ONTARIO COURT OF JUSTICE

YOUTH CRIMINAL JUSTICE COURT

Information No.: 13-RY1167

In the Matter of: the Youth Criminal Justice Act, S.C. 2002, c.1

Her Majesty the Queen

v.

K.O.

REASONS FOR JUDGMENT

Delivered by: The Honourable Madam Justice D. Lahaie

Date: January 29, 2014

Location: Ottawa, Ontario

PUBLICATION BAN NOTICE

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTIONS 110 AND 111 OF THE YOUTH CRIMINAL JUSTICE ACT

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO S. 486(4) OF THE CRIMINAL CODE OF CANADA BY ORDER OF JUSTICE D. LAHAIE, ONTARIO COURT OF JUSTICE, DATED APRIL 8TH, 2013

APPEARANCES

• J. Lalande – Counsel for the Crown
• F. Rupert – Counsel for the Crown
• K. Hall – Counsel for K.O.

REASONS FOR JUDGMENT

LAHAIE J. (Orally):

These are the Reasons for Judgment in the matter of K.O., who faces three counts of trafficking in a person under the age of eighteen years, four counts of procuring a person to become a prostitute, one count of abduction of a person under the age of fourteen years, three counts of making child pornography, three counts of possession of child pornography, one count of child luring, four counts of forcible confinement, four counts of uttering threats, two counts of sexual assault, one count of invitation to sexual touching, one count of assault causing bodily harm, two counts of assault, one count of robbery, one count of administering a stupefying drug to enable the commission of an offence and one count of theft under $5,000.

I will begin by providing a brief background of this case. I will then outline the facts in chronological order, referring to the incidents involving each of the complainants. I will then set out the arguments raised as they relate to each count within the rubric of each complainant's incident, the applicable law and the Court's ultimate findings on each count. As I proceed, I will not, in some instances, repeat the applicable law where it has been set out in an earlier portion of this Judgment.

BACKGROUND

At the relevant time, Ms. K.O. resided on W[…] Road in a subsidized housing unit across the street from a Giant Tiger store.

Ms. K.O.'s bedroom, depicted in numerous photographs filed in evidence, was very unique. It had purple walls covered in distinct penned messages. The room was filled with unfolded clothing, strewn about, all over the floor. Her bedroom door was off its hinges. This was a room in a tremendous state of disarray.

On June 8th, 2012, members of the Ottawa Police Service executed a search warrant on the residence of the defendant. Much incriminating evidence was located in the accused's bedroom. Police also seized a cellular telephone from the defendant's bra at the time of her arrest. There were a number of photographs, contact names and numbers and text messages on the defendant's phones which were incriminating in nature.

The defendant used the online name "C[…]" on her Facebook messages. It is alleged that the defendant used the Internet as a means of luring young, unsuspecting women into a web of organized prostitution by first befriending them, then assaulting them, taking revealing photographs of them, lowering their inhibitions with drugs and/or alcohol, stripping them of their possessions and once under her control, she would force them to perform sexual acts with her male customers for money.

The Court heard evidence from 22 civilian witnesses and 6 police officers/detectives. The defendant did not testify. The Court will not review the evidence of each of the witnesses in detail, but I have reviewed the evidence of each witness in preparation of this Judgment.

The Crown must prove each of the elements of these offences beyond a reasonable doubt. Where one or more constituent elements of an offence have not been so proven, an acquittal will be entered.

It should be kept in mind that in attempting to determine what actually happened, it is necessary to assess the credibility of witnesses and, most importantly, the reliability of their evidence. In doing so, I can accept some, part or none of the evidence of any witness. In making my findings of fact, I have weighed all of the evidence presented and applied the standard of proof beyond a reasonable doubt. A fact will not be found against the defendant unless I am satisfied, beyond a reasonable doubt, that it has been proven. In addition, a fact will be found in the defendant's favour, if there is reasonable doubt about it.

THE FACTS

The facts, as I find them, are as follows:

S.C.

Count 15 relates to this complainant.

S.C. is a developmentally delayed young woman who was 18 years of age at the time of the alleged offence of procuring, which is the only count which refers to this complainant.

Ms. S.C. knew the defendant from the neighbourhood. She described Ms. K.O. as a friend and stated that she did not have many friends. As a result, she still considered the defendant a friend despite the allegations.

She testified that Ms. K.O. and others had beaten her in an earlier incident, but that the defendant was the first to apologize to her. She appeared to have forgiven her for all past transgressions. Ms. S.C. testified that Ms. K.O. was a follower and that she was nice when the two of them were together. It was only when a girl named Sawan and the co-accused were present, that she was mistreated.

A video of Ms. S.C. was found on the accused's cell phone. It depicts Sawan and the defendant bullying and verbally abusing Ms. S.C., calling her "Biggie" and "Retard". Ms. S.C. is overweight and intellectually delayed.

The discussion on the video involved the accused asking Ms. S.C. to go to Montreal to have sex with men for money. The defendant tells Ms. S.C. that the "girls who are coming 'cause they know they're coming to make money".

When Ms. S.C. advised the defendant and Sawan that she was planning to eat ham with her family, as it was the Easter long weekend, the defendant offered to buy her a ham at Metro in Montreal, essentially ridiculing Ms. S.C. and attempting to encourage her to join them. On the video, Ms. K.O. stated "if you're gonna come, like, you can't just come and like be stupid. You have to come and like work". Ms. S.C. took the offer to go to Montreal seriously as she packed a bag for the long weekend, but the driver never showed up, foiling the plan.

On the video, the defendant told Ms. S.C. that she had a call that day from a man who offered to take naked pictures of her for 30 minutes and to pay her $200. The defendant specified that one of "her girls" had been with this man the previous day.

Photographs of Ms. S.C.'s naked body were filed in evidence. Ms. S.C. testified that the photographs were taken with the defendant's phone, but that Sawan was actually snapping the photos as the defendant stood nearby.

She testified that she was high when the photos were taken and that when she got sober, she regretted her actions. She testified that she asked the defendant to delete the photographs, but this was not done.

Ms. S.C. testified that Ms. G.J., a co-accused at the commencement of this trial, had arranged for her to have sex with a man when Ms. S.C. was 16 years of age. There was some evidence that Ms. S.C. had worked as a prostitute in the past and I find that this, in fact, occurred. At one point on the tape, Sawan asks Ms. S.C. "so now you don't want to fuck guys for money?", implying that she had done so in the past.

Ms. S.C. knew a friend of the defendant's named Godsend, whom she described as a black man who lived on the third floor of a rooming house.

S. 212(d) prohibits procuring or attempting to procure anyone to become a prostitute.

In R. v. Cline (1982), 1982 ABCA 20, 65 C.C.C. (2d) 214, the Alberta Court of Appeal interpreted this provision of the Code as offering a defence to this charge where a defendant procures or attempts to procure a woman who is already a prostitute to engage in prostitution where the defendant is aware that she is a prostitute.

However, in R. v. Bennett (2004), 184 C.C.C. (3d) 290, the Ontario Court of Appeal rejected the "once a prostitute, forever a prostitute" argument, finding that a person's previous experience as a prostitute does not necessarily lead to the conclusion that an accused cannot be convicted of any future attempt to procure such a person.

I find that, in this case, Ms. S.C. had acted as a prostitute in the past. There is reliable evidence before this Court that this was the case. However, I find that Ms. S.C. was not working as a prostitute at this stage of her life.

Ms. S.C. provided inconsistent evidence in regards to that aspect of her life. She testified that she had engaged in sexual activities with a man for money in the past, but later testified that she had never done so. The evidence on tape supports a finding that Ms. S.C. had, in fact, worked as a prostitute in the past. Ms. S.C.'s evidence in this regard is difficult to reconcile, but I find, based on her level of discomfort on the tape and the fact that she was making excuses to not accompany the girls to Montreal as the defendant and Sawan attempted to procure her to do so, that she was not engaged in prostitution at this stage of her life.

I reject the arguments raised by defence counsel that the girls were all joking around on the tape, that the discussions were unclear, that Ms. S.C. was at that point in time a prostitute, or that the photographs taken of Ms. S.C. were not an attempt to further their efforts in procuring Ms. S.C. to become a prostitute. I find that Ms. S.C. took the offer to go to Montreal seriously, as she packed a bag. I find that Ms. S.C. felt bullied into accompanying the defendant to Montreal to have sex with men for money, as the defendant exercised control over her in many ways by first beating her, photographing her naked while she was high and bullying her in a group, which was capable of overtaking Ms. S.C.'s will, both physically and mentally.

Ms. S.C. was clearly hoping to assist the defendant when she testified during this trial. However, the video and Ms. S.C.'s evidence, when examined in their totality, support a finding of guilt on this count. I find that the words "work" or "working" used in the video, described plans to have various girls, including Ms. S.C., work as prostitutes. I further find that no evidence is required of actual sexual services having been performed. The actions of the accused in attempting to procure Ms. S.C. to become a prostitute when she is not otherwise engaged in this type of work establish this offence beyond a reasonable doubt. I am convinced of the accused's guilt on count 15 beyond a reasonable doubt.

There will be a finding of guilt.

E.D.

Counts 9 through 14 and 17 through 19 relate to this complainant.

Ms. E.D. was 17 years old at the relevant time. On May 18th, 2012, Ms. E.D. got home from school and began texting her friend Naji who was hosting a gathering at his apartment.

Naji asked Ms. E.D. to bring some of her girlfriends with her to his apartment for a get-together. Ms. E.D. contacted the defendant, a girl she had only known as a Facebook friend. The defendant made the initial friend request of Ms. E.D., who accepted it at an earlier point in time. On May 18th, Ms. E.D. contacted the defendant, as she did not want to show up at the party and be the only girl.

There was a discussion on Facebook about going out "clubbing", but Ms. E.D. spoke about not having the right clothes or shoes. The defendant asked her what her shoe size was, and they also discussed the use of false identification to get into a club, as Ms. E.D. had never been clubbing and she was not old enough to get into a club.

Ms. E.D. and the defendant agreed to meet at the mall. Once at the mall, Ms. K.O. introduced Ms. E.D. to Ms. C.. As the defendant got her hair done, Ms. C. took Ms. E.D. to the liquor store and told her to steal some alcohol. Ms. E.D. did not steal any alcohol. Ms. E.D. had her makeup with her and the girls all went into the ladies washroom at the mall to put makeup on.

The defendant and Ms. C. put bronzer on Ms. E.D., who trusted the girls when they told her it made her look pretty. Ms. E.D. was dressed in the clothing typically worn by young teenage girls, including a jacket and jeans, but she wanted to wear something nicer to the party. The girls all agreed that they would return to the defendant's home to find other clothing to wear and to get ready for the party. The defendant called an underground taxi driver who came to pick the girls up. The defendant went to buy marijuana and then, the girls all went to the defendant's home where they went into the defendant's bedroom.

Ms. E.D. had smoked marijuana before, but did not feel comfortable smoking marijuana with the girls she had just met. Ms. K.O. and Ms. C. encouraged her to smoke it. Ms. E.D. said she did not inhale when the first joint was presented to her, but that the defendant put the second joint in her mouth and told her to inhale. Ms. E.D. complied.

The defendant and Ms. C. gave Ms. E.D. outfits to put on. One of the outfits included a corset. The girls told her that she had to keep that outfit on.

Ms. E.D. felt disoriented and confused from the marijuana and she became increasingly uncomfortable with the two girls. The defendant and Ms. C. put makeup on her and when Ms. E.D. tried to wipe it off, the defendant slapped her and ordered her to leave the makeup on. The girls then changed Ms. E.D. into a skirt and a revealing shirt. Ms. E.D. was given high heeled shoes which did not fit.

