WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. Order restricting publication of evidence taken at preliminary inquiry.— (1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) Failure to comply with order.— Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory order on application.— In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

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

Court Information

Ontario Court of Justice

Date: July 19, 2016

Toronto Region

Between:

Her Majesty the Queen

— and —

Levi Alexander, Jerome Bell & Devon Nolan

Before: Justice D. Oleskiw

Heard on: May 9 – 13, 16, 20, 2016

Reasons for Judgment released on: July 19, 2016

Counsel:

• M. Bellmore & P. Travers — counsel for the Crown
• G. Aristos — counsel for Levi Alexander
• S. Chung — counsel for Jerome Bell
• E. Alvares — counsel for Devon Nolan

Judgment

Oleskiw, J.:

Introduction

[1] All three defendants are charged with both human trafficking offences (ss. 279.01 – 279.04) and prostitution related offences (ss. 286.1 – 286.5) in relation to their alleged pimping of Jane Doe. Levi Alexander also faces assault and related charges and Devon Nolan faces a threatening charge. After hearing evidence at a preliminary inquiry, the Court must decide if there is sufficient evidence as to each of the essential elements of the offences to commit the defendants to stand trial.

Summary of the Evidence

[2] Jane Doe testified as to the involvement of all three accused in relation to her work as a prostitute from December 2014 until April 2015. She identified each of the accused by the names "Murda", "Paper" and "Levi". A comparison of each of the accused with the photographs is sufficient evidence of identification for committal. I will refer to each of the accused by his legal name throughout this judgment for the ease of reference. "Murda" is Jerome Bell. "Paper" is Devon Nolan and "Levi" is Levi Alexander.

Jerome Bell, aka Murda

[3] Ms. Doe met Jerome Bell for the first time in November 2014. They chatted over Instagram for approximately one week before they met in person at a hotel. The conversation was about her making money. By the time she arranged to meet him at the hotel, she expected, based on their discussions, that she would meet him and then start working as a prostitute.

[4] In fact, when she met Jerome Bell, with two other people at the hotel, they started smoking and drinking. Eventually, he asked her if she was going to make an ad for prostitution. He helped her make the ad which she posted on a website. She did work selling her sexual services and shared a room, and its costs, with Channelle. Jane Doe said that in those first few days she gave Jerome Bell all of the money that she earned. She did this because he wanted her to do so. When she asked if she could keep some, he said it would be better for him to keep it in trust.

[5] Jane Doe described that in her mind, Jerome Bell was her boyfriend. She thought that he loved her. He promised her that they were going to be rich one day. She said that in the beginning, he was present all the time while she worked. However, as time went on, he only came around at the end of the day to collect money.

[6] She said that they moved to different hotels, usually to make more money. Sometimes Bell was the one who decided the location and sometimes she decided. She would usually get a ride to the different hotels. Although they sometimes took a taxi, Bell's friend "Paper", that is Devon Nolan, would drive them in his Jaguar. Nolan had another prostitute named Hanna working for him. Ms. Doe worked with Hanna in the hotel.

[7] Jane Doe described that she spent very little social time with Bell. She would sleep at the hotel where she was working. She would be awake most of the night and sleep most of the day. When she was with Bell, she kept almost no money. He knew about her clients because she told him every time she got a job. Sometimes she would keep money from him so that she could get food or get her nails done. She said that when she was working for him, sometimes Bell would text the john back directly.

[8] Eventually, Ms. Doe had a fight with Jerome Bell over another woman and the fact that he was only coming around to collect money. Bell told her via text message that Devon Nolan was her man now. After this fight she stopped talking to Bell for a while and she worked with Devon Nolan.

Devon Nolan, aka Paper

[9] Jane Doe said that, although he was always with Bell, she worked for Devon Nolan for a "couple of weeks". She clarified in cross-examination that the total time she knew him was about 2 weeks, but that she worked for him for only about 5 or 6 days. During this time, rooms were obtained by Hanna or Nolan.

[10] Nolan never responded to texts from johns and he did not know who Ms. Doe was seeing when he went out and he did not tell her how to dress. However, Nolan had a room in Hanna's name and there was an agreement that Ms. Doe and Hanna would work out of the same room. Ms. Doe contributed money toward the room. Also, Nolan drove her, sometimes with Hanna and other times, to "out-calls" without Hanna. She could not count the number of times Nolan drove her because there were multiple times and they went from hotel to hotel.

[11] At one point when she was working for Nolan, he came to her hotel room with another male, and threatened to hit her for bringing her black friends over to the hotel room. They yelled in her face telling her she was stupid for bringing people over. They said if Ms Doe was working with them, she is not allowed to have guys over unless they are johns. Nolan was screaming right in her face and threatening that he could hit her right now. There was a lot of tension so she packed up in the middle of the night, paid for half of the hotel room and left for Keswick. She said that Nolan and the other male made her feel scared so she just apologized so it did not escalate.

[12] When she was working with Nolan she gave him half of her money. She believes that she made a few thousand dollars when she worked for Nolan and that she had to give him half of her money. She considered that she was giving him money for driving, and the room as well as more than she was supposed to. In re-examination, she clarified that she felt that she had to give Nolan money because if she did not do so, something would happen. She said that she felt this way because he had threatened her previously when he yelled at her.

[13] Jane Doe testified that after working with Nolan she made up with Bell and started working for him again exclusively. She went back to Bell because she had feelings for him. When she went back to Bell, Nolan continued to provide transportation.

[14] Around Christmas of 2014, Ms. Doe spent time in Barrie working for Jerome Bell. She got arrested on December 30th and was put in custody. She pleaded guilty and spent a total of 12 days in jail. When she got out, she met Nolan and his girl. Between being released from custody and going back to jail, she took a bus to Brampton to meet Nolan and his girl when she could not get in touch with Bell. Although she testified that for a few days, she worked for herself, she also testified that she gave Nolan half of her money and she had to pay for half of the room.

[15] During the time that she was in Barrie working for Bell she texted him to tell him that she had a client who was black but that she wanted to see him. Bell told her she was not allowed to see the black client. She followed his direction.

[16] On February 4, 2015, there was an incident at a hotel in Keswick when Ms. Doe had been working by herself and Jerome Bell was visiting and just hanging out with Ms. Doe and her dog. They were robbed in the hotel room and Bell was beaten up. The police attended and Bell required attention at the hospital.

