Court File and Parties
Date: April 12, 2018
Ontario Court of Justice
Her Majesty the Queen
v.
Dwayne Shane Keating
Reasons for Judgment
Volume IV
By the Honourable Justice P. O'Marra
on April 12, 2018 at Brampton, Ontario
Important Notice
CONTENTS CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO SECTION 486.4(1)(b) OF THE CRIMINAL CODE BY THE HONOURABLE JUSTICE P. O'MARRA
Ontario Court of Justice
Dated April 9, 2018
Appearances
J. Prenger – Counsel for the Crown
M. Pasquale – Counsel for Dwayne Shane Keating
Thursday, April 12, 2018
THE COURT: All right. Ready to proceed, Miss Prenger?
MS. PRENGER: Yes, I am. Thank you.
THE COURT: All right. Good afternoon, Mr. Pasquale.
MR. PASQUALE: Good afternoon, Your Honour.
THE COURT: Again, good afternoon, Mr. Keating.
DWAYNE KEATING: Good afternoon, Your Honour.
THE COURT: You're prepared to receive my Judgment in this matter?
MR. PASQUALE: Yes, Your Honour.
THE COURT: Okay. All right. Before I begin, as I say - and you can have a seat, Mr. Keating.
DWAYNE KEATING: Thank you, Your Honour.
THE COURT: This may take a while.
MR. PASQUALE: Thank you, Your Honour.
Reasons for Judgment
O'MARRA, J., (Orally):
As I've stated in the past when rendering an oral decision, I reserve the right to issue written reasons at a later date and if there is a discrepancy between those issued reasons and my oral judgment, the issued reasons will prevail.
Introduction
This is my oral judgment in the matter of the Queen v. Dwayne Shane Keating. He's charged with the following offences:
That on April 15th, 2017 in the City of Brampton or elsewhere, did for the purpose of facilitating an offence under Section 286.1(2), recruit, hold, conceal, harbour or exercise control, direct or influence over the movements of L.D., a person under the age of 18 years, to offer or provide sexual services for consideration, contrary to Section 286.3(2) of the Criminal Code of Canada.
He is also charged with receiving a financial or other material benefit, knowing that it was obtained by or derived directly or indirectly from the commission of an offence, Section 286.1(2), contrary to Section 286.2(2) of the Criminal Code of Canada.
And, finally, Mr. Keating is also charged with knowingly advertising an offer to provide sexual services for consideration, contrary to Section 286.4 of the Criminal Code of Canada.
There are a number of material elements to all three counts, however the core issue is whether or not the Crown has established beyond a reasonable doubt that the accused was the person described by the principle Crown witness, L.D., as being "Chicken" or "Teff Dot".
If the answer to that question is, yes, then I have to consider the remaining issues. Has the Crown proved the following:
(1) Did the accused recruit, hold, conceal, harbour or exercise control, direction or influence, the movements of L.D. while she was under the age of 18 and for the purpose of offering and providing sexual services for consideration?
(2) Did the accused receive a financial or material benefit for providing or offering sexual services of L.D. while she was under the age of 18?
(3) Finally, did the accused knowingly advertise and offer to provide sexual services for consideration?
The Evidence
And I will now turn to the trial evidence. The Crown's case consisted of evidence mainly from one key witness, L.D.. Cst. Drexler, an officer with Peel Regional Police Service, was tasked to interview L.D. Cst. Drexler was also called by the Crown.
On consent, I made an order pursuant to Section 715.1 of the Code, admitting L.D.'s video recorded statement, taken on April 15th, 2017 as evidence, which formed part of L.D.'s examination in-chief.
The following additional exhibits were entered on consent which formed part of the Crown's case and were material to the elements of the offences:
A hotel receipt of payment in the name of Nataysha Harris for room number 404 at the Marigold Hotel, located at 226 Queen Street East in Brampton. It showed a check in date of April 15th, 2017 and a check out date of April 16th, 2017. Attached to that receipt was also a photocopy of the purported Ontario driver's licence photo of Nataysha Harris.
