Ontario Court of Justice

Date: August 2, 2016

Court File No.: Toronto 15-75008366

Between:

HER MAJESTY THE QUEEN

— AND —

MAZIAR MASOUDI

Before: Justice David A. Fairgrieve

Heard on: February 22, May 22 and June 28, 2016

Reasons for Judgment released on: August 2, 2016

Counsel

Craig Coughlan — counsel for the Crown

Brian E. Starkman — counsel for the accused Maziar Masoudi

FAIRGRIEVE J.:

Introduction

[1] This preliminary inquiry proceeded with respect to five charges against the accused, Maziar Masoudi, after he elected to be tried by a judge and jury and requested this hearing.

[2] The first issue raised by Mr. Starkman, counsel for the accused, in his submissions regarding committal or discharge, is whether there is any evidence of an exploitative purpose, within the meaning of s. 279.04 of the Criminal Code, an essential element of two of the charges relating to the prostitution enterprise in Calgary in which Mr. Masoudi participated. This issue also involves a question of whether there is any evidence that Mr. Masoudi was at least a party to those alleged offences, within the meaning of s. 21 of the Code.

[3] The second issue, raised more by the Court than by either counsel, is whether the Toronto Region is the jurisdiction in which at least part of an offence was committed, so that any trial that might be ordered should be in the Superior Court in Toronto, rather than somewhere else in the Province of Ontario.

[4] Each of the five counts alleges an offence committed against the same victim, K.B., a woman who is now 27 years old.

[5] The time each offence was allegedly committed by Mr. Masoudi is stated as the same period in each count, namely, "between the 1st day of January in the year 2013 and the 28th day of February in the year 2013."

[6] Similarly, each count alleges that Mr. Masoudi committed the offence "at the City of Toronto in the Toronto Region and elsewhere in Canada." Since the accused's impugned conduct said to constitute the different offences occurred almost entirely in Calgary, what he actually did in Toronto or elsewhere in Ontario ultimately became one of the significant issues.

[7] It was agreed that another individual, a man named Milad Chelemiah, had been charged separately with the same offences that Mr. Masoudi faces here. Moreover, there was no dispute that Mr. Chelemiah was in fact charged as a principal under s. 21(1)(a) with those offences and was, according to both parties here, the person primarily responsible for whatever happened to the complainant in Calgary. Nonetheless, Mr. Masoudi's role as either a principal himself or as an aider or abettor under s. 21(1)(b) or (c) was not specified in the charges against him, so that the Crown is entitled to rely at this hearing on any potential basis for Mr. Masoudi's criminal liability that is available with respect to each charge.

[8] The charges against Mr. Masoudi into which this preliminary inquiry proceeded, then, are the following:

Count 1: "… did recruit, transport, transfer, receive, hold, conceal, harbour … K.B. … for the purpose of exploiting [her] or facilitating the exploitation of [her], contrary to s. 279.01(1) of the Criminal Code of Canada."

[the allegation, in the end, seemed to focus on the verbs "recruit" or "transport," rather than the other statutory possibilities];

Count 2: "… did receive a financial or other material benefit, namely a sum of money, knowing that it resulted from the commission of an offence under s. 279.01(1) …, contrary to s. 279.02 of the Criminal Code."

[the reference in the charge, as framed, to s. 279.11(1) as well, clearly has no application, since K.B. was 24 when the events occurred, not under 18 years of age];

Count 3: "… did, for the purpose of gain, exercise control, direction or influence over the movements of [K.B.] in such a manner as to show he was aiding, abetting or compelling [K.B.] to engage in prostitution, contrary to s. 212(1)(h) of the Criminal Code";

Count 4: "… did procure [K.B.] to become a prostitute, contrary to s. 212(1)(d) of the Criminal Code";

Count 5: "… did, by word of mouth, knowingly utter a threat to cause bodily harm to [K.B.], contrary to s. 264.1(1)(a) of the Criminal Code."

[9] During the course of his submissions, Mr. Coughlan, counsel for the Crown, fairly conceded that there was no evidence of any threat to cause bodily harm to K.B. ever made by Mr. Chelemiah, much less by Mr. Masoudi, and that as a result, Mr. Masoudi should be discharged on Count 5. The accused is accordingly discharged on that count.

[10] Moreover, in his written submissions, Mr. Starkman, with similar candour, conceded that there was sufficient evidence, within the meaning of s. 548(1)(a), to warrant his client's committal for trial on Counts 3 and 4. I accept that concession and, subject to comments I will make concerning the jurisdiction in which the trial should proceed, I will order the accused's committal for trial on those two charges.

[11] It should also be noted that Mr. Coughlan stated expressly that he was not seeking a committal for trial "for any other indictable offence in respect of the same transaction" in addition to the four remaining counts into which this inquiry proceeded.

The Evidence

[12] The only witness to testify at this hearing was the complainant, K.B. Her testimony, which has now been transcribed, comprises "all of the evidence" to be taken into account under s. 548(1) in deciding the question of committal or discharge concerning each charge. K.B.'s evidence-in-chief occupies 29 pages of transcript; her cross-examination by Mr. Starkman is 14 pages long. The transcribed submissions, quite a bit longer than the actual evidence, were supplemented by further written submissions by both counsel.

[13] Despite K.B.'s understandable inability to be precise about specific dates, particularly given her substance abuse and the distressing nature of her experience encompassed by the charges, I think it would still be helpful to separate her evidence into four chronological parts: (i) events in Toronto in early January 2013 before her trip to Calgary; (ii) events en route, still in Ontario; (iii) events that occurred in Calgary; and (iv) events following the return of K.B. with Mr. Chelemiah and Mr. Masoudi to Toronto in, according to her testimony, late February 2013. I appreciate that the exact timing of any particular event is not essential, but the general sequence of events may be significant in addressing the issues raised.

Events in Toronto before the "road trip" to Calgary

[14] K.B. testified that in late 2012, she had a job as a waitress in a Toronto restaurant for a couple of months before she was fired because her "bad drug problem" sometimes prevented her from going to work. She stated in her evidence that she was "kind of seeing" the man who owned the restaurant and that he was "taking care of her," giving her what little money she had at the time. She testified that she had become addicted at a very young age to cocaine and GHB (which, I gather, is a reference to one of the so-called "party" drugs). While still employed at the restaurant, she met Milad Chelemiah socially, and he became her drug dealer. When they first met, K.B. testified, he gave her some cocaine and, as she put it, she let her guard down and basically told him her life story. She said she thought she could trust him because he seemed to care, and he was "friendly" and "nice."

