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 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: August 17, 2018
Court File No.: Peterborough 171440
Between:
Her Majesty the Queen
— AND —
Lennox Gray-Lewis and Elsa Johnson
Before: Justice S.W. Konyer
Heard on: March 20, April 12, 13, 24, May 29 and July 6, 2018
Reasons for Judgment released on: August 17, 2018
Counsel:
- Ms. K. Eberhard — counsel for the Crown
- Mr. D. McFadden — counsel for the accused Lennox Gray-Lewis
- Mr. T. Burgis — counsel for the accused Elsa Johnson
KONYER J.:
Introduction
[1] Lennox Gray-Lewis and Elsa Johnson were tried before me on a joint charge [Count 1] that they were occupiers of a hotel room and knowingly permitted two 15 year old females, S.F. and K.M., to use the hotel room for the purpose of engaging in prohibited sexual activity, contrary to s.171 of the Criminal Code. The prohibited sexual activity alleged is that S.F. and K.M. obtained sexual services for consideration, which is prohibited by s.286.1 of the Criminal Code. This offence was alleged to have occurred on March 1, 2017 in a room at the Motel 6 in Peterborough.
[2] Mr. Gray-Lewis is also charged [Count 2] with exercising influence over the movements of S.F. and K.M. for the purpose of gain by facilitating them to engage in prostitution, contrary to s.286.3(2) of the Criminal Code. He is also charged [Count 3] with knowingly receiving money derived from a prohibited act relating to the provision of sexual services, contrary to s.286.2(2). He is also charged [Count 4] with advertising an offer to provide sexual services for consideration, contrary to s.286.4. Finally, he is charged [Count 5] with possession of cocaine, contrary to s.4(1) of the Controlled Drugs and Substances Act.
[3] It was admitted at the outset of the trial that Mr. Gray-Lewis was in possession of less than 1 gram of cocaine when he was arrested outside the Motel 6 on March 1, 2017. He concedes that he should be found guilty on Count 5. Further, at the conclusion of the trial, his counsel conceded that he should be found guilty on Count 3, while the Crown invited me to dismiss Count 4 based on the evidence heard at trial. Accordingly, the only charges that I must decide are the joint charges in Count 1, and the charge against Mr. Gray-Lewis alone in Count 2. What follows are my reasons in relation to those charges.
[4] There is no dispute that S.F. and K.M. were each 15 years of age on the date of the alleged offences. As a defence to Count 1, however, Ms. Johnson argues that she reasonably believed that both girls were aged 18 or older. Section 150.1(5) of the Criminal Code provides that a mistaken belief that a complainant was 18 or older is only a defence if the accused took all reasonable steps to ascertain the age of the complainant. I must decide, therefore, if the Crown has proven that Ms. Johnson did not take all reasonable steps to ascertain the age of S.F. and K.M. Mr. Gray-Lewis does not raise the defence of a mistaken belief in age.
[5] However, both Ms. Johnson and Mr. Gray-Lewis argue that the Crown has failed to prove that they were "occupiers" of the hotel room within the meaning of s.171 of the Criminal Code. Since this is an essential element of the offence, I must decide whether the Crown has proven this element beyond reasonable doubt.
[6] In relation to Count 2, there is no dispute that S.F. and K.M. advertised and provided sexual services for money in rooms that were rented for them at the Motel 6. There is no dispute that Mr. Gray-Lewis was provided a share of the proceeds from these services. He argues, however, that S.F. and K.M. engaged in these activities of their own free will, and that the Crown has therefore failed to prove that he exercised the required degree of influence over their movements.
The Issues
[7] I am indebted to counsel for the professional manner in which this case was argued, which allowed me to focus my attention on the live issues at trial. There are three issues that I need to decide in this case.
[8] First, has the Crown proven that Mr. Gray-Lewis or Ms. Johnson was an "occupier" of the hotel room? If the answer for either of them is no, then that person must be found not guilty on Count 1. If the answer for Mr. Gray-Lewis is yes, then he must be found guilty on Count 1.
[9] If the answer to the first question for Ms. Johnson is yes, then I must go on to consider the second question: has the Crown proven that Ms. Johnson did not take all reasonable steps to ascertain the ages of S.F. and K.M.? If the answer to this question is no, then she must be found not guilty on Count 1. If the answer is yes, she must be found guilty.