[17] Police surveillance established that on February 5, 2015, Jerome Bell travelled with Jane Doe from the hotel in Keswick to Toronto in a car driven by Mark Chapman. Once in Toronto, Ms. Doe is seen entering and exiting three different hotels until they finally get a room at the Best Western Parkway Hotel on Highway 7. Ms. Doe testified that she could not remember if it was Levi Alexander or Jerome Bell who was in the front seat of the car at the time, but she said the purpose of driving to the hotels was to work. In cross-examination, Ms. Doe agreed with defence counsel that the only time she ever worked for Jerome Bell was from November 2014 until just before New Year. However, in re-examination, she clarified that assuming the police observed Mark Chapman driving with Jerome Bell in the front seat and Ms. Doe in the back, while Ms. Doe entered three different hotels and then ended up at the Best Western at Highway 7 and Leslie, she was working for Jerome Bell that night.

[18] Jane Doe said that she gave Jerome Bell almost all of her money to hold onto to buy a condo and stuff. However, she never got the money back.

Levi Alexander aka Levi or LV

[19] Jane Doe worked for Levi Alexander from February until April 2015. She said that, other than the time that they got into a fight and he left for a few days, and the time she spent in the hospital, she saw Alexander every day.

[20] She met Levi Alexander over Instagram. He talked to her about making money. Prior to meeting Alexander she had been working by herself for approximately one week. For their first meeting, she took a taxi to pick him and another person up in Toronto and went to the Sheraton and Best Western in Richmond Hill. She gave Alexander money to book a room at the Sheraton in his name. When they got into the hotel room they started drinking, smoking and listening to music, and then, Alexander asked her if she was going to start getting clients to come. He said they could be a team. She expressed skepticism because of what she had been through with other people and Alexander told her that he was not like that. He said he had her 100%. Ms Doe said that she had not been planning to work that night. She just wanted to get to know Alexander better and "chill with him". While his friend was in the room, Alexander asked Ms. Doe to go into the washroom with him. He asked for oral sex and she obliged. She was drunk and on drugs at the time.

[21] When they left the bathroom Alexander asked her to post an ad for her sexual services. He did not know how to do it. She booked an ad within approximately one hour and Alexander and his friend left the room. She and Alexander stayed at the Sheraton for a few days until they got kicked out. They moved to the Best Western. Again, she paid for the room, but it was registered under Alexander's name.

[22] Ms. Doe described that the ads had the restriction "no black people" because Levi said that black people are going to rob you or they are pimps. This was Alexander's thing, but also her own. She said she did not like seeing black clients either.

[23] Ms. Doe described that, in the beginning, her relationship with Alexander was okay. She was making calls and Alexander would always be there with her. She gave him the money to hold onto, but sometimes he would let her hold some money. She would let Alexander know how many clients she had and the money she made. Sometimes Alexander would stay in the washroom while she was working. If he left, she would text him as to who was coming and how much would be paid and then she would text him when the client left to let him know it was ok to come back.

[24] She said when she worked for Alexander, sometimes he would text the john back directly.

[25] Ms. Doe said that she had feelings for Alexander and that he told her that he loved her and that they would eventually be rich. She had consensual sex with him regularly during the 2-3 months that they were together.

[26] There was a time with Alexander when Ms. Doe, who is diabetic, did not take her insulin. She said that she did not have insulin with her and she had to see clients to make money in order to buy her insulin because Alexander had spent the money she gave to him. One day she got so sick that she was vomiting blood in the ambulance. The attending physician at the hospital told her that she was very ill and should stay in hospital, but because Alexander was not allowed to stay with her, she left the hospital. They travelled to Keswick together after getting kicked out of the Best Western but had to call for paramedics again. This time, she stayed in hospital for a few days. Alexander spent the first night with her but then went back to Toronto. She gave him money because he needed money to get back home to Toronto and because she usually gave him money so it was safe with him.

[27] After her release from hospital, she stayed with her family for a few days and then texted Alexander when she was ready to go back to work. They met in Toronto and she continued to work. They moved from the Best Western to the Plaza Hotel at Jane and Wilson. It was Alexander's decision to go to the Plaza Hotel because it was in his neighbourhood. It was close to his friends, so he could go see his friends while she worked. Also, his friends visited in the room.

[28] She said that at one point she saw Levi Alexander with a gun at the Plaza Hotel. He came into the room with the gun in his waistband. She held the gun after he asked her if she had ever held one before. She also said he was joking around pointing it at her and she told him not to do that. She believed that this happened after she was released from the hospital because, although she had given him $500.00 at the hospital, Alexander told her there was only $200.00 left because he had to put a down-payment down on a gun. She testified that Alexander told her that he purchased a gun with her money.

[29] Ms. Doe testified that prior to meeting the three accused, she had used cocaine, but was not addicted to it. While she was working with Alexander, she became addicted to cocaine. Cocaine helped her stay up for work and she found that the more money she made the happier Alexander would be. Alexander wanted her to stay up for work all the time. Alexander did not use cocaine but he was present when Ms. Doe used it.

[30] She bought "grills", being a set of gold teeth, for Alexander and one for herself from the proceeds of her work.

[31] During their time at the Plaza Hotel Ms. Doe and Alexander got into a fight and Alexander wanted money to leave. When Ms. Doe told him that she was not giving him money, he told her he needed money for a cab. She gave him $40.00. Unhappy with that, he pushed her down and went into her bra to get more money from her. After this, Ms. Doe went downstairs to the lobby to get her deposit returned. When Alexander saw her in the lobby, he grabbed her by the throat and threw her on the ground. She started crying when he left, and then she ran upstairs and called his friend and told him that Alexander hit her. Then, Alexander came back to the room as she was talking on the phone. He slapped the phone out of her hand and it dropped. She saw him again one or two days later when he came back to the hotel. She said that this incident happened approximately 2 or 3 weeks prior to their breakup. Although she was not afraid of Alexander before these assaults, she was afraid of him after this happened.

[32] In April 2015, Ms. Doe had a fight with Alexander in which Alexander told her that she was worthless because he did not think she was making enough money. He called her his "Telly Ting" which means his working girl who works out of hotels. He also told her that he would never "wife" her meaning that she would never be his real girlfriend. She was hurt by this.