[15] Mr. Chelemiah and K.B. developed, she stated, a friendly dealer-user relationship. A couple of months after she was fired from her job as a waitress, he invited her to come along on a trip he said he was going to take to Calgary. According to K.B.'s testimony, he told her, "You don't have to do anything you don't want to do. You're not working right now, so, you know, it would be fun." She testified that she believed at the time of his invitation that it was just going to be a "fun road trip."

[16] K.B. testified that Mr. Chelemiah also explained to her that "he had girls working for him" and "he wanted to make money," but assured her that it would just be "fun" and she could "come along for the ride." She believed him, and agreed to go. About a week later, they actually left Toronto to drive to Calgary.

[17] Mr. Starkman returned, in cross-examination, to the subject of her expectations concerning the planned trip. Specifically, when he asked her about what she had told a Toronto police officer on November 21, 2014 (a year and a half after the events, when she first complained to the police), K.B.'s evidence was as follows:

Q. So, I'm referring to p.11 of the transcript of the statement you gave the police…

A. Mm-hmm.

Q. … and it says, "After meeting him, he invited – he asked me if I wanted to go to Calgary …

A. Mm-hmm.

Q. "… and he said, you know, maybe you could work massage, like, no pressure, you know, like it was comforting. Like I felt okay. It didn't really feel right, but I didn't really care. I was – the money I had I was buying from him cocaine [ sic ] …

A. Mm-hmm.

Q. "…and I ended up just running out of money, …

A. Mm-hmm.

Q. "… so I end up going with him and his friend. We drove to Calgary."?

A. Yeah.

Q. So that sounds as if the reason you went there was not for "a fun road trip," but because you ran out of money?

A. Can I respond?

Q. Yes.

A. I did run out of money, and the way he described it wasn't as though when I gave the statement I was as I am today. But I did – he made it sound like it was going to be a fun road trip and I didn't have to do anything I didn't want to do. Did Milad [Chelemiah] ask me if I would work massage and I – yes, I said yes, but that I had done before, so …

Q. Yeah, And, in fact, if we look at p. 18, the top of the page, it says, "We got to Calgary and as soon as we got there, um, when we had left it wasn't a guarantee. He didn't – he didn't say I had to work. He just said, don't worry. We're going to go there. We'll be fine, right?

A. Mm-hmm.

Q. So, that's sort of consistent with what you're saying, in the sense that you – he didn't say you had to work, but you understood that that was something you could do?

A. Yes.

[18] K.B. testified as well that before they left for Calgary, Mr. Chelemiah continued to sell her drugs, which she paid for if she had the money, but sometimes he would just say it was "on spot" [ sic ] and tell her to pay him later. When asked by Mr. Coughlan why she agreed to go to Calgary, she stated, "At the time I felt, I guess, a little bit comfortable and safe with him 'cause he was nice to me, but I needed that connection to drugs because I didn't have any money."

[19] At this point in her evidence-in-chief, Mr. Masoudi was first mentioned. In answer to Mr. Coughlan's question whether anyone else accompanied them to Calgary, she said, "Yes, Maziar," identifying the accused. K.B. testified that she did not know him before they left for Calgary, but that Mr. Chelemiah had told her that he could not drive himself because he had no insurance or some other "car issue," but that Mr. Masoudi had both a car and a credit card "to pay for the room [in Calgary] and everything." K.B testified that it was hard to remember whether she met Mr. Masoudi the same day they left Toronto, which she said was at the end of January 2013, or perhaps once before their departure. Both Mr. Chelemiah and Mr. Masoudi took turns, she said, driving the accused's BMW after leaving Toronto.

Events in Marathon, Ontario, en route to Calgary

[20] When Mr. Coughlan asked if the trip had gone smoothly, K.B. testified that it had not. She explained that in, she believed, Marathon, Ontario, they were pulled over for going too slowly, despite the fact that it was snowing and icy at the time. A problem arose, however, when the officer then smelled marijuana in the car. The police found cocaine and GHB which, she testified, were hers, as well as marijuana that belonged to the two men. K.B. stated that Mr. Chelemiah at the time was "holding" the cocaine for her, but that it was actually hers. She testified further that Mr. Masoudi ended up taking responsibility for the drugs and was the only person charged by the police in Marathon in connection with the drugs.

[21] According to K.B.'s testimony, she was then told (by whom was not specified) that "they" – referring to Mr. Chelemiah and Mr. Masoudi – "needed [me] to work." When she was asked further by the Crown what the reaction from the two men was to the drug charges against Mr. Masoudi, again not asking from whom in particular, K.B. answered:

They were upset. They said it was my fault and nothing would have happened if I didn't have my drugs. And Milad had said now we need money to pay for a lawyer, and everything just got much more expensive, and I needed to work when we got to Calgary.

[22] K.B. testified that she understood that "work" meant "escorting," but she agreed to it she because she "felt bad" that Mr. Masoudi had been charged and "they were my drugs, so I felt like I owed them." In cross-examination, she repeated the same point:

Q. … your evidence is that you felt bad, as you said, that his [Mr. Chelemiah's] friend would take the rap for the drugs and …

A. Yes, I did.

Events in Calgary, Alberta

[23] K.B. testified that just as they were arriving in Calgary, "they" posted an ad for her on "Back Page," a website where escorts advertise their services. When asked then by Mr. Coughlan if by "they," she meant Mr. Chelemiah and Mr. Masoudi, she replied, "Yes, sorry." She testified that Mr. Chelemiah "created" or "posted" the ads, using photographs that Mr. Masoudi took of her.

[24] As soon as the three of them arrived in Calgary, she testified, "we went to the mall and they [ sic ] said I needed to buy outfits to work in, and we went to the hotel and I started immediately." She clarified that by "outfits," she meant "bra and underwear," and that it was actually Mr. Masoudi who took her shopping, and that Mr. Chelemiah met them afterwards.

[25] K.B. testified that she waited in the car while the two men registered at the hotel, at first a Hilton, then later at a Howard Johnson because it was cheaper. She said she "knew" Mr. Masoudi put his credit card on file – how she knew, was not asked – continuing, "but I don't know if they [ sic ] paid cash or credit card."

