Court File and Parties
Court File No.: Brampton, File number 3111 998 11 2841 00 Date: 2013-05-15 Ontario Court of Justice
Between: Her Majesty the Queen — and — Pawel Michon
Before: Justice L.A. Botham
Heard on: May 30, September 20, 21, 24, 27, 2012 & January 14, 21, 22, 2013
Reasons for Judgment released on: May 15, 2013
Counsel:
- Ms. V. Puls for the Crown
- Mr. M. Caroline for the accused Pawel Michon
Reasons for Judgment
BOTHAM J.:
Facts and Admissions
[1] It is agreed that Pawel Michon was in possession of an I-phone when arrested. Certain texts were taken from that phone and admitted into evidence. He has testified that he knew the complainant in this matter and that he provided certain services which assisted her ability to earn money by providing sexual services but has denied that he procured her to become a prostitute.
[2] The Crown submits that I should reject Mr. Michon's evidence out of hand, and rely solely on the evidence of the complainant and find that her evidence makes out the charges as laid. In the alternative if I accept or am left in a state of reasonable doubt by Mr. Michon's evidence, it is submitted that, even on his characterization of what happened between himself and Ms. Urbanska, his actions as self-described support a finding of guilt at a minimum on the charges of live on the avails and exercise control.
Accused's Evidence
[3] Pawel Michon has testified that he is a Canadian citizen and has lived in this country since 1989. He works for a company making acoustic panels and he has his own business in a related field.
[4] He confirms that he met Ms. Urbanska on a Polish chat room. At some point they discussed meeting each other in person. They met at Tim Hortons and she told him that she was in the country alone with her child and she needed some help. He understood that she was working at a massage parlour called Classic Spa and that she would give out her phone number to clients and work as an escort providing sexual services.
[5] She was having trouble booking rooms for clients because she didn't have identification and she wanted him to help her with that and with creating internet advertisements. He helped post ads. He would use his credit card to post ads and book hotel rooms. She would actually pay for the room when she checked out. He also rented a condo. She told him that she had seen an ad on Kijiji that allowed for short term rentals of condos for maybe a week or two. He assisted her in doing that three times. She was to pay him back for the rental of the rooms or condominiums. He only received money when he drove her to calls at $50 an hour.
[6] He lent her an old cell phone that was pay as you go and he acknowledged that he took photos of her on one occasion to be used in the advertisements. He acknowledged that the advertisement posted November 27th "sexy Natasha" was done with his assistance but he denied participating in posting any of the other internet advertisements made exhibits at this trial.
[7] He testified that he had always told her that he could only help her with starting up her business for 3 or 4 weeks and when he rented the condo at Absolute in December he told her that was the last time he would do that. However he ended up booking one last condominium. Although that booking was cancelled after a night or two he lost his $400 deposit and he wanted her to pay that back. As well she had never paid him the $1500 he spent previously to rent a condominium. He also claimed that he had driven for her on two occasions that she had not paid him and the monies owing for that were $200 in total.
[8] He denied ever having had sex with her and denied ever threatening herself or her daughter, in general or more specifically with respect to her failure to pay these owed monies.
[9] He reviewed the texts which were filed as an exhibit at this trial. He explained that he had received them from Ms. Urbanska and that they related to expenses for which he had yet to be reimbursed. He confirmed that he had met up with Ms. Urbanska the night she and a friend Alexandra were going to a club named Fragata.
[10] Initially that night he and Ms. Urbanska had arranged to meet up at a coffee shop so that she could pay him back. He was on his way there when he saw her friend's car so he drove to catch up with the car and asked them to pull over which they did. Karolina Urbanska came over to his car and told him that she couldn't make the coffee shop but that he should meet them at the club so he did. He waited outside and when they came out he spoke to her again about his money, she said she would give it to him another day. At that point he became suspicious that she had no intention of paying him back.
[11] Texts were sent in early March by her asking him if he wanted his money. He did not get the texts until March 8th at which time he texted her back and arrangements were made to meet at the Avenue Motel where he was arrested.
Complainant's Evidence
[12] Karolina Urbanska is 20 years old and came to Canada to visit grandfather, Dieslaw Litcki, May 26, 2010. She came with her one year old daughter and her husband. Initially her grandfather helped them financially but when her husband left her in September 2010 and returned to Poland, her grandfather stopped supporting her.