[33] After this fight, Ms. Doe went to a cottage in Bracebridge with some of Alexander's friends and ended up getting arrested. She was in jail from April until August and while in jail, she called him. She said that she called him because she kind of missed him, she wanted to let him know that she had been arrested and she had seen his face on the news. In this call Alexander told her that she better not have snitched on him and that he would kill her if she did. This scared her so much that she contacted the police officer who had reached out to her earlier and she decided to provide the police with a statement. Ms. Doe testified that prior to the threat in the telephone call, she was afraid of Alexander. However, she was "not that scared until she talked to him on the phone".

[34] When asked about why she worked with the three accused, she replied; 1) she felt sometimes that she was safe with them as she felt scared to work on her own; 2) she had feelings for Bell and Alexander; and 3) she could not explain why, she was willing to give Nolan her money. She explained in cross-examination that sometimes she did not like to work by herself because she has had bad experiences like being robbed and beaten up by tricks. She said that one of the reasons she works with someone is for protection. Also, it is sometimes hard for her to get a room without identification.

The Law

[35] There is little judicial interpretation of the Trafficking in Persons sections of the Criminal Code and even less on the new prostitution sections that were enacted after Bedford. I have found the Handbook for Criminal Practitioners on Trafficking in Persons as well as the Technical Paper: Bill C-36, Protection of Communities and Exploited Persons Act, both published by the Department of Justice Canada, 2015 to provide useful context when considering all of these provisions.

[36] Prostitution-related offences may be seen as one of the subsets of human trafficking behaviour. Each of the offences, however, have their own essential elements. In R. v. Urizar, [2013] Q.J. No. 132, the Quebec Court of Appeal specifically held that the human trafficking offences do not require cross-border movement. Indeed, no movement of victims is required. The Ontario Court of Appeal implicitly accepted this same proposition in R. v. A.A., 2015 ONCA 558, [2015] O.J. No. 4016.

Trafficking in Persons

[37] Canada's first specific offence targeting Trafficking in Persons was enacted in 2002 as part of the Immigration and Refugee Protection Act (IRPA), reflecting Canada's implementation of its international obligation to criminalize trafficking in persons under the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children. Section 118 of the IRPA prohibits trafficking in persons and is punishable by life imprisonment and/or a fine not exceeding $1 million. This offence is limited to the trafficking of persons into Canada.

[38] Subsequently, in 2005 Parliament created three Criminal Code human trafficking offences that do not relate the offences to cross-border movement or to a specific activity. Section 279.01 is the main Trafficking in Persons offence: Section 279.02 prohibits one from receiving a material benefit from trafficking in persons; and section 279.03 prohibits withholding or destroying documents to commit or facilitate Trafficking in Persons.

[39] In 2010, a new offence of trafficking in children was enacted (s. 279.011) and in 2012, the Trafficking in Persons provisions were further amended, inter alia, to clarify the meaning of "exploitation" as defined in section 279.04. Further amendments were made in 2014 which increased maximum sentences and added mandatory minimum penalties.

The Current Relevant Trafficking in Persons Criminal Code Provisions

Trafficking in Persons

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

(a) to imprisonment for life and to a minimum punishment of imprisonment for a term of five years if they kidnap, commit an aggravated assault or aggravated sexual assault against, or cause death to, the victim during the commission of the offence; or

(b) to imprisonment for a term of not more than fourteen years and to a minimum punishment of a term of four years in any other case.

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

Trafficking in Persons under 18

279.011 (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 and liable

(a) to imprisonment for life and to a minimum punishment of imprisonment for a term of six years if they kidnap, commit an aggravated assault or aggravated sexual assault against, or cause death to, the victim during the commission of the offence; or

(b) to imprisonment for a term of not more than fourteen years and to a minimum punishment of imprisonment for a term of five years, in any other case.

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

Material Benefit

279.02 (1) Everyone who receives a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under subsection 279.01(1), is guilty of an indictable offence and liable to imprisonment for a term of not more than ten years.

(2) Everyone who receives a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under subsection 279.011(1), is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of two years.

Exploitation

279.04 (1) For the purposes of sections 279.01 to 279.03, a person exploits another person if they cause them to provide, or offer to provide, labour or a service by engaging in conduct that, in all the circumstances, could reasonably be expected to cause the other person to believe that their safety or the safety of a person known to them would be threatened if they failed to provide, or offer to provide, the labour or service.

(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

(3) For the purposes of sections 279.01 to 279.03, a person exploits another person if they cause them, by means of deception or the use or threat of force or of any other form of coercion, to have an organ or tissue removed.

Essential Elements of the Offences

[40] Generally, the human trafficking offences attempt to capture the different actors along the trafficking continuum, including those who do not directly exploit the victim's labour or services. A conviction for trafficking can be entered for conduct that involves one of the prohibited acts coupled with the intent to facilitate the exploitation of a person by someone else.

Section 279.01 of the Criminal Code — Trafficking in Persons

Every person who recruits, transports, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person, for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence

[41] Section 279.01 requires the Crown to establish the following essential elements:

i) Conduct - Commission of one of the prohibited acts; and

ii) Purpose - The mental elements of either (a) having the purpose of exploiting another person or (b) the purpose of facilitating their exploitation by another person.

i) Conduct

[42] The conduct requirement may be established in several different ways including proof of a specific action: recruits, transports, receives, holds, conceals, harbours as well as by proof that the accused "exercises control, direction or influence over the movements of a person". Rather than itemizing specific actions, this latter aspect of the actus reus of the offence characterizes the nature of conduct in terms of the relationship between the accused and the victim in relation to the victim's mobility. As the Quebec Court of Appeal noted in R. v. Urizar, [2013] Q.J. No. 132 at paras. 74-76:

74 In its first part, section 279.01 Cr. C. uses terms that reflect a specific action: recruits, transports, transfers, receives, holds, conceals, harbours. The second part of the section suggests a situation that results from a series of acts rather than an isolated act: exercises control, direction or influence over the movements of a person. These latter terms evoke power, control, or dominance over the person and their movements.

75 Here, Parliament uses the same words as it does in connection with procuring in section 212(1)(h) Cr. C.: "for the purposes of gain, exercises control, direction or influence over the movements of a person ...". In Perreault v. R., this Court defined the essential elements of that offence in these terms:

The element of control refers to invasive conduct, a power that leaves the controlled person with little choice. This conduct therefore includes acts of direction and influence. Direction is exercised over the movements of a person when rules or behaviours are imposed. The exercise of direction does not preclude the possibility that the directed person has latitude or a measure of discretion. The exercise of influence includes less constraining conduct. Any action exercised over a person for the purpose of aiding, abetting or compelling that person to engage in prostitution would be considered an influence.