[26] K.B. further testified that she started working as a prostitute the same day they arrived in Calgary. While all three shared the same hotel room, presumably to sleep at night, both men left the room when she had a "client," either to wait in the car in the hotel parking lot or to go elsewhere. She also testified that she did "outcalls" as well, where one of the men, usually Mr. Masoudi, would drive her to an address and wait for her. She testified that the "Back Page" ad, which was updated several times a day to confirm her current availability, had her own phone number on it. Customers contacted her directly either by phone or text message, but if it was text, Mr. Chelemiah would usually reply because "he knew how to talk to them … to set up an appointment." She also testified that while she would sometimes post the ads herself, if she was "in a session," Mr. Chelemiah or Mr. Masoudi would do it. Who, in particular, did it, or why she thought that, was not specifically asked.

[27] K.B. further testified that Mr. Chelemiah dictated the prices to charge, and she would tell the customer. She would then take the money and give it to either Mr. Chelemiah or to Mr. Masoudi.

[28] She added that some days or nights were busier than others, but she generally saw about six to ten "clients" a day. She testified that she provided all kinds of sexual services, including anal intercourse when she was menstruating because "they" told her that "the guys pay more for that." K.B. added that, as well, different "specials" were advertised on the Internet site as directed by Mr. Chelemiah, which included oral sex, anal sex or "quickie" vaginal sex early in the morning.

[29] While she testified that the "minimum" rate was $80, she added that a "quickie" could be $50 or $60, and she normally earned $800 or $1,000 a day, depending on how late she worked. K.B. stated that she gave everything to "them" and that at the end of the trip, Mr. Chelemiah gave her $2,000. She testified that altogether, she believed she worked in Calgary for a total of three weeks or a month.

[30] Food or unspecified "incidentals" (to use the word in Mr. Coughlan's question) were brought to her by one of the men or they "grabbed" something on the way to an outcall (as K.B. put it in her testimony). Since, she testified, she was so busy with "clients," she could not really go anywhere and "it was done for me."

[31] As for her drug use during this time, K.B. testified that Mr. Chelemiah had told her that she was not allowed to use drugs, telling her that she was "just a junkie." At the same time, she said, she did use drugs sometimes when customers brought them and shared them with her. On one occasion in particular, she testified, Mr. Chelemiah took her to see some friends or business associates, who offered her a drink and she got very drunk. Both men, she testified, were upset because she "couldn't work properly" in that condition, and they "gave me shit for it." On other occasions, customers gave her less than the stated price, but drugs as well, or gave her drugs instead of money, which caused Mr. Chelemiah to become upset, calling her "a no-good junkie" and telling her that she would have to work longer to make up for it.

[32] In cross-examination by Mr. Starkman, K.B. distinguished Mr. Masoudi's situation from that of Mr. Chelemiah:

Q. … you spoke about a few times where you wouldn't get all the money and Milad [Chelemiah] would get upset, right?

A. Yes, I did.

Q. But Maziar [Masoudi] was the opposite, right? He never got upset with you, correct?

A. No, he did not.

Q. … and in fact, there were times when Milad [Chelemiah] would get upset with you because you didn't get all the money, and Maziar [Masoudi] would actually try to explain things to him and calm him down, right?

A. Yes.

[33] At some unspecified time, K.B. testified, they moved from the Hilton to a Howard Johnson, because the latter hotel was cheaper. When asked by Mr. Coughlan if she knew what arrangements were made for renting the second room, she replied again that "Maziar [Masoudi] used his credit card." Whether this was something she actually witnessed or had merely been informed of by one of the men was left uncertain by the questions that were asked.

[34] K.B. agreed, however, with the Crown's suggestion that "at some point … the decision is made to leave Calgary." She then elaborated on how the decision had come about:

One of the last clients that I had, which was an in-call, went very badly. I ended up accepting drugs and not getting all the money that I was supposed to. Milad [Chelemiah] was fed up with me, and I had also said, you know, over and over, I need to go home. I have to take care of a few things. Like, I really need to go. We can come back, just trying to get out of the situation. And finally he [Mr. Chelemiah] said, okay, we'll come back. Like I think I had to get my driver's licence, my mom's birthday was coming up, so I was just coming up with everything I could.

[35] Mr. Coughlan's next questions, nonetheless, were the following:

Q. And how long was it that you said you were trying to come up with reasons to leave? You weren't – were you allowed to leave?

A. Yes.

Q. At some point you were. How long … was it that you had sort of been asking about leaving until you were allowed to leave?

A. It was a couple of days.

Q. And why didn't you leave on your own?

A. Because I didn't have anywhere to go, and I didn't have money, and I was afraid.

Q. Afraid of what?

A. That if I left, something bad would happen to me.

Q. What do you mean … "something bad would happen"?

A. That Milad [Chelemiah] would come after me. Like, I was afraid of him. So, I was just trying to do everything to make him happy and be good enough.

[36] In his cross-examination of K.B., Mr. Starkman returned to her testimony that she was afraid of Mr. Chelemiah:

Q. … So, Milad [Chelemiah] never – I mean, you used the expression that you – the third reason you gave for not wanting [ sic ] to leave was you were afraid that Milad [Chelemiah] would come after you, but he never said anything to you that he would come after you if you didn't continue working, right?

A. No.

Q. All right. You were – so this was just sort of something in your own mind that you – that you sort of developed some belief that if you didn't continue to work that he would come after you; is that fair?

A. No. He had told me before that he – something about kidnapping somebody. I did know his history with violence, so I was afraid for myself for that reason, that I knew he had a history of violence.

Q. All right. But you didn't know how you learned of that history?

A. After we got arrested [in Marathon, Ontario], he told me a little bit, and before we had left for Calgary, he had a gun in his house, so yeah.

Q. Okay, but just so we're clear, there was nothing that he said or did – there's nothing he said to you in terms of a threat that if you didn't keep working, he would come after you?

A. He never threatened me directly. He just told me one time, you know,I might as well just leave you here because you're no good, because I was not doing my job the way he wanted me to.

K.B. also accepted Mr. Starkman's suggestion that her "knowledge" that Milad Chelemiah had had a gun was based, apparently, on what he had told her at some unspecified time before she agreed to take the trip to Calgary with him.