[10] Third, I must decide whether the Crown has proven that Mr. Gray-Lewis exercised influence over the movements of S.F. and K.M. If the answer to this question is yes, then he must be found guilty on Count 2. If the answer is no, then he is not guilty.
[11] In deciding these questions, I must of course consider all of the evidence heard at trial, including the testimony of witnesses, the audio-video statements provided by S.F. and K.M. to the police which were admitted pursuant to s.715.1 of the Criminal Code, and the exhibits filed. It will be necessary to assess the credibility and reliability of a number of witnesses, most notably S.F., K.M., and Ms. Johnson, who testified in her own defence. When assessing the credibility and reliability of the evidence of S.F. and K.M., I will need to bear in mind that they were each 16 years of age when they testified about events that occurred when they were 15. Although each witness is an individual whose evidence should be assessed according to their individual capacity, understanding and ability to communicate, a somewhat lesser standard of scrutiny is generally appropriate when assessing the testimony of child witnesses.
[12] Like anyone charged with criminal offences in our system of justice, Ms. Johnson and Mr. Gray-Lewis are presumed innocent. This means that I must find them not guilty in relation to Counts 1 and 2 unless the Crown has proven their guilt beyond a reasonable doubt. Proof beyond a reasonable doubt does not mean proof to an absolute certainty, but it requires much more than proof that the accused persons are probably or likely guilty. Unless I can be sure of their guilt, the law requires me to find them not guilty.
[13] Since Ms. Johnson has testified in her own defence and denied an essential element of the offence she is charged with, it follows that if I believe her testimony I must find her not guilty. Even if I do not believe her testimony, if it leaves me with a reasonable doubt when considered along with all of the evidence, then I must find her not guilty. Further, even if her testimony does not raise a reasonable doubt, I must still go on to consider whether I am satisfied of her guilt beyond reasonable doubt based on the evidence which I do accept.
[14] In order to decide the live issues in this case, I will first summarize the relevant evidence heard at trial, and make findings of fact. Next, I will set out the applicable law. Finally, I will apply the law to the facts as I find them to be in order to decide these issues.
Summary of the Evidence
[15] This was a relatively brief trial. I heard testimony from both S.F. and K.M., who each testified via CCTV with appropriate support persons. Each of them adopted the contents of audio-video recorded statements given to the police within hours of their apprehension at the Motel 6 on March 1, 2017, and those statements were admitted at trial. I also heard from two police officers involved in the investigation, and was provided with copies of a text message conversation between one of the officers and S.F. I was also provided with copies of online advertisements posted by S.F., as well as copies of records from the Motel 6 in relation to two different rooms used by S.F. and K.M. between February 27 and March 1, 2017. Ms. Johnson testified in her own defence, while Mr. Gray-Lewis chose not to call any evidence.
[16] In late February 2017, S.F. and K.M. were friends living in Scarborough. They were each unhappy at home, and they decided to run away together and work in the sex trade. S.F. said she had previous experience providing sexual services for money, and was determined that she and K.M. were not going to be exploited by a pimp. Due to their young ages, however, both girls understood that they would need the assistance of an adult to make their plan work. They were prepared to split the money they earned with someone who would provide them with the assistance they required, such as driving them and renting a hotel room in which to work. Accordingly, S.F. contacted a friend of hers from school, an older male identified only as "Corday" [ph]. S.F. said that she had previously discussed this idea with Corday.
[17] Corday showed up for a meeting with S.F. and K.M. in a vehicle with Mr. Gray-Lewis, who was not known to either girl. They went for a drive, and plans were discussed between S.F. and Corday. They reached an agreement where the proceeds from sexual services provided by the girls would be split in half between the girls and Corday. It was understood that Corday would be responsible for paying expenses such as the cost of the hotel room and travel expenses from his share.
[18] Corday suggested that they travel to Peterborough to set up the business, because he knew the Peterborough market was thriving. Corday arranged for transportation by another friend, an unknown Asian male who drove the group to the Motel 6 in Peterborough. Once they arrived, the Asian male rented a room in his name for a single night. He rented the room because he had proper identification. S.F. said that she believed either Corday or Mr. Gray-Lewis paid for the room. By the time they checked in, it was late at night on February 27.