The defendant took photographs of Ms. E.D. wearing this clothing. Ms. E.D. appears visibly nervous and uncomfortable in the photographs which were filed in evidence. The clothing and shoes identified by Ms. E.D. were located in the defendant's bedroom when the search warrant was executed at the defendant's home.

During this encounter, the defendant and Ms. C. asked Ms. E.D. if she was looking for work. Ms. E.D. had her resumes with her in a bag with her other possessions, as she had intended to drop off the resumes at the mall and other locations. When she mentioned her intentions to seek work at these places, the girls laughed at her and asked why she would work for minimum wage when she could make a lot more money doing other things. They asked Ms. E.D. if she would ever be a stripper or an escort. Ms. E.D. said she would never do those things, because she would not respect herself if she did such things.

The defendant then ordered Ms. E.D. to stand up and take off her skirt. When Ms. E.D. refused, the defendant told her to do it or she would do it for her. Ms. E.D. again refused. The defendant then took Ms. E.D.'s skirt off and then the remainder of her clothing, save for her bra and underwear. Ms. E.D. told the girls that she did not want to do any of this, as she had her period. The girls told her to prove it. When Ms. E.D. walked to the bathroom, Ms. C. followed her and told her to take out her tampon, because they wanted proof. Ms. E.D. was given another tampon to replace the one she had removed and Ms. C. walked her back to the bedroom. Ms. E.D. believed that she was escorted to and from the bathroom so that she would not escape.

Back in the bedroom, Ms. E.D. was told to remove her undergarments and felt forced to pose for photographs. The defendant took the photographs. The photographs were located on a cell phone belonging to the defendant. They depict Ms. E.D., a 17 year-old girl, in various positions which are sexual in nature.

Her buttocks is exposed in one photograph and she is lying on her back simulating masturbation with one hand, while the other hand is on her breast.

Ms. E.D. went to the washroom a second time and was escorted once again to and from the washroom by Ms. C.. When she returned to the bedroom, she learned that the defendant had sent the photographs of Ms. E.D. to men and that one of the men had sent a message in reply which read "Yummy". Ms. E.D. wanted to leave. The defendant told her that one of the men offered to pay $300 to spend time with Ms. E.D.. Ms. E.D. said she was not interested.

At one point during this encounter, the defendant went out to get some food, and Ms. E.D. told Ms. C. that she did not like feeling forced to do things. When the defendant returned with food, she told Ms. E.D. that she was not forcing her to do anything because, if she wanted to, she'd make her her bitch in the kitchen.

The defendant made reference to duct taping Ms. E.D.'s face if she did not start smiling. Ms. E.D. was frightened of the defendant who had already slapped her and had naked photos of her.

The defendant walked Ms. E.D. over to an area near the Giant Tiger, as Ms. E.D. walked clumsily in high heeled shoes that did not fit. The defendant told Ms. E.D. that she would "make her life a living hell" if she did not cooperate. The defendant told Ms. E.D. to use the name Krissie, to say that she was 19 and to be flirtatious. The defendant remained with Ms. E.D. until a man came to pick up Ms. E.D..

The defendant told the man to be good to Ms. E.D. and to bring her back to the same location. The man then drove away with Ms. E.D. in his vehicle.

Ms. E.D. was nervous and did not know what to expect, but assumed that the man would want to have sex with her, because nobody would pay $300 to just "spend time with someone". She hoped that he would realize that she was young and spare her. The man asked Ms. E.D. what her favourite colour was. She said it was pink. The man produced a pink bikini top and told her to change into it. He stopped at the bank machine and told her to change her clothes. Ms. E.D. complied. She did not have any of her belongings. She had no phone, no money and believed that her parents were in Buckingham visiting with her grandparents.

The man took Ms. E.D. to his apartment and had her perform oral sex on him. Ms. E.D. complied, as she was afraid that if she refused, the man would call the girls and she would suffer the consequences of angering the defendant who had already slapped her, forced her to pose for photos while naked, threatened to duct tape her mouth and promised to make her life a living hell if she did not cooperate.

As Ms. E.D. performed oral sex on the man, she asked if they could stop before he ejaculated, but he removed the condom. She asked him to put the condom back on. He ejaculated on her face. Forensic evidence was later collected when Ms. E.D. underwent a sexual assault examination at the hospital and swabs were taken. Analysis of DNA taken from Ms. E.D.'s face and body led to the identification of this man as J.D.. J.D.'s telephone number was among the many numbers located on the defendant's cell phone. His number appeared under the reference "trick". The draft messages from the defendant to J.D. and all other evidence presented, including the results of the DNA testing, leave me in no doubt that J.D. was the john to whom the defendant delivered Ms. E.D..

At one point during the sexual encounter with Mr. J.D., Ms. E.D. was penetrated by a vibrator as the man used a strap on device. There were inconsistencies as to whether the strap on device was used in Ms. E.D.'s statement to police and at various times when she testified.

I find that Ms. E.D.'s final word on this issue during her testimony was the most accurate and reliable, and that it was, in fact, used to penetrate her. Ms. E.D. was embarrassed and ashamed at what had happened to her. I find that her final version of this event reflects what actually occurred. and that her incremental disclosure of this detail was not unusual in the circumstances. I found Ms. E.D. to be a strong witness. Her testimony was clear and concise. She was unshaken in cross-examination. Her evidence was logical and consistent. I find the evidence presented by Ms. E.D. to be reliable.

Ms. E.D. went to the washroom and washed her face and other parts of her body after Mr. J.D. had performed these various sex acts on her. She realized that the two hours she was to spend with the man had not expired and she gave him a massage for the balance of the time. The man drove her back to the area where Ms. E.D. had been picked up. Ms. E.D. handed over the entire amount she had received from the man, but she had not counted it. He only gave her $180. Ms. E.D. never expected to keep the money and knew that it was the defendant's expectation that she had to hand over the entire sum. Ms. E.D. was promised that she would be taken to have her nails done for her troubles.

When the defendant counted the money, she told Ms. E.D. that she was to receive $300 and that since she was only given $180, her evening was not over. Ms. E.D. was afraid of the girls and pretended she was happy with her experience as she handed over the money, but she actually just wanted to retrieve her personal items, which included her iPod, clothing, makeup, resumes, her toothbrush and a bag, and to go home.

Ms. E.D.'s resumes and other personal items were among the many items found inside the defendant's bedroom when police executed their search warrant on June 8th, 2012. She has never seen her iPod since the date of this incident.

The defendant gave Ms. E.D. a bag of clothes and told her that there was a nice man who liked to hang out with girls who looked nice. When the defendant and Ms. C. walked Ms. E.D. back into the defendant's home, the defendant's mother told her daughter to "get that slut out of my house", referring to Ms. E.D.. Ms. E.D. was afraid of the defendant's mother. Ms. E.D. pleaded to be permitted to leave. She was told that if she did this "one last thing", she could leave.

Ms. E.D. and the other two girls got into a car with a man who was known to the defendant. He drove them to Mr. D.F.D's residence.

Ms. E.D. described the residence and business situated below the residence. Mr. D.F.D later testified and corroborated much of Ms. E.D.'s testimony in regards to their encounter.

When they arrived at Mr. D.F.D's residence, there was a warm greeting between the defendant and Mr. D.F.D. They clearly knew each other from a previous encounter. The Court later learned that Mr. D.F.D had spent time with the defendant for $160 on an earlier date, although he knew her as "A" and "M4".

Mr. D.F.D's telephone number was also found on the defendant's cell phone under the contact name "F".

When Ms. E.D. entered Mr. D.F.D's apartment, she noticed white powder on the table and a credit card and noted T-shirts on display. Mr. D.F.D asked Ms. E.D. how old she was and asked her to produce identification. Ms. E.D. began to cry and told Mr. D.F.D that the defendant and Ms. C. had forced her to sell her body for money.

Mr. D.F.D let Ms. E.D. go to the bathroom to wash the makeup off of her face. He gave her a T-shirt, shorts and flip flops to change into. He also gave her a chocolate bar and arranged for a taxi to take her to where she wanted to go, paying the taxi fare. Ms. E.D. testified that Mr. D.F.D kissed her on the lips and that was all he did, other than to help her escape.

Mr. D.F.D denied the kiss on the lips.

I find that Ms. E.D. was kissed on the lips, although nothing turns on this.

Mr. D.F.D was a well-meaning man on that evening, but his initial hope was to enjoy the company of a prostitute. I find that once he realized that Ms. E.D. was being forced into this activity, he facilitated her escape by providing clothing, food and the taxi to get her to safety which he paid for.

Mr. D.F.D was a convicted cocaine importer who had served a penitentiary sentence. He was clearly embarrassed to have to testify during these proceedings and minimized his intentions. However, his testimony corroborates the evidence of Ms. E.D. in many respects and I accept the portions of his evidence which do corroborate the evidence of Ms. E.D..

Mr. D.F.D was not an entirely credible witness, but the evidence he provided which corroborated the evidence of Ms. E.D. was reliable. Mr. D.F.D's evidence, coupled with the evidence found in Ms. K.O.'s room and on her cell phone, clearly establish the prior link between Mr. D.F.D and the defendant.

I find that Mr. D.F.D was one of the defendant's clients. I find that the evidence he provided relating to his encounter with Ms. E.D. was reliable where it corroborated the evidence of Ms. E.D.. Mr. D.F.D was not charged with any criminal offences. He had an interest in being dishonest about the white powder on his table, as he was the subject of conditions imposed by the Parole Board. That being said, he provided important evidence which further strengthened and corroborated the evidence of Ms. E.D.. I accept that evidence as reliable.

Ms. E.D., believing that her parents were out of town, asked the cab driver to take her to Naji's apartment building. She had only been to his apartment once and did not know his unit number. She knocked on various doors and was eventually assisted by Mr. MacKay who testified at this trial.

Ms. E.D. did not want to call her parents despite Mr. MacKay's suggestion that she do so. She was very frightened. Eventually, Ms. E.D. agreed to contact her mother. Mr. MacKay spoke to Ms. E.D.'s mother and assured her that her daughter was safe. He provided his address and directions to get to his apartment building.

Mrs. R.D. testified at this trial.

When Mrs. E.D. attended to pick up her daughter, she found her to be wearing large black shorts, a T-shirt and flip flops provided to her by Mr. D.F.D.

Ms. E.D. told her mother what had happened to her. Mrs. E.D. called the police and then took her daughter to the Ottawa Civic Hospital where Ms. E.D. had a sexual assault examination, and evidence which supported her claims about her encounter with Mr. J.D. was collected. Ms. Guertin, the nurse who examined Ms. E.D., noted that Ms. E.D. had her period at the time of the examination and that she was wearing a pair of shorts which were too large for her frame. She also described Ms. E.D.'s demeanour, which is consistent with the observations of all other witnesses who testified about Ms. E.D.'s demeanour throughout this ordeal. The demeanour described is consistent with Ms. E.D.'s evidence regarding her desire to leave the nightmare she was experiencing at the hands of the defendant.

Meanwhile, the defendant and Ms. C. attended Mr. D.F.D's home to collect Ms. E.D. and likely to collect their payment for her services. Mr. D.F.D testified and the Court finds that Mr. D.F.D expressed his outrage that they had brought him a girl in these circumstances. Mr. D.F.D ordered the defendant and Ms. C. off of his property.

Count 9: Trafficking in a Person Under 18 Years

Count 9 alleges an offence of trafficking in a person under the age of 18 years.