[37] As the Crown was completing his examination-in-chief of the witness, Mr. Coughlan asked a series of leading questions to which Mr. Starkman, apparently for his own reasons, chose not to object:

Q. I believe you said before that Milad [Chelemiah] was the person who set the prices, is that right?

A. Yes.

Q. Was he making many of the decisions that were being made about the business?

A. Yes.

Q. Did you have any or much input about how the business was going to be run?

A. No.

Q. And what about Maziar [Masoudi]?

A. Not really. It was – it was mainly Milad [Chelemiah]. Maziar [Masoudi] just went along with what he said.

Events in Toronto after the return from Calgary

[38] K.B testified that after the three of them drove back to Toronto together, she had further contact with Mr. Chelemiah because she continued using drugs and he continued selling cocaine to her. When asked where she got the money for the drugs, K.B. testified:

He had given me $2,000 … when we were on our way back to Toronto, and he also told me it wasn't a good idea for me to hold on to my money because I would spend it all, so he – I said, "Okay, well, can you hold it for me?" And he still sold me drugs and deducted money every time I bought from him off the money he was holding for me.

Q. All right. Did you ever see any of that $2,000 besides what you got in drugs?

A. No.

K.B added that in April 2013 (a month after the return to Toronto), things were "very bad" and she started going to A.A. and Cocaine Anonymous, but that she continued to struggle with drug abuse and often relapsed.

[39] With respect to Mr. Masoudi, K.B. testified that she saw him on three separate occasions back in Toronto, but could not remember who initiated contact or the order in which the contacts occurred. She testified, however, that twice Mr. Masoudi picked her up and drove her to Richmond Hill so she could work as a prostitute again. Later in her testimony, she said that she believed that the first reason he talked to her was to tell her that Mr. Chelemiah was "wanted" for something, and that later he came to tell her that Mr. Chelemiah had "turned himself in."

[40] In cross-examination, K.B. clarified the circumstances further:

Q. And [p. 112 of your statement to the police] says, "Yeah. And he [Mr. Chelemiah] turned himself in and he still had my money. So I started "working" again. I had contacted "Muzzi" – "Muzzi" is the nickname, I guess…

A. Maziar [Masoudi], yes.

Q. … all right. "I contacted Muzzi and said I need to work…" and then you said, "'cause I don't have any money." And then, "So then I worked in Richmond Hill," right? So … you at least told the police that you had contacted him, right?

A. Yes.

Q. … does [the statement] ring a bell now that you were the one who contacted him?

A. We were already talking, so I'm just saying, from the beginning, I don't remember exactly how it started. I remember telling the police that, yes.

Q. All right. And so you – I mean, you said a moment ago that you – about your relationship with Maziar [Masoudi], but the relationship was trusting enough that you contacted him and said, "I need to work, can you help me?," right?

A. Yes.

[41] In answer to Mr. Coughlan's question, "So, what arrangements were made for this period when you were "working" [in Richmond Hill]?," K.B.'s evidence was:

The same thing. Maziar [Masoudi] had picked me up. We checked into the hotel and you had to leave a deposit, but I do believe that we used his credit card for the room.

Q. And again … did you provide escort services?

A. Yes.

K.B. stated that Mr. Chelemiah was not involved in either of the occasions in Richmond Hill when she asked Mr. Masoudi to take her there.

[42] With respect to the visits to Richmond Hill, K.B. initially testified that "after the client, I gave [the money] to Maziar [Masoudi]," but she then explained the details, still in her evidence-in-chief, as follows:

Q. These times in Toronto when you were working in connection with Maziar [Masoudi], who contacted whom in terms of arranging the work, like, that you would work together?

A. Well, I contacted – the first time, to be honest, I don't remember how it happened. I know that we were keeping in contact, because he was updating me on Milad [Chelemiah] and situation, because he was on the news and I – I think I told him, yes, I'll work, and he picked me up.

Q. Okay. And did you receive payment from [Mr. Masoudi] for the – did you receive money from Maziar for the – the night's work?

A. Yes.

Q. Approximately how much of what was made did you receive?

A. I think about $100, maybe a little bit more.

Q. And do you know what the total amount was that was earned that night?

A. I don't remember.

Q. Would it have been more than the hundred some odd dollars that you were given?

A. Yes. I think I had maybe six clients.

[43] With respect to the "second occasion" in Richmond Hill, she testified as follows:

Q. And on the second occasion, that was later, do you recall if you received payment that time?

A. I took everything and left.

Q. And subsequent to that, did you see [Mr. Masoudi] again?

A. No. Oh, sorry, yes I did. I saw him at Yorkdale which was – it must have been around my birthday, which is September.

In cross-examination, K.B. agreed that on the second occasion in Richmond Hill, she left the hotel early and kept all the money she had received from her "clients." She stated that she and Mr. Masoudi texted after that, that he asked her, "Did you take the money?" and she replied, "Yes.," but that he did not respond further. She agreed that when she and Mr. Masoudi bumped into each other at Yorkdale, he did not try to say that she owed him money or anything similar.

[44] Also in cross-examination, as already indicated, Mr. Starkman referred to a video statement which, she agreed, she provided to the Toronto Police on November 21, 2014. What led to the complainant's report to the police a year and a half after the relevant events was not the subject of any questions or evidence.

The Test for Committal or Discharge

[45] Not surprisingly, there was no dispute concerning the law applicable at this stage of the proceedings. In accordance with the judgment of the Supreme Court of Canada in U.S.A. v. Sheppard (1976), 30 C.C.C. (2d) 424, an order committing an accused to stand trial on a particular charge is required when there is admissible evidence which could, if it were believed by the trier, result in his conviction for that crime.

[46] Since the Crown's case in relation to the potential culpability of Mr. Masoudi with respect to each charge depends on inferences to be drawn from the evidence that was heard, I think that I should instruct myself in accordance with the principles recently summarized by the Court of Appeal in R. v. Wilson, 2016 ONCA 235 (March 31, 2016). Under the heading "The Role of the Preliminary Inquiry Judge," Benotto J.A. quoted s. 548(1) of the Criminal Code, referred to the Sheppard test, and then stated the following, at paras. 22 to 24:

[22] The test is the same whether the evidence is direct or circumstantial. However, with circumstantial evidence, there is an inferential gap between the evidence and the matter to be established. The question becomes whether the elements of the offence to which the Crown has not advanced direct evidence may reasonably be inferred from the circumstantial evidence.