[19] Immediately after acquiring the room, an advertisement for sexual services was created and posted on a website called Backpages. The ad was paid for using bitcoins that had been obtained by Corday. S.F., who appears to be the only one who had a cell phone, posted the ad. She used an email account she had previously created in order to post the ad on Backpages. The ad, a copy of which was filed as an exhibit, contains photos of the bodies of S.F. and K.M. dressed in lingerie, and advertises sexual services by a duo in coded language. The same ad, with slight variations, was re-posted several times over the next two days in order to keep a place near the top of the listings for Peterborough. S.F. and Corday took the photos that were used in the ad, and they were also responsible for composing the text portion of the ad.
[20] The ad contained a fictitious phone number, which was linked to S.F.'s phone through a texting app. Therefore, any clients responding to the ad would send a text message that would be received on S.F.'s phone. No responses to the ad were received that first night, and the five people who had driven to the room eventually slept. The following day, the Asian male left to return to Scarborough, effectively stranding the remaining four in Peterborough.
[21] The next day, February 28, S.F. started receiving responses to the ad. She explained that she would initially screen clients and then if she felt comfortable, she would provide them with the name of the hotel, and direct the client to text her once they arrived at the hotel. Only then would she give out the room number. At this point she would direct Corday and Mr. Gray-Lewis to leave the room, which they did. They did not take a key with them, so they would have to be let back into the room by the girls after they finished with their client. At this point, the money would be split in accordance with the previous agreement. To sum up, it appears as though S.F. handled all contact with the clients including negotiating fees; S.F. set up the appointments and controlled the access that Corday and Mr. Gray-Lewis had to the hotel room; and S.F. collected payment from the clients and dispensed Corday's share to him after she let him back into the room. From what I can discern, Mr. Gray-Lewis was merely present for no real purpose to this point in the events.
[22] This changed at some point on February 28, when Corday was arrested. I do not know when exactly he was arrested, where he was arrested, or why he was arrested. I know that he spent the first night in the hotel room, and disappeared sometime during the next day. Both S.F. and K.M. were told, presumably by Mr. Gray-Lewis, that Corday had been arrested. In fact, S.F. said that this happened before she ever paid Corday any money.
[23] Once Corday disappeared from the scene, S.F. began paying his share of the proceeds to Mr. Gray-Lewis. S.F. and K.M. provided services to several clients over the course of the day. At some point, a male identified only as "Maxwell" showed up at the hotel room. I heard conflicting evidence about whether he showed up at the room unannounced, or whether he returned to the room with Mr. Gray-Lewis after the girls had seen a client. In any event, both girls were clear that Maxwell was aggressive and threatening. He accused them of withholding money, and demanded that they turn over all of the money that they had been paid. He began yelling, and K.M. also began screaming and crying. This attracted the attention of hotel staff, which resulted in Maxwell and Mr. Gray-Lewis leaving the room. It was not clear to me based on the evidence whether S.F. actually gave any money to Maxwell before he left.
[24] After the Maxwell incident, Mr. Gray-Lewis began calling S.F. repeatedly, begging to be let back into the room, claiming that he did not know that Maxwell was going to show up, and reassuring her that Maxwell would not return. After a few hours, S.F. relented and let Mr. Gray-Lewis back into the room. After the Maxwell incident, S.F. said that she would give Mr. Gray-Lewis more than half, but not all, of the proceeds from customers. For example, she said that if she was paid $60, she would give $40 to Mr. Gray-Lewis.
[25] As discussed earlier, the Asian male had rented the room for a single night only, and had left with the vehicle. At some point on February 28, Mr. Gray-Lewis contacted Ms. Johnson, a friend of his from Durham. He asked her to drive to the hotel in order to extend their stay. Mr. Gray-Lewis did not have identification and therefore could not put the room in his name. Nor could either of the girls due to their age. Ms. Johnson agreed to this request, and said that she came to the hotel with knowledge that Mr. Gray-Lewis was staying with females who were providing sexual services from the hotel room. Ms. Johnson, who was 19 and living at home, explained that she travelled to Peterborough in order to help her friend out, and also because she had an addiction to cocaine and thought the trip would provide her with an opportunity to use without worrying about being caught by her parents.