76 It should be noted that Parliament uses the same expression in connection with trafficking in persons without adding elements relating to forced movement or to situations akin to those of a migrant. Rather, it appears from the wording of section 279.01 Cr. C. that the offence may be committed by actions which serve, to varying degrees, to limit the movements of a person for the purpose of exploiting them or facilitating their exploitation. [emphasis added]

ii) Mens Rea: "For the Purpose of Exploiting or Facilitating the Exploitation"

[43] In the case before me the Crown relies on the "exercise of control, direction or influence" as the prohibited acts. Whichever act is alleged, it must be proved that the alleged action was done either for the specific purpose of exploiting another person or for the specific purpose of facilitating their exploitation by another. It is the exploitative purpose that is central and sets trafficking in persons apart from many other crimes. As both the Ontario Court of Appeal and the Quebec Court of Appeal have held:

The central element of the provisions in question is the criminalization of exploitation. The acts mentioned in the first paragraph of section 279.01 Cr. C. constitute criminal offences only if they are committed for the purpose of exploiting or facilitating the exploitation of a person, regardless of whether or not exploitation actually ensues: R. v. Urizar, [2013] Q.J. No. 132 at ¶. 69

[44] In R. v. A.A., 2015 ONCA 558, [2015] O.J. No. 4016, the Ontario Court of Appeal was interpreting the human trafficking of children offence in s. 279.011. That section only adds a requirement that the Crown prove that the complainant was a member of the prohibited group of people under 18 years old. Accordingly, the Court's analysis is equally applicable to s. 279.01. In A.A., Justice Watt, for a unanimous Ontario Court of Appeal held at paras. 82 – 88:

82 The fault element of the offence consists of two components. First, the intent to do anything that satisfies the conduct requirement in s. 279.011(1). Second, the purpose for which the conduct in relation to a member of the prohibited age group is done. Specifically, s. 279.011(1) requires that the accused act with the purpose of exploiting or facilitating the exploitation of that person. The purpose element in s. 279.011(1) 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.

83 A plain reading of s. 279.011(1) without any interpretive assistance would support the conclusion that the terms "exploiting" and "exploitation" would bear their normal, natural every day meaning of taking advantage of or using another person for one's own ends. However, what is meant by "exploiting" and "exploitation" in s. 279.011(1) is informed by s. 279.04, a provision that acts like a definition.

84 While s. 279.04 defines exploitation in the context of the offence of human trafficking, the fault element in s. 279.011(1) focusses on an accused's purpose in exercising control, direction or influence over the movements of a person in the proscribed age group. It is of no moment to proof of this ulterior fault element that an accused fails to achieve his purpose.

85 In other words, no exploitation need actually occur or be facilitated by the accused's conduct for an accused to be convicted of human trafficking. A similar point was made by the Quebec Court of Appeal in R. v. Urizar, 2013 QCCA 46, 99 C.R. (6th) 370, at para. 69:

L'élément central des textes législatifs en cause est la criminalisation de la notion d'exploitation. Les actes mentionnés au premier alinéa de l'article 279.01 C.cr. ne constituent des actes criminels que dans la mesure où ils sont posés en vue d'exploiter ou de faciliter l'exploitation de la personne, peu importe qu'une exploitation réelle s'ensuive. [Emphasis added.]

86 Thus, where human trafficking is a charged offence, the Crown needs to prove -- along with conduct and the prohibited group -- that the accused acted with the purpose of exploiting the complainant or facilitating his or her exploitation. The Crown does not need to show that exploitation actually occurred. Both exploitation and facilitation of exploitation in s. 279.011(1) relate to an accused's state of mind, his or her purpose in engaging in prohibited conduct. Said in another way, exploitation and safety relate to an accused's purpose and not to the actual consequences of the accused's behaviour for the victim.

87 To reiterate, in considering whether the offence under s. 279.011(1) is established, the analysis does not end at whether there was actual exploitation. In cases where exploitation, as defined in s. 279.04, arises from the facts, inferring that the accused's purpose was to exploit the victim will usually be a relatively straightforward task. In cases where the facts do not lend themselves to a finding of actual exploitation, the definition of exploitation in s. 279.04 informs the court's analysis of whether the accused was acting with the requisite purpose when he or she committed one of the listed acts. However, it does not become an essential element of the offence.

88 Such an interpretation is consistent with a reading of ss. 279.011(1) and 279.04 in their entire context and in their grammatical and ordinary sense. The language of s. 279.011(1) is clear in that it only requires that the accused perform a certain act with the purpose of exploiting a person or facilitating their exploitation. This interpretation is also consistent with the object of the legislative provisions, which was to criminalize a wide range of intentional conduct that has, as its purpose, the exploitation of vulnerable persons. This is achieved by enjoining preliminary or preparatory conduct, such as recruitment, and by prohibiting the destruction or withholding of documents that facilitate control over others and the profiting from exploitative behaviour. [emphasis added]

[45] Regarding the test set out in section 279.04 for "exploitation", Watt J.A. wrote:

70 Section 279.04 instructs us that one person exploits another if they cause that other person to provide labour by doing something that, in all the circumstances, could reasonably be expected to cause the other person to believe that their safety or the safety of a person known to them would be threatened if they failed to provide the labour. On a straight-up reading of this definition of exploitation, 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; and

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.

71 In addition, and applying the presumption of consistent expression, the term "safety" that appears in s. 279.04 is not limited to the state of being protected from physical harm, but also extends to psychological harm: see, for example, R. v. McCraw, [1991] 3 S.C.R. 72, at p. 81; and Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at para. 62.

72 Further, on a plain reading of s. 279.04 as it was at the time of the offence, nothing in the language of s. 279.04 excluded deception or other forms of psychological pressure from the range of behaviour that satisfies the conduct requirement in s. 279.011(1), as well as the applicable portion of the definition of exploitation in s. 279.04. While the legislation was later amended to make this point more clear, this did not change the law.