[23] The preliminary inquiry judge must therefore engage in a limited weighing of the evidence to assess whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This does not entail considering whether he or she would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. Rather, the preliminary inquiry judge asks whether the evidence, if believed, could reasonably support an inference of guilt: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at paras. 1 and 23.

[24] Any reasonable interpretation or permissible inference from the evidence, beyond conjecture or speculation, is to be resolved in the prosecution's favour. At the preliminary inquiry stage, if more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be drawn: R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 18. To weigh competing inferences is to usurp the function of the trier of fact: R. v. Clarke (2002), 159 O.A.C. 221, at para. 4.

[47] Since there was considerable circumstantial evidence that could potentially be considered "exculpatory" vis-à-vis Mr. Masoudi's alleged role in the prostitution enterprise K.B. described, I should direct myself in accordance with the following statements made by McLachlin C.J.C. in Arcuri, supra at para. 31-32:

31. The traditional formulation of the common law rule perhaps suggests a different approach. Traditionally, it is said that a preliminary inquiry judge must commit the accused to trial if there is any evidence upon which a properly instructed jury, could find guilt. … That formulation of the rule could be misunderstood to mean that, if the Crown presents evidence that would on its own be sufficient to support a verdict of guilty, the preliminary inquiry judge need not consider the exculpatory evidence proffered by the defence. …

32 This result would obviously be inconsistent with the mandate of the preliminary inquiry justice as is expressed in s. 548(1), which requires the preliminary inquiry justice to consider "the whole of the evidence." Further, it would undermine one of the central purposes of the preliminary inquiry, which is to ensure that the accused is not committed to trial unnecessarily: see R. v. Russell, [2001] 2 S.C.R. 804, 2001 SCC 53, at para. 20. Thus the traditional formulation of the common law rule should not be understood to foreclose consideration of defence evidence.

If "the whole of the evidence" includes evidence of witnesses called by the defence to testify at the preliminary inquiry, the "exculpatory" evidence elicited from a Crown witness, either in-chief or in cross-examination by defence counsel, must also, I am sure, be taken into account in the limited weighing of the circumstantial evidence to determine what inferences would reasonably be available to the trier of fact.

[48] I should also direct myself that, as Benotto J.A. stated in the quoted passage from her reasons in Wilson, supra, there is a significant difference between a reasonable inference that is available from the evidence and mere speculation or conjecture. As explained in the reasons given by Doherty J.A. in R. v. Morrissey (1995), 97 C.C.C. (3d) 193 at p. 209 (Ont. C.A.):

A trier of fact may draw factual inferences from the evidence. The inferences must, however, be ones which can reasonably and logically be drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation.

[49] Moreover, in R. v. Russell (2001), 157 C.C.C. (3d) 1 at para. 20 (S.C.C.), a decision referred to supra, McLachlin C.J.C., also made the following observation concerning the limited purpose of a preliminary inquiry:

Critically, the preliminary inquiry is not meant to determine the accused's guilt or innocence. That determination is made at trial. The preliminary inquiry serves a screening purpose, and it is not meant to provide a forum for litigating the merits of the case against the accused.

Likewise, in R. v. Hynes, (2001), 159 C.C.C. (3d) 359 at para. 30 (S.C.C.), the Chief Justice repeated once more that "[t]he preliminary inquiry is not a trial. It is rather a pre-trial screening procedure aimed at filtering out weak cases that do not merit trial." McLachlin C.J.C. then went on there to quote Estey J.'s statement in Re Skogman and The Queen (1984), 13 C.C.C. (3d) 161 at p. 171 (S.C.C.), that "[t]he primary purpose of a preliminary hearing is to protect the accused from a needless, and indeed, improper, exposure to public trial where the enforcement agency is not in possession of evidence to warrant the continuation of the process." That screening function remains limited, however, as repeated in Arcuri at para. 34, to an assessment of whether, on "the whole of the evidence", a reasonable jury properly instructed could return a finding of guilt.

Whether there is evidence of a purpose to exploit K.B.

[50] As already stated, the first two charges against Mr. Masoudi have, as a common essential element, the purpose of exploiting K.B. or of facilitating her exploitation. The "human trafficking" charge in Count 1 alleges that Mr. Masoudi recruited or transported K.B. for that purpose, an offence contrary to s. 279.01 of the Criminal Code. In order to establish the so-called "material benefit" offence under s. 279.02, alleged in Count 2, there must be some evidence that the accused received money (or was a party to Mr. Chelemiah's profiting) from the commission of the alleged s. 279.01 offence.

[51] Mr. Starkman submitted that there was no evidence called that is capable of establishing the requisite purpose of exploiting K.B., within the meaning of "exploitation" as defined by s. 279.04(1), by engaging in the prohibited conduct (as principal or party) either intending to exploit her himself or to facilitate her exploitation by Mr. Chelemiah.

[52] The relevant statutory provisions, substituting the pronouns or verbs applicable to Mr. Masoudi's case, are the following:

279.01 (1) Every person who recruits [or] transports … a person for the purpose of exploiting [her] or facilitating [her] exploitation, is guilty of an indictable offence…

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

279.02 Every person who receives a financial or other material benefit, knowing that it results from the commission of an offence under subsection 279.01 … is guilty of an indictable offence…

279.04 (1) For the purposes of sections 279.01 to 279.03, a person exploits another person if [he] causes [her] to provide … labour or a service, by [his] engaging in conduct that, in all the circumstances, could reasonably cause [her] to believe that [her] safety … would be threatened if [she] failed to provide … the labour or service.

(2) In determining whether an accused exploits another person under subsection (1), the Court may consider, among other factors, whether the accused

(a) used or threatened to use force or another form of coercion;

(b) used deception; or

(c) abused a position of trust, power or authority.

[53] Mr. Starkman submitted, obviously correctly, that the "exploitative purpose" required by the offences charged in Counts 1 and 2 does not mean simply that an accused did something in order to take unfair advantage of another person (perhaps the dictionary definition of "exploitation"), but that what he did was for the purpose of "exploitation," within the statutory definition of that word set out in s. 279.04.

[54] Both counsel agreed that the leading appellate authority, at least in Ontario, interpreting the relevant Code provisions is R. v. A.A. (2015 ONCA 558) (July 29, 2015).