Five pages from a Facebook account assigned to "Teff Dot".
A Backpage advertisement with photographs of L.D. dated April 12th, 2017.
The accused's mug shot dated May 25th, 2017, taken by Peel Regional Police Service upon Mr. Keating's arrest.
L.D.'s Testimony
L.D. testified by closed circuit television from another room adjacent to the courtroom. She stated in her evidence that at the time when she met "Chicken" or "Teff Dot", she was 17 years of age. She met "Chicken" or "Teff Dot" through an Instagram conversation and eventually became acquainted with this individual and met him at Tim Horton's in Thornton, Ontario. This was on or about the middle of April 2017.
It was my understanding from the evidence that Brandon or Brando Glo, who was a Facebook acquaintance of L.D., passed on to "Chicken", L.D.'s Instagram information. At the time in L.D.'s life, she was homeless, depressed, abusing drugs quite heavily, jobless and destitute. Her mother would not permit her to come home and live in Barrie and, as such, L.D. was sleeping on couches.
In mid April 2017, L.D. met a few newly acquired Facebook friends, including "Chicken" or "Teff Dot" at Tim Horton's. Before she met "Chicken", she attended a friend's home nearby and consumed Xanax. She met "Chicken" at Tim Horton's and agreed to drive to his mother's house.
L.D. testified that she stayed the night. She and "Chicken" had sexual intercourse in the basement of the home. Although L.D. testified that she was told that she met "Chicken's" mother, she did not have a recollection of the meeting due to her heavy drug use at the time.
Apparently, discussions between "Chicken" and L.D. turned to making money. "Chicken" explained to L.D. that escorting was the easiest and fastest way to make money. L.D. testified that she was reluctant to become a sex trade worker.
She did not want to sell her body and even asked "Chicken" if there were other options to make money. She even suggested that she was prepared to sell drugs for him. However, "Chicken" rejected the idea, as he was also into selling drugs and he wanted L.D. to be an escort.
L.D. felt pressured to become an escort.
L.D. testified that she had shown "Chicken" her identification, which established that she was only 17 years of age. "Chicken" expressly told her that she must lie about her age. He was very concerned about anyone, especially the police, finding out that he was involved with a 17 year old girl.
According to L.D., "Chicken" set up a Backpage advertisement, whereby he used pictures that he had taken at a friend's condo the next day. She believed that his friend's name was A.R. She described him as Somalian, skinny, black hair and some facial hair. "Chicken" used two personal photographs that L.D. already had on her phone for the advertisement. L.D. testified that the two photographs were taken at her home in Barrie.
The advertisement was marked as Exhibit Number 4 at this trial. It was obvious that this was an advertisement that offered sexual services. L.D. testified she had nothing to do with the creation of the Backpage advertisement. "Chicken", in fact, inserted "no black guys", as he felt that other pimps would meet her and try to take L.D. away and bring her over to their team of escorts.
L.D. identified herself in every photograph in Exhibit Number 4. The only one that was not of her was a photograph of someone else's buttocks in a thong. She described that as possibly a stock photograph.
She confirmed that the number listed on the ad was connected to the TextMe application that "Chicken" had on his phone. L.D. watched "Chicken" put the advertisement together. Throughout her contact with "Chicken" over the four or five days, she was constantly doing drugs and drinking.
After her initial meeting with "Chicken", L.D. indicated she was taken to a number of hotels, such as the Gates Inn and the Marigold Hotel. She often found herself in an underground parking lot in "Chicken's" silver Subaru, talking and drinking with him.
According to L.D., "Chicken" introduced her to drugs that she had never tried before. He was constantly doing drugs with her. L.D. testified that she was uncertain of the nature of the drug she was taking. But whatever drug she was given, it kept her awake.
L.D. estimated that during the entire time she was with "Chicken", she may have slept twice for approximately two hour periods. She really did not know where her location was in Mississauga or Brampton at any given time.
