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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

(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.

ONTARIO COURT OF JUSTICE

DATE: August 26, 2019

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

GEORGE KRUZIK AND NATHAN TURNBULL

Before: Justice S.R. Shamai

Heard on: 2017: May 1, 2, 3, 4, 5, 17, 18, June 30; July 19; October 4, 23, 24, 25, 26, 27; December 1, 11, 14, 15, 22; 2018: January 2, 3, 5; February 27, 28; March 1, 2; April 3; May 1, 2, 10, 11, 14, 15, 28, 29; June 18, 19, 25; August 27, 28; September 7; October 1, 3, 11, 22, 25; November 13; December 21; 2019: February 25, 26; April 2, 15, 18, 26; May 1, 3, 7, 27, 28, 29; June 7, 25; July 26.

Decision announced: July 26, 2019

Reasons for Judgment released on: August 26, 2019

Counsel:

Ms. S. Orlando — counsel for the Crown

Mr. E. Glasner — counsel for the accused George Kruzik

Mr. D. Adanja — counsel for the accused Nathan Turnbull

JUDGMENT

SHAMAI J.:

[1] Charges and Allegations

Mr. Kruzik and Mr. Turnbull were charged with a series of ten offences related to human trafficking. The offences are alleged to have occurred during the period between September 1, 2014 and April 13, 2015. Count 6 was stayed by the Crown on the first day of trial. The nine remaining counts on which the parties have stood trial are as follows:

Count 1 – against both accused – human trafficking – Section 279.01

Count 2 – Nathan Turnbull – procuring/exercising control – Section 286.3(1) – December 6, 2014 to April 13, 2015

Count 3 – against both accused – Procure/attempt procure a person to have illicit sexual intercourse – Section 212(1)(a) – September 1, 2014 to December 5, 2014

Count 4 – against both accused – procure/attempt procure a person to become a prostitute – Section 212(1)(d) – September 1, 2014 to December 5, 2014

Count 5 – against both accused – exercising control, direction or influence to aid/abet prostitution – Section 212(1)(h) – September 1, 2014 to December 5, 2014

Count 7 – against Nathan Turnbull – receive a financial or material benefit from human trafficking – Section 279.02 – December 6, 2014 to April 13, 2015

Count 8 – against both accused – receive a financial or material benefit from human trafficking – Section 279.02 – September 1, 2014 to December 5, 2014

Count 9 – against Nathan Turnbull – receive a financial or other material benefit from sexual services – Section 286.2(1) – December 6, 2014 to April 13, 2015

Count 10 – against Nathan Turnbull – advertise sexual services – Section 286.4 – December 6, 2014 to April 13, 2015

[2] Background and Procedural History

The accused were 19 and 20 years of age respectively during the allegation period, with birthdates of January 4, 1994 (Kruzik) and September 20, 1995 (Turnbull). Arrested in June 2016, the accused have been represented by the same counsel throughout, from an early stage. With the exception of two days in May 2017 and the carriage of an abuse of process application, Assistant Crown Attorney Ms. S. Orlando prosecuted this matter.

In August 2016, a judicial pre-trial (JPT) took place. The trial was set down for ten days, commencing May 1, 2017. No pre-trial motions were flagged during the JPT or otherwise anticipated. There was no confirmation hearing – that was not the usual practice at the time. No pre-trial motions were mentioned when the matter came before me on April 11, 2017. On that date, shortly before the commencement of trial, I dismissed a Crown adjournment motion, with respect to two days when Ms. Orlando was not available. Crown was nonetheless able to continue through those dates.

I recount these early details, as they afford no hint of the protracted and fractured proceedings that followed. The trial has lasted almost 27 months – two years and just under three months – during which the accused appeared before me on 64 days. The evidence, the applications, and the representations ballooned, in a case which involved two civilian witnesses and one police officer for the Crown, and two defence witnesses, neither of whom was one of the accused. The mid-trial case management interventions involved the Local Administrative Justice and the Regional Senior Justice. Although the initial JPT forecasted no voir dires or Charter applications, many such applications were advanced during the course of the trial. Many of them should properly have been set down and determined before the commencement of trial. The completion of the trial was delayed as well by the health problems suffered by defence counsel Mr. Adanja. As a result, a relatively simple trial turned into a litigation marathon.

PRE-ALLEGATION PERIOD EVENTS

[4] Prior Charges Against Complainant

Certain events preceding the allegations in this case have been referred to throughout the trial. I will outline them briefly. C.B., the complainant on whose evidence the Crown's case largely rests, was herself charged in April 2015 with similar offences in relation to a complainant, O.U., a young woman under the age of 18. C.B. was co-accused with Mr. Turnbull and one Deshawn Holmes. Their preliminary inquiry was scheduled to begin in June, 2016.

[5] Complainant's Statement to Police

In April 2016, while on bail and living with her mother and step-father, C.B.'s lawyer arranged for her to meet with police, at her request. C.B. gave the police a statement implicating Mr. Turnbull and Mr. Kruzik in the criminal conduct alleged in the present prosecution. The charges against C.B. were subsequently withdrawn. Those against Mr. Turnbull and Mr. Holmes, were stayed. The charges implicating the accused before me, Turnbull and Kruzik, were laid. C.B. testified that she did not expect these new charges to ensue, that she felt tricked when she learned of the charges, as she simply wanted to end her involvement with the criminal justice system upon speaking to police in April 2016.

[6] Defence Theory of Concoction

Defence contends improper purpose in C.B.'s statement to police at the time, that in fact, she concocted her story to avoid prosecution. Defence contends that she was improperly influenced by her mother to this end, and colluded to perjure herself based on what her mother told her about a mental health disorder and the nature of human trafficking. Defence alleged that C.B. reviewed websites on human trafficking, specifically E. Fry and Covenant House, in order to brief herself on the characteristics of human trafficking, prior to meeting with police in April 2016. The latter information was alleged by defence to have been fed to her by Michelle Anderson, a counsellor at Covenant House in Toronto. That allegation appears to me to be without foundation or substance.

OVERVIEW OF THE ALLEGATIONS

[7] Charges and Jurisdiction

The charges faced by the accused appear numerous. This is due in part to the change in governing legislation midway through the relevant time frame. The result, in terms of this prosecution, is that with Crown electing to proceed by indictment on Counts 2, 9 and 10, and the other counts being purely indictable, Mr. Turnbull and Mr. Kruzik elected trial in this Court on all counts.

[8] Crown's Case Overview

Crown's case commenced with the testimony of the complainant's mother, R.R. The primary purpose in calling her evidence was to provide some history of the mental health problems suffered by C.B. As well, R.R.'s testimony was elicited with regard to the disposal of C.B.'s cell phone prior to her arrest, any knowledge R.R. may have had concerning her daughter's ownership of a car during the relevant time, and the tenor of her family relations, in particular with her mother. C.B. testified next. In all, she testified for eleven days. Her allegation was that the accused recruited her to become an escort and provide commercial sexual services, that they made and posted ads to that end, and managed her time, all the while exerting psychological pressure on her, amounting to exploitation. The charges of procuring under the earlier legislation were encompassed by this same course of conduct.

[9] Crown Witnesses

In addition, Crown called officer in charge D.C. Hoeller. His role related to taking the 2016 statement, together with another officer, collecting certain exhibits, lingerie items, from C.B., shortly before commencement of trial, and participating in a prep meeting, attended by C.B., Crown and Michelle Anderson, shortly before the start of trial.

[10] Defence Witnesses

Michelle Anderson was called as a witness by Mr. Kruzik. Primarily, the purpose appeared to be in furtherance of the defence theory that Ms. Anderson had improperly influenced C.B. to provide a false account to the police and to the Court. The second defence witness was called on behalf of Mr. Turnbull. His mother, Kim Turnbull, gave evidence relating to her son's history of developmental and intellectual delays and deficits. She testified to her observations and knowledge of C.B. She was cross-examined about her knowledge of money allegedly stored in her apartment, and the Crown theory that photos of C.B., appearing in ads, were taken in her apartment.

[11] Defence Theory

The defence allegations of illicit purpose by both complainant and prosecution, compounded by the abuse of prosecutorial discretion in the laying of charges, played a significant role in the theory of the defence. Defence pursued a theory that C.B. fabricated the allegations herein, in order to extricate herself from the charges she faced.

[12] Crown's Narrative of Events

The criminal conduct encompassed by the Crown allegations commenced with Kruzik speaking with his school friend C.B. about escort work. He then took her to the home of his friend Turnbull, whose sisters apparently worked in the sex trade as escorts. The Crown theory continues, that Kruzik took photos of C.B. to post on the website Backpage.com, to advertise her sexual services as an escort, and thereupon accompanied her that same day on a "date" where she provided sex for money, which he received. Both accused are charged in the following months with continuing to post the ads, and manage her "dates" arising from the ad, at times and places arranged by either Kruzik or Turnbull, for C.B. to provide sexual services. The money paid for C.B.'s sexual services is alleged to have been received by the accused, in whole or in part.

[13] Crown's Theory of Exploitation

In residing at first with Kruzik at his family's home, and then with Turnbull in his mother's apartment after he became her boyfriend, the Crown sought to establish that C.B. was subject to psychological pressure, amounting to exploitation in law, and was as well subjected to direction, control or influence by the accused in working as a prostitute. Crown relied on evidence of C.B.'s vulnerability as a young person (18 at the start), her history of mental health issues, and her increasing isolation from friends and family.

[14] Key Issues

The defence theory of complainant corruption and Crown collusion is not, in my view, fatal to the Crown's case. In my assessment, two issues are dispositive. The first pertains to C.B.'s credibility. The second is whether the accused conduct constitutes exploitation. My conclusions as to both issues are crucial to my determination that the Crown failed to prove any of the nine counts beyond reasonable doubt.

CREDIBILITY CHALLENGES

[15] Contradictions and Omissions

Defence points to a number of contradictions, omissions and peculiarities in C.B.'s evidence. For example, C.B. disposed of her cell phone prior to her police complaint: this, says the defence was for the purpose of keeping its contents from police. Defence alleges that although C.B. testified to having owned a car for a time during the allegation period, she did not disclose this in her police statement, as she was intent on painting a picture of herself as entirely controlled by Mr. Turnbull. C.B.'s testimony that she turned over her earnings to the accused, with only limited access for certain expenses related to her work, is inconsistent with other aspects of her own testimony and that of Kim Turnbull.

[16] Misrepresentation of Meeting

Defence also alleges that in fact, C.B.'s statement to police misrepresented the time and circumstances in which she met Mr. Turnbull; that it had nothing to do with Mr. Kruzik.

[17] Electronic Communications

C.B. was cross-examined on documents purported to be excerpts from C.B.'s text messages at the time, from a phone number apparently related to her, and as well from her Facebook Messenger account. The authenticity and evidentiary weight of those excerpts was contested by Crown. C.B.'s testimony in relation to these excerpts goes directly to the truthfulness of her account of how she met Mr. Turnbull and whether Mr. Kruzik was involved in that first meeting. I ruled during the trial that a threshold of authenticity was established by C.B.'s testimony. I devote, in turn, some analysis to the extent to which C.B.'s testimonial reliability, and hence the Crown's case, is affected by the evidence pertaining to these electronic messages.

ISSUE OF C.B.'s MENTAL HEALTH

[18] Mental Health History

According to R.R. her daughter had exhibited emotional and behavioural troubles through her adolescence. R.R. testified that she had observed obvious signs of her daughter's change in mental health from the time she was 15. She took her daughter to a variety of mental health experts for treatment and/or diagnosis. Although, in R.R.'s view, her daughter exhibited symptoms consistent with Borderline Personality Disorder (BPD), doctors were not prepared to make the diagnosis until a person reached age 18. However, C.B. was prescribed medication, presumably to steady her mood, as doctors did diagnose Major Depressive Disorder and Social Anxiety at an earlier age, according to R.R.