73 This interpretation is consistent with the language of s. 279.04, as well as the intention of Parliament in enacting the trafficking provisions. A review of the Minister's remarks in introducing the original Bill and the ensuing debates about this Bill and subsequent amending Bills show that the trafficking provisions in the Criminal Code gave domestic effect to principles expressed in an international convention and protocol to which Canada was a signatory. The approach was intended to be broad-based, applicable equally to individual offenders and sophisticated criminal organizations, and to capture both physical and psychological forms of exploitation.

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 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.

[46] Accordingly, sections 279.01 and 279.04 do not require the victim to assert that she feared for her safety or for the safety of someone known to her. Instead, it requires evidence that demonstrates objectively that a reasonable person, standing in the shoes of the victim, would be afraid having regard to all of the circumstances including the age, gender and other considerations specific to the victim, including the circumstances surrounding the relationship which existed between the accused and the complainant.

Prostitution-Related Offences

[48] Sections 286.1- 286.5 create a scheme of new prostitution-related offences. First, prostitution itself is now illegal.

Obtaining sexual services for consideration

286.1 (1) Everyone who, in any place, obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than five years and a minimum punishment ....

Material benefit from sexual services

[49] Section 286.2 replaces the old "living on the avails" offence (old s. 212 (1)(j)) that was struck down by the Supreme Court of Canada in Bedford. Section 286.2 now provides:

s. 286.2 (1) Everyone who receives a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under subsection 286.1(1), is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.

Presumption

s. 286.2(3) For the purposes of subsections (1) and (2), evidence that a person lives with or is habitually in the company of a person who offers or provides sexual services for consideration is, in the absence of evidence to the contrary, proof that the person received a financial or other material benefit from those services.

Exception

s. 286.2(4) Subject to subsection (5), subsections (1) and (2) do not apply to a person who receives the benefit

(a) in the context of a legitimate living arrangement with the person from whose sexual services the benefit is derived;

(b) as a result of a legal or moral obligation of the person from whose sexual services the benefit is derived;

(c) in consideration for a service or good that they offer, on the same terms and conditions, to the general public; or

(d) in consideration for a service or good that they do not offer to the general public but that they offered or provided to the person from whose sexual services the benefit is derived, if they did not counsel or encourage that person to provide sexual services and the benefit is proportionate to the value of the service or good.

No exception

(5) Subsection (4) does not apply to a person who commits an offence under subsection (1) or (2) if that person

(a) used, threatened to use or attempted to use violence, intimidation or coercion in relation to the person from whose sexual services the benefit is derived;

(b) abused a position of trust, power or authority in relation to the person from whose sexual services the benefit is derived;

(c) provided a drug, alcohol or any other intoxicating substance to the person from whose sexual services the benefit is derived for the purpose of aiding or abetting that person to offer or provide sexual services for consideration;

(d) engaged in conduct, in relation to any person, that would constitute an offence under section 286.3; or

(e) received the benefit in the context of a commercial enterprise that offers sexual services for consideration.

Aggravating factor

(6) If a person is convicted of an offence under this section, the court that imposes the sentence shall consider as an aggravating factor the fact that that person received the benefit in the context of a commercial enterprise that offers sexual services for consideration.

Procuring

[50] The new procuring provisions mirror parts of old ss. 212(d) and (h) and merge them. Section 286.3(1) now provides:

286.3 (1) Everyone who procures a person to offer or provide sexual services for consideration or, for the purpose of facilitating an offence under subsection 286.1(1), recruits, holds, conceals or harbours a person who offers or provides sexual services for consideration, or exercises control, direction or influence over the movements of that person, is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years.

[51] The newly stated offence of "procuring" can be proved in one of two ways. First, the term "procure" was interpreted by the Supreme Court of Canada in R. v. Deutsch, [1986] S.C.J. No. 44 at para. 32, as meaning, "to cause, induce or have persuasive effect". This necessarily entails the accused's active involvement in the prostitution of another. The second way the offence can be proved is by establishing that the accused recruited, held, concealed or harboured a person for the purposes of prostitution or 'exercised control, direction or influence over the movements of a person' for that purpose.

[52] Prior to the enactment of the new s. 286.3, the courts interpreted the latter phrase as part of the former procuring offence. In R. v. Perreault, [1997] R.J.Q. 4 the Quebec Court of Appeal answered the question, what constitutes "control, direction or influence over the movements of a person"? for the purposes of then s.212 (1) (h) of the Criminal Code. There it was held,

The element of control refers to invasive behaviour, to ascendancy which leaves little choice to the person controlled. This therefore includes acts of direction and influence. There is the exercise of direction over the movements of a person when rules or behaviours are imposed. The exercise of direction does not exclude the person being directed from having a certain latitude or margin for initiative. The exercise of influence includes less constricting actions. Any action exercised over a person with a view to aiding, abetting or compelling that person to engage in or carry on prostitution would be considered influence. [emphasis added]

[53] This passage of Perreault was re-affirmed by the Quebec Court of Appeal in R. v. Urizar, [2013] Q.J. No. 132 at paras 75, 76, when it applied the same definition to the same phrase used in the human trafficking section, s.279.01.

[54] In R. v. Hamid, [1989] O.J. No. 3205, a case where a doorman to a lounge referred johns to undercover police officers posing as prostitutes and accepted some money from them, Lang, J. applied the dictionary definitions as follows:

13. The Ontario Encyclopedic Digest defines 'control' as:

'the fact of controlling, or of checking and directing action; domination; command, sway.'

14. Black's Law Dictionary (4th Edition) defines 'control' as:

'To exercise restraining or directing influence over; regulate; restrain; dominate; curb' to hold from action; overpower; counteract; govern.'

15. In this case it cannot be said that Mr. Hamid attempted to or did exercise any 'domination' or 'government' over the two women. His actions cannot be described as controlling, dominating or curbing their movements.

16. Did Mr. Hamid then 'direct' or 'influence' their movements?

17. Looking again to the Ontario Encyclopedic Digest for definition, 'direct' is said to be:

'the action or function of directing, aiming, guiding, instructing or administering conduct; instruction; management; administration.'

18. The Shorter Oxford English Dictionary defines 'direct' as:

'to regulate the course of; to guide conduct; to advise.'

19. 'Direction' is defined in Black's Law Dictionary (4th Edition) as:

'the act of governing, management, superintendence.'

While West's Words and Phrases refers to 'direction' as:

'a guiding or authoritative instruction, prescription, order command.'