Shortly after she met "Chicken", she was introduced to Shanice. Shanice was described as considerably larger than L.D.. She was taller and quite a bit heavier. L.D. estimated Shanice weighed approximately 180 pounds. L.D. weighed at that time only 120 pounds.
Shanice was an escort that provided sexual services for money. L.D. observed Shanice hand over money to "Chicken". Shanice always paid for the hotel room from cash that "Chicken" would hand back to her.
When shown the photograph on the photo driver's licence, of Nataysha Harris attached to the Marigold Hotel receipt, L.D. immediately recognized the image as Shanice.
L.D. described that she was so reluctant to engage clients that called, she started to tell the clients that she would not perform certain acts. She would even go to the extent of quoting a high fee for service in order to deter the clients from agreeing to meet with her.
L.D. testified that she never met with a client and provided sexual services, however, she did describe on one occasion a client did come to her hotel, expecting sexual services. L.D. saw the communication between "Chicken" and the client. The client wanted normal sex.
She testified that she was nervous and high on drugs. Once the client arrived in the hotel room, he gave L.D. $120 for a half hour. He pulled down his pants and laid on the bed. He could not get aroused. He asked her to kiss him, she asked for and received an extra $20 to do that. Although she found the client cute, she was not overly anxious to kiss him. She awkwardly kissed him and they spent the remainder of the time talking in the room.
After the client left, "Chicken" returned to the room and he took the $140 from L.D.. "Chicken" asked L.D. if she had sex with him, she answered no, and he thought that was great, that she had made money without having to have sex. L.D. felt subjectively that she did not engage in a sexual act on that occasion.
Overall, she found "Chicken", throughout her experience, increasingly moody. He berated her for not meeting with clients and earning more money. She also received pressure from Shanice to earn money. She indicated that Shanice would charge a fee of $300 for services.
Over the course of time, Mr. - L.D. testified that "Chicken" became increasingly hyper and jumpy. She described his eyes as bulging at times. She stated that if he did not like something, he turned into a monster. Increasingly she became fearful for her safety and she wanted out.
L.D. testified that matters came to head when L.D. decided to "dip", which is also known as leaving. She wanted to leave "Chicken". On April 15th, 2017 there was an argument between Shanice and L.D. that led to the hotel security guard attending room 405 - or 404.
The guard was not particularly helpful to L.D., so L.D. attended the front desk and asked the lady at the front desk to call the police. She indicated that she was 17 years of age. L.D. provided a video recorded statement later that evening to the police.
Near the conclusion of her testimony, the camera was pointed towards Mr. Keating. L.D. without hesitation recognized Mr. Keating and stated, "That is Chicken". She indicated that his hair was now shorter, compared to a year ago.
L.D. testified that "Chicken", at the time, did not seem to have a job. He did not have any further responsibilities or was going to school.
After this experience, L.D. entered a residential detox facility. While in that facility, she did receive communication from "Chicken" over Facebook. She indicated that at the time she did not have her smartphone with her, as it was not permitted by the facility. She communicated with "Chicken" over the facility's desktop computer.
During that communication, "Chicken" asked her how she was. He wanted to speak to her and pick her up. L.D. was curious, but refused to meet with "Chicken". She told the police and the Crown about this conversation this week.
Cross-Examination of L.D.
In cross-examination, L.D. indicated that the day that she met "Chicken", she went out to a friend's house and popped Xanax pills and blacked out. L.D. stated that she had never talked to "Chicken" over a cell phone, as she did not have a service provider for her cell phone. She always communicated with "Chicken" over Instagram, which was deleted at his request.
L.D. could not recall "Chicken's" Instagram account or his username. The only communication that she was allowed during her time with and in the presence of "Chicken" was with her mother. She had to use "Chicken's" cell phone.