[13] It was soon after she and her husband separated that she met Pawel Michon. They were both using a Polish chat room and she was discussing her financial problems. He told her that he had a solution to her problems and directed her to a Polish site on the internet that was looking for girls over age 18 to work in an escort agency.
[14] She showed her grandfather the advertisement and he told her that he thought it was a good idea. A few days later her grandfather drove her to Tim Hortons where she had arranged to meet Mr. Michon. During that meeting she was told by Mr. Michon that they would need pictures of her dressed up and in lingerie for the clients and that they should meet again to do that. It was during that meeting that she realized what the term escort entailed.
[15] She didn't commit one way or the other but when he called her again, she agreed to meet up with him at the Fort York Motel at Dundas and Dixie. She brought clothing to change into and he took pictures which he said he would publish on an Internet site. There was some discussion then about what she would be doing as an escort and what she would earn. She was told that she would be driven to various locations and perform sexual acts for $50 an hour.
[16] She did not think that she was interested in becoming an escort however when he told her that he needed to have sex with her to essentially try her out she agreed to do so, not because she had agreed to work for him but as she said "I faced the scenario that I was there with him and that is the reason that that happened. I didn't tell him that I accepted conditions of job." Afterwards she got dressed and left. It was her evidence that at that time she had no plans to see him again or to work for him.
[17] Soon after he called and said he wanted her to work for him and that he had posted her pictures on the Internet. She told him not to call her again. However he did call the next day to tell her that clients were calling for her so she decided to work for him.
[18] After a week or so, he gave her a cell phone and said she should deal with the clients herself. She had a personal cell as well but at some point she just started using the phone he gave her for everything.
[19] She worked for him from November to February. Sometimes she would see clients at the Absolute condo and other times at a hotel, usually the Best Western at Dixie and 401, the Fort York Motel or the Avenue Motel. He would have registered the room and she would just show up, sometimes the room would be rented for a period of time and she would have the key.
[20] He would check to make sure that she was working and to keep track of what she was earning.
[21] He didn't physically threaten her when she was working for him however he would tell her that he could report her to the police for being in Canada illegally. By the end of February she realized that contrary to his earlier threats, he couldn't report her to the police for being her illegally and so she wasn't afraid of that. She was also tired of him always demanding more money and she told him that she wanted to stop working for him.
[22] He said that he had no problem with that but then a few days later he called and said that he said he had invested a lot of money in her and wanted to be paid back. He estimated that she owed him something in the range of one to two thousand dollars. When she refused he sent her some text messages and told her that it would be better if she paid the money. She was concerned he could hurt her child.
[23] Sometime in February after she had told Mr. Michon that she was no longer prepared to work for him, her friend Aleksandra was driving her to a club in Mississauga. Mr. Michon drove up beside them and gestured for the car to pull over. They didn't stop but when they got to her friend Jacob's house, he had followed them and she went over and spoke to him while her friend Aleksandra went to get Jacob. He said that he wanted the money that she owed him and the SIM card for the phone he had given her. She said that she would give him back the money but that she didn't have the funds to do it at that time.
[24] Ultimately she and her friends went to the club Fragata. Later that evening when they went outside for a cigarette, he came and knocked on the window of the car that they were sitting in and she went over to his truck to speak to him again. He repeated that he wasn't prepared to wait anymore and that he wanted his money and his SIM card. She said that she would and returned to the club and joined her friends.
[25] It was clear from her evidence that the reason she continued to work as a prostitute after leaving Mr. Michon's employ was to make money to pay him back. Since she could not rent hotel rooms because she lacked the necessary identification on at least one occasion she had her grandfather do it for her.
Crown's Submissions
[26] The Crown submits that Mr. Michon's evidence is completely incredible. She argues that it makes no sense that he would agree to meet a woman he had spoken to once in a chat room at Tim Hortons simply because she said she needed his help. It only makes sense if he was recruiting women for an escort agency.
[27] Similarly the only reason that he would ask her for identification to prove she was over 18 was because he wanted to hire her to work in the sex trade.
[28] The Crown also submits that it makes no sense that he would assist a virtual stranger in building her escort business by agreeing to rent hotel rooms for her and assist her with posting Internet ads if he was not already involved in such a business. Had he truly been interested in helping Ms. Urbanska then he would have assisted her in legitimate employment opportunities.