S. 279.011 reads, as follows:

(1) Every person who recruits, transports, transfers, receives, holds, conceals or harbours a person under the age of eighteen years, or exercises control, direction or influence over the movements of a person under the age of eighteen years, for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence.

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

The defence did not bring any form of constitutional challenge in regards to count 9. However, counsel argues that the impugned behaviour in this case falls outside the scope of what was intended by the legislation. I reject this argument. Counsel also argues that the provision which defines exploitation had not received royal assent at the time of these alleged offences.

I find that the facts set out above establish beyond a reasonable doubt that Ms. E.D. was exploited by the defendant and that all of the elements of this offence have been proven by the Crown beyond a reasonable doubt. That the official definition of the word exploitation had not received royal assent does not remove the Court's ability to define the term in the absence of a statutory definition.

Defence counsel's arguments in regards to consent are rejected for two reasons. Firstly, any consent given to the activity is deemed to be invalid by virtue of subsection 279.011(2). Secondly, even if consent were somehow relevant, I find that Ms. E.D. never consented to the activities which form the subject-matter of these offences.

Ms. E.D., a 17 year-old girl was recruited, transported, held, controlled and directed for the purpose of forcing her to provide sexual services. The defendant instilled fear in the victim, Ms. E.D., and clearly communicated that her safety was in jeopardy. The elements of this offence have been proven beyond a reasonable doubt.

There will be a finding of guilt on count 9.

Count 10: Procuring a Person to Become a Prostitute

Count 10 alleges that the defendant procured Ms. E.D. to become a prostitute, contrary to s. 212(1)(d) of the Criminal Code. Defence counsel argues that if the Court convicts the defendant on count 9, that a stay of proceedings should be entered for count 10. I will entertain further arguments at a later date on the issue of whether any of these charges should be stayed as a result of the Kienapple principle. Otherwise, the defence has conceded that it is open to the Court to convict the defendant of this offence. The findings of fact, as they relate to Ms. E.D., lead me to conclude that the Crown has established the elements of this offence beyond a reasonable doubt.

There will be a finding of guilt on count 10.

Count 11: Forcible Confinement

Count 11 alleges that the defendant did, without lawful authority, confine Ms. E.D., contrary to s. 279(2) of the Criminal Code.

Defence counsel points to the evidence of Ms. E.D. which would support a finding that she wanted to spend time with the defendant, to wear certain clothing and shoes, and to pose for photos. He further argues that Ms. E.D. had many opportunities to flee; for instance, when Mr. J.D. went to the bank machine or when he drove her back to the defendant, as she told him to drive her back to the area near the Giant Tiger. Defence counsel also argues that it was Ms. E.D. who offered to give Mr. J.D. a back massage. Although counsel points to these facts, the final submission on this charge by defence counsel is that it is open to the Court to convict the defendant on this count.

Defence counsel does not dispute the Crown's legal interpretation of this offence. This offence does not require proof of total physical restraint of the victim (R. v. Gratton (1985), 18 C.C.C. (3d) 462 (Ont. C.A.), leave to appeal to S.C.C. refused [1985] 1 S.C.R. viii). In R. v. Pritchard, 2008 SCC 59, [2008] S.C.J. No. 61, the Supreme Court of Canada ruled that if a complainant is restrained or "directed contrary to her wishes", so that she could not move about according to her own inclination and desire, there is an unlawful confinement within the meaning of s. 279(2). Furthermore, evidence of the fact that the victim did not resist does not constitute a defence unless the accused can demonstrate that such failure to resist was not caused by threats, duress or force.

I find that Ms. E.D. was confined by the defendant at several points in time. Firstly, when she was taken to the bathroom on two occasions and returned to the defendant's bedroom. At that point, I agree with the Crown's submission that she was confined to the house. The message communicated to Ms. E.D. was clearly that she would not be left alone while in the home.

I find that this was the intention of the defendant from the moment of the first escort to the washroom, as the incriminating photographs had not yet been taken. Ms. E.D. understood that she was not free to leave. The threats conveyed to Ms. E.D. by the defendant about duct taping her mouth and making her her bitch in the kitchen frightened Ms. E.D., as did the threat to make her life a living hell if she did not enter the vehicle with Mr. J.D.. The defendant also had possession and control of Ms. E.D.'s personal belongings as she was being directed from the defendant's home to the vehicle. Ms. E.D. was being directed contrary to her wishes. She told the defendant that she did not want to go with Mr. J.D.. The complainant complied, because she was frightened of the defendant who had hit her, taken incriminating and exploitive photos of her and threatened her. Ms. E.D. was further forcibly confined in the vehicle as the defendant directed that she be transported to Mr. D.F.D's house. Ms. E.D. complied, based on the same fears which were reasonably held, given the events which had transpired to this point. That Ms. R.D. did not take the opportunities available to her to run away when the vehicle stopped at the bank machine or after she had been assaulted by Mr. J.D. is of no importance. Ms. E.D. continued to hold the fears that she had when she entered the vehicle, and the threats conveyed to her were of violence if she did not cooperate. In the Court's view, this required her to return to the defendant, money in hand, or face the consequences. That Ms. E.D. felt safe enough with Mr. D.F.D to disclose what was happening to her does not diminish that she was forcibly confined at earlier points in time that night. On the record before me, I am convinced of the guilt of the defendant on count 11 beyond a reasonable doubt.

There will be a finding of guilt.

Count 12: Sexual Assault

Count 12 alleges that the defendant sexually assaulted Ms. E.D. contrary to s. 271 of the Criminal Code. Defence counsel concedes that it is open to the Court to convict the defendant of assault simpliciter if the Court accepts the evidence of the complainant, but that the assault does not constitute a sexual assault.

A sexual assault is a touching of the complainant without her consent, which is committed in circumstances of a sexual nature such that the sexual integrity of the victim is violated. As it was a finding of this Court that the complainant was told to remove her undergarments by the defendant and felt forced to pose for photographs (neither of which involves contact applied by the defendant), the issue for this Court becomes whether the physical removal of Ms. E.D.'s skirt by the defendant, over the complainant's protests, when viewed in the context of all of the other evidence surrounding this incident, constitutes a sexual assault.

The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one. The Court must examine the surrounding circumstances and context and determine whether the sexual or carnal context of the assault is visible to a reasonable observer. In doing so, the Court can look at the nature of the contact, the situation in which it occurred, whether force was used, the words, gestures, threats which accompany the contact and all other circumstances surrounding the conduct to determine the issue. The intent or purpose of the defendant may also be a factor in considering whether the conduct was sexual.

I find that the defendant's motivation in stripping the complainant's skirt off was to get her to pose for naked photographs, which would serve many purposes. Firstly, the photographs could be used to market the complainant to customers. Secondly, to succeed in physically removing the complainant's clothing and getting her to submit to the taking of the naked photographs is to establish dominance over the complainant in a way that violates the complainant's sexual integrity. Thirdly, the defendant could use the photographs as leverage to force the complainant into submission and, thereby, secure her cooperation in the non consensual sexual events to follow. Knowing that the defendant had these photographs, the complainant would hope that cooperation would ensure that they would later be deleted. Fourthly, if the complainant ever threatened to go to police with a complaint about what the defendant had done to her, the defendant could hope to find that she would abandon such a plan, knowing that the release of the photographs would be difficult to explain to her parents, friends and even the police. The fact that the photographs remained in the defendant's possession at the time of execution of the search warrant supports this finding. In order to obtain the photographs, the defendant had to either remove or get the complainant to remove all of her clothing. When Ms. E.D. refused, the defendant first threatened the complainant and then removed her skirt by force. Viewed objectively in light of these circumstances, I find that the sexual or carnal context of the assault has been made out. I find that the elements of this offence have been proven beyond a reasonable doubt.

There will be a finding of guilt on count 12.

Count 13: Uttering Threats

Count 13 alleges that the defendant knowingly uttered a threat to cause bodily harm to Ms. E.D. contrary to s. 264.1(2) of the Criminal Code. The defence makes no submission on this count and states that it is open to the Court to convict the defendant on this count.

I have set out the Court's findings with respect to the words uttered by the defendant. The complainant was threatened on numerous occasions. The mens rea of this offence is proven where the Crown demonstrates that the words spoken are meant to intimidate or to be taken seriously. I find that the defendant in this case threatened Ms. E.D. on each occasion in order to intimidate her, and that the defendant intended that her threats be taken seriously. The threats were a necessary component in the defendant's plan in order to dominate Ms. E.D. and force her to comply.

There will be a finding of guilt on count 13.

Count 14: Theft Under $5,000

Based on the findings of fact made above, there will be a finding of guilt on the theft under $5,000 charge set out at count 14. Defence counsel did not set out any argument on this count and conceded that it was open to the Court to convict the defendant. I find that the required elements of this offence have been proven beyond a reasonable doubt.

There will be a finding of guilt.

Count 17: Child Luring

Count 17 alleges that the defendant used a computer system to lure the complainant, a person who was or was believed to be under the age of 18 years, to engage in one of the enumerated activities set out in s. 212(1) which include becoming a prostitute.

The defence argues that Ms. E.D. initiated the contact with the defendant when the events of the weekend began. Defence counsel further argues that it was Ms. E.D. who was trying to recruit other girls to attend Naji's party, and that Ms. E.D. participated in all of the events at the mall expecting to get dressed up and go clubbing or to Naji's party. Finally, counsel argues that the Facebook comments of the defendant, which read "ok hunny sounds good, I have a feeling me an you could be great friends", is open to any number of interpretations. Given the sequence of Facebook messages initiated by Ms. E.D. and the ambiguous nature of the messages, counsel asks the Court to conclude that there is reasonable doubt as to count 17.

S. 172.1(2) requires proof of an intentional communication by computer with a person who the accused knows or believes to be under the age of 18 for the purpose of facilitating the commission of a specified secondary offence with respect to that person.

The Supreme Court of Canada in R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551, at paragraph 28, found that:

"In this context, 'facilitating' includes helping to bring about and making easier or more probable - for example, by 'luring' or 'grooming' young persons to commit or participate in the prohibited conduct; by reducing their inhibitions; or by prurient discourse that exploits a young person's curiosity..."

At paragraph 29, the Court wrote:

"Sexually explicit language is not an essential element of the offences created by s. 172.1. Its focus is on the intention of the accused at the time of the communication by computer. Sexually explicit comments may suffice to establish the criminal purpose of the accused. But those who use their computers to lure children for sexual purposes often groom them online first gaining their trust through conversations about their home life, their personal interests or other innocuous topics."

Ms. E.D. did not want to be the only girl at Naji's party. Ms. E.D. may have thought that she would be meeting new girlfriends that day, whom she could shop with, get dressed up with, go clubbing with and who might accompany her to Naji's party. She did not think she would be forced into prostitution. The fact that Ms. E.D. initiated contact on this day is but one factor to be considered in the analysis of the totality of the circumstances.

The defendant sent the initial invitation to Ms. E.D. to be a Facebook friend at an earlier point in time. In so doing, I find that she was looking for a potential pawn. When Ms. E.D. took the bait, the defendant engaged her in normal teenage discussions regarding clothing and clubbing to gain her trust. Meeting at the mall where the defendant would be getting her hair done and offering the victim nice clothes, which would only be available in the defendant's bedroom, was the next step in the ultimate plan. When Ms. E.D. entered the underground taxi, the trap began to close.