[26] Ms. Johnson rented a room for two nights – February 28 and March 1. She paid a damage deposit, which she expected to get back, while either Mr. Gray-Lewis or S.F. paid for the room, which cost $90 per night. Once the new room was acquired, a similar routine was followed. S.F. would arrange appointments with clients, at which point Mr. Gray-Lewis and Ms. Johnson would leave the room, also without a key. After the clients left, they would be let back in by the girls. Ms. Johnson, who had a vehicle, also drove them all to a convenience store and to a local Dairy Queen for a meal. At other times, they ordered food in to the room. At night, Ms. Johnson and Mr. Gray-Lewis shared one bed, while S.F. and K.M. slept in the other.
[27] Ms. Johnson was fully aware that the girls were providing sexual services for money. She testified that she believed they were both 19 years old. She said she asked S.F. their ages, and was told by her that they were 19. She said she accepted this claim because of their physical appearance, the adult language they used, and the fact that they were independently engaged in an adult activity. In cross-examination, however, she admitted that when questioned by the police, she expressed a belief that S.F.'s claim to be 19 might not have been truthful. She told the police that when S.F. told her they were 19, she responded by saying "are you sure, you guys look awful young". She agreed that at the time she doubted S.F.'s claim that the girls were 19, but made no further inquiries.
[28] S.F. said that Mr. Gray-Lewis was aware of her age and K.M.'s age because "it was known" that they were both 15 years old. Corday knew her age from school, and it would appear that she inferred that this knowledge was passed on to Mr. Gray-Lewis since she could not specifically recall discussing her age with or in front of Mr. Gray-Lewis. She also said that she told Ms. Johnson that she and K.M. were 15 years old, but she could not recall any details of the conversation. For her part, K.M. could not recall ever telling Mr. Gray-Lewis or Ms. Johnson anything about her age.
[29] It is conceded by Mr. Gray-Lewis that he knew that the girls were under the age of 18. Ms. Johnson, despite her skepticism of the girls' claim to be 19, never made inquiries of Mr. Gray-Lewis about their ages.
[30] Meanwhile, Durham police had received missing persons complaints about S.F. and K.M., and launched an investigation. They tracked S.F.'s cell phone to the Peterborough area, and checked the Peterborough section of Backpages for ads. They found the ad posted by S.F. advertising services by a duo, and believed that this could relate to the missing girls. Det. Phil Groeneveld, acting in an undercover capacity, made contact with S.F. through the ad by posing as a client. She directed him to the Motel 6, and he attended that location with other officers from Durham and Peterborough. On arrival, he texted S.F. and was provided her room number. Inquiries were made of hotel staff, who provided police with information on Ms. Johnson and her vehicle, which was registered to that room. Police conducted surveillance on the room and vehicle. In the evening of March 1, Ms. Johnson and Mr. Gray-Lewis were seen leaving the hotel and entering the vehicle. They sat in the vehicle in the hotel parking lot.
[31] At the same time, Det. Groeneveld approached the room. He saw a male leaving the room. Suspecting he was a client, Det. Groeneveld questioned the male in the stairwell, and his suspicions were confirmed. He next went to the room, where he was let in and identified himself as a police officer. Both S.F. and K.M. initially gave a false name and claimed to be 18. They were both detained and brought to the police station, and both ultimately provided their true names and ages.
[32] Other officers arrested Ms. Johnson and Mr. Gray-Lewis in the hotel parking lot. When told that she was under arrest, Ms. Johnson asked why and was told that it was in relation to her involvement with two 15 year old girls working in the sex trade. Ms. Johnson's statements on arrest were tendered by her counsel as prior consistent statements. On learning of the reason for her arrest, she appeared shocked and upset. She screamed at Mr. Gray-Lewis "they're only 15" and said "I can't believe this is happening". The officer who arrested her believed that she was genuinely shocked on learning the ages of the two girls.
[33] This completes my summary of the relevant evidence, and I now turn to a review of the law that applies to the questions I must decide.