During this ordeal, she never turned her mind to video recording or taking a photograph of "Chicken", Shanice, his car, or the licence plate or any of her surroundings. L.D. never gave her phone to the police, nor did the police ever ask for her phone.
In cross-examination, it was suggested to L.D. that there was never a pimp. She disagreed. L.D. also disagreed with the suggestion that she made the accused a patsy. L.D. denied that she had a motive to fabricate her story. It was suggested to her that the motivation was based on the fact that she was a trespasser at the hotel or was in possession of drugs and just simply wanted to avoid trouble or criminal charges.
In cross-examination, she confirmed that "Chicken" and "Teff Dot" were the same person as the accused that was before the court. She confirmed that the accused was the person depicted in the Facebook photos on page 1 and page 5 of Exhibit Number 3.
L.D. conceded that her recollection during the four day period was not as sharp due to her extensive drug use, but it was not so adversely affected that she imagined the events that she had testified to and told the police about.
Police Constable Drexler's Testimony
Police Constable Drexler conducted L.D.'s video recorded interview. In her opinion, at the time of the interview, L.D. was coming off the drugs that she had taken. She spoke very quickly, however there was nothing that she found unusual in the manner in which L.D. communicated. However, it was clear that L.D. was very tired after the interview and she simply wanted to go to sleep.
In cross-examination, P.C. Drexler confirmed the mug shot that was before the court was that of the accused. The picture depicted the accused with the nose ring and some facial hair. Officer Drexler confirmed that the Marigold Hotel video surveillance had been erased.
The Positions of the Parties
The Defence
Defence argued that there never was a pimp named "Chicken" or "Teff Dot" and that the accused was a patsy. The identification evidence was weak and did not support the fact that "Chicken" was the accused.
The defence submitted that L.D. made up her story to deflect any wrongdoing or criminal activity that she may have engaged in on or about April 15th, 2017. L.D. was not a reliable or credible witness due to her drug and alcohol abuse at the time. Given the horrific ordeal that she had endured, it was unimaginable, according to the defence, that L.D. would not have taken video or photographs of the parties involved.
The Crown
On the other hand, the Crown argued that L.D. was a credible and truthful witness. L.D. was vulnerable and the accused took advantage of her desperation. He plied her with drugs. The accused and Shanice pressured L.D. into prostitution.
The accused controlled her. He prepared the Backpage advertisement and used her personal photos, photos taken at A.R.'s condominium. He answered the telephone inquiries about the advertisement. He took $140 cash from L.D. after her encounter with her first and only customer, where a sexual experience for money was expected, but did not occur.
The Law and Its Application
The leading case on assessing credibility and the standard of proof is R. v. W.D., [1991] 63 C.C.C. (3d) (S.C.C.)
I have to consider all the evidence adduced by the Crown to satisfy myself that the Crown has met its high burden and proven beyond a reasonable doubt all of the essential elements of the offences against the accused.
In the case of R. v. Thomas, [2008] MBCA 75, at paragraph 84, I quote,
"In a case such as the present, where all the evidence comes from the Crown witnesses, it seems to me that the objective sought to be obtained by a W.D. instruction can be achieved by a suitable emphasis on the principles which underlie that decision, namely reasonable doubt and the Crown's burden of proof."
I must assess the evidence of the complainant, I'm also entitled to rely on none, some or all of her evidence. A non exhaustive list of factors I can use in assessing a witness's credibility include the following:
(I) The quality of the witness's memory. (e.g., the impact of alcohol and drug consumption)
(II) The consistency or inconsistency with the testimony of other witnesses and/or objective evidence such as video footage.
(III) The inconsistencies within the witness's own mind, including prior inconsistent statements.
(IV) The ability to make accurate observations at the time of the events.
(V) The inherent reasonableness or implausibility of the testimony.
I am mindful of the basic elements of reasonable doubt that is set out in R. v. Lifchus [1997] 118 C.C.C. (3d) at page 13, and R. v. Starr [2000] 147 C.C.C. (3d) S.C.C. at page 541. They are gleaned from the Supreme Court of Canada and they are the following:
(i) The standard of proof beyond a reasonable doubt is inextricably intertwined with the fundamental principle of the presumption of innocence.