I find that the defendant sought out a potential victim when she made a Facebook friend request of Ms. E.D.. She then used the computer to befriend Ms. E.D. and to lure an unsuspecting victim into her web of deceit and sexual exploitation. The communications between Ms. E.D. and the defendant clearly show that the defendant would have been aware of Ms. E.D.'s age. The communications occurred via a computer system. These communications fostered a relationship of trust and served to groom Ms. E.D. with a view to advancing the defendant's ultimate goal to procure Ms. E.D. into prostitution in order for the defendant to make money. I reject defence counsel's argument. The elements of this offence have been proven beyond a reasonable doubt. I am convinced of the guilt of the defendant on count 17 beyond a reasonable doubt.

There will be a finding of guilt on this count.

Count 18: Making Child Pornography

Count 18 alleges that the defendant made child pornography in the form of a picture, contrary to s. 163.1(2) of the Criminal Code.

Defence counsel provided detailed and thorough argument on this count, which was well summarized, as follows: "Despite the undeniable existence of the photos, it is submitted that they do not meet the definition of child pornography, because the dominant characteristic of the photos is not a sexual organ or the anal region of the complainant. If they do meet the initial threshold, then, it is submitted that they conform to the private use exception enunciated in Sharpe, as there is insufficient evidence that they were intended for dissemination."

With respect to the first part of the argument that the photos of Ms. E.D. do not constitute child pornography, I find that they do.

Defence counsel directs this Court to the decision of the Supreme Court of Canada in R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45 on the issue of "explicit sexual activity" and argues that it was the intent of Parliament in enacting this legislation that child pornography be given a "restrained interpretation", and that the provision was only intended to capture behaviour akin to sexual intercourse or non-trivial sexual acts. I have reviewed the Supreme Court of Canada's decision in Sharpe, supra, and I agree with the Crown's submissions in reply to the defence argument on this point at pages 26 and 27.

In Sharpe, the Supreme Court of Canada found that the "restrictive interpretation" would apply to "explicit sexual activity" referenced under s. 163.1(a)(i). There is no mention of explicit sexual activity as s. 163.1(a)(ii) which reads:

"...the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years".

S. 163.1(a)(ii) is designed to capture the distinct category of child pornography which does not involve sexual activity. This is the category of child pornography which applies in this case.

At paragraph 47 in Sharpe, supra, the Court makes reference to s. 163.1(a)(ii), describing the provisions as requiring a static depiction of sexual organs or anal regions of children and for a sexual purpose. This is highlighted as material which is far removed from the fleeting or innocent purposes for which photographs or videos depicting children may technically intrude on the definition of child pornography.

Specifically as to the photographs of Ms. E.D. filed as Exhibit 7, defence counsel concedes that some of the photos of Ms. E.D. may be child pornography. However, counsel disputes that photos 5 and 6 may simply be suggestive and outside the scope of criminal activity, as the complainant may simply have been covering her vagina and caressing her breast in one photo and her anus is not exposed in the other.

I have examined the photographs and I find that they meet the definition set out in s. 163.1(a)(ii), as they depict her sexual organs and they were taken, in part, for a sexual purpose. I reject the argument that a photo of the buttocks alone, without a depiction of the anal region, is insufficient to constitute child pornography. All that is required in the depiction is the buttocks or the "anal region" depicted for a sexual purpose.

I find that one of the purposes for the taking of the photographs was for distribution to potential johns as a means of marketing the defendant's business. One of the purposes in taking the photos of Ms. E.D. was to depict her in a way that was sufficiently suggestive and sexual as to attract customers in order to later force the complainant to have sexual intercourse for money. The intent of this legislation is to protect children from a reasoned risk of harm. Exposing the complainant to the risk of harm was the primary motivation behind the taking of the photographs.

Defence counsel argues that there is reasonable doubt as to whether the photos were taken consensually. Firstly, children cannot consent to the making of child pornography. Even if they could, I find that none of the photos of Ms. E.D. were taken with her consent.

As an alternative argument, defence counsel claims that any child pornography at issue in this case fits within the "private use" exception read into the legislation by the Supreme Court of Canada in Sharpe, supra. Defence counsel argues that there is no evidence that the photos were taken for any reason other than for private use.

Firstly, the onus is on the accused to point to evidence which lends an air of reality to the private use exception. There is simply no air of reality to this defence. At paragraph 128 in Sharpe, McLaughlin CJ states that the "private use" exception is designed to protect a person's possession of visual recordings created by or depicting that person, if:

1. the recordings were created with the consent of those persons depicted;
2. the recordings are held only for private use; and
3. the recordings do not depict unlawful sexual activity.

I find that the recordings were not created with the consent of the complainant. Further, I find that the defendant intended to use the photographs in her marketing of the complainant to entice potential johns. As such, the second condition precedent also fails.

Given the findings of fact set out above, there will be a finding of guilt on count 18. The Crown has established the elements of this offence beyond a reasonable doubt.

Count 19: Possession of Child Pornography

With respect to count 19, defence counsel submits that if the Court finds that the photos meet the definition of child pornography and that the defendant made them, there should be a finding of guilt on this count. I do so find.

There will be a finding of guilt on count 19.

M.B.

Counts 1 through 6 relate to this complainant.

Ms. M.B. was 16 years old at the relevant time. Ms. M.B. had been convicted of assaulting her mother in November, 2011 and was on probation when these incidents occurred. While in the waiting room at Probation Services on May 10th, 2012, Ms. M.B. met Ms. G.J., an original co-accused in these proceedings.

On May 30th, 2012, Ms. G.J. and Ms. M.B. agreed to meet after school. They went to Ms. M.B.'s house for a few hours and then decided that they would go to Ms. G.J.'s neighbourhood. They took the bus to Ms. G.J.'s home, which was located near the defendant's home. Ms. M.B. was introduced to the defendant and Ms. C. that day. The girls went shopping at the Giant Tiger store where the defendant bought a dress. They all went to Ms. K.O.'s home afterwards.

Ms. M.B. was wearing a sweater with many different colours and the defendant told her that she wanted her to change her clothes. She took Ms. M.B.'s sweater off and gave her a black top and a brown belt. Ms. M.B. testified that she was uncomfortable in the new sweater, because she did not like wearing other people's clothes and the sweater was tight and exposed her cleavage.

The girls left the defendant's home and went to the residence of someone Ms. M.B. described as a "Jamaican guy". The four girls, including Ms. M.B., were at this residence along with three black men.

It was in the bathroom of this residence that Ms. G.J. approached Ms. M.B. and told her that she could make money escorting.

Ms. M.B. told Ms. G.J. that she was not interested. Ms. M.B. thought they would be hanging out there for a while, but they all left rather abruptly after approximately an hour.

Ms. M.B. testified that the girls ran down the stairs as she chased after them, unsure where they were going. In the parking lot across the street from the Jamaican guy's residence, there were two Arabic men who had pulled up in a car.

Ms. G.J. told Ms. M.B. why they were there, and that it was for the reason they had discussed in the bathroom. Ms. M.B. wanted nothing to do with escorting and started to run away. The defendant yanked Ms. M.B.'s hair and pulled out her hair extensions.

Ms. M.B. tried to escape, but was caught by Ms. G.J.. Ms. M.B. clung to a pole holding a street sign, refusing to go back to the car as the defendant and Ms. C. also went to try to convince Ms. M.B. to come back to the car. The two Arabic men were Mr. M1 and Mr. F.P., who both testified at this trial. The men realized that there was a fight between the girls, as Ms. M.B. was yelling and refusing to return to the car.

They drove away.

As Ms. M.B. clung to a pole, the defendant punched Ms. M.B. in the nose. Ms. M.B. was dazed by the punch and could not tell who hit her afterwards, but knew that it felt like more than one person was striking her. Eventually the striking stopped and the defendant contacted Mr. F.P. to ask him to return, stating that everything was fine and there was simply a misunderstanding. The men returned. The defendant and Ms. C. linked their arms into Ms. M.B.'s arms, on either side of Ms. M.B., and walked her to the car. The four girls got into the back seat and Mr. F.P. drove to his apartment. Ms. C. took Ms. M.B.'s bag which contained her cell phone, her money and her bus pass. The defendant told Ms. M.B. that all the money was to come back to her, that is, to Ms. K.O..

The girls were dropped off at the front door and the men and the four girls went up to Mr. F.P.'s apartment on the 15th floor of the building.

Ms. M.B. was frightened. She was given an energy drink and recalled drinking it all down and not feeling any of the normal effects of an energy drink. She felt sick, not from what she had consumed, but at the realization that she was in a terrible situation, as something was definitely going to happen. She feared that the girls would throw her from the balcony if she did not cooperate with their plan. She went out onto the balcony with Mr. F.P., who was smoking. He asked Ms. M.B. if she was 18 and she said that she was, as she was fearful. The screen door was the only separation between her and the girls who were seated in the living room.

Mr. F.P. went into the bedroom and the defendant and Ms. C. directed Ms. M.B. into the bedroom. Once she was inside the bedroom, Mr. F.P. removed Ms. M.B.'s clothing, leaving her bra and underwear on.

Ms. M.B. told Mr. F.P. that she had her period and that she could not have sex with him. She told him that she would perform oral sex on him, as she feared that if he stepped out of the bedroom and said she had not performed sexual services, she would be killed. Mr. F.P. put a condom on and had Ms. M.B. perform oral sex on him. Ms. M.B. testified that Mr. F.P. held her head. Ms. M.B. testified that she did not fight it, as she intended to comply once she was in the bedroom. She feared the girls would kill her if she did not do what was expected of her.

While in the bedroom, Mr. F.P. told Ms. M.B. that he had paid the defendant $80 and asked if she would get any of the money.

Mr. F.P., in his evidence, confirmed that he paid the defendant for the sexual encounter with Ms. M.B.. Mr. F.P. encouraged Ms. M.B. to perform these sexual services on her own without the defendant, implying that she would make more money. Ms. M.B. told Mr. F.P. that she did not want any money.

Ms. M.B. put her clothing back on.

Mr. M1 gave Ms. M.B. a piece of paper with his name, "Ross", and telephone number penned on it. The paper had the address of the apartment building on D[…] Street. It was a portion of a Scotiabank document with Mr. M1's mailing address printed on it. I find that Ms. M.B. was mistaken when she testified that it was the man she had been in the bedroom with who gave her the paper. Mr. F.P. was the john who paid the defendant for the sexual services performed by Ms. M.B. as Mr. M1 waited in the living room and spoke with the other girls.

Mr. F.P.'s admission that this was the case was the most reliable evidence on this point.

They left the residence with one of the men who returned them to the Russell Road area. They were dropped off near a park. Ms. M.B. pleaded to go home, but the defendant told her that she had to go to one more home. The defendant told Ms. M.B. not to cry again or she would "smack" her. A taxi driver came to pick up Ms. M.B. and the three girls at the park.

Ms. M.B. believed that they drove towards Gatineau.

On the way, Ms. G.J. and Ms. C. were dropped off at the McDonald's restaurant on Rideau Street. The Court was shown a video taken from the surveillance footage at the McDonald's which depicts Ms. G.J. and Ms. C. waiting in line at the McDonald's. Ms. G.J. was holding Ms. M.B.'s purse containing her cell phone and her bus pass. Ms. M.B. identified the bag during her testimony.

As Ms. M.B. had no money, no cell phone and no bus pass, she could not see how she could get out of her current situation and get home. The taxi driver stopped at the apartment building where Ms. M.B. was to meet another one of the defendant's clients. The man paid the defendant $70 and the defendant waited in the car as Ms. M.B. went into the man's apartment. Ms. M.B. told the man that she was 16 years old and that she had been beaten up and was there against her will. She asked for his help. The man appeared concerned that he would get into trouble and returned to the car with Ms. M.B., telling the defendant that they had had sex.

