her dissatisfaction to Mr. Evans many times, but he would just tell her it was coming, that it took time.

[33] At around the same time, he started focusing a lot of his attention on a new female, AB. KJ was unhappy. She went to her father’s for a week. She said she went back to the condo because she was scared. Mr. Evans knew where she was and was threatening her.

[34] KJ and AB were both stripping at Club P[…]. But Mr. Evans was beginning to focus all his attention on AB. KJ felt neglected and no longer part of the team. She was drinking excessively and doing drugs. Nothing was going the way she wanted it to go. She decided to leave.

[35] Around the end of May 2015 she went to work at Club P[…] one night and did not go home. She said she got a cab to a hotel and called her father.

[36] The next day she went to the condo to try to get her things. She said her dad was with her, but parked down the street. She met Mr. Evans outside the building. She said he demanded $10,000 before letting her have any of her belongings, so she did not get anything.

[37] AB and Ms. R.G. each confirmed that KJ moved out of the condo abruptly. Ms. R.G. testified that one day AB and KJ went to work at Club P[…] and KJ just did not return. She attempted to reach out to KJ without success.

[38] AB testified that the night KJ left she and KJ had gone to work at Club P[…]. KJ drove them in a rental car. She said KJ normally drove a BMW but it was in the shop. KJ was drinking quite a bit that night and spent the whole night speaking with one customer. Later, KJ was supposed to do an out-call with that same customer. First she was supposed to drive AB home. She attempted to do so, but was too intoxicated. She pulled over. Her customer had been following in a car behind them. The customer had a passenger who drove AB home. In the meantime, KJ left with the customer. KJ never returned.

[39] It was AB’s understanding that the “customer” KJ left with was in fact another pimp. A couple of days later KJ and the new pimp came to the condo. They met Mr. Evans outside. The new pimp was supposed to pay Mr. Evans for KJ. They got into an argument. AB said she and Ms. R.G. were sitting nearby in a car and she observed the argument but could not hear what was being said. The new pimp was whiter and shorter.

[40] AB could not remember how she came to the understanding that the man with KJ was her new pimp. But she said Mr. Evans had mentioned that if the new pimp wanted KJ he was going to have to pay for her. She thought this was crazy and began to wonder how she herself would leave, if she ever wanted to. AB never saw KJ again.

[41] KJ ended up calling the police on July 31, 2015. She said Mr. Evans had been calling her repeatedly. He was trying to persuade her to come back. At one point he posed as a customer and found out what hotel she was working from. He said he was going to come and get her and was threatening towards her.

[42] She said Mr. Evans also posted a fake ad for her on backpage.com, which is a website with a section dedicated to escorts. She said he posted a real picture of her face along with a warning that she has herpes. She was very upset. She did not want her family and friends seeing that ad. It was then that she called the police.

KJ’s Credibility and Reliability

[43] The Crown’s case against Mr. Evans in terms of counts one through four depends heavily on the credibility and reliability of KJ’s evidence.

[44] Credibility and reliability are not the same thing of course. Credibility has to do with the truthfulness of a witness; reliability with the accuracy of the witness’ testimony. A witness who does not give credible evidence on an issue is neither credible nor reliable with respect to that issue. But credibility is not a proxy for reliability. A credible witness may give evidence that is unreliable: see R. v. C. (H.), 2009 ONCA 56, at para. 41.

[45] KJ was not an impeccably credible and reliable witness.

[46] I am particularly concerned about her evidence during direct examination that she had not been involved in the sex trade before being persuaded by Mr. Evans to become an escort. When initially interviewed by the police she told them essentially the same thing. But this was not the truth. She had been escorting before she became involved with Mr. Evans.

[47] I have no idea why KJ said something different in her examination-in-chief than she had said at the preliminary hearing. She readily admitted the difference in cross-examination, but offered no explanation for it. She said that when she initially spoke to the police she had totally forgotten about her prior experience in the sex trade. Even if I accept that as true, she remembered the experience by the time of the preliminary hearing. I have a difficult time accepting that her recollection of being kidnapped and forced into prostitution comes and goes.

[48] I am also concerned about the unfolding narrative KJ described surrounding the night she left Mr. Evans. She said she was at Club P[…] with AB, whom she was supposed to drive home. She had had a fair bit to drink and they argued in the car. She said she called a cab, which she took to a hotel, where she called her dad.

[49] AB told a different story. AB described KJ arranging to do an out-call after work and essentially driving off with a customer; someone she later learned was another pimp.

[50] When confronted during cross-examination about evidence she gave at the preliminary hearing, KJ agreed that she had gone to a hotel to do a “service call”. She said she doesn’t remember much – she was pretty drunk.

[51] There is also a discrepancy between the evidence of KJ and AB about what happened a day or two later when KJ came to the condo to confront Mr. Evans. KJ said she came with her dad, who waited down the street. AB said she came with her new pimp, who was with her when speaking to Mr. Evans. I am unable to resolve this discrepancy in the evidence. The suggestion that KJ attended upon Mr. Evans with a new pimp was not put to KJ in her cross-examination – likely because AB testified after KJ – so the court does not have the benefit of her response. It is entirely possible that the man AB saw was in fact KJ’s father. AB was certainly not clear about how she came to believe the man was a pimp.

[52] There were a number of other discrepancies, which I would characterize as minor, between KJ’s trial testimony and what she said at the preliminary hearing. In each case she readily admitted that what she had said at the preliminary hearing was true and she adopted it as her trial testimony.

[53] As I mentioned earlier, I did not find KJ to be particularly precise when it came to time frames. I confess that I had a little trouble following KJ’s evidence about where she was living between working/living in hotels and when she moved into the condo. It appears there were times when she was at her cousins’, her father’s, her sister’s, and perhaps one or two basement apartments that she rented on her own.

[54] KJ is to be treated as any other witness: I may choose to believe and rely upon all, some, or none of her evidence.

[55] Despite the concerns I have just outlined, my overall impression of KJ was that she was telling the truth for the most part, but that at times she had a tendency to give evidence in a somewhat careless way. When confronted with her preliminary hearing testimony about prior escorting experience, she readily admitted it and provided a detailed explanation of what had happened. But she failed to disclose this in her direct examination. I find this puzzling. It does not appear to me to be an overt attempt to lie or mislead the court, but rather a carelessness associated with a desire to forget about or distance herself from that prior experience.

[56] I also find that she had a tendency to exaggerate at times. In my view, she overstated the extent to which she was cut off from family and friends during the four years she was with Mr. Evans. I suspect that at least some of the lack of contact was self-imposed. She testified that her father and stepmother knew about her first foray into the sex trade and they had told her she would be disowned if she went back into it.

[57] Having said all of that, I generally found KJ to be a sincere witness. She did not display any particular vitriol for Mr. Evans, but gave her evidence in a matter-of-fact style. I thought her evidence held together pretty well, with the one significant exception being related to her prior experience in escorting.

[58] She was candid about her experiences in the sex trade – the services she provided and the money she made. She was able to produce receipts for hotel bills that she had kept over time, that tend to corroborate at least parts of her evidence. She was also able to produce documents that corroborate her work in massage parlours and stripping and the timing of that work. None of this directly corroborates her evidence about the role Mr. Evans played in her life, of course, but I find that, in the big picture, her evidence made sense.

[59] As I will address more fully in a few moments, I also find her evidence to be consistent on some of the more important issues with evidence given by AB on those same issues.

[60] Defence counsel suggested that KJ had a motive to fabricate evidence. In particular, an animus towards Mr. Evans arising from a jealousy over his relationships with AB and his girlfriend, Taylor. I am not persuaded that the evidentiary record supports a finding of such an animus. KJ was motivated to leave Mr. Evans in part due to his relationship with AB. But she did not call the police for two months after she left, and then only because Mr. Evans was repeatedly contacting her and she feared for her safety.