(ii) The burden of - a burden of proof never shifts to the accused.
(iii) A reasonable doubt is not doubt based upon sympathy or prejudice, but rather is based on reason and common sense.
(iv) It must be logically connected to the evidence or the absence of the evidence.
(v) It does not involve proof to an absolute certainty.
(vi) It is not proof beyond any doubt, nor is it an imaginary or frivolous doubt.
(vii) More is required than proof that the defendant is probably guilty.
Issue #1: Was Chicken or Teff Dot the Accused
The two primary issues in this trial were (1) whether or not the person or the pimp described as "Chicken" or "Teff Dot" was, in fact, the accused? (2) Did L.D. fabricate her story?
Before I address these questions, I would like to review the legal principles on identification evidence and its application to the facts of this case.
In-court identifications are inherently suspect. After all, the witness expects to see the perpetrator in court and the accused is conspicuously present. For those reasons the in-dock identification is accorded little value. (See: R. v. D.R.H., [2007] M.B.C.A. 136 para. 54.)
It has been long recognized that a witness should be asked to identify an accused at the earliest opportunity and under the fairest of circumstances. (See Identification of Evidence by D. Deutscher and M. Lenoff, Carswell, [1991] at page 110).
That was not done in this case. I presume the reason that it was not possible, as the accused's identity was not readily known at the time L.D. provided her only statement to the police. What I mean by that was that there never was a photographic line up conducted as the accused had not been identified.
However, L.D. did point out to the investigating officer that Mr. Keating was the person in the Facebook photos. She stated that the person depicted was "Chicken" or "Teff Dot".
Was her evidence of prior identification, hearsay evidence? There is no general consensus. Some courts treat the out of court identification as hearsay statements, but admissible pursuant to a hearsay exception. Other courts treat the statements as non-hearsay original evidence. (See: R. v. Tat, [1997] 14 C.R. (5th) 116 at paras. 31-32 (O.C.A.).)
In circumstances where a witness is made an in-dock identification and the out-of-court identification is consistent, the question does not matter. The two identifications are intertwined. They corroborate each other and are admissible to give credence to the in-court testimony. (See: The Law of Evidence, Paciocco and Streuser, (7th) at pages 146 and 147).
Furthermore, in R. v. Tebo, [2003] 175 C.C.C. (3d) 116 (C.A.) I am quoting at paragraph 17,
"The Supreme Court of Canada discussed the issue of in-dock identification of an accused person in the recent case in R. v. Hibbert, 2002 SCC 39, [2002] 163 C.C.C. (3d) 129. The court re-emphasize that in-dock identification has an, 'almost total absence of value as reliable, positive identification'.
The only purpose of allowing the evidence to be led, is to give the victims or other relevant witnesses an opportunity to say whether or not, in their opinion, the accused is the same person they saw at the offence. In order to dispel any adverse inference, the jury might draw if the question were not asked and because there is probative value in the inability of a victim or witness to identify an accused person."
In a recent decision from the Ontario Court of Appeal, R. v. M.B., [2017] O.J. No. 4477, at paragraphs 31 to 32, deals with eyewitness identification procedures. I quote,
"Witness identification based on video recordings can, under certain circumstances, be more reliable, as it allows repeated and unhurried consideration. For example, in R. v. Nikolovski, [1996] 3 S.C.R. 1197 at para. 23, contemplates a videotape of 'sufficient clarity' and quality that it would be reasonable for the trier of fact to use it as the sole basis for identifying the accused."