Issue 1: Were Johnson or Gray-Lewis "Occupiers" of the Hotel Room?
[34] Section 171 of the Criminal Code makes it an offence for categories of people associated to premises to knowingly permit a person under the age of 18 to engage in prohibited sexual activity at those premises. The categories include the owner, occupier, manager or any person who has control of premises. The Crown alleges that both Ms. Johnson and Mr. Gray-Lewis were occupiers of the premises in this case, being the room rented by Ms. Johnson for the use of S.F. and K.M. to provide sexual services for money. There is no dispute that Ms. Johnson and Mr. Gray-Lewis both knew that S.F. and K.M. were providing sexual services for money in the hotel room.
[35] The term "occupier" is not defined in the Criminal Code. The Crown relies upon the decision of Justice Kerby of the Alberta Provincial Court in R. v. Ngai, [2013] A.J. No 328, to support its argument that both accused in this case were occupiers. In Ngai, the accused was charged with keeping a common bawdy house under s.210 of the Criminal Code as it then existed. The term "keeper" was defined in s.197 as including an owner or occupier. In that case the police conducted a sting operation on a massage parlour which advertised on Craigslist. When the number listed in the ad was called, police spoke to a male who directed them to an address where they could receive sexual services for money. When police attended, a female was present inside the home, while Mr. Ngai was found sitting in a vehicle parked at the curb. A key to the home was found on him, and a garage door opener in his vehicle operated a garage door to the home.
[36] Mr. Ngai had also been seen coming and going from, and waiting in his vehicle outside the home on many prior occasions during the course of police surveillance. Cell phones seized from him showed text messages to and from numerous undercover officers who had set up meetings through the Craigslist ad. One of issues for the court at trial was whether Mr. Ngai was a "keeper" in relation to the premises in question by virtue of being an occupier. At paragraph 280, the court determined that Mr. Ngai was an occupier based on his possession of the key and garage door opener, the fact that he was seen coming and going from the premises, the frequent sighting of his vehicle at the premises, and the fact that a phone bill in his name was seized from inside the premises. Despite the fact that they did not hold keys to the hotel room in the case before me, the Crown argues that the analysis in Ngai supports an inference that both Ms. Johnson and Mr. Gray-Lewis were occupiers of the hotel room.
[37] Both Ms. Johnson and Mr. Gray-Lewis argue that S.F. maintained control over the hotel room. They point to the fact that both were excluded from the room without keys while S.F. and K.M. conducted their business, and could only return to the room with the permission of either S.F. or K.M. Although Ms. Johnson rented the second room, she argues that it was hers in name only and that she was effectively a mere guest. Mr. Gray-Lewis points to the fact that he had no responsibility for the room, and the fact that he had to plead to be let back in by S.F. after the Maxwell incident as demonstrating that he had no control whatsoever over the hotel room.
[38] The Crown also relied on the definition of "occupier" in s.1 of the Ontario Trespass to Property Act, R.S.O. 1990, Chapter T.21 which includes "a person who has the responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises". The defence argues that only S.F. and K.M. meet this definition of occupier.
[39] In my view, both Ms. Johnson and Mr. Gray-Lewis meet the definition of occupier in s.171. Ms. Johnson was directly responsible for renting the room, and was expecting to collect a damage deposit when the collective occupation of the room ceased. She ate meals in the room, slept in the room, and transported the other occupants out to acquire food and other necessities. She also used the room for recreational purposes as a place to get high. The fact that she agreed to leave the room temporarily while other occupants used the room to make money does not mean that she herself was not an occupant. As a whole, I am satisfied beyond reasonable doubt that Ms. Johnson was an occupier of the hotel room.
[40] Mr. Gray-Lewis was indirectly responsible for acquiring the second hotel room used by S.F. and K.M. to conduct their business. He too ate there, slept there and went out together with the other occupants on short trips in Ms. Johnson's car. He had nowhere else to stay at the time. He collected a share of the proceeds of the business conducted in the room by S.F. and K.M. in exchange for his role in obtaining the room. Despite the fact that he left the room without a key while the girls saw clients, common sense compels me to conclude that he too was an occupier of that room, along with S.F., K.M. and Ms. Johnson.