[61] When the cards are counted, as they say, I believed KJ for the most part. But I am quite alive to the fact that she was not initially forthcoming in her evidence about not having worked as an escort before meeting Mr. Evans. That fact, together with what I find to be a tendency to exaggerate somewhat, leaves me in a state where I must take a cautious approach to the examination of her evidence.

[62] I turn now to an outline of AB’s evidence.

AB

[63] AB is 21 years old. She grew up in Brampton. She was raised by her grandparents until about age 13, when she moved in with an aunt and uncle. By age 16 she was living on her own, attending high school and working at cleaning houses to support herself. She finished high school, but was struggling financially.

[64] AB was 19 when she met Mr. Evans. She had determined that she wanted to become an exotic dancer. She understood somehow that Mr. Evans was a pimp and she got in touch with him through friends. She thought he could help her. She vaguely remembers him picking her up at a girlfriend’s house. They went for a drive and they discussed what he could do to assist her. She said he was going to help her get into a club and make some money.

[65] She said the idea of working in the sex trade had crossed her mind. She had been thinking about working in hotels. She said she spoke to Mr. Evans about the idea and he told her she would likely do better in the strip clubs and that she was just too pretty to be working in hotels.

[66] Within a day or two Mr. Evans picked her up again and he took to her a lingerie store to get an outfit and some shoes. He paid. He then took her to two clubs to familiarize herself with them. The first was called Midway in Mississauga. They had a drink and she got a lap dance. Then they went to Club P[…] in Vaughan. They had another drink there and Mr. Evans introduced her to KJ who was working at the time.

[67] Within a couple of days she started working at Midway. Mr. Evans picked her up and drove her to work. He talked to her about some rules: she was not allowed to speak to coloured men or any other pimp in the club. He told her some of the things she should say to customers. Another rule was that she was not permitted to have a boyfriend. She said that Mr. Evans told her that she basically wasn’t to speak with or be intimate with anyone who wasn’t paying for a service.

[68] Her first night at Midway she earned about $500. Up until this point she had not had any discussions with Mr. Evans about money.

[69] She finished her first shift at about 2:00 a.m. Mr. Evans picked her up. She said she showed him the money she earned and he allowed her to keep it. He picked her up the next day and took her back to Midway. She continued to work there for about a week. After the first night she gave all of her earnings to Mr. Evans. She said she just felt like she had to do it. He was her pimp. He would ask for the money and she would just give it to him. She has no idea what he did with it, though she said he would give her some money if she needed it to go tanning or to do her nails.

[70] AB testified that Mr. Evans told her he was saving her money and “flipping it”, which she understood to mean that he was investing it for a profit. She guessed that the investment was in drugs and they discussed that “a bit”.

[71] When AB first met Mr. Evans, her knowledge about what a pimp does was based on what she had seen on television. She said that after she started to work at Midway, her understanding changed. She then understood that a pimp was someone who was supposed to protect you; someone you were supposed to stay loyal to; and someone you’d give your money to and they’d “save up for an empire”. The empire would consist of better days, not working, owning a home and having a good life.

[72] After working at Midway for about a week, AB began to work at Club P[…]. She needed a license to work there, so Mr. Evans drove her to City Hall to obtain one. He paid for it. He also drove her to Club P[…] and dropped her off for her first shift.

[73] The atmosphere and clientele were better at Club P[…], as was the money. Doing extras was part of the work at Club P[…]. She was making between $500 and $1,000 a night. The money she earned, she handed over to Mr. Evans. Her explanation for doing so was “because he was my pimp”.

[74] For a time KJ and AB worked together at Club P[…]. They first met when Mr. Evans brought AB to Club P[…] for a drink and to acquaint her with the club. AB said she understood that KJ was another girl Mr. Evans was “pimping out”.

[75] When she first started working at Club P[…], AB was living in a basement apartment. She continued to do so for about a month. She then started staying at the Mississauga condo. She slept on the couch. At that time Mr. Evans and KJ occupied the main bedroom while Ms. R.G. occupied the second bedroom.

[76] When AB first started to stay at the condo she understood that KJ was Mr. Evans’ “bottom girl”, meaning his number one. She said Mr. Evans wasn’t KJ’s boyfriend; he was her pimp. At the same time, AB felt she loved Mr. Evans, but she did not regard him as her boyfriend either. She knew he had a girlfriend named Taylor.

[77] The no-boyfriend rule became somewhat of an issue for AB. She saw one of her ex-boyfriends. He came over to the condo. Mr. Evans found out about it and was upset. He said she wasn’t allowed to see anyone who wasn’t paying. She did as she was told. Looking back on it she says it was because she was scared. She doesn’t know what it was that scared her – just the vibes.

[78] AB testified that she and KJ would both give their earnings to Mr. Evans. She said they would come home from the club and count their money in the living room, kitchen or bedroom, then give it to Mr. Evans. She had no idea what happened to it after that.

[79] According to AB, everyone got along while living in the condo – for the most part. AB and KJ were friends at first, though that eventually changed. AB began to feel some tension between them if Mr. Evans paid too much attention to her or wasn’t around as often as KJ wanted him to be. Things started to get awkward.

[80] AB overheard an argument at one point between Mr. Evans and KJ. She said she was on the balcony and heard screaming and banging. KJ was screaming and Mr. Evans was yelling at her. She said it didn’t sound too pretty, though she was unable to hear exactly what was being yelled.

[81] AB testified that things improved for her after KJ left the condo. She moved into the master bedroom and was “living more lavish”. She continued to work at Club P[…] and continued to do extras.

[82] A couple of months after KJ left the condo, AB was arrested. The arrest happened on August 2, 2015. She said earlier that day (which I believe would actually have been August 1, 2015) she and Mr. Evans were lying in bed together. They got into an argument. She did not want to go to work; instead she wanted to go to Niagara Falls with her mother and brother. She testified that Mr. Evans was angry with her. He told her she had to go to work and he pulled her hair. The hair pulling and his demeanour scared her. She went to work for 7 p.m.

[83] Mr. Evans picked AB up after work. He was pulled over on the drive home. Both Mr. Evans and AB were arrested. AB has had no contact with Mr. Evans since that moment.

[84] AB was charged with drug and weapons-related offences. She provided a video-taped statement to the police after her arrest. She said nothing in that statement about being exploited by Mr. Evans.

[85] AB attended a show cause hearing following her arrest. It was adjourned for several days and she was remanded in custody. Her mother assisted her in obtaining a lawyer. She re-attended bail court on August 7, 2015 and was released at that time. She went directly from the court house to the police station where she gave another statement to the police, this time implicating Mr. Evans in procuring and human trafficking offences.

[86] The charges against AB were subsequently withdrawn by the Crown on October 26, 2015. AB agreed with defence counsel’s suggestion that she thought that things might go better for her if she co-operated with the police. She agreed that during her first statement, DC Organ told her he thought she was a victim. She agreed with counsel’s suggestion that if she told the police about being pimped out by Mr. Evans that it could help her out. At the same time she repeatedly insisted that she had told the police the truth. She denied that she had fabricated a story about being a victim in an effort to avoid culpability for the weapons charges she faced.

AB’s Credibility and Reliability

[87] Defence counsel urged the court to treat AB as a Vetrovec [1] witness. In other words, he urged the court to find that she could not be trusted to tell the truth, despite having taken an oath to do so, because she had a vested interest in testifying. In particular, because her testimony against Mr. Evans was the quid pro quo for the withdrawal of the drugs and weapons charges against her.