[19] Self-Harm and Hospitalization

R.R. testified as well to self-harm marks on her daughter's arms and legs, and her belief that her daughter had such scars on her stomach as well. It was R.R.'s belief that her daughter had the scars since she was 15 years of age. C.B. testified to her self-harm marks as well, as did Kim Turnbull. By all accounts, the marks were not recent, being white in appearance. R.R. testified that her daughter was admitted to hospital on several occasions during those years, on account of her mental health issues.

[20] Educational History

In order to give her daughter an optimal academic environment, R.R. researched schools, and her daughter changed schools numerous times. She had been identified as "gifted" early on, and placed in a gifted programme at school. Her ability to focus diminished drastically in her "tween" and early teen years. She attended schools, although sporadically, including the George Hull Centre, as well as a small high school in Toronto, where she met George Kruzik. C.B. attended the Humber College General Education Programme in the fall of 2014.

[21] Mental State at Humber College

C.B. testified that at the time she attended Humber in September 2014, she was 18 years of age, and in a bad state of mental health, feeling "very dissociative and impulsive".

[22] Deterioration and Medication

At that time, her attendance was very poor. She was prescribed medication to help her maintain a "normal" state of mind. She would often not come home, telling her mother she was staying at friends' houses. R.R. testified that starting in October that year, C.B. would be away for lengthier periods, several days and nights at a time. R.R. acknowledged that she had taken her daughter's key from her at an earlier point in time, resulting in her daughter needing to ensure that her mother or another family member was home, in order for her to gain access. R.R. recalled first hearing of Kruzik from her daughter in October 2014, and of Turnbull during the same period, although possibly as late as November 2014.

[23] Appearance and Medication Compliance

R.R. testified that C.B. appeared tired when she came home, and sometimes disheveled or unkempt. R.R. tried to get her daughter to resume her medication, and eat properly and rest. She testified that her understanding of the medication was that in order to be effective, C.B. had to take it consistently over a period of time. R.R. did not believe that her daughter was doing this.

[24] Severe Mental Health Issues

C.B.'s experience of her mental health issues began in Grade 8. She was hospitalized that year, for an unstated period of time, for unstated reasons. C.B. testified that her mental health issues became "very severe" towards the end of Grade 10 through start of Grade 11. She changed schools at that stage, finishing Grade 11 at George Hull. C.B.'s mother testified that George Hull is a facility for emotionally disturbed youth, with an educational component.

[25] Self-Harm Practices

C.B. described her mental health issues in terms of depression, anxiety and self-harm. She stated that when she was in Grade 8, she commenced inflicting "self-harm" upon herself. She testified that she bore marks on her left arm, on both sides, from wrist to biceps, and on her right arm on the inner side, from wrist to elbow. She stated that she inflicted such scars on her thighs "all over". C.B. stated that the practice of self-harm continued until one and a half to two years prior to the time she testified.

[26] Borderline Personality Disorder Symptoms

C.B. stated that her symptoms of borderline personality disorder, although undiagnosed at the time, became quite clear. She described these symptoms as impulsivity and self-harm with manic depressive episodes. She stated that she was "more dependent on others, was impulsive, suggestible, and her judgment was not as good". C.B. acknowledged that her mother shared concerns about this diagnosis, as R.R. had testified she had done her own research and discussed this with doctors in her daughter's earlier teen years. No formal diagnosis was made until C.B. was over 18, after her arrest in 2015, as this was apparently the practice for a diagnosis of BPD. C.B. acknowledged that she had read about BPD and its symptoms while on bail and living at her mother's. According to her mother, they had become familiar with the disorder when C.B. was younger.

[27] Deterioration in Winter 2014-15

R.R. testified that her daughter's apparent physical and mental health deteriorated by early winter 2014-15, judging by C.B.'s appearance. When she would come to the family home, she would often leave unannounced. However, R.R. recalled her daughter staying with the family for a longer time at Christmas, as she and her daughter discussed her poor attendance and progress at Humber in the fall, arranged to meet with the Registrar, and upon doing so, succeeded in having the failed courses not count on her transcript. R.R. testified that her daughter expressed the wish to re-enroll, "start fresh in January" at Humber.

[28] Extended Absences

However, C.B. did not follow through. After Christmas, R.R. recalled her daughter was away for as long as two weeks, which caused R.R. so much concern that she considered calling police.

C.B. EVIDENCE OF ESCORTING

[29] Closed Circuit Television Testimony

C.B. testified via closed circuit television (CCTV), currently the generally accepted method of implementing an order under Section 486, in this jurisdiction. The defence opposed the Crown's 486 application – the first issue litigated at trial. Crown applied as well under Section 486.1(2), to permit Michelle Anderson to assist C.B. as a "support person" within the terms of the section. I ordered that C.B. have the benefit of testimonial aid in giving her evidence, by way of CCTV, but only accompanied only by the Victim Witness Assistance Programme (VWAP) staff. I had some concern that Ms. Anderson had a pre-existing relationship with C.B. and to some extent with R.R. as well, making her more of an advocate than a support person. The letter which formed the basis of the Crown's application continued to have a role in the defence theory of concoction and collusion against their clients.

[30] Early Academic Life

C.B. described her early academic life, having been placed in a gifted programme at middle school for Grades 6 through 8, then entering secondary school at Etobicoke Collegiate. She attended Avondale Alternative School for Grade 12, and then took one semester at a small high school in Toronto where she met George Kruzik.

[31] Meeting Kruzik and Initial Proposal

Having become casual friends with Kruzik at school, she continued to be in touch with him by phone and text and to see him every couple of months even after she finished school in December 2013. In September 2014, when C.B. expressed her desire to make some money, Mr. Kruzik told her he knew a way she might do that, implying, in a manner C.B. did not recall, that it was by escorting. They decided to meet near the Dundas West subway. He suggested they go to the home of a friend of his who knew more about it than he did. She was surprised by the suggestion, telling Kruzik she did not want anyone else included, as it made it seem less casual. Despite her stated qualms, she accompanied Kruzik to his friend's home.

[32] Meeting Turnbull and First Photos

This, says C.B., was how she met Nathan Turnbull. Kruzik took her to an apartment at Lansdowne and Dupont, where he lived with his mother and four year old nephew. Turnbull was the only one home at the time. Nathan explained that his sister escorted, and that people make a lot of money that way, just by posting ads on the internet. Nothing specific was discussed as to the services to be provided, but she was told that they would post an ad on "Backpage.com", a website which, she learned, advertised the sexual services of escorts. To that end, she stripped off her clothing, down to underwear, and Kruzik took photos, using a digital camera. The pictures were taken in Turnbull's living room, while Turnbull was in the next room. She was not sure if she ever saw the photos. She testified that Marla Turnbull, one of the accused's sisters, told her later that day not to use the photos, that they would use photos taken from the internet, of someone else. Photos were tendered in evidence which C.B. identified as those taken of her at the time, which she said were subsequently posted on the Backpage.com webpage. Her evidence is internally inconsistent on these points.

[33] First Escort Date

Shortly after the photo session, C.B., Turnbull and Kruzik were outside the apartment building. Mr. Turnbull's sister, Marla, arrived home, at their mother's apartment. Marla worked as an escort. Her driver, identified as Sam Kumar, asked to "see" C.B. C.B. was not sure whether he made his wish known to Kruzik or Turnbull, but she got in the car with Mr. Kruzik. Sam Kumar drove them to a hotel in Mississauga or Brampton, C.B. recalled, where C.B. performed oral sex on Kumar. C.B. testified that Kumar gave $80 to Kruzik. She did not recall which seat she occupied in the car, or whether there was any conversation at all.

[34] Inconsistent Evidence on Ad Posting

C.B.'s evidence regarding the first posting of an ad is materially inconsistent. C.B. stated that Nathan Turnbull posted the ad to Backpage.com before she went off with Kumar and Kruzik. She testified, still in-chief, that the ad was composed later that day by Marla, using a photo of someone else, certainly not the one C.B. said was taken earlier by Kruzik. She said that the ad contained text composed by Marla, and a pseudonym assigned to her by Marla as well. This was all done on her return from the "date" with Kumar. She did not recall which phone number was listed for potential clients to call. C.B.'s evidence contained considerable uncertainty as to whether she had a phone at the time. That was particularly problematic as she testified that her initial contact with Kruzik prior to and during September 2014 was by text and voice communication, via cell phone.

[35] Contradictions About First Date

Contradictions arise as well in C.B.'s account of how it came to pass that she went to a hotel in Mississauga or Brampton for her first escort assignation. She stated there was no discussion of what services she would perform for the driver, whom she described as an Indian man in his 50's. At the hotel, she accompanied the driver to a room, while Kruzik waited in the car. She performed oral sex on the man. In the car, returning to Turnbull's, the older man, gave Kruzik $60 or $80. She did not recall any discussion in the car. In her April 2016 statement to police, she did not identify the man as Kumar, nor did she involve Kruzik in the event. She first advanced this account, she said, in her meeting with Crown and investigating officer, days before the trial commenced in May 2017.

[36] Ad Creation and Photos

On their return to the apartment, C.B. stated that Marla Turnbull prepared an ad for C.B. on her laptop. C.B. testified that Kruzik, Turnbull and his sister Marla talked about it. She was not sure when it was posted that day, or who posted it. Taking Marla's advice to not use the photos taken earlier that day by Kruzik, on C.B.'s account of it, photos for the ad were taken from the internet. They were not images of C.B.

[37] Services and Revenue Sharing

C.B. accepted the opportunity to refresh her memory by reference to her statement to police in April 2016, as she trusted her memory then, more than at the time of her testimony in court. Thus refreshed, C.B. stated that in fact she had discussed the services to be performed at someone else's home – an outcall. This was not in reference to any particular day, but in general. Of the proceeds, half would go to her, and half to Kruzik. Either Turnbull or Kruzik would receive texts or calls resulting from the ads, and make appointments for her by text. She understood that Turnbull would ask his sister to re-post the ads from time to time, so they would show at the top of the listings.

[38] Transition to Hotels

After a month, Marla told her she should go with her to hotels because it was "better". She would learn how to improve in the escort trade: "how to do it better". In the preceding month, she would take taxis possibly three times a month to the client homes, only rarely to hotels to meet them. She saw 3-5 clients a day, three days a week. She gave Kruzik half the money and had no complaints about the way he treated her.

[39] Kruzik's Reaction

However, he stopped talking with her when she told him that she would take Marla's suggestion and go to hotels with her. He felt, she said that she had gone behind his back. They lost touch with each other. She gauged the date only by saying it was about a month after the first incident, and before her birthday in October. She was about to turn 19.

[40] Mental Health During First Month

During that first month she stayed at Kruzik's family home, returning to her own home only a couple of nights. She stopped taking her medication. She expressed to Kruzik her sense of shame at having started working as an escort. She did not recall his response if any. She recalled her mental health as "poorly", as the shame she experienced made her feel worse. She felt "out of it" as she had stopped taking the medication, and had her "usual manic episodes". She described her eyes and hair as looking strange, and said she exercised no judgment, acted impulsively. However, she did not discuss her mental state with Kruzik.

[41] Move to Turnbull's Home

C.B. began staying at Turnbull's home once she started going to hotels with Marla. Marla took new photos of C.B. at the hotel, and taught her the acronyms used in ads. Marla re-posted the ads, so C.B.'s ads would appear near the top of the listings. C.B. testified that Nathan sometimes asked Marla to re-post the ads. Marla made a new ad for C.B., using her brother's phone number. Marla answered the ads for C.B. as well. At some point, Marla gave her an old phone of her own, and then C.B. bought a phone. Sam Kumar would drive them to the hotels. She used the money paid to her to pay for the hotels, and to purchase "Vanilla Mastercard's" (which I understand to be prepaid cards) to pay for posting ads.