[29] In the alternative, the Crown submits that his evidence that he was paid to drive her to jobs, knowing that she was working in the sex trade to support herself and her child constituted "unfairly taking advantage of a prostitute in his dealings with her" and therefore supports a conviction on Count 4 under Section 212(1) h and that his actions in assisting her in her business were at least partially motivated by greed and therefore a conviction should also be registered on Count 5 which charges 212(1)j.
[30] This case was completed through written submissions without any oral argument so I was unable to question Crown Counsel on this point but I suspect that the section numbers have been reversed in her argument and the first argument, "unfairly taking advantage of a prostitute in his dealings with her" relates to the live on the avails charges and the assertion that his actions were at least partially motivated by greed relates to the offence of exercise control.
Legal Framework
Section 212 of the Criminal Code
[31] Section 212 of the Criminal Code sets out those offences arising from the management of prostitution, such as procuring a person to work as a prostitute, controlling how that prostitution takes place and profiting from those acts of prostitution.
Extortion Charge
[32] Mr. Michon is also facing a charge of extortion, specifically that with intent to obtain $2400 he did induce Karolina Urbanska by threats to cause harm to her or her two year old daughter. The information doesn't actually specify what he induced her to do, I suspect it was to engage in prostitution but it was never clarified any further at this trial and given my ultimate findings, it is immaterial.
Procuring Offence
[33] Section 212(1)(d) makes it an offence for anyone to procure or attempt to procure a person to become a prostitute. If someone is already presently working as a prostitute, then the offence is not made out. [1]
[34] I don't accept that his evidence standing alone would support a finding of guilt on any of the offences charged. He denies of course threatening Ms. Urbanska and denies that he procured her to work as a prostitute. Therefore even if I reject his evidence out of hand, the only basis for conviction would come if I was satisfied on those counts by the evidence of Ms. Urbanska.
Exercise of Control Offence
[36] Neither counsel have provided me authority in terms of how that offence is to be interpreted however Justice Fairgrieve in the 2001 case of Saftu [2], refers to the Quebec Court of Appeal case of Perreault (1996), 113 C.C.C. (3d) 573 at p. 575 (Que. C.A.), in which the Court stated:
[37] The element of control refers to invasive behaviour, to ascendancy which leaves little choice to the person controlled. This therefore includes acts of direction and influence. There is the exercise of direction over the movements of a person when rules or behaviours are imposed. The exercise of direction does not exclude the person being directed from having a certain latitude or margin for initiative. The exercise of influence includes less constricting actions. Any action exercised over a person with a view to aiding, abetting or compelling that person to engage in or carry on prostitution would be considered influence.
[38] That definition was also affirmed in the case of Blake. [3]
[39] On his evidence he rented condominiums and hotel rooms for Ms. Urbanska at her direction, not his. He provided her with input as to how to create an Internet advertisement and took photographs of her for those advertisements at her direction, not his.
[40] I am not satisfied that anything in Mr. Michon's evidence would support a finding that his actions occurred in the context of control, direction or influence over Ms. Urbanska's engagement in prostitution.
Living on the Avails Offence
[41] Section 212(1)(j) makes it an offence to live wholly or in party on the avails of prostitution of another person. In order to maintain the constitutionality of that section our Court of Appeal in Bedford has read in the phrase "in circumstances of exploitation" so that the offence now reads "Everyone who lives wholly or in part on the avails of prostitution of another person in circumstances of exploitation is guilty of an indictable offence ..."
[42] At paragraph 268 of the judgment the Court states:
"In our view, reading in the phrase 'in circumstances of exploitation' remedies the constitutional problem. That phrase provides a sufficient degree of precision. It introduces the requirement that the accused has unfairly taken advantage of a prostitute in his dealings with her. Thus, where the accused is providing services to the prostitute for the purpose of her prostitution, absent proof of exploitation, no offence would be committed, unlike under the Shaw test. [4]"
[43] Again Mr. Michon's evidence was that the only service he provided for which he was remunerated was that of a driver for which he was paid $50 an hour. That fee, which was apparently charged to Ms. Urbanska by another driver as well, would not constitute proof of exploitation. Nor is there any basis in his evidence to make a finding that any fees paid to Mr. Michon arose in circumstances of exploitation.
Analysis of Evidence
[44] The only basis to convict Mr. Michon has to come from the evidence of Ms. Urbanska.