[55] While the facts in A.A. had some similarity to the circumstances here, there were also significant differences. In A.A., both the male accused young person and the vulnerable female victim were 16 years old when their "parasitic relationship" (to use Watt J.A.'s phrase) began. The girl agreed to dance in strip clubs for money that she handed over to him. A.A. told her he loved her, and she testified that she worked as a stripper so that they could be together and have the life they wanted. She evidently actually believed that he loved her, even though A.A. physically abused her, regularly hitting her, often when she talked back or teased him. At trial, A.A. was convicted of two counts of assaulting her with a weapon and another assault simpliciter. He was acquitted, however, of trafficking in a person under the age of 18 (the offence under s. 279.011), receiving a material benefit from that trafficking (the offence under s. 279.02) and living on the avails of prostitution (s. 212(1)(j)).

[56] In her reasons that were the subject of the Crown appeal to the Court of Appeal, the trial judge had explained that she had a reasonable doubt that A.A. had "exercised control, direction or influence over the movements" of the girl, as the charge under s. 279.011 had alleged. Moreover, she expressed a reasonable doubt that A.A.'s conduct had caused the victim to dance in strip bars because she believed that, if she did not, her safety would be threatened, or that that was the accused's purpose in engaging in the prohibited conduct. Rather, the trial judge found, she did it because she wanted to please A.A., so he would love her and protect her. Despite the violence, the trial judge found, the victim never related it to her work as a dancer, so it did not meet the definition of "exploitation" in s. 279.04.

[57] In the course of allowing the Crown's appeal from the acquittals and ordering a new trial on those counts, Watt J.A. found that the trial judge had misinterpreted the definition of "exploitation" in s. 279.04 by adopting an unduly narrow view of "fear for her safety." She erred, the Court of Appeal held, both by limiting the intended fear to fear of physical harm, as opposed to adverse psychological consequences, and by applying a subjective standard (from the complainant's perspective) rather than the objective assessment of whether such fear (which the victim there did not claim, in any event, to have held) was "reasonable" in the circumstances.

[58] At para. 70 of his reasons in A.A., Watt J.A. made the following statement, albeit in language that requires further context to understand:

[70] On a straight-up reading of this definition of exploitation [in s. 279.04(1)], three conclusions emerge:

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

(ii) the determination of the expectation is to be made on the basis of all the circumstances;

(iii) the person's safety need not actually be threatened.

In essence, for there to be exploitation, an accused's conduct must give rise to a reasonable expectation of a particular state of mind in the victim.

When Watt J.A. referred in that passage to "the expectation," he clearly meant what the accused believed would be the consequence, in the mind of the victim, of his conduct. Similarly, when Watt J.A. used the phrase "the specific belief engendered by the accused's conduct," he was undoubtedly referring to the victim's fear for her safety, which need not actually have been caused, but must have been anticipated by the accused, in order to meet the s.279.04(1) definition. Moreover, such fear anticipated by an accused, whether it actually existed on the part of the victim or not, must be an objectively "reasonable expectation" on his part.

[59] Unlike, for example, the offence of criminal harassment, contrary to s. 264(1), that requires, as a constituent element of the actus reus, that a victim's reasonable fear for her safety actually be caused by the accused's conduct, exploitation, as defined by s. 279.04(1), requires instead that an accused's expectation of such fear, whether it was caused or not, be reasonable. In other words, an accused must have reasonably foreseen that his conduct could, at least potentially, have given rise to such a fear on the part of the complainant, i.e., that if she did not continue to engage in prostitution, she would suffer harm. I am not sure that Mr. Coughlan, even after citing the passage from A.A. just quoted, grasped the distinction.

[60] I think Watt J.A. also made that point clear when, at para. 75 of his reasons, he found that the trial judge in that case had erred in concluding that the complainant was not "exploited" merely because she did not herself have a subjective belief that her safety was threatened. Watt J.A. went on to state that it is an error to consider only what was in the mind of the complainant, when the statutory language requires an objective assessment of the reasonableness of an accused's expectation. He stated, at para. 76-77, the following:

[76] While the subjective belief of a complainant is not to be entirely cast aside, it is also not to be considered to the exclusion of an objective assessment based on all the circumstances, as mandated by the statutory language in s. 279.04. The trial judge failed to consider any objective factors in arriving at her conclusion. For example, she failed to consider how the incidents of assault could lead to a finding of exploitation. While the complainant did not link the assault[s] to her choice to dance, this does not mean an objective view of the evidence would not have permitted such a conclusion. Further, as noted earlier, s. 279.04 does not require that the complainant's safety actually be threatened, and safety includes a consideration of psychological safety.

[77] The trial judge applied the wrong legal standard in deciding whether exploitation was present on the facts.

[61] Further, Watt J.A. explained, at para. 82, that the fault element in the "human trafficking" offence is not simply the intention to engage in the prohibited conduct (such as exercising control or influence over the victim's movements, as in A.A., or recruiting or transporting K.B., as the charge against Mr. Masoudi is framed here), but also "the purpose for which the conduct … is done." Watt J.A. continued, "the purpose element of s. 279.011(1) [and, presumably, s. 279.01(1) as well] extends beyond the intentional conduct that is the actus reus of the offence to what could be described as the object an accused seeks to attain, or the reason for which the conduct is done or the result intended." (Emphasis by Watt J.A.)

[62] While the interpretation by the Court of Appeal of the requirements of exploitation in s. 279.04 certainly governs this case as well, the evidence here is quite different from the evidence in A.A. Here, the complainant K.B. testified that she was actually in fear for her safety, because she was afraid that Mr. Chelemiah would "come after [her]" if she ceased working in Calgary as a prostitute, and she stated her purported reasons for why she had such a belief. That is to say, K.B. testified that she had the fear for her safety that the victim in A.A. denied ever having had. Whereas the underage stripper in A.A. "danced" because, she said, she loved the accused and wanted his devotion, K.B. testified that she engaged in prostitution in Calgary, or at least did not leave either the place or her occupation, because, among other things, she was afraid of Mr. Chelemiah. In both A.A. and this case, however, the essential fault element of the offence requires that the accused did something prohibited (either as principal or party) for the purpose of inducing the woman to continue to offer her services as a prostitute because, if she did not, negative consequences would be suffered by her. Since this is a preliminary inquiry, and not a trial (like the new one ordered for A.A. by the Court of Appeal), no findings of fact are to be made. It is simply a question of whether it would be open to a reasonable trier of fact to draw the inferences sought by the Crown.