[42] Dating Relationship with Turnbull

During the month of October, C.B.'s relationship with the accused Turnbull changed to a dating relationship. They continued this relationship until spring 2015. During the winter, C.B. began bringing money to Turnbull. She did not, she testified, know why. She could not recall any occasion that he imposed such a requirement, or the words used, but said that was the arrangement. She testified that she almost always stayed overnight in the hotels; if not she went back to Turnbull's. Only occasionally did she return to her family home. She testified that her feeling of shame kept her from going home. As well, when she did return home, Turnbull would call or text her persistently to come back. At times she was concerned that he would call her home phone or arrive at the door, and tell her family what she was doing. No family member met Turnbull, nor did any of them come to his apartment although her mother or step-dad would pick her up sometimes at the Coffee Time close to his apartment building.

[43] Mental Health While with Turnbull

C.B. testified that her mental health was very poor at the time, as she felt ashamed of escorting. As well, she was not taking her medication. She told Turnbull about her mental health history at some stage. She stated to the Court that she exhibited the depressive or manic episodes in the presence of Turnbull and anyone else who happened to be present.

[44] Money Management – Initial Account

When she gave her earnings to Turnbull, he would count it and place the cash on a shelf in his room. She would take money for hotels or prepaid Mastercard's, and also for food, lingerie and clothing. The cash would pay for her taxis as well. Once the money was used to buy a PlayStation for Turnbull. C.B. acknowledged that she had first broken then sold his previous one, while he was in jail. Through cross-examination, it became plain that there were numerous other items, from jewellery to a rug and a car, which C.B. purchased. The central issue of his counting the cash became a point of contradiction, and in fact, impossibility.

[45] Money Management – Contradictions

C.B. testified that both she and Turnbull counted the money together, and that no one kept track of her earnings. She agreed that she brought money to her family home and hid it there on occasion. Clearly however, there were lengthy periods when Turnbull was in custody, not counting the cash. Although she stated that she saved some of her earnings while he was in custody, cross-examination was the first time she disclosed this detail. There was no evidence about what happened to the money she stated was at Turnbull's once she left there for good.

[46] Isolation and Fear of Exposure

During the time C.B. stayed with Turnbull, she stated she saw friends on few occasions. Once she went out to see a girlfriend. After about two hours, Turnbull started texting, and phoning, yelling at her to come back. Another time, a friend came to visit. That was uneventful. She introduced Turnbull as her boyfriend. Another time, a friend came over, and Turnbull referred to C.B. by a name invented for the purpose of ads, "Kasey". It made C.B. uncomfortable, feeling her escorting would be revealed. After this, C.B. experienced fear, that Turnbull had the power to tell people what she was doing, whenever he wanted.

[47] Turnbull's Behavior and Communication

Turnbull's demeanour changed over the winter, C.B. stated that he snapped at her, but not about anything in particular. He would check her phone to see who was texting her – at first with her permission – but later, not. He would call while she was at hotels sometimes, to find out about her work, or just to talk. If she told him she was tired, he would sometimes press her to take more callers. She did so if she could, to make him happy. She could not ascribe any particular tone of voice to these exchanges, as they were by text. Sometimes he would come to the hotel with her, apparently to be social with her. Sometimes he would hide in the bathroom if she had a client. There was no suggestion that he applied unwanted pressure on her during these times.

[48] Escalation of Demands

At some point Turnbull became "less nice, pushing her verbally to be at hotels more, and not speaking to her as nicely". This was after December. She saw more clients as a result, and sometimes stayed in hotels for two or three days at a time. She testified that either Turnbull or his sister Marla would reply to escort texts for her, and advise which hotels were "good". Sam Kumar booked the rooms, although sometimes she would, depending on the rules at the hotel in terms of the age of persons booking rooms.

[49] Christmas Break and School Plans

I note that the episode R.R. described, when her daughter returned home around Christmas time and they discussed her return to Humber for the next semester, visited the Registrar's office to that end and obtained an exemption in relation to her previous semester, was never the subject of C.B.'s narrative, nor was her mother's account put to her.

[50] Arguments and Reconciliation

C.B. twice ran out of the Turnbull apartment when they were arguing. He ran after her. She said that upon catching up with her, they made up. Towards the end of their time together, they argued more frequently, like once a week. The arguments were only verbal. The subject of the arguments was not stated.

[51] Turnbull's Arrests

Prior to Turnbull's arrest on unrelated matters in January 2015, and subsequent release on terms of house arrest, he had been going to the hotels with her on occasion, just sitting around with C.B. when she did not have a client. Once he was on house arrest, he did not go with her. He was arrested again on March 31, 2015, and this time stayed in custody.

[52] Continued Work While Turnbull in Custody

She continued to take clients, as she did not want to have "no money" when he got out.

[53] Surrender and Bail

In fact C.B. testified that she turned herself in after learning that she was wanted for human trafficking. She first stayed at Marla's while waiting for her mother's return from a vacation in Panama, around April 13, 2015. C.B. turned herself in on April 21, 2015. She was released on bail to her mother's surety. It was during the time that followed that C.B. entered the counselling mentioned earlier, and received a diagnosis of BPD. She testified that she has maintained the course of prescribed medication thereafter.

[54] Escort Ads and Photos

C.B. was examined in-chief about the online ads which she posted. A series of photos, described as printed from those ads, was put to her, and she identified herself in them, and the photos with the associated print as being the ads which were posted for her escort services.

[55] Photo Identification

The photos were entered as lettered exhibits. As no further issue was raised after they were identified by the complainant, I refer to them, although they were not formally re-identified with numbers. Several photos on one page were identified by her, including one having been taken by Marla in the bathroom at her mother's (Kim Turnbull's) apartment in the winter time. C.B. stated that was some time between December 2014 and March 2015. The other photos, she said, were taken by herself – "selfies" – except for one taken at a hotel in North Bay. She identified the location by reference to the brick wall, which was background.

[56] Ad Content and Restrictions

All ads employed pseudonyms, as proposed by Marla. Ads included a line, also attributed to Marla's proposal, that "no black gents" would be received. C.B. did not know why this was, but accepted Marla's advice. She testified that other restrictions included the mandatory use of condoms, and the limitation of services to oral sex and intercourse. There was no limit imposed by anyone, regarding a minimum (nor, apparently, maximum) number of clients. C.B. said there were no other restrictions. C.B. could not identify the phone number on the ad, and although she could not recall the photo itself, was "pretty sure" it was herself.

[57] Relationship with Marla

C.B. testified that she got along well with Marla during the time from October 2014 to September 2015. Marla was pretty friendly with her, and just trying to help her.

[58] Ad Posting Dates

That ad and the next one bore "posted dates" of March 28 and March 30, 2015. Turnbull was in custody at this time.

[59] Lingerie Evidence

C.B. was shown photos of lingerie, taken from her by police. She turned the lingerie over to police in April 2017 at the request of police. She testified that she had purchased the items and kept them until recently, when police asked for them. The exceptions to her purchases were two bodysuits, which she stated were given to her by either Marla or Sharla. This does raise some incongruity with her assertions regarding her cell phone, that she wanted to get rid of anything reminding her of her time as an escort.

IMPACT OF UNFORESEEN CIRCUMSTANCES AND DEFENCE TACTICS

[60] Trial Delays and CCTV Logistics

C.B.'s testimony was the subject of lengthy and unforeseen delays. C.B.'s testimony did not even start within the ten days assigned for trial. In expanding the days required for trial, it was necessary to find dates when not only counsel and the court and witnesses were available, but as well, when the Court's CCTV resources were available. To accommodate the earliest dates meeting all those parameters, the trial was adjourned for a period of days in October 2017 to a different court location.

[61] Change of Venue and Extended Testimony

Thus, when C.B. testified in-chief and for part of her cross-examination, the evidence was taken not at the Old City Hall, where the matter had commenced and would conclude, but at 311 Jarvis, which was unfamiliar in terms of the CCTV setup and related staff, to all involved in the trial. C.B. completed her evidence, in cross-examination and re-examination, at Old City Hall. Her testimony started in October 2017. It was not completed until March 2018.

[62] Lengthy Objections and Defence Tactics

A second reason C.B.'s testimony took so long to complete was attributable to lengthy objections, during which counsel routinely asked for the witness to be excluded. Despite the usual course of proceedings, where the witness would be excluded only for specific purposes, counsel routinely expressed objections at length, setting out expositions of the theory of the defence, critiques of Crown, and reference to other or anticipated evidence. Despite my continuous and increasing efforts to circumscribe and limit redundancy, the time required to deal with each interruption was significant. Counsel are entitled to vigorously make full answer and defence. They are also obliged to comply with the Court and their own undertakings. Defence counsel frequently ignored their obligations – with respect both to judicial instructions and to agreements put on the record, and estimated times for completion reduced to writing as a result of case management meetings with the RSJ. I appreciate that unexpected circumstances arise. The continuous pattern in this regard was concerning. The breach of these agreements became particularly egregious in relation to the written final defence submissions on behalf of Mr. Turnbull.

[63] Duration of Testimony

In the result, C.B.'s testimony in chief required approximately 2.5 days. Cross-examination on behalf of Mr. Kruzik consumed 3.5 days. An application was brought in the midst of that cross-examination, for production of third party records. The issue had been flagged in the judicial pre-trial but no steps were taken until mid-cross-examination to seek production. Mr. Adanja's cross-examination required 6 days. Crown re-examined, particularly with regard to the unanticipated Facebook Messenger and text messages shown to the complainant in Mr. Adanja's cross-examination. In light of numerous lengthy objections, re-exam required 1.5 days.

[64] Impact of Fractured Testimony

A third circumstance contributing to the unwieldy length of trial was the unforeseen number of mid-trial applications. The severing of a witness's testimony split up over days, weeks and even months affects the witness's ability to give a consistent account. My assessment of the witness's reliability and credibility must factor in the fractured nature of the testimony.

[65] Defence Counsel Health Issues

A further factor I would advert to briefly is Mr. Adanja's unforeseen health issues. This unfortunate development did not affect the taking of evidence from the complainant, but it did cause the adjournment of a period set aside in October 2018 to complete the trial. As a result, the hearing of evidence was not completed until June 7, 2019.

CHALLENGES TO COMPLAINANT CREDIBILITY

[66] Sources of Credibility Challenges

At bottom, the Crown's case is entirely dependent on C.B.'s testimony. Unsurprisingly, her credibility has been the main issue at trial. Challenges to the credibility and reliability of her testimony were grounded in a number of sources:

(1) Defence Theory of Concoction

Defence pursued a theory of defence, expounded frequently in submissions, in the course of cross-examination, objections to questions, and in ad lib representations peppered throughout the trial, that in order to extricate herself from prosecution on human trafficking (charges against her, Mr. Turnbull and Deshawn Holmes) C.B. went to police in April 2016 and made a statement, which in fact resulted in the withdrawal of charges against her, and a stay against the two co-accused, and the fresh charges that bring the two accused before me. As well, the present prosecution ensued. Defence raised an application alleging abuse of process based among other things, on the non-disclosure of communications between Crown (not Ms. Orlando) and DC Hoeller, the investigating officer on that earlier prosecution. I dismissed that application at the stage of a threshold hearing, finding that no reasonable prospect of success could be shown.

(2) Contradictions and Omissions

Defence evinced contradictions and omissions in the testimony of C.B. by reference to her statement to police of April 26, 2016, her statement upon arrest, on April 21, 2015, and her utterances of April 28, 2017, recorded (though not verbatim) in the notes of DC Hoeller in a trial prep meeting.

(3) Electronic Communications

C.B. was confronted with printouts of electronic communications, described as Facebook Messenger communication between herself and Turnbull, and text messages between her and Sam Kumar, the driver. The Facebook Messenger document, and the evidence adduced from C.B. in cross-examination relating to it, presents serious contradiction to C.B.'s first meeting with Turnbull and the start of her escorting. Necessarily, this impacts the Crown's case against Kruzik as well.