Text Messages
[45] A series of text messages between the complainant and Mr. Michon were made exhibit 5 at this trial. The messages are in Polish and were translated by the Polish interpreter who was translating Ms. Urbanska's evidence. The text messages begin on February 17th and end in March, after Mr. Michon has been arrested by the police for prostitution. The majority of the text messages were generated by Ms. Urbanska.
[46] It was Ms. Urbanska's evidence that those messages were generated shortly after she stopped working for Mr. Michon. They do suggest that there is a financial dispute between the two of them. However that seems to be conceded by both parties.
[47] The complainant was unable to explain the context of some of the messages. For example she could not recall why she texted Mr. Michon "I do feel really stupid answering phone from you"
[48] She testified that on February 17th she texted "Yesterday I had three times for half an hour. Paid hotel 120 because I am on Dixie and 401, taxi 20 because later Olga picked me up, so 220 left. I'm not doing this purposely, Pawel" because he was demanding money from her. The Olga in the text message was her friend Aleksandra, the first Crown witness.
[49] The same day there was this further exchange: She wrote: Always we were settling finances every day and it was okay. You flew back after Christmas. Whatever I made I told you how much. You wanted, so I gave it to you. I don't want to split with anybody with animosity, as a quarrel with argument one of those. You helped me very much for a lot. Capital very or a lot. I'm grateful. I didn't misappropriate or took somebody's money. Grandfather told me that he will give me so the subject is closed".
[50] She then received text from Michon "okay, I also don't like to have enemies"
[51] There was a confusing text from her translated as "As you won't have a trophy from this, not today, but maybe in a week, though only 500, at least 500 that you will not have, not be on zero balance because today I'm going to the club from 4pm to 10pm I'll be working here and 11pm to 4am in Brampton."
[52] She explained that she was intending to pay Mr. Michon $500. She was going to a Chinese club in Brampton where she was about to be a waitress, apparently her friend Aleksandra had worked there or knew that they were looking for employees. However when asked if she ever worked at the club, she replied that she had only gone there to apply for work.
[53] She testified that she meant she would be working in a motel from 4 p.m. to 10 p.m. When asked what the reference to being in Brampton from 11 p.m. to 4 a.m. meant, she explained that it was a reference to working at the club from 10 p.m. to 2 a.m. when it closed since it would then have to be cleaned. However in response to a follow up question of the Crown's as to whether she ever had worked at the club, she said no.
[54] Her explanation of this text was no less confusing in cross examination where she maintained that she went to the club simply to inquire about work. The work at the club would be from 11 to 4 which is why she had said I'd be working between 11 am 4.
[55] When asked if she thought they would hire her right away, she replied, no the work was only for Friday and Saturdays and after the club closed there would be cleaning work to do. She was asked if in fact she had been lying when she texted that she would be at the club from 4 p.m. to 10 p.m. and she replied "No I said to Michon that I'll be working from 4 to 10 here, which I meant in a hotel.
[56] The text messages make it clear that there was a dispute between herself and Mr. Michon over monies owed. However both of them have testified that was the case. The issue is whether the monies owed were a genuine, legal debt as asserted by Mr. Michon or essentially funds extorted from Ms. Urbanska. That issue is not resolved by the wording of these texts.
Credibility Assessment
[57] In order to find that the offences as charged by the Crown have been proven, I would have to find that Ms. Urbanska's evidence standing alone was sufficiently reliable to find convictions. I am not satisfied that it is.
[58] No insignificant aspects of her evidence were contradicted by other witnesses. She was clear that her friend Aleksandra also knew that she was working as an escort and at times she may have paid her to act as a driver to avoid paying Michon who also had hired a driver, Sam.
[59] Aleksandra Koszyka (Koshinska) acknowledged that she and Ms. Urbanksa were friends but denied that she was ever aware that Ms. Urbanska was working as an escort or engaging in prostitution.
[60] Ms. Urbanska maintained throughout her evidence that her grandfather knew she was working as a prostitute and had known from the beginning.
[61] It was suggested to her that she was familiar with a premise known as "Classic Spa" in Mississauga. She denied having any knowledge of the business. However when she recommenced her evidence after the weekend she testified that she had googled the name and it refreshed her memory that she had gone there to check it out for her grandfather who wanted her to speak to Mr. Michon about setting up a such a spa as a joint venture with him.