20. 'Influence' in the Ontario Encyclopedic Digest is:

'to exert influence upon, to affect by influence, sometimes specially to move by undue influence.'

Synonyms for the word are: 'persuade, incline, sway, convince and motivate'.

21. Simply applying the dictionary meanings of these terms it is clear that they all require an element of authority in the actions. Was the accused acting with authority with respect to either of these women? Clearly they had an apparent intention to act as prostitutes and the accused did not initiate their actions and, in fact, initially declined to assist them. [emphasis added]

[55] I am not bound by the trial decision in Hamid. I believe that the legal test is accurately articulated in Perreault, which was affirmed by the Quebec Court of Appeal recently in Urizar. It is also noteworthy that Ontario Court of Appeal cited Urizar with approval on another point, in R. v. A.A. at para. 85.

Material Benefit

[56] The authors of the Technical Paper regarding Bill C-46 take the position that "the new procuring offence requires active involvement in the provision of another person's sexual services; whereas, passive involvement is sufficient to make out the material benefit offence." I agree with this characterization of the general difference between the offences.

[57] In R. v. Bedford, 2013 SCC 72, [2013] S.C.J. No. 72 the Supreme Court of Canada re-affirmed that the purpose of then s. 212(1) (j) was to target pimps and the parasitic, exploitive conduct in which they engage. The Court quoted Justice Cory in Downey at ¶ 137 stating:

It can be seen that the majority of offences outlined in s. 195 are aimed at the procurer who entices, encourages or importunes a person to engage in prostitution. Section 195(1)(j) [now s. 212(1) (j)] is specifically aimed at those who have an economic stake in the earnings of a prostitute. It has been held correctly I believe that the target of s. 195(1)(j) is the person who lives parasitically off a prostitute's earnings. That person is commonly and aptly termed a pimp.

[58] Cory, J., for the Downey majority, cited several reports, including the following at paragraphs 41-42 and 45:

41. A reading of the reports such as those of the Fraser Committee (Pornography and Prostitution in Canada (1985)) and the Badgley Committee (Sexual Offences Against Children (1984)) emphasizes the tragedy and the gravity of the social problem posed by prostitution. As well, they carefully document the cruel, pernicious and exploitative evil of the pimp. In its report to Parliament, the Special Committee on Pornography and Prostitution (the "Fraser Committee") found that most prostitutes in Canada were independent operators. However, in some cities, pimps control street prostitution. The activities of pimps were described in this way:

It appears that pimps do not run large "stables" of prostitutes but usually control two to six women within a well-defined territory. Pimps, along with customers, are the major source of violence against prostitutes. Women who would talk about their pimps indicated that physical violence, forced acts of sexual degradation and subtle forms of coercion, were used by the pimps to keep them on the streets. In some ways the relationship is most closely analogous to slavery. Prostitutes have no control over their lives, they are subject to constant exploitation and there are accounts of prostitutes being traded to another pimp to pay off debts or for money.

(Fraser Committee, vol. 2, at p. 379)

42 The findings of the Committee on Sexual Offences Against Children and Youths (the "Badgley Committee") make particularly sad and disturbing reading. There it was stated that:

Many girls who work on the streets believe that a prostitute who gives evidence against a pimp is almost certain to be murdered, if not by her own pimp, then by his fellow pimps. These murders are purported to be extraordinarily brutal and the prostitutes claim that they are accomplished by severe beatings of head and face. Another palpable fear of female prostitutes which suffices to dissuade many of them from giving information about their pimps is that of being ostracized by the other prostitutes in whose company they work. Furthermore, the Committee's survey indicates that many of the young prostitutes either were "in love" with their pimps, or were psychologically dependent upon them to such an extent that they could not conceive of functioning without them. As a result, many girls adopted a highly protective attitude toward their pimps and were unwilling to divulge information which might have proved damaging to them, or which portrayed them in a negative light.

(Badgley Committee, vol. 2, at pp. 1057-58.)

45. Strangely, despite the abusive and corrosive relationship that exists between the pimp and prostitute, many prostitutes are strongly attached to their pimps and truly believe that they are in love with them. See:

Fraser Committee, supra, at p. 379;

Badgley Committee, supra, at pp. 1057-58;

Weisberg, supra, at p. 9;

New South Wales, Report of the Select Committee of the Legislative Assembly upon Prostitution (1986), at pp. 26-48 (the "Rogan Committee").

[59] In Bedford, the Supreme Court found that former s. 212(1) (j) was overbroad insofar as it punishes everyone who lives on the avails of prostitution without distinguishing between those who exploit prostitutes, (for example, controlling and abusive pimps) and those who could increase the safety and security of prostitutes (for example, legitimate drivers, managers, or bodyguards). It also includes anyone involved in business with a prostitute, such as accountants or receptionists: see paras. 141 - 142.

[60] In R. v. Grilo, [1991] O.J. No. 413, Arbour J.A., writing for the Ontario Court of Appeal interpreted the "living on the avails" offence as follows at paras. 27 and 29:

27 The parasitic aspect of the relationship contains, in my view, an element of exploitation which is essential to the concept of living on the avails of prostitution. For example, when a prostitute financially supports a disabled parent or a dependent child, she clearly provides an unreciprocated benefit to the recipient. However, in light of her legal or moral obligations towards her parent or child, the recipient does not commit an offence by accepting that support. The prostitute does not give money to the dependent parent or child because she is a prostitute but because, like everybody else, she has personal needs and obligations. The true parasite whom s. 212(1) (j) seeks to punish is someone the prostitute is not otherwise legally or morally obliged to support. Being a prostitute is not an offence, nor is marrying or living with a prostitute. A person may choose to marry or live with a prostitute without incurring criminal responsibility as a result of the financial benefits likely to be derived from the pooling of resources and the sharing of expenses or other benefits which would normally accrue to all persons in similar situations.

29 The true scope of s. 212(1)(j) is thus not completely divorced from its original link with vagrancy. Properly understood in that fashion, s. 212(1) (j) is also more easily distinguishable from s. 212(1) (h), the classic pimping section, which, in essence, prohibits controlling for gain. Living on the avails is directed at the idle parasite who reaps the benefits of prostitution without any legal or moral claim to support from the person who happens to be a prostitute. [emphasis added]

[61] It is noteworthy that the first principle stated in the Preamble to Bill C-46, which created the new prostitution provisions, is that Parliament has "grave concerns about the exploitation that is inherent in prostitution and the risks of violence posed to those who engage in it."