[88] I make a number of observations in relation to the defence assertion.

[89] First, I appreciate that concerns about the prospect of a wrongful conviction inevitably arise when a finding of guilt rests solely or substantially on the testimony of a single witness. Witnesses can easily lie or mislead, whether intentionally or unintentionally. That said, in Canada the evidence of a single witness is sufficient to support a conviction in any case apart from treason, perjury or procuring a feigned marriage: R. v. Khela, 2009 SCC 4.

[90] Second, the concern about wrongful conviction increases sharply when a conviction rests exclusively or largely on the evidence of a single witness of doubtful credibility or veracity: Khela, para. 2. In such cases a special instruction may be required about the dangers associated with relying on the evidence the witness. That said, such an instruction is not mandatory in judge-alone trials: R. v. Pelltier, 2012 ONCA 566, at para. 65.

[91] Finally, the court must make an assessment of the factors that might impair the credibility and reliability of each and every witness. As those factors increase in strength and number, ever more careful scrutiny must be applied to the evidence of the witness. A Vetrovec caution is essentially the ultimate warning associated with the most unsavory of witnesses. It is a warning to be especially cautious about relying on such a witness’ testimony in the absence of confirmatory evidence, given the heightened concerns about the witness’ credibility.

[92] In this instance, there is no evidence, in my view, that impairs AB’s credibility apart from the fact that the gun and drug charges against her were dropped when she gave a second statement to the police; one in which she implicated Mr. Evans in procuring and human trafficking offences. There is no evidence, for instance, of an amoral character, criminal lifestyle or past dishonesty. I am aware, obviously, that when first arrested by the police AB did not say anything about being exploited by Mr. Evans. It was only after the police suggested to her that she was a victim, and she’d had a few days to think about it, that she came forward with a second statement in which she implicated Mr. Evans in criminal activity. The charges against her were dropped shortly thereafter.

[93] In my view, AB is not the type of witness whose evidence must be subjected to a special instruction or warning. The details of her second statement and the way it came about may readily be incorporated into my general assessment of the credibility and reliability of her testimony.

[94] Ultimately, I am not satisfied, on this evidentiary record, that AB manufactured evidence in order to save her own skin. She was adamant in cross-examination that she believed things would work out for her if she told the truth; and she said that is what she did. There is no evidence that the police offered her a deal, or that there was any assurance given that she would benefit – by way of a withdrawal of her charges – should she give evidence against Mr. Evans.

[95] It is not unusual for a person charged with a criminal offence to believe that things may go better for her if she co-operates with the police. But that does not mean that “co-operation” inevitably involves lying. It might in some instances. I am not satisfied that it did in this case.

[96] I found AB to be a sincere witness, doing her best to be truthful and feeling very uncomfortable about her past lifestyle. Like KJ, I found her evidence, overall, to make sense. I also found it to be similar, in many important respects, to the evidence of KJ.

[97] At this point I should take a moment to address the evidential use that may be made of the similarities in the evidence of KJ and AB.

Similar Fact Evidence

[98] Under our laws, no one is charged with being a bad person or having a general propensity to act in a particular way. Evidence of other acts of an accused person similar to those alleged on an indictment, or to prior acts of other disreputable conduct, is inadmissible as evidence that a person has a propensity or disposition to the do the acts he or she is alleged to have done and is therefore more likely to have done those acts: see R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908 at para. 31.

[99] The exclusionary rule has been part of English common law for hundreds of years. The modern formulation of the rule was set out by Lord Herschell in Makin v. Attorney-General for New South Wales, [1894] A.C. 57 where he held:

It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried.

[100] The rule is based on policy considerations. Propensity evidence is often relevant and material. But the concern is that it will frequently be afforded unwarranted attention and weight. It has a tendency to distract and may well cause a trial to veer off into an assessment of the veracity of the alleged similar or other acts. Its disadvantages almost always outweigh its advantages: Handy, as above, at para. 37.

[101] The exclusion is presumptive but not absolute. Exceptions arise where it is established by the prosecution that the probative value of the evidence outweighs the prejudicial effect associated with its introduction.

[102] While propensity evidence can come in different forms, in this instance the Crown seeks to use Mr. Evans’ allegedly exploitative conduct in relation to KJ to support the credibility of AB’s testimony that Mr. Evans exploited her. And vice versa. In other words, the Crown asserts that each of the complainants has independently told a similar story about their relationship with Mr. Evans. The Crown seeks to use the evidence of each of the complainants to shore up the credibility of the other complainant.

[103] In R. v. Handy, Justice Binnie provided a functional framework in which to assess the probative value of evidence of similar acts. This framework is described by Justice Watt in his Manual of Criminal Evidence, 2016 (Toronto: Ont.: Thomson Reuters Canada Limited, 2016) at §34.01. It requires a determination of:

(a) the relevance of the evidence to an issue in the case, otherwise than by demonstrating the propensity of the defendant to commit crimes or other disreputable or repugnant acts;

(b) the probative value of the evidence;

(c) the prejudicial effect of the evidence; and,

(d) a balancing of the probative value against the prejudicial effect of the evidence

[104] The first step in the admissibility inquiry is for the Crown to identify the live issue(s) to which the similar act evidence is related. In this case, the Crown submits that the similar act evidence is relevant to three live issues:

(a) The credibility of each of the complainants;

(b) To negate the assertion of innocent association; and,

(c) To demonstrate a pattern of behaviour on the part of Mr. Evans.

[105] The Crown’s submissions are problematic.

[106] First, Justice Binnie cautioned in Handy against the use of the broad category of “credibility” as the live issue to which propensity evidence is directed. It risks opening up too wide a gateway of admissibility, since any evidence that tends to discredit an accused also tends to heighten the credibility of a complainant. This does not mean that the evidence, if admitted on other grounds, cannot be used to support the credibility of one or both of the complainants. In my view it can. But the issue of credibility, on its own, is not sufficient.

[107] Second, there is no assertion of “innocent association” in this case.

[108] Third, the use of similar act evidence to demonstrate a pattern of behaviour appears to me to be nothing more than an assertion that Mr. Evans has a propensity to behave in a certain way. This is precisely the use that is prohibited by the exclusionary rule. A pattern of behaviour is not a live issue in this case. It is not necessary for the Crown to establish a pattern of behaviour to establish the guilt of Mr. Evans on any count on the indictment.

[109] The issue in question may, however, be narrowed. To prove Mr. Evans’ guilt for the human trafficking offences, it is necessary for the Crown to establish not only that Mr. Evans exercised control, direction or influence over the movements of KJ and/or AB, but that he did so for a particular purpose. Specifically, to exploit them, or either of them.

[110] In the context of this case, I am of the view that the similar act evidence is relevant to two live issues, both of which relate to the allegation of exploitation:

(a) First, the “atmosphere” and conditions prevailing in the relationships that Mr. Evans had with each of the complainants – what AB referred to as the “vibe”; and,

(b) Second, the purpose behind Mr. Evans’ conduct within the relationships. More specifically, whether his purpose was exploitative of the complainants for his own benefit.

[111] Incidentally, of course, the similar act evidence may be relevant to the credibility of the complainants.

[112] Having identified the live issues to which the proffered evidence relates, the next issue is to assess its probative value. Assessing the cogency of similar act evidence involves an assessment of factors that connect the similar acts to the circumstances of the charged offences, or in this case the charged offences to one another, such as:

(a) The proximity in time of the similar acts;

(b) The extent to which the other acts are similar to the charged conduct;

(c) The number of occurrences of similar acts;

(d) The circumstances surrounding or relating to the similar acts;

(e) Any distinctive features unifying the incidents;

(f) Intervening events; and

(g) Any other factor which would tend to support or rebut the underlying unity of the similar acts.