"It is precisely because videotape evidence can present such very clear and convincing evidence of identification, that triers of fact can use it as a sole basis for the identification of the accused before them as the perpetrator of the crime. It is clear that a trier of fact may dispel all of the potential frailties, find an accused guilty beyond a reasonable doubt on the basis of the testimony of a single eye witness. It follows that the same result may be reached with even greater certainty upon the basis of good quality video evidence. Surely, if a jury had only the videotape and the accused before them, they would be at liberty to find that the accused they see in the box was the person in the videotape at the scene of the crime committing the offence. If an appellate court, upon a review of the tape, is satisfied that it is sufficient clarity and quality, that it would be reasonable for the trier of fact to identify the accused as the person in the tape beyond any reasonable doubt and that decision should not be disturbed. Similarly, a judge sitting alone can identify the accused as the person depicted in the videotape." [Emphasis added]
Is That the Accused in the Facebook Pages?
The answer to this question is, "yes", for the following reasons:
(1) I have examined Exhibit Number 3, the Facebook pages and the mug shot taken in May 2017. Although they were in black and white photocopies, the Facebook pages were dated January and October. I am satisfied that they were of good quality. They have sufficient clarity for me as a trier of fact to identify the accused beyond a reasonable doubt. His hair is similar length, the facial features are the same, although the first picture in Exhibit Number 3, the accused were wearing glasses and was smiling. L.D. remarked that she never saw Mr. Keating wear glasses and he rarely smiled during the time that they spent together. I accepted her evidence on this point, as often the accused was angry around her. He wore braids with - which was not depicted in page 5 of the Facebook images. His hair was down in that picture, however, his hair was braided in the smiling photo on page 1. L.D. also remarked that his arms were bigger in the past. I noted that when I did look at the accused, he was muscular, he did have large arms that I observed in two Facebook photos.
(2) L.D. never met the accused before April 2017, however, she had more than a casual acquaintance with the accused. Over a four day period, they had sexual intercourse more than once. They shared drugs and drank alcohol together. They argued with one another and, of course, L.D. slept with the accused. According to her evidence, L.D. literally spent every waking moment with the accused. Having a previous acquaintance with the person identified is a factor affecting weight. (See: R. v. Cochia, [1953], 107 C.C.C. 272 (O.C.A.) and R. v. Leaney 1987 ABCA 206, [1987], 38 C.C.C. (3d) 263, which was affirmed by the Supreme Court of Canada , [1989] 2 S.C.R. 393.) I gave strong weight to this factor.
(3) Although L.D. consumed and ingested a lot of drugs and alcohol at the time of the offences, she immediately and firmly testified that she recognized the accused in court. She stated very confidently, "That is 'Chicken'". She also pointed out a change — that the accused had cut his hair since the last time she had seen him. That was approximately a year ago.
(4) When L.D. was presented with Exhibit Number 2, the hotel receipt, she immediately recognized Shanice as the person named Nataysha Harris in the photo identification. L.D. stated that Nataysha Harris paid for the room. L.D. testified that Shanice was a larger woman.
When I examined the photograph, I agree with the Crown's submission that the woman in the photograph seems to be a large woman based on her head shot. In my view, this evidence strengthened L.D.'s reliability as an identification witness.
Credibility
I have stated that I have found L.D. to be a reliable witness. Moreover, I find L.D. to be a credible witness. L.D. did not overemphasize or embellish her evidence. She was forthright, she gave evidence that did not paint herself in a very good light. For example, L.D. was very candid about her excessive drug use during this bad period in her life and her other shortcomings.
The defence theory that she fabricated her story due to some perceived legal jeopardy did not make sense. The assertion that L.D. was a trespasser was wrong in law and was not consistent with the facts of this case. L.D. was an occupant of the hotel room, regardless of the fact that she did not pay for the hotel room and the room was not registered in her name. Her alleged fear that she was in legal trouble, due to drugs, again, did not line up with the facts of this case. Everybody involved in this case was doing drugs. According to L.D., the Marigold Hotel was a hot bed of prostitution and drugs. Finally, if L.D. was motivated to lie to escape criminal prosecution, why would she ask the hotel clerk to call the police?