They returned to the McDonald's to pick up Ms. G.J. and Ms. C.. Ms. M.B.'s phone was returned to her, and she telephoned her mother to tell her she was on her way home, shortly before midnight. When she was dropped off, only Ms. M.B.'s cell phone was returned to her.

Ms. M.B. had a 9:00 p.m. curfew and her mother tried to reach her during the course of the night. Ms. M.B.'s mother, Ms. H., testified that she tried to reach her daughter by calling her daughter's cell phone, but that it was turned off. She then sent text messages to her daughter telling her that she needed to get home. Ms. H. testified that she received a call from her daughter shortly before midnight, advising that she was on her way home, and that her daughter actually arrived shortly after midnight.

She testified that Ms. M.B. appeared distraught, her mascara was running, and she sat on the kitchen floor near the cupboards with her knees pressed up against her face. She appeared frightened as her mother asked her what had happened. When Ms. M.B. told her mother what had transpired, Ms. H. called the police who attended promptly. Ms. M.B. did not disclose the sexual component of what had happened to her. She told her mother that she did not want her to call the police, as she was frightened that the girls would seek her out and harm her.

The police took statements from Ms. M.B. and Ms. H. that night. Ms. M.B. provided a videotaped statement to police on June 11th, 2012.

Ms. H. attended the residences of the defendant and Ms. G.J. in the subsidized housing project on two occasions. She was accompanied by police on one occasion. She was able to retrieve some of her daughter's personal items from Ms. G.J.'s residence. The defendant initially denied having any of Ms. M.B.'s possessions. When Ms. H. pressed her on wanting her daughter's jacket back, the defendant returned to her room, found the jacket and uttered angry words in the presence of Ms. E.T., who was with the defendant at the time. Ms. H. got her daughter's jacket back that day as Ms. E.T., one of the defendant's next unsuspecting victims, waited in her captor's room.

The findings of fact made above in relation to Ms. M.B. are supported by numerous evidentiary underpinnings. The Court received the records from Probation Services dated May 10th, 2012, showing that Ms. M.B. and Ms. G.J. both attended Probation Services on this date. The Court received photographs of Ms. M.B.'s injuries, which were still visible days after the event when she provided her videotaped statement. Ms. H.'s evidence was both compelling and reliable. I found Ms. H.'s evidence to be clear and concise. She reacted as a good mother would and even went further to retrieve her daughter's belongings. The evidence of Mr. F.P. and Mr. M1 also corroborated the evidence of Ms. M.B. in many respects. Although time does not permit this Court to summarize the evidence of every witness, the evidence of Mr. F.P. is highly probative and worth noting in these Reasons.

F.P. was one of the johns called by the Crown during this trial. He was involved in the incidents involving Ms. M.B. and Ms. E.T.. Mr. F.P. was a friend of Mr. M1 who also testified in relation to both of these incidents. Mr. F.P. confirmed that Mr. M1's nickname was "Ross".

Mr. F.P. worked as a taxi driver with Blue Line taxi. Mr. F.P. testified that he had likely met Ms. K.O. through his work as a taxi driver. And that when he would arrange to meet with her, his practice was to pick her up in the area of W[…] and St-Laurent in the east end of the city. Mr. F.P. testified that his cell phone number was [phone number 1]. The evidence at this trial included a message to Mr. F.P.'s phone number from the defendant's cellphone on June 3rd, 2012, which read: "I have a girl for you."

Mr. F.P. testified that the practice was that he would receive a text message from Ms. K.O., whom he knew as "G.B.K.", and that they would then pick up Ms. K.O.'s friend "B.", who is Ms. C.. When Mr. F.P. would drive Ms. K.O. and Ms. C., Ms. K.O. always paid. He testified that Ms. K.O. told him that she ran an escort company. Mr. F.P. testified that he met two girls through Ms. K.O..

In speaking of the first incident, Mr. F.P. testified that he was having coffee with Mr. M1 when he received a text message from G.B.K. saying, "We have a girl for you." Mr. F.P. asked Mr. M1 if he wanted to accompany him, and both departed to attend Pleasant Park at St-Laurent. Mr. F.P. testified that he drove his personal vehicle on this date. When he and Mr. M1 arrived at the street corner, Mr. F.P. observed four girls who appeared to him to be fighting. The defendant and Ms. C. were among the group of girls. There were two other girls, one described as a white girl with blue, red and blonde hair, which the Court finds to be Ms. M.B.; and the other was described as a black girl, which the Court finds to be Ms. G.J.. Since the girls appeared to be fighting and grabbing at each other, Mr. F.P. and Mr. M1 discussed that the situation could be troublesome and decided to forget about Ms. K.O.'s offer. Mr. F.P. drove away.

Mr. F.P. testified that he received a text message from Ms. K.O. informing him that they were not fighting, that the girls were all friends and that he should come back. When asked to describe what he meant by fighting, Mr. F.P. testified that G.B.K. was putting her hands on Ms. M.B.. Mr. F.P. testified that it did not appear as though the girls were joking with each other; but conceded, in cross-examination, that it did not look serious enough to not return once the situation was under control. Mr. F.P. made his observations from a distance of 200 feet. The scene unfolded at the Esso station, as described by Ms. M.B..

When Mr. F.P. received the text message from Ms. K.O. advising him to return, he and Mr. M1 re-attended and picked the girls up. In cross-examination, Mr. F.P. stated that the girls voluntarily entered the vehicle, and that he did not observe anyone holding onto anyone else or pushing anyone into the vehicle. The two men sat in the front and the four girls squeezed into the back seat. They drove to Mr. M1's residence at D[…] Street and went up to Mr. M1's apartment. When they all entered, everyone initially sat in the living room. Mr. F.P. testified that he went out to the balcony to smoke. Mr. F.P. testified that Ms. M.B. joined him on the balcony where he asked her her age. Mr. F.P. testified that the girl told him that she had just turned 19. Mr. F.P. testified that he asked Ms. M.B. why she was doing this, implying prostitution. Mr. F.P. testified that she said that she was doing it, because she liked it. At that point, Mr. F.P. went into the bedroom with Ms. M.B.. Mr. F.P. denied that anyone pushed Ms. M.B. into the room. He testified that he usually paid the defendant $50 to $70 to have sex with her girls and that he had already paid the defendant for this girl, although he could not recall when this happened or how much he had paid. Mr. F.P. testified that he did not remove any of his clothing while in the bedroom. Mr. F.P. testified that when they got into the room, Ms. M.B. advised him that she had her period and that she could not have sex with him for that reason; but that she did not want to leave the room, because he would ask for his money back and her friends would then beat her up.

Mr. F.P. testified that he hesitated. And then, Ms. M.B. took his penis out of his pants and performed oral sex on him. Mr. F.P. estimated that the total time spent in the bedroom with Ms. M.B. was three to four minutes.

In cross-examination, Mr. F.P. indicated that he told the defendant that the girl looked a bit young, but that Ms. K.O. assured him that there was no issue in regards to her age and whether she wanted to be there.

Count 1: Trafficking in a Person Under 18 Years

Count 1 alleges an offence of trafficking in a person under the age of 18 years, specifically referring to Ms. M.B..

The arguments in relation to this count are essentially the same as the arguments raised above for this offence, as alleged, involving Ms. E.D.. I will not repeat the Court's legal analysis, but will focus on the points raised by counsel relating to Ms. M.B.'s fact situation. Defence counsel argues that Ms. M.B.'s evidence cannot be read in isolation, and that the Court must look to the evidence of other Crown witnesses who were also put forward as credible witnesses.

Mr. F.P., clearly, did not feel comfortable testifying during this trial. I find that he minimized the concerns he actually had on this date about the age of the complainant and her reluctance to enter his car. Mr. F.P.'s evidence in regards to Ms. M.B. satisfying him as to her age and that she would have initiated the oral sex is not reliable. In my view, Mr. F.P. was simply trying to reduce his own moral blame-worthiness for having a sexual encounter with a young girl in circumstances where she was an unwilling participant. I make the same findings in regards to Mr. M1's evidence. He too was a john who participated in sexual encounters with the defendant's "girls". Mr. M1 testified that the defendant was a pimp, and that she said she was a pimp when she sat in his apartment. He testified that the defendant would find girls and that the girls would have to "give you sex or a blow job for money". Mr. M1's evidence must be read in light of his desire to appear less blameworthy. However, the evidence of Mr. F.P. and Mr. M1 on a multitude of important details (for example, the struggle when they first observed Ms. M.B.) corroborated the evidence of this complainant. I found that evidence to be reliable. I reiterate that the findings of fact made above have been made only where I find that facts have been established beyond a reasonable doubt.

Ms. M.B.'s evidence was clear and consistent. Police were called immediately upon her return to her mother's home. The observations of Ms. H., the photographs taken of Ms. M.B., the items located by police during the execution of the search warrant and the unshaken testimony provided by this complainant, much of which was corroborated, all constitute reliable evidence.

For count 1, defence counsel argues that a reasonable doubt has been established in regards to Ms. M.B.'s willingness to participate in prostitution. Again, consent is not relevant. And even if it was somehow relevant, I find that Ms. M.B. never consented to the activities which form the subject-matter of any of these offences.

There will be a finding of guilt on count 1.

Count 2: Procuring a Person to Become a Prostitute

Count 2 alleges that the defendant procured Ms. M.B. to become a prostitute. Defence counsel raises the same arguments as were raised with respect to this count for the charge involving Ms. E.D.. For the same reasons, I reject those arguments and will determine the Kienapple issue at a later time, following receipt of submissions on this issue. Given the findings of fact set out above, the elements of this offence have been established beyond a reasonable doubt.

There will be a finding of guilt on count 2.

Count 3: Unlawful Confinement

Count 3 alleges that the defendant unlawfully confined Ms. M.B., contrary to s. 279(2) of the Criminal Code. Ms. M.B. was fearful of the defendant and felt confined up until the point in time when she was freed by the defendant and permitted to go home.

Defence counsel argues that there is credible, conflicting evidence from Mr. F.P. and Mr. M1 that suggests a very different scenario than that put forward by Ms. M.B.. I have already articulated my reasons for finding the evidence of Mr. F.P. and Mr. M1 unreliable on the issue of whether Ms. M.B. participated willingly in these activities. Having regard to the totality of the evidence, I do not find that their evidence raises a doubt on the issue of confinement. Based on the findings of fact, set out above, and Ms. M.B.'s very clear message that she did not want to get into Mr. F.P.'s vehicle, that she did not want to go to his apartment on the 15th floor, that she feared that if she did not cooperate she would be beaten or worse, that she tried to escape from the final man's house and following the legal analysis set out above for this offence, I conclude that the elements of this offence have been proven beyond a reasonable doubt.

There will be a finding of guilt on count 3.

Count 4: Robbery

Count 4 sets out the offence of robbery as against Ms. M.B.. Defence counsel argues that there is no evidence that the actions of the defendant were for the purpose of stealing Ms. M.B.'s purse and that there is no evidence of a common intent to do so with the co-accused who were seen on the video in the McDonald's restaurant holding the complainant's purse.

The primary purpose to the violence exerted against Ms. M.B. by the defendant when she punched her in the nose was to weaken her and gain her compliance in order to get her into Mr. F.P.'s car so that she could be delivered to this john for sexual services. This was a group effort. There was a common intention to accomplish this goal. Violence, threats and the deprivation of what the complainant would need to escape, namely her phone and her bus pass, which were in the complainant's purse, were the means to an end.

I find that the three offenders shared a common intention to use these means to accomplish their primary objective. Ms. M.B. was told that she would get her things back at the end of the night. She only received her cell phone.