[62] Her grandfather denied that he even knew of Mr. Michon's existence and testified that he believed her to be working as a cleaner and had never been told that she was working as a prostitute. Although he admitted driving her to a Tim Hortons to meet a man, he was never told that this man was suggesting that his granddaughter work as an escort.
[63] He did acknowledge that he had rented a motel room for her during late February, early March but explained he had done so at her request because she said that she wanted to spend the night with her boyfriend and didn't have necessary identification to rent it herself.
[64] He added that it was not surprising that he did not know that his granddaughter was working as a prostitute because from November 7th 2010 to January 16th 2011 her parents were living with her and they did not know that she was involved with Mr. Michon. Assuming this is true and it was not challenged in cross examination, this was in stark contrast to the picture painted by Karolina Urbanska namely that she was essentially abandoned financially and emotionally after her husband left her and she had no option but to turn to the sex trade to support herself.
[65] Ms. Urbanska testified that she had used her grandfather's credit card to pay for Internet ads, with a company entitled "backpage.com" and testified that her grandfather knew she was doing this. Her grandfather has testified and denied that he was aware she was using his credit card for that purpose, although he did recall that he complained about certain payments which he had not authorized and which were reversed.
Burden of Proof and Reasonable Doubt
[66] As always, the Crown bears the burden of proving guilt beyond a reasonable doubt. Mr. Michon is presumed innocent unless or until the Crown discharges that burden. Mr Michon is also entitled to the benefit of reasonable doubt on the issue of credibility.
[67] Even if I do not believe his evidence, if having heard it in the context of the other evidence at trial, I am left in a state of reasonable doubt as to his guilt, he is entitled to an acquittal.
[68] Even if I entirely reject his evidence the Crown still bears the burden of proving guilt beyond a reasonable doubt.
[69] Ultimately on the core issues at this trial, it really comes down to Ms. Urbanska's version of events versus Mr. Michon's.
[70] In considering whether I accept unreservedly Mr. Michon's explanation as to how he came to be involved with Ms. Urbanska, I don't disagree with Crown Counsel that it does seem somewhat unlikely that a person with no prior involvement in the sex trade would jump into it so quickly and for someone that he barely knew, without any benefits accruing to himself.
[71] However he has testified, asserted that Ms. Urbanska was already involved in the sex trade when he met her and that anything he did was at her request, whether he was remunerated for those services or simply paid back for monies paid up front. He has denied threatening her or her child.
[72] I am troubled by the contradictions in Ms. Urbanska's evidence and that of her grandfather on material points, such as whether or not he knew she was working as a prostitute, encouraged her to work as a prostitute and provided her with assistance in doing so.
[73] Whether or not she actually worked at Classic Spa in some ways is a red herring since there is no positive evidence that anything untoward went on there. However the fact that she first denied having any knowledge of it and then on the next court date explained that she did because she had gone there at the direction of her grandfather, an assertion again denied by him and quite frankly an assertion which even standing alone made little sense, does cause me concern as to whether or not anything she says absent independent evidence can be relied upon.
[74] In this case there is nothing independent to support what she says. What independent evidence there is contradicts her evidence.
[75] Even if I don't accept aspects of Mr. Michon's evidence, my rejection of parts of his testimony, even if I rejected all of his evidence, it would not as Justice Doherty said in R. v. Levy "become positive evidence of the accused's guilt." [5]
[76] Her evidence as to his threats and intimidation is very limited and even if believed would not support a finding of guilt on the charge of extortion and I find him not guilty on that count.
Conclusion
[77] With respect to the offences under Section 212 of the Code, when I consider Mr. Michon's evidence which was not contradicted in any way and remained consistent throughout his testimony and contrast that with what I find are real reliability concerns with Ms. Urbanska, I am not prepared to rely on her evidence to the extent necessary to convict Mr. Michon of the remaining charges and he will be found not guilty on all counts.
Justice L.A. Botham
Released: May 15, 2013
Footnotes
[1] R v Cline (1982) 1982 ABCA 20, 65 C.C.C. (2d) 214 affirmed in Bennett (2004), O.J. No 1146, (Ont. C.A.) para. 51
[2] R. v Saftu (2001) O.J. No 3046
[3] R. v Blake (2003) O.J. No 6210 (Ont. Sup. Ct)
[4] Bedford (2012) 2012 ONCA 186, O.J. NO 1296 (Ont. CA)
[5] R. v. Levy [1991] O.J. No. 198 (OCA)