When L.D. was challenged by the defence that she had made up her evidence, L.D. seemed unaffected by the assertion and calmly refuted counsel's accusations. In my opinion, L.D. had no reason to lie or motivation to slant her evidence.
The fact that she did not hand over her broken phone to the police was not much of a concern to the court. I am not prepared to draw an adverse inference that L.D. was concerned about what would or would not be viewed on her phone. This was simply speculation. I accepted the fact that she did not think about handing over her phone, just as the police did not think about asking for it. The phone was broken and not connected to a service provider. That was the reason why L.D. used a public Wi-Fi location such as Tim Horton's. Furthermore, she was forced to delete the Instagram messages at the behest of the accused.
I did not agree that L.D.'s failure to take pictures of the accused, his car, or Shanice discredited her in any way. The lack of corroboration through video or photos, did not detract from the weight and the credibility of L.D.'s evidence.
It is trite law, but it must be said, that as a general proposition, there is no common law requirement that precludes convicting the accused on the evidence of a single witness, unless the evidence is so vague as to render it unsafe. (See: R. v. Singh and Johal, [1975] 27 C.C.C. (2d) [1997] (B.C.C.A.).)
Counsel asserted that L.D. was unbelievable in her evidence, that the accused only permitted L.D. to speak to her mother over the accused's cell phone. It did not make sense. According to the defence, no pimp would have taken that risk. It was an attractive argument, however, it falls flat. In my view, it actually makes more sense that he did give L.D. the opportunity to speak to her mom, in order to keep L.D. happy and not worry or alarm her mother if L.D. failed to maintain contact with her mother. This is a common sense inference that in my view, augmented L.D.'s credibility.
I did not accept that L.D. embellished her evidence regarding gang related names. She admitted that she did not know for a fact that the accused was in a gang. However, she was cognizant of the fact that people like the accused, involved in criminal activity of this nature, (i.e. drug dealing and prostitution) will use street names.
I find that L.D. did not have an axe to grind. Even though she was treated unkindly and disrespectfully by the accused, L.D. did not attempt to gild the lily in this trial. Her words were temperate and her evidence was restrained.
Consequently, I have no hesitation accepting L.D.'s evidence.
The Material Elements of the Offences
Now I will turn to the counts on the Information and material elements of the offence as charged.
Count One
Count one on the Information under Section 286.3(2) of the Code, the Crown must prove that the:
(i) Complainant, L.D., was under 18 years of age at the time and the accused:
(ii) Recruited, held, concealed or harboured the complainant or exercised control, direction, or influence over her movements and that the accused:
(iii) Did that for the purpose to offer or provide sexual services for consideration or money.
Count Two
Count two of the Information under Section 286.2(2) of the Code, the Crown must prove the offence under Section 286.1(2), plus the additional element that the accused directly or indirectly received a financial or other material benefit.
Count Three
Count three of the Information under Section 286.4 of the Criminal Code, the Crown must prove the accused knowingly advertised and offered to provide sexual services for consideration or money.
Application of Law to Facts
Based on L.D.'s testimony, I am satisfied that on April 15th, 2017, L.D. was under 18 years of age. I'm also satisfied that the accused was aware of this fact. L.D. showed her identification to the accused, which displayed her date of birth.
The accused asked her to lie about her age. The accused told her to never tell anyone that she was only 17 years old. She was asked to tell clients that she was in her 20's. The accused was concerned that he would be in significant trouble if that fact was discovered. L.D. was advertised on Backpages as 23 years old.
L.D. was recruited into escorting by the accused. At the time in her life, she was particularly vulnerable. She was in a very bad place when she met the accused over Instagram. She was homeless, jobless and desperate for money.
L.D. felt that the accused would treat her nicely, not like the other men in her past. L.D. was living a very unstable and transient lifestyle. In my opinion, the manipulation started immediately by bringing L.D. to a safe environment, the accused mother's home, and had sex with her.