Ms. M.B.'s mother was able to get other items back from the defendant on a later date and some items were never returned. One of those items was a sentimental necklace that the defendant ripped from Ms. M.B.'s neck.

I am satisfied that the elements of this offence have been proven beyond a reasonable doubt.

There will be a finding of guilt on count 4.

Count 5: Assault

Count 5 alleges that the defendant assaulted Ms. M.B.. Having found that the defendant punched Ms. M.B. in the nose, pulled out her hair extensions and ripped a necklace from Ms. M.B.'s neck, there will be a finding of guilt on count 5.

Count 6: Uttering Threats

Count 6 alleges that the defendant uttered a threat to cause bodily harm to Ms. M.B.. Having found that the defendant told Ms. M.B. not to cry or she would "smack" her, when examined with the totality of the evidence, leads to a finding of guilt on count 6. Defence counsel has conceded this point.

N.H. and E.G.

Counts 21 through 26 relate to the evidence of these complainants. The Crown is not proceeding on counts 21 and 24. The Court agrees with this assessment and acquittals will be entered on these two counts.

N.H. was interviewed by police on August 7th, 2012. She was 15 years of age at the relevant time. E.G. was 15 years of age at the relevant time. She was interviewed by police on June 26th, 2012. Ms. K1 was 15 years of age. She provided a videotaped statement to police on June 12th, 2012. Based on a review of all of the evidence relevant to these counts, I find the facts to be, as follows:

On June 1st, 2012, these three girls were picked up by the defendant, Ms. C. and a girl named M2 in a vehicle driven by an unknown man and taken to a residence believed to be the residence of the defendant's sister, M3. M3 was home and present throughout. The girls thought they were going to a hotel party that night, based on a text message Ms. K1 had received from the defendant. They never went to a party that night, but remained at M.3's house throughout the evening. No other persons came to the house. In the initial text message, the defendant advised Ms. K1 that she would get the drinks for the party.

The defendant, Ms. C., M3 and M2 all drank beer while Ms. N.H., Ms. K1 and Ms. E.G. drank some beer initially, but M3 then served them Goldschläger and shooters made with Kool-Aid. All those present, save for Ms. E.G., consumed a small amount of marijuana, as well. Ms. K1 was sober, while Ms. N.H. and Ms. E.G. became very intoxicated very quickly.

Ms. N.H. had never felt that intoxicated in her life, despite the fact that the girls had only been drinking for approximately one hour. Ms. E.G. did not believe she had consumed much alcohol, but was highly intoxicated.

At one point, the defendant asked Ms. N.H. to accompany her to the bathroom where the defendant asked Ms. N.H. if she wanted to make some money. Ms. N.H. understood the defendant to mean that she could make money from prostitution. Ms. N.H. was shocked, but was so intoxicated that she believes she may have agreed.

Ms. N.H. recalled that she vomited quite a bit and lost consciousness at various points in time when she was in the bathroom. At one point, she awoke in the bathroom and realized that she was naked and lying in the bathtub. The defendant was telling her to touch her body and was taking photographs of her in the bathtub. Although she was aware that she was naked in the tub, Ms. N.H. could not move or speak. The photographs of Ms. N.H. taken by the defendant were filed in evidence. The photographs are clearly sexual in nature and depict Ms. N.H.'s sexual organs.

I find that they were taken for the same sexual purpose, as were the photos taken of Ms. E.D.. Ms. N.H. did not consent to being photographed naked. In any event, Ms. N.H. was a 15 year-old grade 9 student at the time. The defendant knew her age, as the two had been schoolmates since grade 7.

Ms. K1 and Ms. E.G. went upstairs to check on Ms. N.H.. There was a confrontation between the defendant and Ms. E.G., and Ms. E.G. was brought to the basement where she was beaten, her clothing was ripped and photographs were taken of her. She left the party without her socks and without her underwear, as her panties had been ripped off of her. Photographs of Ms. E.G. in her bra and underwear were recovered on the defendant's phone.

Ms. K1, Ms. E.G. and Ms. N.H. all testified that Ms. E.G. suffered injuries that night. Ms. E.G. conceded that there were many parts of the evening which were not clear in her mind, but she testified that she clearly recalled the defendant hitting her repeatedly in the basement. Ms. E.G.'s evidence was not reliable on this point, as will be discussed below. There is no doubt that Ms. E.G. was injured while she was at M.3's house. Her injuries were still visible in photographs taken on June 26th, 2012. There were photographs of an injured and crying Ms. E.G. discovered on the defendant's phone with metadata corresponding to June 1st, 2012.

Ms. N.H. observed Ms. E.G. to be bleeding and to have scratches on her nose.

Ms. N.H., Ms. E.G. and Ms. K1 left the party by cab and went to sleep at Ms. K1's. They discussed what had happened and did not tell their parents. The discovery of photographs and subsequent police investigation led to the girls being interviewed and providing statements.

Count 22: Assault Causing Bodily Harm

Count 22 alleges that the defendant assaulted E.G., causing bodily harm to her, contrary to s. 267(b) of the Criminal Code. There is no doubt that Ms. E.G. was the victim of an assault causing bodily harm at that party. The issue is the identity of the person who caused the injuries as described and as depicted in the photographs on the defendant's phone.

There is no clear evidence of how Ms. E.G. came to be struck. Although Ms. E.G. testified that she remembered being struck by the accused, I find that this evidence is not reliable. The Court was left in doubt as to whether Ms. E.G. had a memory of anything that night after she had gone upstairs for the first time. Her evidence was also contaminated by the sharing of what each girl recalled when they went back to Ms. K1's house. This was a traumatic experience which would leave all three girls trying to fill in the gaps in their memory with what others might recall.

The Court was also troubled by the insufficient evidence as to the whereabouts and actions of M2 and M3 at the relevant time during this chaotic incident. Alcohol consumption, drug consumption and quite possibly the surreptitious drugging of the complainants in the Goldschläger make these witnesses poor historians.

That the defendant would have retained photographs of Ms. E.G. on a couch wearing a white bra and underwear, on her phone, does not lead to the obvious conclusion that she assaulted Ms. E.G. causing her bodily harm. I have examined all of the evidence upon which the Crown argues the Court may rely to make a finding of guilt. Although I found each of the Crown witnesses to be credible, their evidence was not reliable. I am cognizant that Ms. K1 was not as intoxicated as the other two girls, but her observations were limited. Although it is possible that the defendant inflicted the wounds on Ms. E.G., I am not convinced of the guilt of the accused on this count beyond a reasonable doubt.

An acquittal will be entered on count 22.

Count 23: Unlawful Confinement

Count 23 alleges that the defendant, without lawful authority, confined Ms. E.G.. Again, Ms. E.G. was a credible witness and candidly admitted that she had no memory of what occurred in the basement at M.3's house. Ms. E.G.'s bra strap was torn, her panties were ripped off; there were photos on the defendant's phone of Ms. E.G. on the couch, barely dressed. These are all compelling pieces of evidence. There is evidence from Ms. K1 that when Ms. E.G. cried "I wanna leave now, stop", Ms. E.G. was in the basement. Shortly after hearing her plea to leave, Ms. K1 went into the basement. Exculpatory statements were made by the defendant to Ms. K1 in regards to what happened in the basement, and no other witness to what occurred in the basement testified at this trial.

Ms. E.G. did not recall who may have prevented her from leaving. The defendant told Ms. K1 that Ms. E.G. had vomited on her socks and that she had put them away. Ms. E.G. had vomited on her socks. That photos were taken of Ms. E.G. in this state and retained by the defendant is consistent with the defendant's pattern of behaviour in keeping incriminating and exploitive photos of girls which might someday serve a purpose, either to secure their silence or to lower their resistance to her demands. There are, however, many unanswered questions: What was M.3's role in the basement? Was M2 part of this scheme? Was Ms. E.G. free to leave, but too intoxicated to realize that she could? I am unable to find beyond a reasonable doubt that the elements of this offence have been proven beyond a reasonable doubt on the totality of the evidence presented.

There will be an acquittal entered on count 23.

Counts 25 and 26: Making and Possessing Child Pornography

Counts 25 and 26 allege, respectively, that the defendant made and possessed child pornography, and the Crown argues that this count refers to the photos taken in relation to Ms. N.H..

Applying the same legal reasoning, set out above for count 18, and applying the above-noted findings of fact in relation to the incident involving Ms. N.H. to that analysis, I am convinced of the defendant's guilt in relation to these offences beyond a reasonable doubt.

There will be a finding of guilt on counts 25 and 26.

E.T.

Counts 27 through 36 relate to this complainant.

Ms. E.T. was 13 years old at the relevant time. On Saturday, June 2nd, 2012, Ms. E.T. asked her mother if she could attend a sleepover at Ms. C.'s home. Ms. E.T.'s mother had a policy that she always spoke to the parents before she allowed her daughter to sleep away from home, but she only spoke with Bailey and given her daughter's insistence, she allowed her to go.

Ms. E.T.'s mother dropped her daughter off a park near the Giant Tiger. The defendant and Ms. C. were at the park waiting for Ms. E.T. to arrive. Ms. E.T. brought a bag with her containing her personal belongings, including her teddy bear pyjamas and a bag of chips for the sleepover.

Ms. E.T. believed that she would be sleeping over at Bailey's house where the two girls would "watch movies and hang out".

On their way to the defendant's home, the girls stopped at another home where the defendant bought marijuana. Ms. E.T. did not consume any of the marijuana which the defendant and Ms. C. shared while in the defendant's room. The defendant's parents and other children were at the defendant's home when Ms. E.T. arrived. The girls proceeded to the defendant's room where the defendant and Ms. C. had her try on various outfits selected from the piles of clothing on the defendant's floor. Ms. E.T. was comfortable in what she had been wearing and was not fond of trying on the provocative clothing given to her, but she did not protest. Ms. C. took photos of Ms. E.T. and went onto Ms. E.T.P.'s Facebook account to change her profile photo to one of the photos taken in the defendant's room. Ms. E.T. told the girls that she was not comfortable wearing the leopard print outfit, as it was too revealing.

At one point when the girls were in the room, Ms. M.B.'s mother attended the defendant's residence with police. Ms. E.T. testified that she was present when the defendant angrily combed through her things pulling out clothing and hair extensions, muttering that it was all a misunderstanding. Ms. E.T. witnessed the defendant removing the items from her room, but did not understand why the police officer was at the door.

The defendant later spoke to someone on her phone and told the person that they were going over. Ms. E.T. did not want to go out, but went along. Before leaving, Ms. E.T. was told to wear a revealing white dress. The girls were picked up in a cab. The defendant was texting someone in the cab and then told Ms. E.T. that she would be having sex that night. Ms. E.T. told the girls that she was not going to have sex with anyone, as she was 13 years old and too young to have sex. The defendant slapped Ms. E.T. in the face. The girls arrived at the residence of Mr. M1 (also known as "Ross" from evidence outlined above). Mr. M1 paid the defendant $50 for sex with Ms. E.T.. Mr. M1 testified that he had been present on a prior occasion in his apartment when his friend, Mr. F.P., received oral sex from a girl who had been provided by the defendant. He knew the defendant to be a pimp and testified that the defendant referred to herself as a pimp. Mr. M1's dealings with the defendant included him bringing her alcohol and having the defendant bring him girls for sex in exchange for money.

There is a discrepancy in the evidence given by Mr. M1 and that provided by Ms. E.T. on the issue of the location of his discussion with Ms. E.T., which led to him letting her go without having to have sex with him. According to Mr. M1, the defendant and Ms. C. waited in the car downstairs, as he had picked them up on Russell Road; whereas Ms. E.T. testified that the girls were in the living room when she was with Mr. M1 in his bedroom. I find that Mr. M1 had been with more of the defendant's "girls" than he led the Court to believe and that the details of his meeting with Ms. E.T., although possibly unique in that he paid for services he did not receive, were not as clear in his mind in terms of where his conversation with Ms. E.T. took place. I find that there were far more meetings with girls in Mr. M1's apartment than he admitted to.