[63] Much of the argument by both Mr. Coughlan and Mr. Starkman, as I understood it, focused on the reasonableness or otherwise of K.B.'s state of mind, but what is required in this case at this stage is some evidence that Mr. Masoudi had a reasonable expectation that she would have that belief, i.e., that if she withdrew her services as a prostitute, adverse consequences for her physical or psychological health might ensue. K.B.'s testimony that she was in fear is not, as Watt J.A. put it, to be cast aside, particularly if it was a reasonably-based subjective fear, but what is required for a committal for trial on Counts 1 and 2 is, I think, some evidence that Mr. Masoudi either expected himself that she would have that state of mind, or that he knowingly aided or abetted Mr. Chelemiah in engendering K.B.'s expected state of fear, and, in either case, that there be some evidence capable of supporting an inference that such an expectation was, objectively assessed, a reasonable one.

[64] No consent by K.B. to being "recruited" or "transported" so she could pursue her activities as a prostitute, applying the provision in s. 279.01(2), was valid. It does not follow, however, that if there is evidence that a person, like Mr. Chelemiah or Mr. Masoudi, did one of the prohibited acts specified in s. 279.01(1), that it was for the purpose of "exploiting" K.B. or facilitating her exploitation. That element of the offence must be supported by some evidence, even if it is circumstantial in nature, which leaves available to the trier of fact the inference that the requirements of exploitation under s. 279.04 could reasonably be drawn.

[65] I agree with Mr. Starkman's submission that mere evidence of a pimp-prostitute relationship is not, standing alone, sufficient to permit an inference of exploitation within the statutory definition of that term. Undoubtedly, there is evidence that Mr. Chelemiah and Mr. Masoudi both took unfair advantage of K.B., a vulnerable person in a desperate personal predicament, but that is not the equivalent of evidence that would allow an inference that the accused expected, reasonably, that his conduct would result in her exploitation, in the sense required by the Criminal Code. Since the statutory language is somewhat convoluted, it is not surprising that reasons given by judges in the course of interpreting or applying the provision might also seem less than straightforward.

[66] In this case, however, I am of the opinion that "the whole of the evidence" would not permit a reasonable inference to be drawn by the trier of fact that Mr. Masoudi reasonably expected that K.B. could be in the state of fear she described in her evidence. Indeed, such a conclusion, in my view, would be based merely on an impermissible conjectural or speculative finding as to what was in the mind of Mr. Chelemiah at the relevant time (if Mr. Masoudi knowingly assisted or encouraged him as a party) or of Mr. Masoudi himself (if he acted as principal). I agree that a jury could easily accept the complainant's evidence that she believed that if she withheld her services as a prostitute, Mr. Chelemiah could threaten her safety, but there is no evidence, in my view, that Mr. Masoudi could have expected, when he recruited or transported her, that that might be the case.

[67] To repeat it, I think that a jury could reasonably accept K.B.'s evidence that she was in fear of Mr. Chelemiah, regardless of whether it was based on reasonable grounds, but what is missing in this case is any evidence that Mr. Chelemiah, much less Mr. Masoudi, had reasonably anticipated such a state of mind on her part.

[68] All of the evidence, which, as stated, consists solely of K.B.'s testimony, is that the plan for K.B. to engage in prostitution in Calgary was hatched after the events in Marathon, Ontario, all of which, by their very nature, were unforeseen by anyone. Leaving aside K.B.'s consent, which was invalid in any event, K.B.'s own evidence is that her only state of mind then was a willingness to provide the services of a prostitute because she felt guilty about Mr. Masoudi's "taking the rap" for her own drugs that were seized by the police, his potential legal costs that would be associated with the drug charges he faced, and because she wanted to earn money so that she could afford to buy the drugs, she believed, that Mr. Chelemiah would continue to sell to her. None of the non-exhaustive factors set out in s. 279.04(2) has any application to the question of whether there was an exploitative purpose or actual exploitation in this case. That is, there is no evidence of threats or coercion, nor of deception (unless one assumes – an assumption not based on any evidence – that the men already had a plan, not disclosed to K.B., prior to the events in Marathon), nor of any abuse of a position of trust, power or authority.

[69] There is no evidence, in my view, that either of the men, and certainly not Mr. Masoudi, harboured any expectation, let alone an objectively reasonable one, that K.B. might eventually be in a state of fear for her safety, broadly defined, because she was aware, or had heard, that Mr. Chelemiah had had a gun once or had allegedly kidnapped someone or had "a history of violence." Moreover, there is no evidence that Mr. Masoudi could have reasonably anticipated her fear, since there is no evidence that he knew that she had heard such things about Mr. Chelemiah (whether true or not) or that Mr. Masoudi could have known that K.B.'s reasons for engaging in prostitution were other than the ones she herself stated in her evidence for why she was willing to do so in the first place.

[70] The absence of such evidence, I think, while not completely eliminating the possibility that the accused might have expected that her fear could eventually develop, still falls well short of what is needed to permit a trier of fact to draw a reasonable inference that such was the case. That conclusion, it strikes me, would require pure speculation, and would not be a reasonable inference available from the circumstantial evidence.

[71] There is undoubtedly evidence that in Calgary, both Mr. Chelemiah and Mr. Masoudi played roles generally associated with those of pimps taking advantage of a vulnerable woman for their own benefit. There is also evidence that at least Mr. Chelemiah treated K.B. very badly there, and that Mr. Masoudi would necessarily have known that that was the case, even if he did nothing himself personally to cause her fear or alarm if she declined to continue to perform the services of a prostitute. K.B. testified that Mr. Chelemiah got angry and upset with her when she failed to follow his directions, that he insulted her by calling her a "no-good junkie" and threatened to abandon her in Calgary. She also testified, however, that she came up with a series of excuses for why she wanted to persuade them to take her home to Toronto. While perhaps not compelling any particular conclusion, I think a jury might have some difficulty finding support in her version of events for her claim that she was afraid of what Mr. Chelemiah might do to her if she withheld her sexual services, and, more to the point, that Mr. Masoudi would reasonably have expected her to be in such a state of fear. At its highest, it seems to me, a jury could reasonable conclude that Mr. Masoudi, as an undoubted pimp, acted disgracefully and immorally, but I cannot find an evidentiary basis for a conclusion that he did what he did for the purpose of facilitating K.B.'s exploitation, within the meaning of the Criminal Code.