[67] Motive vs. Specific Evidence

I will refer to areas of contradiction and omission in the complainant's testimony, then deal with the electronic communications. In my view, the recurrent defence theme of self-serving testimony is more a matter of motive to concoct evidence, rather than uncovering specific evidence of false testimony.

[68] First Escort Date Contradictions

I have described the different versions recounted by C.B., in relation to her first escort date, the day she said she first attended with George Kruzik at Nathan Turnbull's. She was confronted with her statement of April 2016, where she described entering a motor vehicle with "an older man", and going to a hotel in a neighbouring city, where she performed an act of oral sex. She indicated in the earlier statement that she was introduced to the man at Nathan Turnbull's apartment building, where George Kruzik had taken her, but no mention was made of Kruzik accompanying her in the car or any detail about payment. This starkly contradicts her testimony at trial, where she said Kruzik came in the car with her, and took the cash from the man, whom she identified as Sam Kumar, the driver for Turnbull's sister Marla. At trial she testified that Kruzik took half the money, either $60 or $80. She testified at trial that there had been no prior discussion of what services would be provided, when the driver indicated to Turnbull and Kruzik that he wanted to "see" her. Only in the prep meeting of April 2017 did C.B. name the driver as Kumar.

[69] Inability to Explain Omissions

Given the opportunity to refresh her memory by reference to her earlier statement. C.B. stated that she trusted her recall as recorded at the earlier time. She was unable to give any explanation of why she did not mention Kruzik in the earlier narrative, or why she identified Kumar only as "the older man" despite, on her own account, his continuing and significant role in her escorting business.

[70] Phone and Ad Creation Inconsistencies

C.B. was asked to refresh her memory with respect to the creation of online escorting ads to be posted on the website, "Backpage.com". After refreshing her memory, her evidence was in that she discussed the sexual services she would provide, and the split of monies: half to her and half to Kruzik. This was a discussion with Turnbull and Kruzik, in the former's apartment and upon her return from the first escorting date with Kumar. She could not recall who was to text the clients, who contacted "her" through the online ad, but believed it was Turnbull or Kruzik. She was not sure if she had her own phone at the time. I have referred to the inconsistencies in her testimony on that point earlier. I find it significant, given the way she says she had maintained contact through 2014 with Kruzik, and specifically arranged to meet him when she says she became enmeshed in escorting. Initially it was clear that C.B. was communicating with Kruzik via phone, and texting on a "smart phone". Later in her evidence she expressed uncertainty whether she had a phone at the time. The phone mattered not only in terms of how she said she met up with Kruzik that day, but as well, in terms of how an ad was set up, whose number might have been placed on it, how messages were received, and so on.

[71] Ad Creation and Marla's Role

C.B. was to provide services at the location, home or hotel, desired by the client. She understood an online ad was to be posted, but testified that after her date with Kumar, Marla made an ad for her, not using the photos taken earlier by Kruzik and then posted with Nathan Turnbull's assistance, but using photos of other people. Those photos were apparently sourced by Marla. Marla composed the ad, using acronyms and information unknown to C.B. Marla continued to be involved with the ads for nearly the entire allegation period, re-posting, sometimes, said C.B., at Nathan's direction. It appears that Marla was the sole source of "advice" or instruction on the escorting practice and business. Again, regarding the creation and subsequent re-posting or re-making of the ad, the evidence is in internal contradiction. This bears directly on Count 10, the advertising offence.

[72] Car Ownership Contradictions

The evidence bearing on C.B.'s ownership of a car is also problematic. R.R. testified in cross-examination that once her daughter had returned home, on bail after her arrest in April 2015, she had to deal with a number of "tickets", which had arrived at the family home during the time C.B. was infrequently there, between September 2014 and April 2015. R.R. was not sure just what they related to, she no longer recalled if in fact she ever knew, but stated that she helped her daughter pay the related fines. Only on close cross-examination by Mr. Glasner did C.B. acknowledge that she had paid cash to Kumar for the car, and the plates were registered in her name. She stated that she felt tricked at some point with the transaction, as plates returned to her, when her lawyer retrieved her belongings from Turnbull's after her arrest, were not the ones that Kumar "had her name put on". Her evidence was contradictory as to whether she drove herself to hotels for escorting dates, or if she used the car only for personal purposes. My best understanding of the evidence is that once Turnbull was arrested in late March 2015, she used the car for escorting assignments, although possibly not exclusively. She parked it in the visitor's lot at Turnbull's apartment building. She believed that the tickets she got were in relation to a "missing piece of paper", and a speeding ticket she got while driving with Turnbull and Holmes. She said she did not mention the car upon her arrest in 2015, as she had been advised by her lawyer to say nothing, and said nothing about as she was not specifically asked when speaking to police in April 2016.

[73] Significance of Car Evidence

I note that in the later interview, she asked police to ask her questions. The statement is, of course, not evidence on the trial itself, although it was referred to many times, chiefly as a source of contradiction to prior statement. My concerns about the car evidence are that despite the allegations, and despite her invitation to police in April 2016 to ask her questions, no prior information emerged about the car. "Transporting" is a manner of committing the 279.01 offence, and control over the movements of the complainant in this type of prosecution is key. C.B.'s prior statement is not evidence. However, I should think that had such questions been asked, I may not have been left with the impression that trial was the first time this rather significant evidence came to light. As well, even in testifying about the car, C.B.'s evidence is in significant conflict, as she stated initially that she did not drive herself to hotel calls, then said she did, when Turnbull was in jail, and when he was on house arrest. She acknowledged that she did so occasionally during this time, agreeing that it was because she "wanted to". This flies in the face of the overall Crown theory of C.B. engaging in escorting because of the imposition of threats to her psychological safety, the essence of the exploitation.

[74] Cell Phone Disposal

One area of cross-examination leads directly to the issue of the alleged Facebook Messenger and text communications. That is the question of the cell phones and SIM cards in C.B.'s possession during the allegation period. Her testimony was that her step-father recycled her phone with her consent, once she had returned home on bail in 2015. Additionally, she testified that the screen was broken, so that was a reason to "recycle" the phone. C.B. was keen to destroy everything that related to escorting, as she wanted to put that chapter of her life behind her. The content of her phone would be key in that category. She also testified to the deletion of her Facebook account.

[75] Facebook Account Deletion

C.B. stated in cross-examination by Mr. Adanja, that she deleted her Facebook account. She stated that after her arrest, she received unkind messages from a variety of people, and no longer wanted the account. She was cross-examined in great detail about the difference, to her knowledge, among various options of closing an account: questions positing the deletion, and suspension of the account were put to her. On balance, C.B.'s testimony indicated that she permanently deleted her account. Just when or how she did that is not clear. I am not so much concerned about how or when C.B. deleted her Facebook account, as I am with the messages presented to the complainant, apparently from her deleted Facebook Messenger account.

[76] Text Messages with Sam Kumar

At the close of cross-examination on behalf of Mr. Turnbull, two documents were shown to C.B. The first was presented to her as representing a text conversation on a series of dates between herself and Sam Kumar, the driver. Although C.B. did not specifically recall the phone number indicated on the copy shown to her, or the conversations, she acknowledged that it was her name on it, and that the exchanges appeared to be ones she had with Kumar. They bore dates from April 5, 2015 to April 16, 2015, according to the printout. As well, photos in the text thread were admittedly of her. A link to a web location was sent on April 15, 2015, apparently a news story with the description "two arrested another sought in human trafficking investigation". The topics ranged from C.B.'s discussing tickets, clearly in relation to a car; she refers to tickets "from after u took the car so either u have been or u let someone else drive it and get tickets in my name and you have to pay for them". The recipient of the text, acknowledged as Sam Kumar, replies, "Let me know U pay only for ur tickets correct That us fair" (sic) Further exchanges a day later and the day following reflect efforts on C.B.'s part to co-ordinate her location with Kumar. The photo of her, sent April 8, 2015, was acknowledged by her to have been taken in a bathroom. The texts had significance for a variety of reasons: they showed the casual easy relationship which C.B. appeared to have with Kumar; they appear to confirm the late date until which C.B. was escorting, certainly while Turnbull was in-custody; and they show photos of C.B., current at the time.

[77] Photos and Mental Health Appearance

C.B. spoke of her poor mental health being apparent by virtue of the strange appearance of her eyes and hair during the relevant period. That is not apparent to me from these or other photos of her tendered in evidence. Other exchanges show Kumar and C.B. attempting in friendly, teasing language to arrange pickup times and places on April 9 and 10. "Selfies", apparently taken in the car, show C.B. and the driver, and her alone on the afternoon of April 10, 2015. I understand from the context of other messages that they were taken on the way to Comfort Inn at Woodbine and Highway 7. The one photo does not clearly depict C.B.'s face; the other shows a puffier face with somewhat heavy eyelids – and false eyelashes – but again, nothing about the photos shows me a visibly "strange" young woman. I make a similar observation of C.B. in the photos of her taken for advertising purposes, and tendered in evidence. Although I would assign little evidentiary value to my observations of the photos, C.B. did not appear to me to be strange, or mentally unwell in these photos.

[78] Kim Turnbull's Observations

Kim Turnbull's testimony as to her observations depicted C.B. as a quiet, untroubled young woman, who stayed at Ms. Turnbull's home apparently due to ongoing issues with her own mother, but who mainly stayed in Nathan's room and read books, occasionally coming out for tea and conversation with Ms. Turnbull. I do not place great weight on these observations: they purport to address two to four nights a week from November 2014 to April 2015, and were made only during the somewhat limited hours Ms. Turnbull was at home, given her own work hours and other obligations. As well, as I will set out in due course, I concluded that much of Ms. Turnbull's testimony was directed to exculpate her son. On this point, she was more focussed on her son's issues from infancy, than on any mental health issues his girlfriend might have shown.

[79] Circumstantial Evidence of Mental State

These various pieces of circumstantial evidence do not support the proposition C.B. advanced, that anyone could see by looking at her that she was in a mentally unstable state.

[80] Authenticity of Text Messages

The chain of text messages, late in the allegation period, is instructive on a number of points. Its authenticity is not seriously in question.

[81] Facebook Messenger Exchange

The next document put to C.B. purports to be from C.B.'s Facebook Messenger communications. Her acknowledgment of these messages is not as clear, as with respect to the texts with Kumar. However, the messages have a potentially significant impact on the prosecution. They show a date of October 19, 2014 (10/19/2014) at 2:07 am. At the top of the page is typed [C.B.] name. The text on the left is attributed to C.B. The text on the right is attributed to Nathan Turnbull. The content is the following:

hi

Hey

U r rythms friend right

Yeah why

Wait

I seen u with him that night then

aswel the next morn

@ runnymyde n Dundas ?

I don't recognize you lmao

My bad

Oh

I thot ive seen u b4

Maybe I have

near Indian road ? n Dundas

I have a bad memorg

Memory

Maybe actually

Yeah

Lol what's good

just here tired as fuck on m y laptop

U kno

Yeah lmao trust I haven't

slept in over 24 hours

y

Coke lmao

m>Coke

Ya

But I hadn't don't it on a while

bicc time

Thought I might as well

Bicc time?

Lol

vigg*

big*

might what

Might as well do coke

you know geoerge lol

Yeah why

Lol

nvmm

I'm confused

bout wt

Lol nvm I guess..

Lol bye then

ok bitch

Whatd I do lol

lol noything

U just logged of so I said bye

Whud u call me a bitch

:P\

Lol

wat high school u went toooo

Eci then George hull then

Avondale then [small high school]

Wbu

i went to eci in gr 9

cuz i used to live oin mabelle then

True

Vci then bci

It sucked

Oh true

Cool

lol hi

u nrevrt gave me bump!!!