[113] In this case, the alleged similar acts are not only proximate in time, but they in fact overlap. Mr. Evans at one time lived and allegedly worked with both of the complainants at the same time. They were both working at Club P[…] stripping at the same time.

[114] The alleged conduct is quite similar in nature. The complainants were both young women. Both were in difficult financial straits and came from homes that were not particularly stable. Both alleged that they were taken to La Senza by Mr. Evans where occupation-specific outfits were purchased for them. Both were driven to and from work, on many if not most occasions, by Mr. Evans. Both reported that he kept tabs on them. Both reported that he gave them instructions or “rules” for work. Both reported that he took all of their income. Both reported that he insisted on specific hours of work. Both reported that he arranged for them to get licenses to strip in Vaughan and then arranged for them to strip and do extras at Club P[…]. Both reported having a fear of him and doing what he said based on that fear.

[115] Both complainants testified that Mr. Evans used the specific phrase, “we’re building an empire” as part of his sales pitch with them. They both understood – at least at first – that he was keeping their money for the purpose of building a better life. I appreciate that it is only a sample size of two, but it would appear that the phrase, “we’re building an empire” was somewhat of a calling card for Mr. Evans.

[116] There are differences in the relationships of course. One distinguishing feature was that Mr. Evans had KJ working in hotels for two years or longer. There is no evidence that he urged AB to work in hotels; indeed the opposite is the case. Another difference is that AB initiated the contact with Mr. Evans. She appears to have been looking for a pimp.

[117] Having considered the alleged similar fact evidence as a whole, however, I conclude from the numerous similarities that the evidence in issue is significantly probative of the identified live issues. It tends to show Mr. Evans preyed upon vulnerable young women. Further, that he created a culture of control using subtle, and at other times overt, means of creating dependence and fear on the part of the complainants to keep them working and generating a sizeable income for him.

[118] I pause to note that there is no evidence of collusion between the complainants in this case. Collusion would serve, for obvious reasons, to substantially dilute the probative value arising from any similarities in the evidence of the two complainants.

[119] I turn then to the issue of prejudice. Prejudice generally arises in two forms. The first is moral prejudice. The second is reasoning prejudice.

[120] Moral prejudice involves the risk that an accused person will be wrongly convicted on the basis of evidence that he is a bad person. In this case the issue of moral prejudice is essentially attenuated by virtue of the fact that the evidence is already before the court in relation to charges arising from Mr. Evans’ relationship with each of the complainants. The issue really isn’t one of admissibility but of what use may appropriately be made of the evidence.

[121] Reasoning prejudice describes the risk that the similar act evidence may be used for a reason other than its permitted purpose or that an undue amount of time will be spent on it. These risks are substantially reduced in judge-alone trials.

[122] I am satisfied that the probative value of the similar act evidence – for the uses I have described – outweighs its prejudicial impact on Mr. Evans. I find its probative value to be significant while any prejudicial impact is minimal. In the result, I conclude that the cross-count similar fact evidence is admissible to demonstrate the atmosphere or culture of the relationships cultivated by Mr. Evans with KJ and AB and to demonstrate that the purpose of Mr. Evans’ conduct within those relationships was to exploit the complainants. This is not evidence of a general disposition, but rather demonstrated, repeated conduct in a specific fact situation.

[123] Having canvassed the evidence of KJ and AB and having discussed the permissible use of count to count similar fact evidence, I want to turn now to an analysis of the charged offences. I will begin with the procurement offences set out at counts one and thirteen on the indictment.

III.

Count One

[124] Count one alleges that Mr. Evans procured KJ to become a prostitute. The offence in relation to KJ is alleged to have occurred in 2011.

[125] In 2011 the offence of procurement was the subject of s. 212(1) of the Criminal Code. It provided, in part, as follows:

212 (1) Every one who

(d) procures or attempts to procure a person to become, whether in or out of Canada, a prostitute,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

[126] To establish procurement, the Crown must prove that Mr. Evans intentionally caused, induced or persuaded KJ to engage in prostitution: R v. Deutsch, [1986] 2 S.C.R. 2 at para. 32; R. v. Bennett, [2004] O.J. No. 1146, at para. 53.

[127] According to KJ’s evidence Mr. Evans began talking to her about doing “something” together to “build an empire” while she was still living at her sister’s in Mississauga. She did not know, however, what he was talking about at the time and he did not expressly mention sex trade work. It was not until much later that he explained what he meant, according to her testimony.

[128] I am not able to conclude, to the reasonable doubt standard, that these early days discussions between Mr. Evans and KJ caused, induced or persuaded KJ to become involved in prostitution. They may have been about sex trade work but at the time they amounted to nothing.

[129] KJ said she later became involved in escorting when kidnapped and forced into it. She essentially said that she reached out to Mr. Evans, who helped extricate her from that situation. But instead of going to the police, she began to escort again, with Mr. Evans acting as her pimp. Her evidence tended to implicate Mr. Evans as having persuaded her to go back into escorting with a view to “building an empire” together. If this were so, it may well support a finding of guilt under the former s. 212(1) of the Criminal Code. The Court of Appeal has rejected the notion that “once a prostitute, always a prostitute”: R v. Bennett, as above, at para. 51. If KJ had stopped escorting and been persuaded or induced by Mr. Evans to go back to it, then the offence may well be made out.

[130] At the same time, I think it axiomatic that if KJ was involved in prostitution at the time she formed what I will for now loosely term a “business relationship” with Mr. Evans, then he could not have caused, induced or persuaded her to engage in prostitution.

[131] KJ was not consistent, nor in my view forthcoming, about her initial involvement in sex work. What she was doing, why she was doing it, how long she was doing it, and the circumstances under which she escaped her so-called kidnappers and then began to work for Mr. Evans are far from clear.

[132] I cannot put sufficient faith in this part of KJ’s evidence to be able to conclude, to the reasonable doubt standard, that she was induced or persuaded to go into, or back into, prostitution by Mr. Evans. She might have been. She might not. That is the best that I can say. And that is not sufficient to convict Mr. Evans of this offence.

[133] In the result, an acquittal will be entered in relation to count one. I will move on to count thirteen, which involves an allegation that Mr. Evans procured AB to become a prostitute.

Count Thirteen

[134] In December 2014, the Protection of Communities and Exploited Persons Act (S.C. 2014, c. 25) came into force. Section 212 was repealed. The offence of procurement is now dealt with in s. 286.3(1) of the Criminal Code, which provides as follows:

286.3(1) Everyone who procures a person to offer or provide sexual services for consideration or, 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.

[135] Under s. 286.3(1) of the Code, the actus reus of the offence may be established in any one of three ways:

(a) By procuring a person to offer or provide sexual services for consideration. This would appear to be the same actus reus that formerly applied under s. 212(1);

(b) By recruiting, holding, concealing or harbouring a person who offers or provides sexual services for consideration; or,

(c) By exercising control, direction or influence over the movements of a person who offers or provides sexual services for consideration.

[136] The Crown agrees that it particularized the offence, in relation to count thirteen, as involving the first of these three alternative external circumstances. In other words, the offence alleged is that Mr. Evans procured AB to offer or provide sexual services for consideration. There is no practical difference between this wording and the wording of s. 212(1) which prohibited the act of procuring a person to become a prostitute. A prostitute is, for all intents and purposes, a person who offers or provides sexual services for consideration.

[137] In the result, to establish the offence of procurement under s. 286.3(1), the Crown must prove beyond a reasonable doubt that Mr. Evans intentionally caused, induced or persuaded AB to offer or provide sexual services for consideration.