[72] Unnecessary though it might be to take it into account, given my opinion concerning the insufficiency of the incriminating evidence led by the Crown, I would still add that one should not overlook the "exculpatory" evidence arising from K.B.'s dealings with Mr. Masoudi in Richmond Hill after their return to Toronto. Despite some initial confusion as to whether Mr. Masoudi's involvement with her there – which occurred at her instigation after she asked him to help her – was intended to relate to any of the present charges, Mr. Coughlan eventually conceded that it had no probative value with respect to the charges that, he said, encompassed conduct that ended with the people's departure from Calgary. Indeed, I think that the evidence could only support an eventual conclusion that, notwithstanding the events in Calgary, she sought his assistance so she could make more money from prostitution back in the Toronto area that she herself willingly engaged in. Moreover, she testified that she took all the money on the second occasion behind his back, apparently without fear of any reprisal or being at all concerned. Her subjective state of mind is, as stated in A.A., not determinative of any exploitative purpose or reasonable expectation on the part of the accused, but it would seem to be difficult for any trier to reconcile her subsequent effort to enlist Mr. Masoudi's assistance with the elements of the offences the Crown would have to prove at trial.

[73] The evidence fails to meet the Sheppard test in relation to Counts 1 and 2, then, and I am obliged to discharge Mr. Masoudi on the first two charges.

Whether the conceded committals should lead to a trial in Toronto

[74] As already noted, Mr. Starkman, on behalf of his client, conceded that the evidence concerning Counts 3 and 4, the "exercising control" and "procuring" charges under s. 212(1)(h) and (d), respectively, warrant committals for trial. Accordingly, I commit him to stand trial on those two charges. In my view, unfortunately, that is not the end of the matter.

[75] It became quite apparent during K.B.'s testimony that the only reason why the charges were laid by an officer with the Toronto Police Service, and why Mr. Masoudi's attendance was compelled here at what is still called "Scarborough Court" in the Toronto Region, was that K.B. (who, like the accused, lives in Toronto) first made her delayed report to a police station that sends its charges to this provincial courthouse. Moreover, now that a local Assistant Crown Attorney and a Toronto area defence counsel have become involved in the case, it is obvious that all of the participants in the trial I am required to order would prefer that the trial proceed in the Superior Court of Justice at 361 University Avenue in Toronto, notwithstanding the inevitable lengthy delay that occurs there.

[76] Having acknowledged that, I am quite sure that the preference or convenience of the parties should not dictate where the trial should proceed.

[77] Numerous Criminal Code provisions govern the question of where trials should be held. Section 479(1), for example, states that "a court in a province shall not try an offence committed entirely in another province." Mr. Coughlan submitted here, and Mr. Starkman implicitly agreed, that there is evidence that the "exercising control" and "procuring" offences were committed, at least in part, in Ontario, even if practically all of Mr. Masoudi's impugned conduct as a pimp occurred in Calgary, Alberta: see R. v. Bigelow (1982), 69 C.C.C. (2d) 204, [1982] O.J. No. 3314 (C.A.) at para. 11. Here, it was conceded, there was a "continuity of operation" that extended from the accused's participation in the announcement to K.B. made in Marathon, Ontario, that she would have to work as a prostitute in Calgary, and the "overt act" committed within this Province that involved her procurement and the subsequent control over her movements involved in driving west from Marathon, eventually leading to the crimes allegedly committed in Alberta.

[78] There was also no dispute that a provincial court anywhere in Ontario has jurisdiction to conduct a preliminary inquiry with respect to an offence allegedly committed in this Province, if the accused was found or arrested within that court's territorial jurisdiction. On the other hand, s. 543(1) permits a preliminary inquiry judge, at any stage of the inquiry, to order the accused to appear "in the place where the offence is alleged to have been committed" to continue and complete the inquiry. This hearing is at its conclusion, with the evidence heard and the submissions having been made, including an opportunity to make submissions concerning the appropriate location of the jury trial which the accused elected to have. I see no obstacle to simply completing this preliminary inquiry here.

[79] At the same time, I see no connection, at least as disclosed by the evidence, between the Toronto Region and the offences allegedly committed by Mr. Masoudi on which his committal for trial is required. Mr. Coughlan argued that it could reasonably be inferred that there was a plan in place to procure K.B. to be a prostitute in Calgary even before the three people departed from Toronto, but, for reasons I have already stated, I consider that to be mere conjecture or speculation. It was at first conceded by Crown counsel in his oral submissions that nothing happened prior to the difficulties the three people encountered in Marathon, Ontario, that disclosed a pre-existing plan to exploit K.B. in Alberta. I agree with that position. In the absence of any "overt act" or other nexus between the charges and this particular territorial jurisdiction, Toronto is not the appropriate location for the jury trial.

[80] The evidence indicates that substantive offences may very well have been committed, but almost entirely outside Ontario. Although there is evidence of procuring and directing or controlling the movements of K.B. after their unintended stop in Marathon, which is in the Northwest Region, it is difficult to accept that this case should be added to the caseload of the Superior Court in Toronto. Neither counsel argued that a departure from the common law that an accused should be tried in the county in which the offence was allegedly committed would be justified here: see R. v. Sarazin (1978), 39 C.C.C. (2d) 131 (P.E.I. S.C.). There is nothing in s. 470 that I can see that would warrant a conclusion that Thunder Bay, the location where the Superior Court has regular sittings in the Northwest Region, should not be the place where the trial should proceed.

[81] Mr. Masoudi is accordingly remanded to appear on September 26, 2016, at 1:30 p.m., when, I understand, the Assignment Court of the Superior Court of Justice, 125 Brodie Street North, Thunder Bay, Ontario, will sit for purposes of setting dates for jury trials in that jurisdiction.

[82] Any application for a change of venue, as contemplated by s. 599 of the Code, will obviously be a matter for a Superior Court judge in that jurisdiction.

[83] Likewise, there is no compulsion on the Crown to present an indictment simply because there is an order committing the accused to stand trial. That is clearly a matter within the discretion of the prosecutor and not for me to decide.

[84] Mr. Masoudi is, therefore, remanded on the same bail to appear at the time and place already specified, unless, of course, the Crown chooses not to proceed any further.

Released: August 2, 2016

Signed: "Justice D.A. Fairgrieve"