[82] First Meeting Contradiction

Defence contends that C.B.'s testimony on cross-examination regarding the messages shows that C.B. and Turnbull were "meeting" for the first time on October 19, 2014 via the Facebook Messenger exchange. This completely undermines C.B.'s account that she met Turnbull when George Kruzik took her to his house on a date in late September, or early October 2014, after she had dropped out of college after a month there, and prior to staying at Kruzik's family for about a month, after her first escort date with Kumar. Closely cross-examined about these exchanges, C.B.'s answers were frequently in the nature of "Guess so". She stated clearly that the Facebook exchange is not how she remembered meeting Turnbull, that she recalled meeting him in person when Kruzik brought her to the former's apartment.

[83] Qualified Acknowledgment

However, C.B. was also unable to entirely exclude the possibility that the Facebook Messenger exchange was accurate. Prior to showing the printouts, counsel put a suggestion to the witness, that she first met Nathan Turnbull via an exchange on Facebook Messenger in mid-to-late October 2014. C.B. responded with a flat no, saying that is not at all how she remembered it. She testified that she remembered she "met him in person, as you meet people".

[84] Memory Uncertainty

However, she would not exclude to 100 % certainty that she did not meet him on Facebook, as she acknowledged, "memories can be mistaken". She stated that she was never asked by police about Facebook or text messages, and in fact that she deleted her Facebook account, in order to permanently delete it, after her arrest. She stated that she received unkind messages after her arrest, which were "humiliating". Although the suggestions put to her in cross-examination about the various ways one might suspend or deactivate a Facebook account without permanently deleting its content, were not entirely acknowledged by C.B., she was quite clear that she permanently deleted her account, foreclosing the possibility she might re-activate it. I do not see that as a suspicious circumstance, given her explanation.

[85] Facebook Messenger Technical Details

C.B. acknowledged suggestions made to her about the operation of Facebook Messenger in terms of how messages appeared on the screen of the sender and receiver respectively. Printouts of what appeared to be Facebook Messenger exchanges were shown to the witness. She acknowledged that the blue bubbles on the right side of the page contained text representing the words of the sender, and those in grey, on the left, the receiver. She stated that when her account was active, her picture appeared in the top area of the page, where her name [C.B.] appeared. On the pages shown to her, now Exhibit 6 on the trial, no photo appeared, only a female silhouette. C.B. explained her understanding of a page, on which only the silhouette to appear "when someone does not have a specific profile picture or doesn't have an account I guess". This contributes to my finding that a threshold of authenticity of the Facebook Messenger exchange had been established.

[86] Content Acknowledgment

Asked about the content of the October 19, 2019 exchange, C.B. agreed that she was "clearly" engaging with Turnbull at the time. Asked, then, if it was a conversation she had with him on the date reflected on the page, October 19, 2014, she responded, "yeah I guess so". Asked if it was the first time she met him, she responded, "Yeah I guess so". Asked if that was inconsistent with her narrative to the court, she replied, "Yes but I don't remember the conversation".

[87] Drug Use Acknowledgment

C.B. was able to explain parts of the conversation in terms of acronyms used – LMAO, she said, meant "laughing"; "M>coke" meant that another drug, Molly, was better than coke (cocaine); and that she had been awake having used cocaine for 24 hours prior. She acknowledged that part of the exchange showed her reciting the high schools she had attended, in chronological order. Asked what she meant in the reference to Molly being greater than cocaine, C.B. responded: "I don't remember. I have no idea what I meant. I was honestly doing drugs."

[88] Re-examination on Facebook Messages

In re-examination, C.B. testified that the basis for acknowledging the Facebook Messenger (FBM) exchange was her name on the document, and defence counsel Adanja "telling" her it was her messaging. She had no independent recollection of the messages, not the texts or the FBM. In fact, she described her account in-chief of meeting Turnbull when Kruzik took her to the former's apartment as a "concrete" memory. With reference to the name "George", C.B. stated that Kruzik was the only person she knew with that name. In sum, C.B. claimed no current recollection of that being her first conversation with Nathan Turnbull. However, she also testified that she was "not saying she didn't send these messages".

[89] Authenticity Ruling

The integrity of the messages in evidence was strenuously contested. As a legal issue, Crown challenged the authenticity of the text message thread when it was first presented to the witness, but after C.B. had given a series of answers in cross-examination. Crown raised a similar objection to the Facebook Messenger page. In my view, best practice would involve a voir dire conducted prior to those messages being presented to the witness, in order to establish their admissibility. That was not done. However, by the time the authenticity issue was raised, I had already heard sufficient evidence from the witness to rule that the threshold issue had been established by the responses of the witness. In relation to the Facebook Messenger pages, I concluded that the witness's responses amounted to past recollection revived. However, the Crown was certainly permitted to explore the weight to be accorded the purported Facebook Messenger pages. Defence objected at length on numerous occasions to questions exploring the weight of the messages, first introduced in cross-examination. These objections were raised both in re-examination and at later points in the trial. Clearly, Crown was entitled to explore the weight to be assigned the messages, given my ruling that there was some showing of authenticity. The multiple and prolix expressions of that view in no way changed the proper exploration of the ultimate weight to be assigned that aspect of the evidence. Nor did the voicing of what amounted to evidence proffered by counsel in the course of those expositions styled as objections, as to the source of the messages, advance the record as to the source or ultimately the weight to be accorded them.

[90] Threshold Admissibility

In my view, a threshold level of admissibility was established in relation to the text and FBM exhibits through C.B.'s cross-examination. I assess weight to be assigned them in due course.

OTHER CROWN WITNESSES

[91] Limited Contribution

The Crown called two other witnesses. Neither of them added substantively to the Crown's case; however each of them provided evidence to assist in the understanding of C.B.'s testimony. Each, as well, contributed to the existence of some contradictions or omissions in the evidence of C.B.

[92] Complainant's Mother – R.R.

I have referred to the evidence given by C.B.'s mother, R.R. I am here primarily concerned with the difference between C.B.'s recollection of her returns to the family home, and that tendered through her mother. Mother testified that her daughter returned to the family home and stayed for a somewhat longer period before Christmas, and that they took steps for C.B. to return to school. This narrative was completely absent from C.B.'s testimony. She did not speak of an effort involving a trip to the Registrar's office, or an intention to return to school after Christmas.

[93] Investigating Officer – D.C. Hoeller

The other Crown witness was DC Christopher Hoeller. He conducted the interview of C.B. on April 26, 2016, along with another officer. As well, he was present and took notes at the prep meeting of April 28, 2017, when C.B. met with him, Assistant Crown Attorney Ms. Orlando, and Michelle Anderson of Covenant House. He had various involvements from time to time during the investigation and while trial continued. Defence attempted to sully his character in numerous ways. At its highest was the innuendo that Hoeller acted improperly in concert with another Crown counsel with the result that the previous charges against C.B. were withdrawn and stayed against Turnbull and Holmes. This allegation formed part of the Abuse of Process motion, in relation to which I found no reasonable prospect of success. I also dismissed a Stinchcombe application, independent of the Abuse of Process application though related to the same information.

DEFENCE EVIDENCE

[94] Michelle Anderson – Covenant House Counsellor

Michelle Anderson, the Covenant House counsellor, was called as a witness on behalf of Mr. Kruzik. Counsel for Covenant House strenuously objected, and defence counsel objected to his making submissions on behalf of the witness. Here, cutting through the chaff to the kernel of the issues raised, I did eventually hear from Ms. Anderson.

[95] Defence Theory Regarding Anderson

Defence counsel's theory was that Ms. Anderson had improperly influenced C.B. through her pre-trial involvement with her, and then by communicating with her during trial in violation of the order excluding witnesses. The thrust of Anderson's examination in-chief, and cross-examination by Mr. Turnbull's counsel, was that she had met with C.B. prior to the complaint being made to police in April 2016, and fed her ideas about human trafficking in order to induce a perjured statement to police. This line of questions was consistent with the defence theory that C.B. made her complaint nearly a year after her own arrest, in order to abort her own prosecution.

[96] Letter in Support of Section 486 Application

Counsel also pursued the letter proffered by the Crown in support of its Section 486(1) application, at the commencement of trial.

[97] Anderson's Involvement Timeline

Ms. Anderson testified that her involvement with the complainant commenced only after the interview of April 26, 2016. As to the letter, she described the process she undertook. Counsel endeavoured to make something of the mis-spelled acronym in the unsigned and undated computer-generated letter, to little effect.

[98] PTSD Reference

As well, the letter referred to PTSD, agreed to be the acronym for a disorder, which in her evidence the complainant did not claim to suffer. Ms. Anderson explained that she received the content of the letter from C.B. and could not account for this reference.

[99] No Evidence of Collusion

I cannot draw the adverse inference, as asked by defence, that Ms. Anderson influenced C.B. to tell a story to the Court which was not accurate. No doubt she had private, if not necessarily confidential, discussions with C.B. She made resources available to her, and assisted her in enrolling in a work-readiness programme for young people entering or returning to the work force. It was apparent to me, as I noted in my ruling on the 486 application, that Ms. Anderson's dealings with C.B. were more detailed than the typical relationship of a VWAP worker and a witness. This contributed to my decision to preclude her from assisting C.B. as she testified. However, I have no basis on which to find that there was any collusion or improper input by Ms. Anderson to C.B.'s testimony.

[100] Kim Turnbull – Defence Witness

The second defence witness, Kim Turnbull, was called on Mr. Turnbull's behalf. There were three areas of significance, to which Ms. Turnbull testified: her son's developmental delays and behavioural issues; and the layout and appearance of her apartment during the relevant time, particularly in context of her cleaning of her son's room and knowledge of shelf contents. The possibility that photos of C.B., tendered as part of the Crown's case, were taken there, was the subject of questions. Ms. Turnbull testified to her observations of C.B. during the time she stayed there as well.

[101] Son's Developmental History

Ms. Turnbull detailed her observations of her son in his first year of life, missing some developmental milestones, and being assessed at 15 months with verbal skills of a child of 8 or 9 months of age; continuing to be monitored in pre-school years, then receiving special attention in daycare and kindergarten. He is currently three credits short, she says, of his high school diploma. She testified that his psychological or developmental issues continue to the current time, and that he takes medication for these issues. C.B. did not recall Nathan taking medication.

[102] Observations of C.B. and Family Dynamics

Ms. Turnbull testified that she was aware of C.B. starting to come to her house in mid-November 2014, and stay over two to four nights a week. She stayed in Nathan's room. Over time, Ms. Turnbull developed a more in-depth relationship with C.B. Ms. Turnbull's understanding of C.B.'s relationship with her mother was that it was a "trying" relationship, that C.B. couldn't go home, that, "you know, you know, her mom didn't really like her, that she wasn't, her mother was embarrassed by her". To her knowledge, C.B. did not have a key for the family home. At some point, Ms. Turnbull shared with C.B. some information about her son's issues. She testified that she wanted C.B. to "understand" because sometimes her son could be "awkward". She described the medication her son had been on most of her life, and "you know, I would let her know, like you know – for instance, Nathan might sometimes couldn't tell if somebody's laughing at him or somebody's laughing with him". C.B., Ms. Turnbull recalled, "knew something was up… she sensed something, but she was fine with it".

[103] C.B.'s Living Situation and Car

Ms. Turnbull recalled learning in December 2014 that C.B. had no key to her mother's home. She believed that when she was not at her (Turnbull's) apartment, she was staying with a girlfriend. She recalled her having a car between December and March. Ms. Turnbull saw the car in the visitors' lot of her building on occasion. Her last meaningful contact with C.B. was when they took a taxi, in April 2015, to drop C.B. off to meet her mother, as Ms. Turnbull continued in the cab to go to work that day. She understood that C.B. was to turn herself in on outstanding charges.

[104] Apartment Layout and Money

Ms. Turnbull drew a sketch, a "bird's eye view" of her apartment. She described her son's room as being very small, with open shelving. She did laundry a couple of times a week, and cleaned her son's room. She did not see any cash when she put laundered items back on his shelves.