[41] Although he clearly did not exhibit the same degree of control over the hotel room as Mr. Ngai did over the premises in question in that case, there is nothing in the language of the section that persuades me that such control is required of an occupier. Mr. Gray-Lewis clearly shared the hotel room with S.F., K.M. and Ms. Johnson. He helped the girls to acquire the room knowing their ages and that it was their intent to use it to provide sexual services for money. He afforded them privacy to perform these services and collected a share of the proceeds afterwards. In my view, he meets the definition of an occupier within the meaning of s.171.
[42] Accordingly, Mr. Gray-Lewis is found guilty on Count 1, since he has conceded the remaining elements of this offence. With respect to Ms. Johnson, I must go on to consider whether the Crown has proven that she failed to take the required steps to assure herself that S.F. and K.M. were 18 or older.
Issue 2: Did Johnson Take All Reasonable Steps to Ascertain the Ages of S.F. and K.M.?
[43] Ms. Johnson is only guilty of an offence under s.171 if she "knowingly" permitted persons under the age of 18 to be in the hotel room for the purpose of engaging in prohibited sexual activity. Ms. Johnson testified that she believed that both S.F. and K.M. were 19 years of age because this is what they told her. Section 150.1(5) provides that a mistaken belief that a complainant was 18 or older is not a defence "unless the accused took all reasonable steps to ascertain the age of the complainant". The parties agree that Ms. Johnson has met the evidentiary burden placed upon her by s.150.1(5). The question I must therefore decide is whether the Crown has proven, beyond reasonable doubt, that she failed to take all reasonable steps to ascertain the age of S.F. and K.M.
[44] This is an objective standard: see R. v. Saliba, 2013 ONCA 661, at para. 28; R. v. Chapman, [2016] O.J. No. 2218 (C.A.), at para. 40. The fact that Ms. Johnson may have subjectively believed that S.F. and K.M. were 19 is not determinative of the issue. What I must determine is the "sufficiency of the steps taken by [Ms. Johnson] to ascertain [S.F. and K.M.]'s age on an objective basis, in the light of the particular circumstances and context of this case": see R. v. Dragos, 2012 ONCA 538, at para. 62. Ms. Johnson was entitled to rely on the girls' representation of their ages as one indicator of age. She was also entitled to rely on other factors, including their physical appearance, dress, language and conduct.
[45] In the circumstances of this case, I do not know whether or not Ms. Johnson was told by the girls that they were 19, as she claimed, or their true ages, as S.F. claimed. I am skeptical that S.F. would have told Ms. Johnson their true ages. She and K.M. lied to the police about their ages in an effort to avoid getting into trouble. There is no reason for them to have taken the risk of revealing the truth to Ms. Johnson. I find that Ms. Johnson was probably told that the girls were 19 years old.
[46] The problem for Ms. Johnson, however, is that she herself was skeptical of the girls' claim to be 19. She asked them if they were telling her the truth because, as she later told the police, they looked "awfully young". Despite the fact that they dressed, spoke and tried to act like young adults, they were still 15 year old girls. Ms. Johnson, in her own mind, had good reason to suspect that they were much younger than they claimed to be, and she deliberately chose to turn a blind eye to this fact. She made no further inquiries at all to confirm or dispel her suspicions that S.F. and K.M. were younger than they claimed. It was not enough for her to rely on the girls' appearance and demeanour, as she herself conceded that she still harboured a real doubt about their stated age.
[47] The Crown has proven beyond reasonable doubt that she failed to take any steps to ascertain their true ages, let alone "all reasonable steps" as required by s.150.1(5). Accordingly, Ms. Johnson is also found guilty on Count 1.
Issue 3: Did Gray-Lewis Exercise Influence Over the Movements of S.F. and K.M.?
[48] Mr. Gray-Lewis is charged in Count 2 with exercising influence over the movements of persons under the age of 18 who offer to provide sexual services for money, for the purpose of facilitating an offence under s.286.1(2) – which is obtaining the sexual services of a person under 18 for consideration. Each element of this offence is conceded by Mr. Gray-Lewis except that he exercised influence over the movement of S.F. and K.M.