Preliminary Inquiry

[62] The test for committal is whether there is sufficient evidence upon which a properly instructed jury, acting reasonably, could find each of the elements of the offence beyond a reasonable doubt. A concise summary of the governing principles this Court must apply in making that determination was set out succinctly by Justice Fuerst, in R. v Brown, 2012 ONSC 6565 at paras. 17 - 18:

17 The Supreme Court of Canada confirmed in R. v. Arcuri, 2001 SCC 54 at para. 21, that a preliminary inquiry judge must commit an accused to stand trial where there is "admissible evidence which could, if it were believed, result in a conviction". The test is the same whether the evidence is direct or circumstantial. If there is direct evidence as to every element of the offence charged, the preliminary inquiry judge must commit the accused to stand trial. Where the evidence is circumstantial, however, there is an inferential gap between the evidence and the matter to be established. The judge must therefore weigh the whole of the evidence in the limited sense "of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw": Arcuri, at para 23. The court emphasized that the preliminary inquiry judge does not draw factual inferences, or assess credibility, or ask whether he or she would conclude that the accused is guilty. The judge asks only "whether, if the Crown's evidence is believed, it would be reasonable for a properly instructed jury to infer guilt": Arcuri, at para. 30. The task of limited weighing is an assessment of "the reasonableness of the inferences to be drawn from the circumstantial evidence": Arcuri, at para. 30. In other words, the preliminary inquiry judge "must engage in a limited weighing exercise in order to determine whether a properly instructed jury could reasonably draw the suggested inferences": R. v. Slessor, 2007 ONCA 336.

18 Where there are competing inferences to be drawn from circumstantial evidence, the preliminary inquiry judge does not choose among them. Only the inferences that favour the Crown are to be considered: R. v. Sazant, 2004 SCC 77. As long as there is available a reasonable inference in favour of the Crown, then the preliminary inquiry judge must draw it, regardless of its strength: R. v. Sheardown, 2010 ONSC 4235. However, "[s]uch inferences cannot be based on speculation, no matter how seemingly reasonable. If the committal of an accused depends on an inference or inferences that cannot be reasonably drawn from the evidence then the accused must be discharged as there would be an absence of evidence on an essential element" of the offence: Sheardown, at para. 19.

Application of the Law to the Evidence

Levi Alexander

Count 24

[63] Mr. Alexander will be discharged on this count. No reasonable jury could find that the gun referred to by Jane Doe is established to be a firearm within the meaning of s. 2 of the Criminal Code.

Counts 21 – 23

[64] Levi Alexander will be committed to stand trial on Counts 21 through 23. There is clearly some evidence of an assault up in the hotel room at the Plaza Hotel, that he choked her down in the lobby with the intent of furthering his trafficking of her, and that he damaged her cell phone when he smacked it out of her hand while she was trying to talk to his friend after the assaults. It was around the time of this incident that Levi Alexander was calling her his "Telly Ting" and that she was worthless because he thought she was not making enough money.

Count 20

[65] Mr. Alexander will be committed to stand trial on Count 20. Clearly, there is evidence that the accused threatened to kill Ms. Doe when she spoke to him on the phone from Penetang. Jane Doe took this threat so seriously that she decided to call the police and make a statement.

Count 19: Material Benefit, s. 286.2

[66] Mr. Alexander will be committed to stand trial on Count 19. He was habitually in Jane Doe's company over the course of approximately two or three months, received money and gifts from her, and was certainly not receiving these in the context of a legitimate living arrangement. Ms. Doe testified that she saw Alexander every day, except the few days when she was in hospital and once after a fight when he left for a few days.

Count 18: Procuring, s. 286.3

[67] Levi Alexander will be committed to stand trial on Count 18. The following comprises evidence from which a reasonable jury could find that Mr. Alexander exercised control, direction and influence over the movements of Jane Doe for the purpose of prostitution:

1. On the first night they met in person Jane Doe was not planning to work and did not intend to work for Alexander. She thought she was just going to get to know Alexander better and that they would talk and drink and smoke. However, after performing a sexual act for him because she wanted to please him, she also put out an ad at his request and serviced three or four clients that night. Thereafter, she continued to work for Alexander until April 2015.

2. Ms. Doe gave Alexander money to "hold onto", although in the beginning he would let her keep some money. Alexander spent the money that Ms. Doe turned over to him. He told her that he bought a gun with her money. She also saw him buy clothes and jewellery. There was a time when she could not pay for insulin for herself. Alexander had spent the money she gave to him, so she had to sell her sexual services to make money to buy insulin.

3. Ms. Doe was with Alexander almost every day and he slept with her in the same hotel bedroom. She would let him know how many clients she had and how much money they paid. Sometimes Alexander would stay in the washroom while she serviced clients. If he was not present in the room, she would text him to tell him who is coming to the room and how much he was paying. Then she would text him to tell him when the john had left and he would come back to the room.

4. Alexander communicated with johns on Ms. Doe's phone. Sometimes he would text the john back directly.

5. Alexander did not like Ms. Doe to see any black clients. He said that black johns usually are going to rob you or they are pimps. Ms. Doe said that it was Alexander's thing, but also her thing for the ad to state the restriction "no black people". When she was with Alexander she started using her own face-shots in the ads. Further Alexander thought it was sexier to wear lingerie in the ad photos. She said that it was her decision to wear the lingerie.

6. Although they spent much of their time at the Best Western, at Highway 7 and Leslie, it was Alexander's decision to move them to the Toronto Plaza Hotel. The change in location is seen in the ads that were made exhibits. This change of location was done entirely at the direction of Alexander who wanted to be closer to his friends. Ms. Doe was not happy with the change of location at first. However, it seemed to work out because she was happy when Alexander was happy and able to be with his friends while she worked.

7. Ms. Doe became addicted to cocaine when she was with Alexander. Although she had used drugs previously, with Alexander her cocaine use went to a whole new level. Alexander wanted her stay up all the time to work harder, because the harder she worked, the more money she made. The more money she made, the happier he would be.

8. Ms. Doe paid for "grills" – being a set of gold teeth with diamonds - for both of them with her money from prostitution. Alexander wanted to a pair, so they went to a jewelry store to purchase them. Alexander also wanted Ms. Doe to get a pair of grills, with the engraving "LV for life" on them. She bought them and wore them almost all the time, except when she was with a john.