[138] An unusual feature of this case is that AB sought out Mr. Evans. Her evidence is that she somehow came to understand that he was a pimp. She got his contact information from a friend and she reached out to him. She wanted to talk to him about stripping and/or working in hotels.

[139] She said Mr. Evans told her she would do better in strip clubs than working out of hotels. He took her to see two clubs. He helped her get an outfit and shoes. He told her what sorts of things to say to customers. And he explained what “extras” were.

[140] In my view, based on AB’s own evidence, she did not need any inducement or persuasion to begin stripping and/or giving extras. She had already made the decision to get involved in this type of work before she contacted Mr. Evans. Indeed, that is the very reason she contacted him.

[141] It may be that Mr. Evans’s words or conduct had some subtle influence on the decisions made by AB. But I am not able to reach that conclusion on the evidentiary record now before the court. I have more than a reasonable doubt about whether Mr. Evans is guilty of procuring AB to become a prostitute and for that reason an acquittal will be registered on count thirteen.

[142] I will turn now to the human trafficking offences, set out in counts two and twelve of the indictment.

Counts Two and Twelve:

[143] Mr. Evans is charged with human trafficking under s. 279.01(1) of the Criminal Code, which provides as follows:

279.01 (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…

[144] I note that s. 279.01(2) provides that any consent by the complainants to the conduct allegedly engaged in by Mr. Evans is not valid. In other words, one cannot validly consent to being trafficked or exploited.

[145] In this case, the Crown alleges that during a four year period between June 2011 and May 2015 Mr. Evans exercised control, direction or influence over KJ’s movements for the purpose of exploiting her, and thus is guilty of human trafficking.

[146] The Crown further alleges that between May 1, 2015 and August 2, 2015 Mr. Evans exercised control, direction or influence over AB’s movements for the purpose of exploiting her, and thus is guilty of a second count of human trafficking.

[147] Given the Crown’s assertions, there are two essential elements that must be proven to the reasonable doubt standard in order to establish Mr. Evans’ guilt on counts two and twelve:

(a) That Mr. Evans exercised control, direction or influence over the movements of KJ and/or AB; and,

(b) That the purpose for which he exercised control, direction or influence was the exploitation of KJ and/or AB.

[148] I will examine these two essential elements in turn, beginning with the actus reus. The question at this stage is whether the Crown has proven to the reasonable doubt standard that Mr. Evans exercised control, direction or influence over the movements of KJ and/or AB. I am satisfied that he did.

[149] With respect to KJ, I accept and rely upon her evidence that he did the following:

(a) He took her to La Senza and purchased trade-specific clothing for her;

(b) He directed her to work in hotels;

(c) He selected the hotels she would work in;

(d) He took photographs of her and created an advertisement on backpage.com;

(e) He gave her directions/rules for her services and set the fees she charged;

(f) He dictated her hours of work;

(g) He instituted a minimum income per month that she was expected to make;

(h) He took all of her earnings, thereby engendering a dependence upon him;

(i) For the most part he drove her and picked her up from work;

(j) He kept tabs on what she was doing and earning by way of regular text messaging;

(k) He later insisted that she work in massage parlours and arranged for her employment at Utopia;

(l) He later insisted that she work in strip clubs and arranged for her to work at Club P[…]; and,

(m) He arranged for the lease of a condominium in Mississauga in her name.

[150] With respect to AB, I accept and rely upon her evidence of the following:

(a) He directed her to work in strip clubs;

(b) He took her to La Senza to purchase trade-specific clothing;

(c) He took her to two strip clubs to observe the culture;

(d) He arranged for her to work at Midway, then later Club P[…];

(e) He explained the rules to her and described “extras”;

(f) He drove her to and from work;

(g) To some extent he dictated her hours of work;

(h) He kept tabs on her work hours and earnings through text messages; and,

(i) He took all of her earnings, thereby engendering a dependence upon him.

[151] The actus reus of the offences has been made out to the reasonable doubt standard.

[152] In my view, the real issue in this case is whether Mr. Evans’ conduct was for the purpose of exploitation.

[153] As Watt J.A. recently instructed in R. v. A.(A.), 2015 ONCA 558 at para. 82, the fault element – the mens rea – of s. 279.01 involves two components. The first is the intent to do anything that constitutes the actus reus of the offence. I have already found that the actus reus is made out. I am satisfied that Mr. Evans’s conduct was intentional for obvious reasons. The second component is a purpose requirement. The Crown must establish that Mr. Evans’ conduct was for the purpose of exploitation. I note, incidentally, that R. v. A.(A.) involved s. 279.011(1) of the Code, but Justice Watt’s comments about the mens rea of the offence are equally applicable to s. 279.01(1).

[154] Given that the Crown must establish purpose, not end result, it is, as Watt J.A. described, “of no moment to proof of this ulterior fault element that an accused fails to achieve his purpose”. (R. v. A.(A)., para. 84).

[155] If the word “exploitation” were given its ordinary meaning, I would have no hesitation in finding that Mr. Evans’s conduct was for the purpose of exploiting KJ and AB. In its ordinary sense, exploiting involves taking advantage of someone. I am satisfied that AB and KJ were giving all of their earnings to Mr. Evans. Some of that money was being used to cover their necessities of life, but they were earning significant sums of money and not benefitting from it. The person who benefitted, in a parasitic way, was Mr. Evans. He most definitely took advantage of KJ and AB.

[156] But s. 279.01(1) is informed by s. 279.04 of the Code. That section provides a definition for the word “exploitation” as it is used in the context of human trafficking.

[157] Section 279.04(1) of the Code defines “exploitation” as follows:

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.

[158] As Watt J.A. observed in R. v. A.(A.), at para. 70, three conclusions emerge from the ordinary language of s. 279.01(1):

(a) The expectation of the specific belief engendered by the accused’s conduct must be reasonable, thus introducing an objective element;

(b) The determination of the expectation is to be made on the basis of all the circumstances; and,

(c) The person’s safety need not actually be threatened.

[159] The court must accordingly look at all of the circumstances to determine if either KJ or AB held a subjective belief that her safety would be threatened if she did not provide or continue to provide sexual services for money. That subjective belief must be objectively reasonable. And it must arise as a result of the conduct of Mr. Evans.

[160] It is of note that the term “safety” as used in s. 279.04(1) is not restricted to physical safety, but extends as well to psychological harm: A.(A.) at para. 71.

[161] In my view, Mr. Evans’ ultimate purpose in terms of his relationship with each of KJ and AB was to make money from their efforts stripping and/or providing sexual services for money. The mischief that s. 279.01(1) is aimed at – at least in terms of prostitution – is to criminalize the behaviour of individuals who make money from other people (usually women) by engaging in conduct that compels them to provide sexual services for money out of fear that their safety – physical or psychological – will be compromised if they do not provide those services.

[162] The realization of an income is not an essential element of the offence. Nor is it necessary that exploitation be the “ultimate” purpose. As I indicated, I find that Mr. Evans’ ultimate purpose was to secure for himself an easy stream of income.

[163] If I conclude, beyond a reasonable doubt, that Mr. Evans intentionally engaged in conduct that caused KJ or AB to provide sexual services for money out of a reasonably held fear for their safety, then the offence is made out. Identifying the ultimate purpose of his conduct – personal financial gain – only serves to inform why he would purposefully engage in exploitative conduct.

[164] I am satisfied that each of KJ and AB worked in the sex trades. AB to a lesser extent than KJ, but AB readily admitted to not only exotic dancing but to providing “extras” for cash at Club P[…].