[49] Section 286.3 makes it an offence to exercise "control, direction or influence" over the movements of a person in the prohibited class [ie, under 18 and providing sexual services for money]. The Quebec Court of Appeal considered the meaning of these terms [as they appeared in virtually identical language in the former procuring provisions under s.212] in R. v. Perrault (1997), 113 C.C.C. (3d) 573, and held the following at pp. 575-6:
The element of control refers to invasive behaviour, to ascendency 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 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]
[50] I agree that the exercise of influence involves less restriction of the movements of the complainant than does the exercise of control or direction. At the same time, it is also true that "passive acquiescence in the complainant's prostituting herself [is] not exercising influence": see R. v. Badio. In the case before me, I must decide whether Mr. Gray-Lewis' conduct towards S.F. and K.M. was sufficient to constitute influence within the meaning of s.286.3.
[51] The case against Mr. Gray-Lewis on Count 2 is not typical of procuring cases. Counsel cited a number of cases grounded in more traditional facts. For example, in R. v. A.A., 2015 ONCA 558, the accused and victim, both 16 years old, met in a park and became involved in a four month relationship described by the Court of Appeal as "a parasitic one". The victim, G.M.S., suffered from anxiety and depression and was unhappy at home. The court described what occurred next at paras 8-10:
A.A. professed his love for G.M.S. He said that he had always loved her and would never let anything happen to her. A.A. then asked G.M.S. whether she loved him and whether she would dance for him.
A.A. explained that if G.M.S. danced for him they could have the life they deserved. They would be together and retire in ten years. G.M.S. felt that she had finally found somebody who wanted her and would protect her and look after her forever.
At the end of their meeting in the park, G.M.S. understood that she and A.A. would be together. She agreed to dance in strip clubs so that she and A.A. could have their life together.
[52] Shortly after G.M.S. began dancing, she and A.A. moved into a hotel together. She severed all ties with her parents, and turned over all of the money she made dancing to A.A. He encouraged her to perform sexual services in addition to dancing at the clubs to make more money. She ultimately agreed, and turned this money over to A.A. also. She was assaulted and threatened repeatedly by A.A. and his friends when she "talked back" or tried to leave the situation.
[53] At the time, the offence of human trafficking was governed by s.279.011(1), which contained identical language – making it an offence to exercise "control, direction or influence over the movements" of the complainant for a prohibited purpose. There was no dispute on the facts that A.A. exercised control, direction or influence, but he was acquitted because the trial Judge found that G.M.S. did not perceive that she had been threatened or exploited. The Court of Appeal reversed the acquittal, holding that the Crown need not prove that actual exploitation occurred, as long as it was proven that "the accused acted with the purpose of exploiting the complainant or facilitating his or her exploitation": see para. 86. Therefore, I conclude that the Crown must prove not only that Mr. Gray-Lewis aided or abetted S.F. and K.M. in providing sexual services for money, but also that he did so for the purpose of exploiting them.
[54] The Crown relied upon R. v. Alexander, [2016] O.J. No. 7163 (C.J.), to support its position that Mr. Gray-Lewis exercised influence over the movements of S.F. and K.M. In Alexander, the court had to decide following a preliminary inquiry if there was sufficient evidence to commit the three accused to stand trial. One of the accused, Nolan, bears some factual similarity. The complainant, who had begun working as a prostitute for Alexander, who she considered her boyfriend, was directed by him at some point to work for Nolan. After that, Nolan "drove her to hotels and to outcalls for the purpose of selling sex": see para. 73. She turned over half of her earnings to Nolan. The court found that there was sufficient evidence that Nolan exercised influence over her movements based on these facts. While I agree that there was some evidence that Nolan exercised influence over the movements of the complainant in that case, this does little to assist me in determining whether the Crown has proven this element of the offence beyond reasonable doubt against Mr. Gray-Lewis. I was not informed of the result of Mr. Nolan's trial, nor could I readily locate any reported decision on the matter.