[105] Room Cleaning and Shelf Inspection

In cross-examination, Ms. Turnbull agreed that she expected her son to help with household tasks and clean his own room, "making sure his shelf was neat and tidy". She still went in every day, she said, to ensure that the room was "up to a certain standard that I thought he could manage", as she didn't always think he was doing a good job. She agreed that she did not need to inspect everything on the shelf every time she cleaned the room and would not have noticed something tucked away between the clothing or behind something else.

[106] Limits of Observation

Although she was confident she would have spotted anything unusual or amiss, Ms. Turnbull ultimately allowed that, "you don't know what you don't know".

[107] Photo Location Evidence

Ms. Turnbull was presented with the exhibit photos of C.B., which Crown contended were taken in the Turnbull apartment. She was closely cross-examined about the details of her apartment as compared with details of the background in the photos. I found Ms. Turnbull's testimony particularly evasive on the issues relating to the appearance of her apartment and the possibility that certain photos may have been taken there. Given my conclusions on the law, the issues of the location of the photos is not significant.

[108] Witness Bias

Ms. Turnbull was far from an impartial witness. As she responded at one point in cross-examination, "I think you're trying to make me say something that's gonna incriminate my son". Her bias was evidenced in her evasive and argumentative answers, particularly with regard to photos, purportedly of her residence. While I accept her evidence of her son's early development issues, their impact on his young adult behaviour is more difficult to assess. Similarly, while I accept much of Ms. Turnbull's evidence as to the difficulties C.B. had with her own family, and the extent to which she found the Turnbull residence a respite, I take into account the limited opportunities she had to observe C.B.'s relations with her son. Her answers to questions in relation to her own daughters' involvement in the sex trade reflect a parallel and less than candid protectiveness.

ANALYSIS PART ONE – COMPLAINANT'S TESTIMONIAL RELIABILITY

[109] Statutory Divisions

The nine offences alleged in this prosecution are divided by date: those occurring prior to the revised human trafficking laws currently in force, and those following the promulgation of the current law on December 6, 2014. Not surprisingly, the evidence does not neatly conform to the division.

[110] Central Issue – Credibility

As indicated earlier, the overriding issue in this trial is the credibility and reliability of the testimony of C.B. Crown called evidence to support facets of her testimony. The defence strove to impugn the investigation and deride the reputation of various police investigators and Crown counsel (not restricted to trial counsel), and repeatedly, on the part of counsel for Mr. Turnbull, to call into question the fairness of the trial process. In the end, it is the evidence of C.B. which is central to the result here.

[111] Factors Affecting Credibility Assessment

C.B.'s mental health issues bear on this assessment. So does the timing and circumstances of her first complaint of her victimization coming as it did after she was on bail after approximately a year in relation to similar charges (though more serious as they involved an under-age complainant). In all, three prior statements, the last amounting only to notes of a prep meeting prior to the commencement of this trial, provided a rich source for contradiction.

[112] Electronic Communications Impact

Finally, there are the electronic communications in the form of Facebook Messenger and text messages, said by the defence to be, respectively, between C.B. and Turnbull and C.B. and Sam the driver. Accepting, as I do, their identification or authentication (if qualified) by C.B., I must consider their impact on C.B.'s account. On the one hand, C.B.'s guarded acknowledgement of parts of the exchanges suggest the extent to which, in trying to distance herself from the impugned events, C.B. has in fact succeeded in obscuring her memories of details of that time. More significantly, they afford a materially different narrative as to her meeting Turnbull and her initiation into the sex trade. The FBM exchange potentially undermines the reliability of C.B.'s testimonial account of her first "date", Kruzik's role in facilitating that engagement, and his management of her affairs during her first month in the trade, as well as her subsequent move to Turnbull's home and control. That said, it remains incumbent on me to consider whether C.B.'s account of the development of the allegedly exploitive relationship is sufficiently reliable to establish at least some of the offences, even if I am left in doubt as to the timing and details of her initiation in the trade.

[113] Charges Against Each Accused

Taking C.B.'s evidence at its highest, Kruzik took C.B. to Turnbull's house and recruited her, or exercised influence direction or control over her movements for the purpose of exploitation (section 279.01(1)). That human trafficking allegation against the two encompasses the entire period from September 1, 2014 until April 13, 2015. The evidence against Kruzik goes no further than the first month C.B. worked in the sex trade. The allegations are further that the two committed three procuring offences: recruiting C.B. to become a prostitute and to have "illicit sexual intercourse with another person" (sections 212(1)(d) and (a)); that they exercised control, direction or influence over her movements for the purposes of gain, "in such a manner as to show he was aiding abetting or compelling her to engage in prostitution" (section 212(1)(h)); and that they obtained "material benefits" – money – through the offences under Section 279.01(1) and the 286.1(1) offence of communicating for the purposes of obtaining for consideration, the sexual services of a person. The latter two offences require findings of exploitation. The Crown's allegations against Kruzik end with C.B.'s narrative that she decided to go with Marla to hotels for the purpose of prostitution. That was said to be about a month after she began escorting, approximately early October.

[114] Allegations Against Turnbull

The allegations against Turnbull include the ones against Kruzik, and go further in time, to the April 13 2015 date, to allege that Turnbull committed the offence under s. 286.3(1) recruiting or exercising control direction or influence over the movements of a person who provides or offers sexual services for consideration. Also alleged is the material benefit offence in relation to the 286.2(1) offence, and that as well, "he did knowingly advertise an offer to provide sexual services for consideration by posting advertisement on a website" (section 286.4).

[115] Significance of Facebook Messenger Evidence

In my view, the allegations against Turnbull only become significant after C.B. commences escorting under Marla's tutelage. Certainly C.B. sets the start date of her escorting under Turnbull's influence to the time she says Kruzik took her to Turnbull's apartment, and Crown alleges that Turnbull assumed an active role in posting the ads, at least initially. However, the Facebook Messenger post, even if only tentatively acknowledged, significantly calls this introductory narrative into question.

[116] Uncertain Memory and Subsequent Narrative

Again, C.B.'s uncertain or even fabricated memory of how she met Turnbull does not necessarily preclude reliance on her subsequent narrative to prove the Crown's case beyond reasonable doubt.

[117] Crown's Characterization of Witness

In considering C.B.'s credibility, I am mindful of the Crown's submission. C.B., says Crown counsel, did not overstate her evidence, and testified without animus or vindictiveness towards either of the two accused. Crown characterizes C.B. as a "thoughtful witness who was sincere and did her best to be accurate and truthful". As framed by the Crown, "after several days of cross-examination, with significant repetition, it is no surprise that she would get frustrated or confused at times and agree with suggestions that were being put to her about the Facebook Messenger and text messages even though she had no recollection of either of them". Again, the length of time over which C.B.'s testimony was heard, broken up as it was by stretches as long as months, must also be considered in assessing inconsistencies in her evidence.

[118] Conclusion on Reliability

While giving due weight to these considerations, I acquitted both accused on all counts on July 26, 2019. In the end, C.B.'s testimony is simply too unreliable to safely ground convictions. The unproven allegation of exploitation, as I will explain, undermines the Crown's case on the human trafficking and material benefits counts, as well. Dealing first with the reliability of C.B.'s testimony, the infirmities in her evidence that lead me to this conclusion follow:

(1) Car Ownership and Use

In her previous statements to police, C.B. said nothing about the car she purchased from Sam Kumar, and which she testified she used in taking herself to escort at hotels, as well as for other purposes. She admitted using the car for this purpose while Nathan Turnbull was in jail. There is no evidence as to the source of the funds or the reason she used her money to purchase the car, but it is a fair inference that she used the money she was paid as an escort, in the absence of any alternative source of income. Further, there is no suggestion that the car was used by or specifically for either accused, or that they had any role in her acquisition of the vehicle.

There is the question of where C.B.'s money went, and her access to it. My concerns are particularly with regard to the money she received while staying at Turnbull's apartment. C.B. testified that after a time, she began bringing the money to Turnbull. He put it on a shelf in his bedroom. She testified first that he counted the money and controlled it. She later testified that they both counted the money, that neither she nor he kept track of the amount of money and that both had access to the shelf. C.B. was referred in cross-examination to a prior (2016) statement where she told police that she couldn't take all the money "because [Nathan Turnbull] wouldn't let me, I guess". She offered this explanation, which really did not explain much. She testified that it was a "complicated", "strange" arrangement. In fact, the arrangement was in my view more one of C.B.'s understanding, not the result of Nathan Turnbull's words or actions.

(2) Purchases and Expenditures

Furthering the contradiction in C.B.'s primary assertion that Nathan Turnbull controlled the money, C.B. testified that through some unspecified, unarticulated understanding she could take money for hotels, prepaid Mastercards (understood to be used as payment for Backpage ads), for food, lingerie and clothing, C.B. acknowledged that she hid some of the money at her family home. She acknowledged as well that she bought other items as well, including hair extensions, a ring valued at $200-$300, a blanket, and the car, mentioned earlier. She testified that she would sometimes stay for two or three days at a time at hotels, ordering food twice a day to the room. C.B. said Nathan Turnbull used the cash to buy a PlayStation to replace the one belonging to him, which she broke then sold while he was in jail. She purchased at least one cell phone and case, and the related "minutes" and text apps, referred to in her evidence, to use the phone. She bought cigarettes, which on both her evidence and that of Kim Turnbull, she, C.B., smoked heavily at the time.

(3) Lack of Threats or Coercion

Although C.B. testified that Nathan Turnbull would sometimes urge her to work more, there was no indication that she was under threat of any sort to do so. She complied, she said, because he was her boyfriend and she wanted to make him happy. She did not attribute to Nathan Turnbull any tone of voice or particular words that compelled her to do so – she said the requests or directions or suggestions were by text message. C.B. testified that when she went to her family home, she was sometimes picked up by her mother near the Turnbull residence, and sometimes took taxis.

(4) Cell Phone Inconsistencies

C.B. testified that she did not have a cell phone at the time of her arrest. She told the court that her phone had been "recycled" by her stepfather the previous weekend. C.B. told the Court that she wanted nothing to do with escorting any more, and so got rid of the phone, and its SIM card too. It is noteworthy that she told the police at the time she could not recall her cell phone number in 2015, despite her evidence that it had been recycled only days earlier.

(5) Omission of Other Girls

When asked about other "girls" involved with her in the sex trade, during her 2015 interview, C.B. did not name Sharla or Marla, contrary to her testimony at trial. Again, C.B. said that she was relying on the advice of counsel not to say anything in the police interview, advice she apparently only selectively followed.

(6) Facebook Account and Police Advice

Although C.B. was told by police in the interview that social media could help to exculpate her, she did not offer access to her Facebook account, and testified that she later deleted it.

(7) Yelling Allegation

Another area of contradiction was her testimony that Nathan Turnbull yelled at her. She did not say so in 2015, or more significantly, during the police interview in 2016. She "may", she testified, have said this in the prep meeting prior to trial, in April 2017.

(8) Client Communication

Prior to trial, C.B. never referred to Nathan Turnbull communicating with clients on her behalf. She explained that she was not asked about this.

(9) Kruzik's Involvement in First Date

As canvassed earlier, I note that prior to her testimony at trial, C.B. never said that Kruzik rode in the car on the first escort "date" with the person she identified to police in 2016 only as an older man. This was, according to her testimony at trial, Sam Kumar, the driver with whom she had an ongoing relationship as her driver, through the allegation period. She did not tell police in her April 2016 interview that Kruzik took the money which the man paid for her sexual service.

(10) Drug Use

Finally, I note that although C.B. refers to her cocaine and other drug use, in the course of cross-examination regarding the FBM page, that subject was not explored. It appears to have affected her ability to recall, in particular, the FBM exchange; however, the topic was simply left without further exploration.