[165] There is no evidence that Mr. Evans used force, or the threat of force, or any other form of coercion to compel either KJ or AB to begin working in the sex trades. Each appears to me to have been a willing participant initially.

[166] KJ had a significantly longer relationship with Mr. Evans than did AB. Her evidence, in the result, consisted of a longer narrative. According to her, she worked in hotels 7 days a week at Mr. Evans’ insistence. She had to give her money to him. If she asked questions or talked back to him he got angry. She was very intimated by him. She said she continued to work for Mr. Evans because he said that if she left he would find her and put her “six feet under”. This made her very scared. She was aware he had shot someone when younger. While she had never seen him with a gun, she had seen bullets in the safe in his closet. He also made threats against her like, “I’ll come kill you” and “I have a gun; I’ll use it against you”.

[167] KJ described Mr. Evans’ direction to her that she should start stripping. When she told him she wasn’t comfortable with it and would run away if he made her try it, he told her that if she ran he would find her and drag her to the strip club. Mr. Evans kept in touch with her virtually at all times and kept tabs on her movements and earnings. When she was working at massage parlours in Brampton she took a break from living with Mr. Evans and went to stay with her father for a week. She was working at a spa called Ambrosia. She said Mr. Evans came into the spa looking for her. She hid in the back and the other girls told him that she was not there.

[168] I accept KJ’s evidence that Mr. Evans acted in an intimidating manner towards her and I find that he did so in order to keep her working and generating an income for him. One glaring example was his conduct towards her when she elected to go to Niagara with a friend instead of going to work. Mr. Evans became violently angry with her.

[169] I accept KJ’s evidence that she was intimidated and fearful of Mr. Evans and that she continued to work for him and give him all her money because she was afraid of him. I also find that her fear was objectively reasonable. In other words, a reasonable person, in her position, would have been fearful of her physical or psychological safety in the circumstances.

[170] The law does not define the characteristics of the “reasonable person”. But certainly such a person is not extraordinarily timid, nor is she reckless. She is a person of ordinary sense and prudence. And she is imbued with the same knowledge of the circumstances as KJ had. Any reasonable person, in her vulnerable circumstances, whose movements were monitored and controlled, whose money was controlled and who was intimidated and threatened with violence or death if she stopped working or tried to escape, would have feared for her safety.

[171] I come to what I consider the only reasonable conclusion in the circumstances: that Mr. Evans engaged in conduct that caused KJ to continue to provide sexual services for money – money which he took – out of a fear for her safety. He exploited her. I further conclude that he exercised control, direction or influence over KJ’s movements for the purpose of exploitation and to secure an income stream for himself.

[172] In the result there will be a finding of guilt on count two.

[173] AB’s evidence in terms of her relationship with Mr. Evans does not include the same type of overt threats testified to by KJ.

[174] As I found earlier in these reasons, AB sought out Mr. Evans. She did so with full knowledge that he was a pimp. He told her she was too pretty to work as a prostitute out of hotels, so she got into stripping. She made about $500 on her first night, which she kept. After that she gave all of her money to Mr. Evans.

[175] When asked why she would start giving her money to Mr. Evans she said, “because I had to”. She said she just felt like she had to do it. She said she understood that she was giving it to him because he was her pimp. She understood he was saving it up to build an empire. She understood that he was “flipping it”, which to her meant he was investing it in drug dealings with the goal of increasing its value.

[176] AB testified that she thought she was in love with Mr. Evans when they were living together at the condo, even though she knew he wasn’t her boyfriend. One source of difficulty between them was that Mr. Evans would not allow her to have a boyfriend. He said she could not have a relationship with anyone who wasn’t paying for it. One time she saw an ex-boyfriend and Mr. Evans became angry. She then did as she was told. She realizes in hindsight that it was because she was afraid.

[177] At trial, AB was not able to articulate exactly why she was scared. She said it was just a vibe.

[178] It is not necessary that a complainant be able to articulate clearly why she was fearful. She testified that she was. And the issue for the court is whether, in all the circumstances, a reasonable person, as a result of Mr. Evans’ conduct, would be fearful for her safety if she stopped providing sexual services for money.

[179] The circumstances, as they related to AB, included the following:

(a) She was young and vulnerable financially and emotionally;

(b) She was kept vulnerable by virtue of the fact that Mr. Evans took all her earnings;

(c) Her movements were directed and controlled by Mr. Evans. Her time was largely managed and he kept tabs on when she worked and what kind of money she was earning;

(d) He directed her not to have a boyfriend and became angry when he learned she had spent time with an ex-boyfriend;

(e) He assaulted her when she voiced a preference to go to Niagara with her mother and brother instead of going to work on August 1-2, 2015. She ended up working because she was afraid;

(f) She witnessed Mr. Evans tell KJ she needed to pay thousands of dollars to be free of him and wondered how she would ever get free if she wanted to leave; and,

(g) She participated in conversations with Mr. Evans where he made it clear he was attempting to track down KJ after she left him.

[180] I have already indicated that I found AB to be a credible witness. I accept and rely on her evidence with respect to her relationship with Mr. Evans. She did not overstate the threatening nature of Mr. Evans’ conduct. It was certainly a more subtle relationship of control than he had with KJ.

[181] I find that AB willingly put herself into a situation with Mr. Evans where he was essentially acting as her pimp and taking all of her money. But of course no one can validly consent to being exploited. It was not necessary at first for Mr. Evans to threaten or coerce AB into doing anything. She did it willingly.

[182] I cannot say exactly where the relationship changed. It is apparent that by the time KJ left, AB was beginning to wonder how or if she could leave the relationship if she wanted to. And certainly by August 1, 2015 it is clear that she could not say no to going to the strip club for fear of violent reprisal from Mr. Evans. By August 1, 2015 it was clearly an exploitive relationship.

[183] The facts may not be as overt as they were with KJ, but Mr. Evans, through his conduct, exerted psychological and physical control over AB, a young and vulnerable woman. Just as he had with KJ, I find that Mr. Evans created a culture of control, through a combination of subtle and overt acts, where it was clear that he was the boss and that dissent would not be tolerated. He did it with KJ and he repeated it with AB. This domineering atmosphere was the way in which he assured that KJ and AB would continue to work and to provide him with an income stream.

[184] I am satisfied, beyond a reasonable doubt, that Mr. Evans’ conduct would cause a reasonable woman, in the same circumstances as AB, to continue to provide sexual services for money out of fear for her safety. I am further satisfied beyond a reasonable doubt that Mr. Evans exercised control, direction or influence over AB’s movements for the purpose of exploiting her and ultimately for taking her money for himself.

[185] There will be a finding of guilt on count twelve.

[186] I will move on to counts three and fourteen which involve allegations that Mr. Evans assaulted each of KJ and AB.

Counts 3 and 14 – Assault

[187] The offence of assault has three essential elements, all of which must be established to the reasonable doubt standard:

(a) The accused must intentionally apply force to the complainant;

(b) The application of force must be non-consensual; and,

(c) The accused must know that the complainant is not consenting to the application of force.

[188] KJ testified that Mr. Evans hit her on a number of occasions. She said that if she talked back to him or disrespected him in some way he would strike her. She said there was only one “big event” and that happened after they moved into the condo. She described going to Niagara Falls with a girlfriend. When she returned home to the condo, Mr. Evans was angry with her for going. She said he started strangling her and hitting her in their bathroom. She could barely breathe. He said, “I’m going to kill you. Get out of my face before I do”. She believes she had a small bruise on her face as a result of a slap.

[189] AB testified, coincidentally, that she too had an argument with Mr. Evans concerning a trip to Niagara Falls. She wanted to skip work one day and go to the Falls with her mother and brother. Mr. Evans demurred. They argued. She said he pulled her hair.