9. In other ways, Alexander tried to exercise control over the types of sexual services Ms. Doe performed. He wanted her to do "bearback" (intercourse without a condom) and service fetishes because they brought in more money, but she did not actually do this. His attempts however, were clearly for the purpose of exploiting Ms. Doe.

[68] In this Court's view, Levi Alexander's active participation by controlling, directing and influencing Jane Doe in the provision of sexual services for money clearly establishes liability under s. 286.3 of the Code.

Counts 1 and 17: Human Trafficking and Material Benefits from Same

[69] The same evidence fulfills the essential elements of both human trafficking charges. For the span of two or three months, Alexander exercised control, direction and influence over the movements of Jane Doe, and he did so for the purpose of exploiting her. In other words, Alexander's conduct as outlined above, gives rise to a reasonable expectation that Ms. Doe believed that her safety, including her psychological safety, would be threatened if she failed to provide sexual services to johns.

[70] If there was any room for doubt as to the sufficiency of the evidence to establish human trafficking, the assaults at the Plaza Hotel remove it. Ms. Doe testified that the Plaza Hotel choking and assault occurred some 2 or 3 weeks prior to her breaking up with Alexander and that he was only gone for a few days after that. There is a reasonable inference that the exploitive relationship continued for approximately 2 – 3 weeks. When the assault and choking conduct is added to all of Levi Alexander's other conduct in relation to Ms. Doe, together with her stated fear of Alexander after those assaults, the evidence is sufficient to demonstrate objectively that a reasonable person, standing in the shoes of Ms. Doe, would be afraid having regard to Ms. Doe's circumstances.

Devon Nolan

Count 16: Uttering Threat

[71] Mr. Nolan will be committed to stand trial on this charge. Ms. Doe's evidence was that it was Nolan who was screaming in her face, threatening to hit her right now for bringing black friends into the room while she was working for him.

Counts 14 & 15: Material Benefit and Procuring

[72] Mr. Nolan will be committed on both of these charges.

[73] Jerome Bell passed Jane Doe over to Devon Nolan like she was a piece of property. Throughout the five or six days that she was working for him, she gave Nolan half of her earnings. There is evidence that before, during and after the time she worked directly for Nolan, he drove her to hotels and to out-calls for the purpose of selling sex. He also drove her to Barrie where he could be closer to his own "program" and where she was told she could make more money selling sex. The evidence as a whole reveals that Nolan had full knowledge of the purpose of the transportation.

[74] Ms. Doe's evidence was that when she was exclusively with Nolan, she was working with another person named Hanna, but she was habitually in Nolan's company. Accordingly, the presumption in s. 286.2(3) applies.

[75] She said she had no feelings for Nolan but she gave him half of her earnings because he asked for half and, if she did not give it, something would happen. Ms. Doe knew that half of her earnings was more money than one would pay for driving only. Further, she said that she felt that she had to give him the money because he had threatened her when he saw her with another black male in the hotel room. This threat precludes the accused's reliance on the exception in s. 286.2(4).

[76] Accordingly, there is some evidence that Nolan received a material benefit and exercised influence over the movements of Jane Doe for the purpose of selling her sexual services.

[77] There is also evidence that Nolan exercised direction and influence over the movements of Jane Doe for the purpose of providing sexual services for consideration by virtue of his extensive transportation of her and his threatening her not to have black males in the room and him denying her money to get back home to live with her father.

Count 1 and 13: Human Trafficking

[78] The same evidence referred to in the prostitution counts applies such that there is sufficient evidence to commit on the human trafficking counts. There is some evidence that he exercised direction and influence over the movements of Jane Doe for the purpose of exploiting her. The threat and imposition of rules when taken in the context of the entire relationship, constitutes some evidence that a reasonable person, standing in Jane Doe's shoes, would believe that her safety, including her psychological safety, would be threatened if she failed to provide sexual services. The threat, in particular, and in fact, made Jane Doe afraid and to feel like she had to give half of her earnings to Nolan.

Jerome Bell

[79] Mr. Bell turned 18 in January 15, 2015. He is only being prosecuted for events occurring after this time. Accordingly, the evidence grounding the charges against him is the evidence of Ms. Doe working as a prostitute on February 5, 2015 and spending time with him in Barrie on February 3 and 4, 2015.

[80] The Crown strongly asserts that the time Jane Doe spent with Bell in December 2014 informs the relationship in February 2015. Ms. Doe's evidence, together with the police surveillance evidence, constitutes some evidence that Jane Doe was working for Jerome Bell selling sexual services on the night of February 5, 2015. However, Ms. Doe gave no details of her interactions with Bell on that day.

[81] It is clear that the evidence of Bell's conduct in December, 2014 would be sufficient to commit on both prongs of the human trafficking and prostitution-related charges in December, 2014. He clearly acted for the purpose of exploiting Jane Doe. He took her earnings, directed her not see a black client, and communicated with johns directly. However, by February, 2015, Jane Doe had had a break from Bell, worked for Nolan and had worked for herself for a period of time. Ms. Doe also testified that the robbery on February 4, 2015 upset Bell because he got hurt and essentially caused their final breakup.

Count 5

[82] I find that the three days Bell spent with Ms. Doe in February, 2015, in the context of the whole relationship between Bell and Ms. Doe, provide some evidence that he was habitually in the company of a person who provides sexual services for consideration, and that the presumption in s. 286.2(3) applies. None of the exceptions in s. 286.2(4) apply. There is sufficient evidence, including Ms. Doe's own direct evidence that she was working for Bell on February 5, 2015, to infer that he was receiving financial benefits from her provision of sexual services on February 5, 2015. Accordingly, Bell will be committed to stand trial on count 5 the charge of receiving a material benefit knowing it was derived from the commission of an offence under s. 286.1(1).

Counts 3 and 4

[83] Given the dearth of evidence as to state of their relationship in February 2015, I find that there is not sufficient evidence to commit on either the procuring count or receiving a material benefit from trafficking count. Absent more detail, it would not be reasonable to infer that the relationship on February 5, 2015 had the same level of exploitive conduct and character as was shown to be the case in December 2014. Mr. Bell will be discharged on counts 3 and 4.

Released: July 19, 2016

Signed: "Justice D. Oleskiw"