I find that Ms. E.T.'s evidence on this issue was reliable, as she was a credible witness, and the events of this day would stand out clearly in her mind, as she was being placed in a very unique, very traumatic situation for the first time in her life. She provided compelling details throughout her evidence which were corroborated by other evidence on several occasions. Her evidence was clear, consistent and reliable.

In Mr. M1's bedroom, Ms. E.T. told him that she did not want to have sex. She told Mr. M1 that the girls had her possessions and would beat her if they found out that she did not have sex with him. Mr. M1 offered Ms. E.T. money to take a cab to get home, but Ms. E.T. refused his money, because she felt badly that he had paid enough already and was not going to get what he paid for. Mr. M1 told Ms. E.T. that the defendant had brought other underage girls over recently. I note that Ms. M.B.'s incident occurred a matter of days before this incident. Mr. M1 and Ms. E.T. agreed that they would wait a half hour and then lie to the defendant and tell her they had had sex.

When they left Mr. M1's apartment, the defendant insisted that they stop at another apartment building. She directed Ms. E.T. to go to the lobby, as she would be picked up there by another client. Ms. E.T. would have to turn a corner, out of sight of the defendant, to get to the lobby. Instead of going into the building, Ms. E.T. kept walking around the building, waited a while and then returned to the car, claiming that the person never showed up to meet her. Mr. M1 did not speak of driving to the other apartment. Again, I find that Mr. M1 and Mr. F.P. were so accustomed to driving the defendant around and meeting with her, that such a detail would not stand out in his mind.

Mr. M1 dropped the girls off near the Giant Tiger and they returned to the defendant's home. Ms. E.T. was tired and had a headache. The defendant bit a pill in half and forced Ms. E.T. to swallow it. The defendant took the other half of the pill. There is no evidence as to the type of pill administered to Ms. E.T.. The Crown asks this Court to infer that it was a substance, as set out in the information, based on comments made by the defendant when she was speaking with a man they called "God", Ms. E.T.'s evidence that it looked like a sleeping pill and the fact that Ms. E.T. was violently ill at various points throughout the night. I will return to this issue later in this Judgment.

The girls then went to the next location despite Ms. E.T.'s protest. The residence was described as an apartment building near Billings Bridge. The girls had to take an elevator to the 15th floor to get to the apartment. There were five black males in the apartment and they appeared to be familiar to the defendant.

Ms. E.T. threw up at this residence. The defendant threw water at Ms. E.T.'s face and struck her, telling her to stop being sick. Ms. E.T. was followed to the washroom by one of the men who told her that she had to have sex with him or he would throw her from the balcony. Ms. E.T. told him to throw her off the balcony because, in her mind, she thought the defendant and Ms. C. were going to kill her anyway, so she would rather just "get it over with". The man picked Ms. E.T. up and threw her in the closet and later pushed her out of the apartment.

Ms. E.T. went for the elevator, still feeling very ill and scared, but she was intercepted by Ms. C. who directed her to wait for the defendant.

An underground taxi came to pick the girls up and they stopped at the McDonald's near Billings Bridge where the defendant gave Ms. E.T. ice cream. Ms. E.T. was sick and only took a bit of the ice cream. The taxi returned the girls to the defendant's house where Ms. E.T., ill and exhausted, started to change into her pyjamas. The defendant stopped her and said there was someone coming to meet her. Ms. E.T. said she wanted to sleep.

The defendant and Ms. C. walked her outside towards a BMW with one man inside. Ms. E.T. thought the girls were going to get inside the car, but she ended up in the front seat alone with the man. Ms. E.T. told the man that she was 13 years old and that she did not want to have sex with him. She said that she was scared and wanted to go home. The man told Ms. E.T. that he was paying for sex and he would have to get something out of this. He unzipped his pants, took out his penis, grabbed Ms. E.T.'s head and forced her to perform oral sex on him. Ms. E.T. testified that the man ejaculated onto the seat and cleaned it up.

Ms. E.T. saw the defendant and Ms. C. speak to the man afterwards. I find that the defendant received payment for the sexual services she arranged for him. The girls then re-entered the defendant's room. Ms. E.T. testified that she felt really sick. She was disgusted. She testified that she did not know people could be that sick. She tried to change into her pyjamas once again, but the defendant and Ms. C. were on their cell phones, texting once again.

She travelled with the defendant and Ms. C. in a Blue Line taxi to a dorm style apartment with two men inside. Ms. E.T.'s captors referred to one of the men as "God". Ms. E.T. threw up at this residence, as well, and believed that she was unconscious for a few hours as Ms. C. cared for her. When she awoke, the defendant told her someone was coming for her.

Ms. C. took Ms. E.T. outside where Mr. F.P. picked her up. Mr. F.P. paid for the services he expected to get from Ms. E.T. when he picked her up. Although he did not recall how much he paid, Mr. F.P. testified that it was $50 to $70, as this was the agreed price range for sex with one of the defendant's girls. I find that although Ms. C. delivered Ms. E.T. to the car, the transaction was arranged by the defendant. Ms. C. provided false identification to Mr. F.P., saying that it belonged to Ms. E.T..

Ms. E.T. later told Mr. F.P. that it was false identification. She told him she was 13 years old. Mr. F.P. arrived at Mr. M1's building on D[…] Street and gave Ms. E.T. a sticky note with a unit number on it, telling her that he would try to help her, but that he had to park. She went to the unit, as directed, and Mr. M1 opened the door.

Ms. E.T. had, of course, met Mr. M1 the previous day. Ms. E.T. was described by Mr. F.P. and Mr. M1 in their evidence as being in a very sickened state. She vomited, was shaking and was pale. Mr. F.P. testified that Ms. E.T. offered the men $20 to not do anything to her, as she was not that kind of girl. Mr. F.P. testified that he offered to call the police for Ms. E.T., but that she said she did not want the police involved and the defendant and Ms. C. had her belongings. Mr. F.P. testified that the defendant called repeatedly asking that he bring Ms. E.T. back and that he had to yell at her and assure the defendant that Ms. E.T. would be returned. Mr. M1 brought Ms. E.T. water and brought her to his car, telling her that he would call the police, but he did not. Instead, Mr. M1 drove Ms. E.T. back to God's residence. Ms. C. went to speak with Mr. M1 as Ms. E.T. cried and pleaded to go home.

Ms. E.T. was brought back into God's dorm room. Ms. C. got a call on her cell phone and Ms. E.T. heard Ms. C. describing her to the caller. Ms. E.T. cried and begged Ms. C. to tell him not to come pick her up.

The defendant then punched Ms. E.T. on the cheek, leaving a bruise. When God returned, Ms. E.T. was very sick. God asked the defendant what she had given Ms. E.T. and the defendant said she had given her a "Bart Simpson", to which God replied "oh the ex".

Ms. E.T. concluded that she had been given ecstasy. Ms. E.T. spoke with God and told him that she wanted to go home. The defendant and Ms. C. were verbally abusive to Ms. E.T., and God told Ms. E.T. that if she ever needed a gun to use on the defendant, to just let him know. The defendant replied that if anyone needed a gun, it was her to smarten Ms. E.T. up.

Ms. E.T. testified that the comment no longer frightened her after all she had been through. Ms. E.T. then told God that she was 13 years old. The defendant got up and left the room. When she returned, the defendant hit Ms. E.T. on the face and then sat down beside Ms. E.T. as though nothing had happened. God convinced the defendant to let Ms. E.T. go home.

An underground taxi came to collect Ms. C. and Ms. E.T.. Ms. C. was dropped off first and then, Ms. E.T. was dropped off at her home. Ms. E.T.'s mother was waiting for her. Ms. K.T. testified about Ms. E.T.'s dishevelled appearance. K.T. was angry with her daughter.

She had received dismissive text messages, as Ms. C. pretended to be Ms. E.T.. Ms. K.T. had seen her provocatively dressed daughter's new profile photo on her Facebook page.

Ms. E.T. went to bed. She did not get up for school the next day and called a friend later in the day to tell her of the nightmare she had endured. Her friend encouraged her to tell her mother. Ms. K.T. testified that her daughter did not want police called, as she feared for her safety as the girls would surely harm her. Ms. K.T. called the police.

Ms. E.T. went to the hospital with a family friend and refused to have a sexual assault exam after the process was explained to her.

Ms. C. refused to return Ms. E.T.'s bus pass and other belongings to Ms. K.T., but agreed that Ms. E.T. could attend with a family friend to retrieve her things. Ms. E.T. returned the clothes she had been forced to wear and was given her belongings back on a later date.

Ms. E.T. had not disclosed anything about the party with the five black men or the forced oral sex in the BMW in any statement to police. She had recorded the details surrounding these incidents in two diaries she kept after she moved to her grandmother's home out of province months after these incidents. Ms. E.T. testified and the Court accepts that she was recording this information for her eyes only and intended to burn the books someday. Defence counsel brought an application before this Court to have access to the diaries before Ms. E.T. testified. The Court reviewed the diaries and determined that they would be disclosed in their entirety without any editing. The details of these incidents were revealed for the first time when these diaries were disclosed.

Ms. E.T. testified that she was ashamed and embarrassed that these things had happened to her, and she hoped that no one would ever find out the truth which she had recorded in the diaries. The diaries were not part of these proceedings for the purpose of establishing any prior consistent statement on the part of Ms. E.T., which would clearly violate the rule against oath helping and be an improper purpose. However, the diaries do establish that BMW incident was not created for the first time during the complainant's testimony. They are relevant for the very limited purpose of showing how the disclosure of this incident came about and for no improper evidentiary purpose.

Ms. E.T.'s evidence at this trial was consistent, clear, logical and corroborated in many respects, notably by two of the johns who testified during these proceedings. By way of example, Mr. M1 testified that he got a call from the defendant saying she had a girl for him for $150. When Mr. M1 hung up on the defendant, she called back and agreed to take $50. He testified that he went to an area near the Giant Tiger and saw the defendant and Ms. C. with a tall, white girl who was pretty. He paid the defendant $50 for this girl. He saw that she was upset and he asked how he could help her. He offered her $20, but she refused to take the money and insisted that she needed to get her belongings back from the defendant. Mr. M1 testified that she wore a white dress, that he agreed to wait a half hour and say that they had had sex so that she would not be beaten. He testified that he saw the same girl when Mr. F.P. brought her to his apartment and that the girl was very sick. Mr. F.P.'s evidence also corroborates the evidence of Ms. E.T.. Ms. E.T.'s testimony is also corroborated by her description of clothing found in the defendant's room, as well as the evidence of Ms. H. who found herself at the defendant's residence seeking the return of her daughter's belongings as Ms. E.T. was in the defendant's bedroom. On the record before this Court, I am convinced beyond a reasonable doubt that all of these incidents occurred as Ms. E.T. testified to them.

There were details which she conceded in cross-examination which did not comport with the diary (for instance, the order in which these events occurred), but she was unshaken as to the order of the events in court, explaining that the diary was a release, for her own benefit, and the thoughts expressed in the diary were not recorded chronologically. I find that her testimony was presented in the order in which the events occurred. She was not shaken in cross-examination on the essential elements of each of the events which occurred. I found Ms. E.T.'s evidence reliable.