[190] AB testified about an argument she overheard between KJ and Mr. Evans. She said it sounded ugly. I cannot say, however, whether it provides corroboration of the assaultive event described by KJ. There are insufficient details in the record for me to connect the two events.

[191] These are not complicated offences. I believe the evidence of KJ and AB. I accept that they were assaulted. I find that Mr. Evans was a pimp. He took the money KJ and AB made and that would have been substantial. He undoubtedly wanted to keep that income stream flowing. And he needed to keep KJ and AB in line to do so. He used different techniques to control them. Violence was one of those techniques.

[192] I find that Mr. Evans assaulted KJ when she returned from Niagara Falls. I am not able to say what the exact date was, but it was not long before KJ left the condo at the end of May 2015. I find that Mr. Evans grabbed KJ by the neck and hit her and threatened her. This application of force was non-consensual and it would have been readily apparent to Mr. Evans that KJ was not consenting to the force he applied.

[193] I further find that Mr. Evans assaulted AB on August 1, 2015 by pulling her hair when she indicated that she wanted to go to Niagara Falls instead of going to work. Again, this was a non-consensual application of force, and obviously so.

[194] There will be findings of guilt on counts three and fourteen. I will move on to count four – criminal harassment.

Count 4 – Criminal Harassment

[195] The offence of criminal harassment has a number of essential elements. To establish Mr. Evans’ guilt for this offence, the Crown must prove beyond a reasonable doubt that:

(a) Mr. Evans repeatedly contacted KJ through calls and texts;

(b) He had no lawful authority for doing so;

(c) His conduct harassed KJ;

(d) He knew that his conduct harassed her;

(e) His conduct caused her to fear for her safety; and,

(f) Her fear was reasonable in all the circumstances.

[196] AB identified Mr. Evans’ cellular phone number as 647-885-6635. AB’s cell phone was seized when she was arrested. Its contents were extracted. It contains numerous instances of text messaging between AB and Mr. Evans. Some of the texts relate to Mr. Evans’ efforts to locate KJ after she left the condo. He apparently located an ad she posted to backpage.com and posed as a customer in an effort to find her. The following exchange took place between Mr. Evans and AB on July 26, 2015:

Evans: Monica using a fake ad I ran up on her today she didn’t answer the door

AB: How did u figure that one out boo

Evans: I’m good…I can’t tell u what I know

AB: What gave it away…LOL

Evans: My secrets are my secrets…just know I know

AB: Because I’m going to do that right

Evans: I even called made the appointment and she thought I was someone else

AB: Wow

Evans: She scared now tho I’m fuckin up her money

[197] KJ testified that Mr. Evans was repeatedly messaging her. At one time he posed as a trick in an effort to find out where she was. KJ said Mr. Evans told her he was going to come and get her and was threatening her and that she was afraid.

[198] The Crown filed the call detail records for Mr. Evans’ phone number for the period January 1, 2015 to July 31, 2015. The police obtained these records by way of a production order. The records demonstrate that between July 26, 2015 (the date of the text exchange I just detailed) and July 31, 2015 Mr. Evans’ phone number called or texted KJ’s number some 137 times by my count. KJ’s phone does not appear to have initiated any contact with Mr. Evans’ phone in that same period.

[199] On July 31, 2015 alone, between 5:18 a.m. and 5:50 a.m., Mr. Evans’ number appears to have contacted KJ’s number some 37 times. All of the traffic was one-way. All were calls initiated by Mr. Evans’ number.

[200] The call detail records certainly provide confirmatory evidence that Mr. Evans’ phone number was contacting KJ’s number repeatedly between July 26 and July 31, 2015. I am satisfied that the calls and texts sent by Mr. Evans’ phone number to KJ’s number between July 26 and July 31, 2015 were initiated by Mr. Evans.

[201] I am also satisfied that he posted the fake ad on backpages.com using KJ’s real face picture and her real phone number with an indication that she had herpes in an effort to negatively impact on her financially. In other words to harass her. She testified that she did not post the ad, which was marked Exhibit. 2. Mr. Evans told AB that he had done something to “fuck up her money”. I find that the something he did was post that fake backpage.com ad.

[202] I am satisfied beyond a reasonable doubt that Mr. Evans’ conduct harassed KJ. I am also satisfied that he knew it was harassing behaviour and, frankly, that’s why he did it.

[203] I find that his conduct caused KJ to fear for her safety and ultimately to contact the police. That fear was reasonable in the circumstances, given Mr. Evans’ previous threats to hunt her down if she ever tried to leave him.

[204] In the result, I am satisfied, beyond a reasonable doubt, that each essential element of the offence of criminal harassment has been made out there will be a finding of guilt on count four.

Count 15 - Breach

[205] On August 5, 2015 Justice of the Peace R. Zito ordered that Mr. Evans be detained in custody. He made an order under s. 515(12) of the Criminal Code prohibiting Mr. Evans from communicating, directly or indirectly, with KJ, AB and two other named parties.

[206] On […], 2015 AB received a text message through a mobile application called “Snapchat”. The message was from C.G.. According to AB, Ms. C.G.’s text said, “Doc said he will be seeing you soon and have a happy bday”. “Doc” is a nickname AB associated with Mr. Evans. AB did not respond.

[207] Ms. C.G. testified at Mr. Evans’ trial. She gave every indication that she was not keen on being there. She testified, nevertheless, that she did send AB a happy birthday message on her birthday, […], 2015. She said she had contact with Mr. Evans by phone on a number of occasions after his arrest. One of those occasions happened to be on AB’s birthday. She said Mr. Evans asked her to say happy birthday to AB for him and she did so. She said her message was “Happy birthday and Dre says happy birthday”. “Dre” is a nickname she used for Mr. Evans. She denied saying, “Doc will be seeing you soon”.

[208] Ms. C.G. was not happy about having to testify. It was obvious to me that her loyalties lay with Mr. Evans. She nevertheless inculpated him. It matters not whether Mr. Evans asked her to pass along the message that he’d be seeing AB soon. It is a breach of the non-communication order for him to ask Ms. C.G. to wish AB a happy birthday. There may be nothing nefarious about that message, but it is a breach nonetheless.

[209] Section 145(3) of the Criminal Code provides that every person who is bound to comply with a direction under s. 515(12) and who fails, without lawful excuse, the proof of which lies on them, to comply with the direction is guilty of an indictable offence.

[210] Mr. Evans was clearly bound by the Order of JP Zito. I am satisfied that he failed to comply with it. At the very least, he asked Ms. C.G. to wish AB a happy birthday on his behalf. That is an indirect communication. There will be finding of guilt on count fifteen.

IV.

[211] In the next section of this judgment I will deal with the drug and weapons offences. These involve counts five through eleven.

[212] These offences arise from items seized during the execution of a search warrant at unit S[…] Drive, Mississauga, Ontario in the early morning hours of August 2, 2015. More particularly, items seized from a short dresser in the master bedroom of that unit.

[213] Detective Douglas James took part in the execution of the search warrant. He was tasked with searching the master bedroom. He testified about the layout of the room. A series of photographs were filed to supplement his testimony. He said the door to the room opened to the left. Inside the room, to the right, was a bed, with night tables on either side. Immediately to the right of the entry door was a short dresser with three drawers. Straight ahead was a taller dresser with five or six drawers. There was a small closet behind the door. Farther along there was a doorway that led to a walk-in closet and an ensuite washroom.

