Her Majesty the Queen v. Bei Bei Ni, Jian Li and Yu Hua Jin

Date: 2002-04-22 Docket: C33765 Court of Appeal for Ontario

Re: Her Majesty the Queen (Appellant) -and- Bei Bei Ni, Jian Li and Yu Hua Jin (Respondents)

Before: Laskin, Rosenberg and Goudge JJ.A.

Counsel: Thomas Galligan, for the appellant W.B. Fedunchak, for the respondent Bei Bei Ni J.E. Ruderman for the respondent Jian Li William D. Gray for the respondent Yu Hua Jin

Heard: April 2, 2002

On appeal from the acquittal of Bei Bei Ni entered by Justice John Kerr dated January 31, 2000, on the charge of keeping a common bawdy-house and from the acquittals of the accused Bei Bei Ni, Jian Li and Yu Hua Jin on the charges of being inmates of a common bawdy-house.

ENDORSEMENT

[1] In our view, the trial judge erred in law in directing verdicts of acquittal on the charges of keeping a common bawdy-house and being inmates of a common bawdy-house.

[2] At the close of the prosecution’s case, there was evidence that on each occasion that a plainclothes officer attended for a massage one of the respondents offered to perform or attempted to perform acts of masturbation upon him. It would be open to a trier of fact to find that the masturbation was part and parcel of the body rub. A trier of fact could also find that these were lewd acts for payment for the sexual gratification of the customers and hence acts of prostitution. We do not accept the novel proposition advanced by counsel for the respondents that there must be proof of actual climax for the conduct to amount to acts of prostitution. In any event, the words used by the respondents clearly suggested that in the normal course the acts would be carried through to climax.

[3] We are also satisfied that there was sufficient evidence adduced from which a trier of fact could find that the requisite frequent or habitual use was made out. On each occasion that the officers attended at the premises over a period of several days, and even after the alleged keeper the respondent Ni had been warned, the respondents still made the offers of masturbation. This was some circumstantial evidence of frequent or habitual use. It was at least sufficient to get past the directed verdict stage. See R. v. Bedford (2000), 143 C.C.C. (3d) 311 (Ont. C.A.).

[4] It would therefore be open to a trier of fact to find that the body rub parlour was a common bawdy-house being a place that is resorted to by one or more persons “for the purpose of prostitution”.

[5] The trial judge seemed to think that he was bound to acquit because of the decisions of the Supreme Court of Canada in R. v. Tremblay (1993), 84 C.C.C. (3d) 97 (S.C.C.) and R. v. Pelletier (1999), 142 C.C.C. (3d) 288 (S.C.C.). However, the legal and factual matrix for those cases was different. In Tremblay, the bawdy-house allegation was particularized as “practice of acts of indecency”, not acts of prostitution. There was also no physical contact between the client and the woman providing the services. The court considered the lack of physical contact to be “highly significant” in finding that the conduct did not constitute acts of indecency.

[6] In Pelletier, as well, the prosecution relied upon acts of indecency for the offence rather than on acts of prostitution. Further, while there was some touching of the performers by the customers, unlike this case, there were no acts of masturbation.

[7] Unfortunately, the trial judge did not have the benefit of this court’s decision in R. v. Bedford supra which would have been of assistance to him on the definition of common bawdy-house.

[8] In view of our conclusion on the main issue, we need not decide whether the charges could also have been supported on the basis of the alternative definition of bawdy house as a place resorted to for the practice of acts of indecency.

[9] Accordingly, the appeals are allowed, the convictions set aside and new trials are ordered.

“Laskin J.A.”

“Rosenberg J.A.”

“Goudge J.A.”