[55] The Crown also relied upon the decision of the Quebec Court of Appeal in R. v. Urizar, [2013] Q.J. No. 132 on this same point. There, the accused appealed his convictions for numerous offences, including human trafficking, then governed by s.279.01 which contained the same requirement for proof of "control, direction or influence over the movements" of the complainant. The court summarized the evidence as follows: "It is a classic case. A young woman is seduced by a young man. Little by little, he skilfully manoeuvres her into dancing nude for his material benefit alone. She is then sucked into a maelstrom from which she eventually escapes, but not without difficulty" [para 10]. The maelstrom included serious acts of physical violence when she resisted turning over all of her money, sexual violence, threats to kill her and acts of control including confining her in an apartment and removing her cell phone.
[56] The trial judge concluded that Urizar exercised control or influence over the complainant's movements, a conclusion the Court of Appeal affirmed. "Urizar exercised control or influence over the complainant's movements for the purpose of abetting her to dance nude for his profit alone. The events occurred in a context of physical, psychological, sexual and material abuse where it is reasonable to conclude that a refusal on the part of the complainant to engage in the activity concerned endangered or would have endangered her safety." [para 89]
[57] In contrast, Mr. Gray-Lewis did not employ physical, psychological, sexual or material abuse to influence the movements of S.F. or K.M. They initiated the partnership with his friend Corday, who certainly influenced them to travel to Peterborough as a venue for engaging in their chosen activity. At that point, Mr. Gray-Lewis was merely a bystander. It was only after Corday's arrest that he started receiving money from the girls. The evidence about the amounts paid to him was so imprecise and vague that I cannot be sure he was given any more than a half share in accordance with the bargain struck with Corday. What I do know is that Mr. Gray-Lewis did not persuade S.F. or K.M. to enter the sex trade, nor did he pressure them to provide sexual services for money. He did not post any of their ads, he did not communicate with their customers, he did not tell them how much money to charge, and he did not even make any inquiries to confirm that he was receiving the agreed upon share of the proceeds. What he did do was to assist them in renting a second room at the hotel they had all been driven to in Peterborough after Corday disappeared. He did so by asking his friend Ms. Johnson to come to the hotel, since he did not have proper identification himself.
[58] At the end of the day, I am not sure that Mr. Gray-Lewis influenced the movements of S.F. or K.M. as that term is used within the meaning of s.286.3. In R. v. Urizar, supra, the Quebec Court of Appeal referred in detail to the Parliamentary record when the human trafficking provisions of the Criminal Code were enacted to underscore that the provisions were designed to criminalize the exploitation of vulnerable victims. The court held that "[a]n objective test is used to assess the actions leading to the exploitation. Victims are caused to provide or offer to provide labour or services by engaging in conduct that, in light of the circumstances, can reasonably be expected to cause the victims to believe that their safety or the safety of a person known to them would be threatened if they failed to offer or provide the labour or services." [para. 71]
[59] Viewed objectively, the conduct of Mr. Gray-Lewis, morally repugnant though it was, cannot be considered threatening. He did not cause S.F. or K.M. to engage in services by threatening them or anyone else. While it is true that he assisted the girls in continuing to provide sexual services for money by enabling them to acquire a hotel room, I am not satisfied that he did so for the purpose of exploiting them. It follows that I have a reasonable doubt that he exercised influence over their movements as required by s.286.3. Mr. Gray-Lewis is found not guilty on Count 2.
Conclusion
[60] Both Mr. Gray-Lewis and Ms. Johnson are found guilty on Count 1 of being occupants of a hotel room and knowingly permitting S.F. and K.M., young persons, to use the room to engage in prohibited sexual activity, contrary to s.171.
[61] Mr. Gray-Lewis is found not guilty on Count 2 of exercising influence over the movements of S.F. and K.M. for the purpose of gain by facilitating them to engage in acts of prostitution, contrary to s.286.3(2).
[62] Mr. Gray-Lewis is found guilty on Count 3 of knowingly receiving money derived from the illegal provision of sexual services, contrary to s.286.2(2).
[63] Mr. Gray-Lewis is found not guilty on Count 4 of advertising an offer to provide sexual services for money, contrary to s.286.4.
[64] Mr. Gray-Lewis is found guilty on Count 5 of possession of cocaine, contrary to s.4(1) of the C.D.S.A.
Released: August 17, 2018
Signed: "Justice S.W. Konyer"