I felt that L.D. was very street smart and had a level of awareness of the sex trade industry. However, L.D. resisted the accused's suggestion of escorting in order to make fast and easy money. She wanted and suggested other avenues to make money, such as drug dealing, however, that was the accused's domain.
The accused wanted to sell her sexual services for money. She resisted selling her body for sex, however, her resistance was over-born and broken down by the accused giving her drugs and alcohol. He controlled L.D. by giving her drugs to stay awake.
Furthermore, the accused was equally whacked out on drugs, which made him moody, menacing and violent through both his words and his deeds. L.D. was fearful of both the accused and his sidekick escort, Shanice. His conduct was designed to direct and control L.D..
L.D.'s movements were controlled. She was essentially held by the accused and he was always in her presence during the four day period. The accused drove her from hotel to hotel in his rental car. They spent a majority of the time in an underground parking lot or in a hotel room. L.D. was not permitted to tell her mother or her friends where she was.
Most of the time, due to her disorientation, L.D. did not know her own location. L.D. was only allowed to talk to her mom on the accused's cell phone.
The accused recruited L.D. for the purpose of making money. He manipulated, pressured and influenced her to agree to engage in sexual services for profit.
The expectation was that she would provide sexual services to clients that responded to the Backpage advertisement and called the accused on the number provided from the TextMe app on his phone.
Subjectively, L.D. did not really consider that single occasion when she received money and awkwardly kissed the client as a sexual service. However, viewed objectively, the intention was to sell L.D.'s sexual services.
The client answered the ad for sex. According to L.D.'s testimony, upon the client's arrival, he immediately gave L.D. the fee of $120, with every expectation that they would have normal sex.
On this occasion, the client pulled down his pants, laid on the bed and attempted to arouse himself but was unsuccessful. He then asked her to kiss him. She asked for and received an additional $20. L.D. reluctantly and uncomfortably kissed the client.
In analyzing count number one, I am satisfied that the Crown has established beyond a reasonable doubt that the accused procured L.D. for sexual services in the manner specified in the Information.
With respect to count number two, since the accused took the cash in the sum of $140 from L.D., after her encounter with her first and last client, the accused received a financial benefit. The accused's delight that L.D. did not actually have sex with the client corroborated his knowledge that he intended and expected that L.D. would engage in sex for money. I am therefore satisfied beyond a reasonable doubt the accused was guilty of count number two.
With respect to count number three, the accused prepared, drafted and posted the Backpage advertisement. He arranged for intimate photographs of L.D. to be taken at his friend's condo. He asked for and received L.D.'s sexually explicit personal photos. The accused paid for the advertisements. The 289 number from a TextMe app on his photo was observed by L.D..
When L.D. was with that client, the accused waited outside with Shanice. The accused took the money from her and asked L.D. if she had sex with the client.
Based on the forgoing evidence, I am satisfied beyond a reasonable doubt the accused had advertised and offered to provide sexual services for money and there will be a finding of guilt on count three.
Sentencing
I suggest a Presentence Report.
MS. PRENGER: Absolutely. And, obviously, we'll need some time to come up with some authorities.
THE COURT: Yes.
MS. PRENGER: I anticipate, as Your Honour already knew at the beginning of the case that Mr. Keating has some Immigration issues. I think it will be very helpful to have some feedback as to what those realities are.
...AT THIS TIME FURTHER DISCUSSION FOLLOWED REGARDING CONTINUATION
THE COURT: Mr. Keating, I'm going to adjourn your sentencing hearing to May 18th in 303 at ten o'clock, okay?
DWAYNE KEATING: Yes, sir.
THE COURT: And someone should probably be visiting you from Probation Services to prepare your Presentence Report.
DWAYNE KEATING: Yes, sir.
THE COURT: Okay. All right. Thank you, counsel.
MR. PASQUALE: Thank you, Your Honour. I thank my friend.
MS. PRENGER: Thank you, Your Honour.
...PROCEEDINGS ADJOURNED