[119] Facebook Messenger Evidence Impact

The major contradiction in C.B.'s evidence centres on the Facebook Messenger exchange, tendered during her cross-examination. I have referred earlier to the qualified manner in which C.B. acknowledged the exchange, and to Crown's extensive efforts during re-examination to neutralize the apparent contradiction with C.B.'s account in-chief of meeting Turnbull. In my view, the detail of C.B.'s responses in cross-examination allow me to find that a threshold of identification, or authenticity respecting the FBM exchange. Although I cannot conclude factually that Turnbull and C.B. met in the FBM exchange, the viable possibility leaves me in doubt as to the reliability of C.B.'s account.

[120] Reasonable Doubt Regarding Kruzik

In the result, I am left in a state of reasonable doubt concerning the account of how George Kruzik was responsible for pressuring or influencing C.B. to accompany him to his friend's when she mused to him that she needed a way to make more money, and found herself escorting with all or part of her money going to him for the month she said she resided with him. I take into consideration the Facebook Messenger evidence, and as well the discrepancy between C.B.'s 2016 statement to police, and her testimony in-chief to the court. Other than C.B.'s allegation, there is simply no other evidence linking George Kruzik to the charges against him. All the counts against him must be dismissed, as a result.

[121] Turnbull's Guilt Beyond Reasonable Doubt

However, leaving aside C.B.'s account of her initiation into the sex trade, I must ask myself, is there evidence to prove Nathan Turnbull's guilt during the time after the October 19 date, on the various charges beyond reasonable doubt?

ANALYSIS PART 2: EXPLOITATION

[122] Exploitation as Essential Element

Regardless of how she started in the business, C.B. continued in a relationship with Turnbull, and that relationship at least arguably included the characteristics of "exploitation" amounting to the commission of various of the allegations against him in this trial. Although I am dismissing the allegations against Mr. Kruzik for the reasons above, my observations on exploitation would relate to the human trafficking and material benefits charges against him as well.

[123] Opportunities to Leave

Turning to the Crown's allegation that Turnbull recruited or exercised influence, control or direction over C.B., I note C.B.'s explanation of why she did not take the numerous opportunities available to her, to leave the sex trade, or to take off on her own, or with Marla, who seemed to guide her more than either of the two accused, and whom, she stated, she liked and trusted. C.B. told the Court that during the time she lived with the Turnbull family, she saw her friends less frequently and felt isolated. Once, Turnbull called her by a pseudonym used in an escort ad, in the presence of C.B.'s friend. C.B. feared that she would be exposed as a sex trade worker. Her realisation of how easy it would be for Nathan Turnbull to call her family home and similarly expose her was a psychological barrier to her leaving, she stated. His persistent calls from him to return from her family home, or from a visit with her friend, inspired the same concern. Still, the circumstances were many, when she had the opportunity to just leave: when her mother or step-father picked her up, and took her home; when she took taxis home or elsewhere; when Nathan Turnbull was in jail from January 17, 2015 then on house arrest until his arrest on the earlier human trafficking charges. Even then, C.B. did not turn herself in and continued to work as an escort for some period of weeks until she arranged to surrender herself on the widely publicised charges. I note that despite his incarceration and their occasional arguments, C.B. described Turnbull as her boyfriend until April 2015. This would not preclude a finding of exploitation, but I do take it into account.

[124] Mental Health and Vulnerability

In considering whether C.B. was subject to psychological oppression or exploitation in not leaving the sex trade earlier, I am mindful of C.B.'s description of the mental health issues she experienced at the time. The evidentiary record is limited to C.B.'s testimony about her condition, and to a more limited extent, that of her mother. Although she had experienced mental health difficulties for years, and had been prescribed medication, she did not use the medication in the time period in question. Her mother testified that on C.B.'s returns to the family home, she would try to get her daughter back on her medication, but opined that the sporadic visits were not sufficient to establish an effective therapeutic level. Although Nathan Turnbull's mother testified that he continued to take medication for his behavioural issues at the time, C.B. testified that she did not see him take medication. She had learned from him some of his history with special ed classes, and realized in hindsight that he had a mental disability, but stated that he did not open up much. C.B. had told him about her own mental health history, she said, and said that although he had the opportunity to view her self-harm marks, he never inquired about them. This, in my view is consistent with the limited insight which Kim Turnbull described as part of her son's issues. I note that she described her son's history to C.B. and said C.B. acknowledged her own observation of "something going on" with him. With all this, I consider C.B.'s assertion that despite Nathan Turnbull seeing the marks on her and being told by her of her mental health history, she didn't know if she told him during that time how she was feeling.

[125] Alleged Dominance

Turnbull's dominance over C.B. is alleged to be demonstrated by their occasional verbal arguments; his purported withholding of her earnings; his urging her to take more calls. I find none of these persuasive. For example, as to the two or three times she "tried" to leave followed this pattern, she testified that she would run out of the Turnbull apartment in the course of a verbal argument. He would chase after her and convince her to come back. She stated, "I guess we made up". She said that they both raised their voices during these incidents, as well as during the verbal arguments which became more frequent after February.

[126] Money Management Contradictions

I have earlier reviewed the evidence in relation to the disposition of the money earned by C.B. While Turnbull was in jail in January-February 2015, C.B. testified that she continued to work, so she would have money when he was released. There was no suggestion that she was putting the money on the shelf in his room during that period, or when he was later arrested on human trafficking charges (the ones relating to a minor). Nor was there any suggestion of any accounting, or even inquiry by Turnbull with respect to her earnings, during the time Turnbull was in custody. C.B. testified that neither one of them kept track of how much money she made. In the end, I find that C.B.'s testimony claiming that Turnbull controlled her earnings was significantly overstated, and unreliable.

[127] PlayStation Purchase

And though of small moment, I do not consider the purchase of a PlayStation with earnings from escorting to be a material benefit to Turnbull. As noted earlier, this was an item belonging to Turnbull, which C.B. had broken then sold while he was in custody. I understand that when he was released, she gave him money to replace the PlayStation.

[128] Urging to Work More

There were occasions when C.B. was at a hotel receiving escort dates or calls, and she would frequently text with her boyfriend, Turnbull. Sometimes it was work related, and sometimes, it was just to chat. Between dates, there were sometimes text communi­cation in which she complained she was tired and wanted to go home. He urged her to continue to work. No intimidating words or threat accompanied these messages, according to C.B. Although their relationship became strained after December 2014, and Turnbull sometimes snapped at her, C.B. did not allege any threats.

[129] Returns to Family Home

With respect to her returns to her family home, C.B. was unspecific about their frequency, but stated that sometimes, Turnbull would call or text multiple times, to get her to return to him. I did not have the impression that the returns home were for the purpose of leaving Turnbull, just for the sake of seeing her family. I note that she also hid some of her earnings there.

[130] Influence vs. Exploitation

In sum, there is evidence that Turnbull attempted to influence C.B. in conducting the practice of prostitution. However, that attempt must be proved to be for the purpose of exploitation, for findings of guilt to follow. I examine the procuring and advertising counts separately. For now, I continue the examination of the elements of exploitation.

LEGAL FRAMEWORK – EXPLOITATION

[131] Seriousness of Human Trafficking Charge

The human trafficking count under Section 279.01(1) involves a minimum penalty of four years' incarceration, and in that sense is the most serious of the charges. As well, both the human trafficking count and the material benefits count under Section 279.02 hinge on actions taken for the purpose of exploitation.

[132] Definition of Exploitation

Exploitation is defined in Section 279.04. Because of the significance of the element of exploitation, I deal first with that term, and the proof of it in this case.

[133] Statutory Definition

Section 279.04(1) provides that:

"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"

[134] Court of Appeal Guidance – R. v. A.A.

The authoritative approach to the meaning of "exploitation" in Section 279.04, is that rendered by Watt J.A. for the Court of Appeal in R. v. A.A., 2015 ONCA 558 at para. 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."

[135] Recent Court of Appeal Guidance – R. v. Gallone

Most recently, the Court of Appeal in R. v. Gallone, 2019 ONCA 663, restates the application of "exploitation".

[136] Crown's Burden – Purpose Element

Clearly, as Gallone re-iterates, the onus is on the Crown to show proof of exploitation, whether actual or threatened, by focussing on the intentional conduct of the accused. Crown must show to the requisite standard that the accused's conduct was "with the purpose of exploiting the complainant or facilitating her or his exploitation". "The focus of this element is on the accused's state of mind, i.e. his or her purpose in engaging in the prohibited conduct – and not on the actual consequences of his or her conduct for the complainant". (para. 54).

[137] Exploitation as Influencing State of Mind

In the Dykes, 2018 ONSC 3405, case, to which I will make further reference below, Mitchell J. described succinctly the element of exploitation:

"Exploitation is a crime where the accused procures a benefit from the victim by influencing the victim's state of mind" (para 66)

[138] Reasonable Foreseeability of Fear

She then refers to the evidence of influence on the victim's state of mind, described at preliminary inquiry by my colleague Fairgrieve J:

"The court explained that the accused must have reasonably foreseen that their actions would potentially give rise to a state of fear in the complainant whereby the complainant would acquiesce to the accused's demand" (R. v. Masoudi, 2016 ONCJ 476; ref'd Dykes para 66))

[139] Proof of Reasonable Expectation

While Crown disputes the formulation of Justice Fairgrieve in terms of reasonable foreseeability, and while in my own view, fear is only a part of the mental state which needs be caused in the complainant for a finding of exploitation to follow, it is clear that proof of the accused's reasonable expectation of the impact of his actions, for the purpose of causing the complainant to continue to escort, is an element of the offence.

[140] Conduct and Purpose Analysis

In considering the Crown allegation that Mr. Turnbull committed the offence of human trafficking under Section 279.01(1), by recruiting C.B. or exercising control, direction or influence over her movements, I consider both the conduct and the purpose. I appreciate that there are other modes of committing the offence included in the statutory definition of human trafficking; however, the evidence in this case mandates that I focus on these facets of the definition. Crown's allegation of conduct relates to the actions of Turnbull, in concert with Kruzik, in initiating C.B. to work as an escort. Because of the concerns raised by the Facebook Messenger document, I cannot rely on the testimony in-chief of C.B. in relation to her account to this court, about her introduction to escorting.

[141] Subsequent Conduct Allegations

Crown alleges that subsequent to the introduction to prostitution, Turnbull committed the human trafficking offence by taking calls, by text or voice, in response to the ads on Backpage.com, and setting up dates for C.B. Encouraging C.B. to continue to take more calls though she was tired or otherwise disinclined is another of the Crown's allegations of conduct. This same conduct essentially makes out the count of obtaining sexual services for consideration under Section 286.1(1) as well. The allegations of re-posting ads is encompassed by this offence, though separately the subject of offences under Section 286.4. Neither Section 286.1(1) nor 286.4 comports the exploitation element.

[142] Exploitation as Essential Element

None of this conduct, uncontroverted on the record, amounts to a criminal offence in terms of human trafficking or material benefits, in the absence of proof of purpose: the purpose of exploitation. The exercise of legally offensive control, direction or influence, like recruitment, is dependent on the purpose of exploitation being proved.

[143] Non-Exhaustive Factors

Section 279.04(2) continues, to set out a non-exhaustive list of factors which may be considered in whether exploitation occurred. None of them applies to the facts in this case.

[144] Mens Rea and Actus Reus

This is not solely a matter of mens rea; as earlier discussed, it is a component of the actus reus of the offence.

[145] Crown's Theory of Exploitation

The Crown's contends that exploitation is proved by the unavoidable inference that Turnbull was applying pressure to C.B., knowing he could imperil her mental health, in particular by shaming her and threatening to expose her as a prostitute. Crown argues that Turnbull's conduct demonstrates that he acted with a reasonable expectation that C.B.'s safety would be threatened or in fact harmed if she did not work in the sex trade. Clearly, mental health is a facet of safety which is encompassed by the section. I am mindful of Watt J.A.'s comment in A.A., that "inferring that the accused's purpose was to exploit the victim will usually be a relatively straightforward task". (para. 87) In this case, I do not see the inference as straightforward.