[214] Detective James started his search with the short dresser. He observed the following:

(a) Bundles of Canadian and U.S. currency on top of the dresser, out in the open;

(b) A box of watches and other jewellery on top of the dresser;

(c) Two digital scales on top of the dresser;

(d) Two baggies with powder and block cocaine in the top drawer;

(e) Three baggies with marijuana in the third drawer;

(f) A Michael Kors wallet in the third drawer, containing KJ’s identification; and,

(g) A zipped up binder in the back of the third drawer. Inside the binder was some schoolwork, as well as a sawed-off .22 calibre rifle with the stock removed and with a magazine inserted in it. There was ammunition inside the magazine.

[215] Detective James next searched the walk-in closet. There was a blue safe in the closet. The keys were in it. He opened the safe and inside there was a small baggie, tied in a knot. It contained .22 calibre ammunition.

[216] On top of the tall dresser, Detective James found identification belonging to Mr. Evans, including a Canadian permanent resident card, a Jamaican passport, and a health card. Inside the tall dresser he found a Canadian passport for AB.

[217] In the night table on the right hand side of the dresser, there was a pair of men’s underwear, a bundle of cash and a pay stub for Andre Evans.

[218] Counts five through eleven are all dependent on the Crown establishing to the reasonable doubt standard that Mr. Evans possessed the drugs and the gun.

[219] Each of KJ, AB and Ms. R.G. testified that Mr. Evans occupied the master bedroom of the condo unit. Each said that Ms. R.G. had her own room.

[220] KJ said that when she lived in the condo she shared the master bedroom with Mr. Evans. She said that the bedroom contained a bed and two night tables, a small dresser belonging to Mr. Evans and a taller dresser that was hers. She said the walk-in closet contained mostly Mr. Evans’ things. She said she slept on the left side of the bed.

[221] KJ said the blue safe was kept in the small closet behind the door. It is where they kept their money. She testified that whenever the rent was due, Mr. Evans would tell her to go and get money from the blue safe to pay it. She saw bullets inside the safe. She never saw a gun.

[222] KJ also identified a picture of a box of watches – the same ones seized by Detective James – as belonging to Mr. Evans. She said he kept them on his side table.

[223] AB testified that when she first moved into the condo she slept on the couch. Mr. Evans and KJ occupied the master bedroom. After KJ moved out, AB moved into the master bedroom with Mr. Evans. She slept on the left side of the bed and kept her things in the little night table to the left of the bed. She said Mr. Evans kept his things in his night stand, his small dresser and the closet.

[224] Ms. R.G. testified that Mr. Evans stayed at the condo a couple of times a week. When he did he would be in the master bedroom. She testified that she did not keep any of her belongings in the master bedroom. She said the drugs and gun found in that room were not hers. She admitted that she was involved in selling marijuana out of the condo but said that, to her knowledge, no one else in the condo was dealing drugs.

[225] KJ said that Mr. Evans was selling weed. She said she used to go on car rides with him when he was engaged in selling marijuana. She did not say he was selling cocaine, but she said she was regularly using cocaine when working in the hotels and that she was getting it from Mr. Evans.

[226] AB testified that she knew Mr. Evans was a pimp and a drug dealer. She understood he sold marijuana and cocaine. She used to smoke weed with Mr. Evans, which she got from him. She said she also saw cocaine in the bedroom, in Mr. Evans’ car and in his pockets.

[227] Neither KJ nor AB ever saw a gun in the condo.

[228] “Possession” is defined in s. 4(3) of the Criminal Code as follows:

a person has anything in possession when he has it in his personal possession or knowingly

(i) has it in the actual possession or custody of another person, or

(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person…

[229] Knowledge and control are both essential elements of possession: R. v. Morelli, 2010 SCC 8, at para. 15. This means the Crown must prove to the reasonable doubt standard that Mr. Evans knew what it was that he possessed and that he had control of the things – in this case the drugs and gun.

[230] In my view, there is ample circumstantial evidence present in this case to support the conclusion – to the reasonable doubt standard – that Mr. Evans had knowledge and control of the drugs and gun and, therefore, possession of them. I point to the following in particular:

(a) Mr. Evans regularly, if not exclusively, occupied the master bedroom. I recognize that occupation on its own is not a sufficient basis upon which to infer knowledge and control: see, for instance, R. v. Grey, [1996] O.J. No. 1106 (C.A.). But it is one piece of circumstantial evidence, which must be considered together with all of the other evidence;

(b) Mr. Evans’ identification – his health card, permanent resident card and passport were located in the master bedroom, as were bundles of Canadian and U.S. money. The presence of these important identification documents supports an inference that Mr. Evans had a significant connection to this room;

(c) Both KJ and AB identified the small dresser as belonging to Mr. Evans. It is where he kept his things. A box of his watches was found on top of the dresser along with bundles of cash;

(d) The gun and drugs were found inside the small dresser;

(e) Each of AB and KJ testified that they were aware Mr. Evans was dealing drugs;

(f) Mr. Evans supplied each of AB and KJ with marijuana and, in KJ’s case, cocaine;

(g) AB testified that she saw Mr. Evans with cocaine in their room, in his car and in his pockets;

(h) KJ testified that Mr. Evans told her he had a gun, though she never saw it;

(i) The gun was found inside a binder, located in Mr. Evans’ dresser. Inside the binder was some school work. On the top of one page was written the name “Andre”; and,

(j) The blue safe belonged to Mr. Evans and ammunition was located inside of it.

Counts Five and Six

[231] It is part of an Agreed Statement of Facts that the quantity of drugs – both marijuana and cocaine – found in the condo were sufficient to support the inference that possession of the drugs was for the purpose of trafficking.

[232] Having concluded that the Crown has established, beyond a reasonable doubt, that Mr. Evans possessed the drugs, there will be a finding of guilt recorded in respect of each of counts five and six.

Counts Seven to Eleven

[233] I have also been satisfied, to the reasonable doubt standard, that Mr. Evans possessed the gun found in the condo.

[234] I am satisfied, on the basis of the evidence of Detective Constable Michael Kamstra, that the seized gun was a prohibited firearm as defined in sections 2 and 84(1) of the Criminal Code. The magazine well was a little unstable, but that said, the gun was capable of firing .22 calibre ammunition at more than 1000 feet per second.

[235] It is conceded that Mr. Evans was not licensed to possess the firearm.

[236] Mr. Evans is charged with five firearms offences:

Count 7: careless storage of a firearm;

Count 8: possession of a prohibited weapon without a license;

Count 9: knowingly possessing a prohibited firearm without a license;

Count 10: possession of a loaded, prohibited firearm without a license;

Count 11: knowingly possessing a firearm with an altered serial number.

[237] There is no doubt that the manner in which the gun was stored: loaded, in a zippered binder in an unlocked drawer, contravenes section 7 of the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations (SOR/98-209), which is a regulation made under s. 117(h) of the Firearms Act. Contravention of that regulation is a criminal offence under s. 86(2) of the Criminal Code. There will, in the result, be a finding of guilt recorded on count 7.

[238] Given my earlier findings and the concession that Mr. Evans did not have a license to possess the firearm, I have no hesitation in concluding that he is guilty of counts 8 through 10 as well. There can be no question that he knew he did not have a license. Finally, I have no doubt that he knew the serial number had been filed off the barrel of the gun. That was obvious to anyone who looked at it. There will be a finding of guilt on count eleven.

[239] I am not sure why the Crown pursued so many different and seemingly overlapping firearm offences. I will ultimately hear counsel’s submissions on whether any of the counts should be stayed under the principles of R. v. Kienapple, [1975] 1 S.C.R. 729.

Boswell J.

Released: June 30, 2017

[1] [R. v. Vetrovec, [1982] 1 S.C.R. 811](https://www.minicounsel.ca/scc/1982/20)