Count 27: Inciting Sexual Touching

Count 27 alleges that the defendant, for a sexual purpose, did incite a person under the age of 16 years to touch, with a part of her body, the body of a sex trade worker.

Defence counsel, firstly, argues that the Court should have concerns about the complainant's evidence, given the delayed disclosure of the facts as alleged in the diaries. Following a full examination of the totality of the evidence, I have no such concerns, for the reasons set out above. This was a traumatic event which caused the complainant to be fearful, embarrassed, ashamed and hopeful that all of the details would never be revealed. Defence counsel points to the lack of corroboration as to the incident in the BMW, the contradiction regarding the location of incident, whether the vehicle had moved or not, and the contradiction as to whether both the defendant and Ms. C. brought her to the BMW or whether Ms. C. did so alone. I have reviewed the evidence in its totality and I am not left in doubt by the evidence that I accept, which is set out above.

I am convinced beyond a reasonable doubt by the evidence of the complainant alone as to the incident in the BMW. Ms. E.T. was unshaken in cross-examination on the essential facts and important details of her experience.

Defence counsel argues that the Court should be left in doubt about whether the defendant, by her words or conduct, "urged or persuaded" the complainant to touch this unknown man for a sexual purpose.

Incitement means more than passive acquiescence and requires a positive act on the part of the defendant to cause the complainant to engage in sexual touching. Here, the defendant advised Ms. E.T. that the man was coming to see her. She arranged for this to take place. The defendant delivered Ms. E.T. to her customer and collected her after the man was done with her. Ms. E.T. felt that she had no choice, but to comply. The sexual act resulted in Ms. E.T.'s mouth touching the man's penis. The defendant was actively involved in this incident throughout. She arranged it, knew exactly what would happen and was paid for it. The defendant arranged for this sex trade customer in the BMW to receive sexual services from Ms. E.T., a 13 year-old girl. The defendant not only urged or persuaded her to do this, but arranged for it to occur, threatened and beat Ms. E.T. throughout her time with her and, thereby, forced her to engage in this sexual act or face the consequences. On the record before this Court, I am convinced of the guilt of the accused beyond a reasonable doubt.

There will be a finding of guilt on count 27.

Counts 28 and 29: Making and Possessing Child Pornography

Counts 28 and 29 allege, respectively, that the defendant made and possessed child pornography and the Crown argues that these counts refer to the photos taken in relation to Ms. E.T..

The defendant knew that Ms. E.T. was 13 years old. Ms. E.T. told her how old she was when they were walking home from the park and when she told the defendant in the car that she was 13 years old and too young to have sex. In court, Ms. E.T. was shown photographs filed and marked as Exhibit 10. Although Ms. E.T. did not recall the photos being taken, she identified herself in the photos. These photos were recovered from the defendant's phone. Ms. K.O. had control of the phone. I find that Ms. K.O. took these photographs and that they were taken for the same reasons, as set out above in the analysis of this offence at count 18. The dominant sexual purpose behind these photos is clear. The complainant is depicted in a black negligee with her vagina, anal area and breasts clearly exposed. This was novel pornography created in the bedroom of the accused with its unique purple walls. Applying the same legal reasoning, set out above for count 18, and applying the above-noted findings of fact in relation to the incident involving Ms. E.T. to that analysis, I am convinced of the defendant's guilt in relation to these offences beyond a reasonable doubt.

There will be a finding of guilt on counts 28 and 29.

Count 30: Uttering Threats

Count 30 alleges that the defendant uttered threats to cause bodily harm to Ms. E.T., contrary to s. 264.1(2) of the Criminal Code. The specific threat under review occurred when the defendant told God that if anyone needed a gun, it was her to smarten Ms. E.T. up. Ms. E.T. testified that the comment no longer frightened her after all she had been through. However, the Court must look to the intent of the defendant when she uttered those words to determine if they were intended to intimidate or whether the defendant intended that they be taken seriously. I find that the evidence before me establishes beyond a reasonable doubt that the defendant intended, by her words, to intimidate Ms. E.T. and that she intended the threat to be taken seriously.

There will be a finding of guilt on count 30.

Count 31: Assault

Count 31 alleges that the defendant assaulted Ms. E.T.. Ms. E.T. testified that she was struck by the defendant. Ms. K.T. testified that she observed bruising on her daughter's cheek when she saw her the following day. Constable Girson observed a faint bruise on Ms. E.T.'s left cheek and light bruising under her right eye. I reject defence counsel's arguments on this count in their entirety. The evidence they point to, arguing that they cast doubt on whether an assault took place, are simply not compelling. I am not left in doubt that the injuries to Ms. E.T. were caused by the accused striking her. I find that the evidence before this Court has established the elements of this offence beyond a reasonable doubt.

There will be a finding of guilt on count 31.

Count 32: Administering a Stupefying Drug

Count 32 alleges that the defendant did, with the intent to, enable or assist Ms. E.T. to take a stupefying or overpowering drug, namely ecstasy, or biphentin or trazadone, contrary to s. 246(b) of the Criminal Code.

This count is improperly worded and does not speak of the administering of the drug, for the purpose of enabling or assisting herself or another person to commit an indictable offence. For this reason alone, the charge fails. However, I am persuaded by the arguments of defence counsel, as well, on this count. I agree that that there is no reliable, admissible evidence about the type of pill taken. It is highly suspicious that the defendant, faced with a young girl who refused to consume alcohol or drugs, might want to find a way to stupefy or overpower her by forcing her to consume drugs. However, it is also reasonable, in my view, to conclude that this 13 year-old girl who had been awake for many hours and forced to experience horrific things would have a headache, vomit and even lose consciousness from sheer exhaustion. The elements of this offence have not been proven beyond a reasonable doubt.

An acquittal will be entered.

Count 33: Procuring a Person to Become a Prostitute

Count 33 alleges that the defendant procured Ms. E.T. to become a prostitute. Defence counsel raises the same arguments as were raised with respect to this count (involving the previous complainants). For the same reasons, I reject those arguments and will determine the Kienapple issue at a later time following receipt of submissions on this issue. Given the findings of fact set out above, the elements of this offence have been established beyond a reasonable doubt.

There will be a finding of guilt on count 33.

Count 34: Unlawful Confinement

Count 34 alleges that the defendant unlawfully confined Ms. E.T., contrary to s. 279(2) of the Criminal Code. I find that Ms. E.T. was fearful of the defendant and felt confined up until the point in time when she was permitted to leave. The defendant appears to have been persuaded by the man they called God to let Ms. E.T. go home.

Defence counsel argues that the perceived parity in age, the consistent refusal of help offered (for example, by Mr. M1), the lack of physical restraint and the complainant's decision not to choose the impracticality of being stranded without her possessions are all compelling reasons to find the defendant not guilty of this offence.

The Supreme Court of Canada in R. v. Pritchard, supra, at paragraph 24 explained that in order for the offence to be made out, the complainant must only be coercively restrained or directed contrary to her wishes so that she could not move about according to her own inclination or desire.

I find that throughout the night, the defendant prevented Ms. E.T. from leaving until she was done with her. She beat her into submission. She stayed nearby as the man in the BMW sexually assaulted her. The defendant ferried her from place to place, deceived her as to the time of day and prevented her from communicating with her mother. Ms. E.T. was forcibly confined within the meaning of this section. She was most certainly directed contrary to her wishes and was not able to move about according to her desire. Ms. E.T. was forced to wear revealing clothing. She had naked photos taken of her. She was told that she was going to have sex that night and when she protested, she was assaulted. She was threatened. She was taken to apartments of various men where she was threatened. She was forced to perform a sexual act on a much older man.

I am convinced, beyond a reasonable doubt, based on my examination of the totality of the evidence leading to the findings of fact set out herein, of the guilt of the accused on this count.

There will be a finding of guilt on count 34.

Count 35: Trafficking in a Person Under 18 Years

Count 35 alleges an offence of trafficking of a person under the age of 18 years, specifically referring to Ms. E.T..

The arguments in relation to this count are essentially the same as the arguments raised above for this offence, as alleged, involving Ms. E.D. and Ms. M.B.. The same legal analysis applies. Defence counsel also argues that the only incident which could meet the definition of "exploitation" is the event which occurred with the man in the BMW. The defence asks that the Court look to the frailties of this evidence, as pointed out in earlier argument, and asks the Court to acquit the defendant on this count.

I have already found, beyond a reasonable doubt, that the incident in the BMW happened as Ms. E.T. described. In addition, I find that the defendant also forced Ms. E.T. to pose for naked photographs in highly sexualized and provocative positions and that this too meets the definition of exploitation. Applying the legal analysis set out in the similar counts involving Ms. E.D. and Ms. M.B. to the facts as found in the matter involving Ms. E.T., there will be a finding of guilt on count 35.

Count 36: Abduction of a Person Under 14 Years

Count 36 alleges an offence of abducting a person under the age of 14 years, namely Ms. E.T., with the intent to deprive a parent, namely Ms. K.T., of that person, contrary to s. 281 of the Criminal Code.

In the matter of R. v. Chartrand, [1994] S.C.J. No. 67, the Supreme Court of Canada set out the required elements of this offence. The Crown must prove the following elements beyond a reasonable doubt:

1. that the accused is not a parent, guardian or person having the lawful care or charge of a person under the age of 14 years;
2. the age of the child;
3. that the accused took, enticed away, concealed, detained, received or harboured the child;
4. that the taking was with the intent to deprive a parent, or guardian or any other person who had the lawful care or charge of that person of the possession of that person.

Defence counsel disputes the third and fourth elements, arguing that the evidence reveals no intention to deprive and, furthermore, the parent consented to virtually all of the period of absence. Counsel argues that once there was the removal of consent by Ms. K.T., Ms. E.T. was returned. For these reasons, defence counsel asks this Court to find that there is reasonable doubt in relation to the final count.

I accept the Crown's submissions on this issue in their entirety as expressed in their "reply submissions". I reject defence counsel's argument on this count, in part, because of the fraudulent and misleading text messages sent by Ms. C. at the defendant's insistence.

These messages delayed the withdrawal of Ms. K.T.'s consent to have her daughter continue to be away from home.

I find that Ms. E.T. repeatedly asked to call her mother and that the defendant and Ms. C. prevented her from doing so. Ms. K.T. had consented to having her daughter attend a sleep over at the home of Ms. C..

I find that there was premeditation on the part of the defendant to deceive and take Ms. E.T. away and then detain her, when the drop off point of the park was arranged by the defendant and Ms. C.. There was a detention of Ms. E.T. throughout most of this encounter and certainly from the point that Ms. E.T. was forced into a vehicle and told she would be having sex that night. The third element is made out.

I accept the evidence of Ms. K.T. that she expected her daughter home at a much earlier time. She was deceived by the fraudulent text messages and did not know to retract her consent to her daughter being away from home. I am convinced, beyond a reasonable doubt, that Ms. E.T. was abducted within the meaning of s. 281 of the Criminal Code.

There will be a finding of guilt on this count.

CONCLUSION

Further arguments on the Kienapple issue will be reserved for a future date.

The Honourable Madam Justice D. Lahaie

CERTIFICATE OF TRANSCRIPT

Evidence Act, Subsection 5(2)

I, Louise Carpentier, certify that this document is a true and accurate transcription of the recording of R. v. K.O. in the Ontario Court of Justice, Youth Criminal Justice Court, held at 161 Elgin St., Ottawa, Ontario, taken from Digital Recording No. 0411_CR01_20140129_091708__5_LAHAIED.dcr, which has been certified in Form 1.

NOTA BENE: This certification does not apply to Reasons for Judgment, which were judicially edited.

Date: May 15, 2014

Transcriber: Louise Carpentier