[146] Crown's Knowledge Argument

Crown endows Turnbull with knowledge of C.B.'s particular vulnerability, as she talked about her history of mental health issues with him, and told him that she had in the past attempted suicide. He knew, Crown contends, that she suffered mental health issues if for no other reason than the self-harm marks on her body. Crown points to C.B.'s testimony that she exhibited signs of imbalance at the time of their involvement by her very appearance, and by her behavior, which exhibited symptoms of previously diagnosed anxiety and depression and also borderline personality disorder.

[147] Crown's Exploitation Theory

He knowingly took advantage, says the Crown, of C.B.'s vulnerability to achieve his purpose that she work in the sex trade. That purpose in his preying upon her vulnerability makes out the prohibited purpose of exploitation. Crown's position is that Turnbull's knowledge of C.B.'s mental health issues and his observation of her acting out, or symptoms at the time could reasonably be expected to threaten her safety or cause her actual harm, in terms of her mental health. With respect, neither my findings of fact nor my reading of the law support this conclusion.

[148] Mental Health Evidence Limitations

With regard to the mental health issues, which Crown contends Turnbull took advantage of, the record consists of the testimony of C.B. and her mother R.R. Photos of C.B. at the relevant time are of some help in assessing C.B.'s claim that her appearance was not normal and betrayed a disturbed mental state. I note that although R.R. testified that she had read about borderline personality disorder when her daughter was younger, and discussed the syndrome with professionals, no diagnosis was made until after C.B.'s arrest in April 2015. The evidence of symptomatic behavior is inconclusive.

[149] Lack of Expert Evidence

Unlike the case of R. v. Dykes, 2018 ONSC 3405, where the complainant's intellectual limitations were the subject of expert evidence, the complainant in this case opposed the release of her medical records. I upheld her position. The net result was that the evidence of C.B.'s mental health issues – and any inference of advocated vulnerabilities – was made out chiefly by her own evidence and that of her mother. I do not doubt that C.B. suffered and may still suffer mental health issues. The quality and detail of the evidence, however, does not particularly advance my analysis of the alleged psychological harm to her safety. I note that the borderline personality disorder diagnosis was made after the allegation period. I have no evidence, apart from C.B. testimony, as to the role that her state of mental health at the relevant time may have had in relation to the harm or threatened harm to her safety. In the Dykes case, the evidence was detailed and expert as to the complainant's intellectual deficits, to show the complainant's capacity to consent. The Court found that she was capable of consenting, and ultimately that she was not the subject of exploitation.

[150] Absence of Linkage

In this case, I find that, even accepting a level of psychological vulnerability, the Crown's case does not show that the accused intended to cause C.B. to provide escort services by threatening her safety, namely her psychological stability. The actions attributed to Turnbull as intended, reasonably, to cause C.B. to believe her safety was or could be threatened if she did not continue as a sex worker, or in the case of the material benefits counts, to provide money to Turnbull, simply do not rise to the level of the Crown's allegation. There may have been confidences shared about C.B.'s mental health history; there may have been efforts by Turnbull to promote C.B.'s work as an escort; they may have argued. The linkage between endangering or threatening to endanger C.B.'s mental health by any of those actions is, in my view, entirely absent.

[151] Turnbull's Capacity and Intent

There is some evidence through Kim Turnbull's testimony that her son Mr. Turnbull suffers disabilities affecting, among other things, his emotional intelligence, in addition to his intellectual ability. The evidence is largely dated and ultimately biased in favour of her son. It may be true that he has and does suffer these limitations, but the evidence is insufficient to establish that he cannot form the requisite intention or form the offensive purpose, in forming the intent to exploit C.B.'s psychological well-being. It may be that he expressed anger, or "snapped" at C.B. a few times, that he was unkind and impatient about her seeing friends or family, and that he took calls for her and set up dates from time to time, at least when he was not in custody. Ms. Turnbull's testimony concerning the limitations of her own son's ability to exercise insight into the behavior of those around him was of slight significance, providing only fodder for speculation as to whether he might have had the emotional or intellectual capacity to entertain a reasonable expectation that his impugned behavior would cause C.B. to believe her safety was threatened, should she not work as an escort.

[152] Absence of Purposeful Conduct

Most significant from my perspective is not that he was incapable of assessing the impact of his actions on C.B. More to the point, nothing shows that Turnbull imposed limits on her mobility, expressed his anger with her, raised her anxiety about exposure as a prostitute or insisted that she come home from visits to a friend or her family in order to cause C.B. to believe her safety would be threatened, if she did not comply. In my view, the evidence does not sufficiently link any of these acts to a determination that he was doing these things in furtherance of his purpose to exploit C.B. I summarize the evidence which leads me to this conclusion.

[153] Limited Evidence of Vulnerability Display

To a limited extent, Kim Turnbull's evidence as to the conduct of the complainant at the time was intended to show that at the very least, C.B. did not show vulnerability as a facet of mental health issues. Her testimony was of some help, to show that C.B. was quiet but not exhibiting unusual or concerning behaviours.

[154] Fear of Exposure

I acknowledge that in her testimony, C.B. expressed fear respecting her vulnerability to exposure by the accused on the occasion her girlfriend came over and Turnbull called C.B. by a pseudonym used in her escort ads. On C.B.'s evidence, the girlfriend did not know the pejorative inference C.B. feared she might, nor did the accused Turnbull repeat the name that had triggered her anxiety. C.B. advanced similar reasoning to explain why she would return from her family's home when Turnbull called her there, as he did with some persistence on occasion. Again C.B. does not suggest in her evidence that Turnbull ever expressly threatened to expose her immersion in the sex trade to her parents, in order that she continue in the sex trade.

[155] Continued Work During Incarceration

C.B. may well have at least at times, harboured fear of being exposed as an escort, particularly to members of her family. In assessing whether Turnbull was aware of that, and might reasonably have made it his purpose, to expose her as a sex worker knowing it would cause her, or potentially cause, psychological harm, in order that she continue as a sex worker, I take into account the fact that she continued to work as an escort during the two periods that Turnbull was incarcerated. There is no evidence that their occasional arguments were linked to her continuing to work. There is no evidence, apart from her assessment of her own appearance and emotional upsets, that Turnbull was necessarily aware of her vulnerability. She may have told him her history, but there is no indication of his acknowledgment or acting in consequence of that information, or even acting in a way that was temporally linked to his harsh words.

[156] Appearance and Mental Imbalance

With respect to the complainant's claim that her appearance bespoke her mental imbalance, her statements are conclusory in that regard. The photos tendered do not, in my estimation, show a person evidently imbalanced. There is no other evidence to support this contention.

[157] Physical Safety

As to physical safety it is fair to say that in the case before me, there are no complaints of violence or threats thereof.

[158] Failure to Prove Exploitation

I am unable to find that Turnbull's actions were for the purpose of exploitation. In the absence of such evidence, the human trafficking and material benefits charges fail.

[159] Material Benefits – Additional Observations

In addition to the absence of proof of exploitation on the material benefits counts, I would make the following observations. Despite the suggestion that proceeds of C.B.'s prostitution were kept on an open shelf which held Nathan Turnbull's clothing in his room at home, there was absolutely no suggestion that C.B. was required to contribute to the household or pay for anything except her own needs. There can be no imputation of material benefit accruing to the accused Turnbull arising from that part of their living arrangement. C.B.'s evidence that her earnings were kept from her by Turnbull's placing them on the shelf in the room she shared with Turnbull is undermined by her own testimony that no one kept track of her earnings, that she kept uncounted amounts of cash at her parents' home, that she continued to work entirely "unsupervised" when he was in custody during two periods of time that Turnbull was alleged to have received material benefit from her work, and perhaps most mystifying to me, that she ultimately left the Turnbull residence in April 2015, when Nathan Turnbull was in custody, either abandoning the money or taking it with her. She testified that she first stayed with Marla Turnbull then returned to her own family. There was no mention of her making any attempt to take the alleged cash with her. There was no suggestion that the cash was ever anywhere but on the shelf (leaving aside Ms. Turnbull's testimony that she never saw any money there). I find C.B.'s account improbable. I cannot draw the nexus proposed by Crown, between C.B.'s earnings and Nathan Turnbull's receipt of material benefit. As a result, the material benefits allegations fail for want of proof on that basis as well.

[160] Procuring Counts and Advertising

The counts of procuring relate to the period prior to December 6, 2014, against both accused. There is one count against Mr. Turnbull under Section 286.3(1), the current iteration of the procuring offence, in relation to the period from December 6, 2014 to April 13, 2015. As indicated earlier, the three counts reflect three subsections of Section 212 at the time. I am mindful of the broad definitions of "direction" and "influence" which the Quebec Court of Appeal confirms, in the case of R. v. Perrault, [1997] R.J.Q. 4 (Q.C.C.A.), most recently affirmed and expanded by our Court of Appeal in the case of R. v. Gallone (para's 45-50; 56 ff). This definition applies to the count of exercising control, direction or influence for the purposes of gain (section 212(1)(h), as well as the human trafficking count. The definition of "procure", in relation to Counts 2, 3 and 4, under Sections 212(1) (a) and (d) and 286.3(1), continues to be governed by the definition enunciated by the Supreme Court of Canada in the case of R. v. Deutsch, [1986] 2 S.C.R. 2, as affirmed in Gallone as well, para. 61. The meaning of illicit sexual intercourse, the subject of Count 3, is entirely unclear on the record.

[161] Dismissal of Procuring Counts

I cannot find guilt on Count 3 as there is no basis for a finding of "illicit sexual intercourse". More generally, Counts 2, 3, 4 and 5 fail as during the allegation period prior to December 5, 2014, the vagaries of the complainant's evidence leave me in doubt as to whether Mr. Turnbull procured C.B. for prohibited purposes, or exercised control, direction or influence over her movements in the proscribed way. I dismiss those counts.

[162] Advertising Count

I have earlier canvassed the troubling inconsistencies in the evidence pertaining to the Crown's allegation that Mr. Turnbull advertised C.B.'s sexual services "by posting advertisement on a website" (Section 286.4). C.B.'s testimony in-chief as to the initial creation and posting of an internet ad is contradicted by her later testimony. While the Crown alleges that Mr. Turnbull re-posted the ads for C.B., in the final analysis, I find C.B.'s evidence equivocal as to whether she, Mr. Turnbull or Marla Turnbull re-posted the ads. The issues raised by the Facebook Messenger pages further compound the Crown's problems to the extent that I cannot rely on C.B.'s evidence of her first meeting with the accused Turnbull. Accordingly, I dismiss count 10.

[163] Overall Impact of Facebook Messenger Evidence

In concluding my review of the allegations before the Court, I wish to make two general observations concerning C.B.'s testimonial reliability. The Facebook Messenger account casts a pall over the integrity of C.B.'s testimony as a whole, although I have bifurcated my consideration of the evidence to consider whether the events after those surrounding their alleged first meeting might be sufficiently proved to support the Crown's case. Even so, I cannot exclude the impact of that evidence from my overall assessment.

[164] Timing of Complaint and Credibility

As well, in assessing C.B.'s credibility, I do take into account the coincidence in time between her 2016 statement to police and the cessation of prosecution against her and Turnbull and Holmes, resulting from the 2015 allegations. I tend to agree with Crown's contention that C.B. exhibited a sincere commitment to her obligations as a witness. Certainly there is nothing to suggest that there was any offer of advantage by police or Crown, or prior influence by Michelle Anderson as a quid pro quo for C.B.'s statement or participation as a witness. Indeed, C.B. expressed her surprise to the Court that the prosecution followed her attendance on police in April 2016, saying that with her police attendance, she thought "it would be all over". Nonetheless, I must consider whether, having regained a sense of balance and self after suffering the negative self-image, which C.B. says she experienced during her time as a sex worker, the result was her account of a course of conduct shifting responsibility for her actions to the two accused in this case. The timing of the 2016 statement does somewhat colour my assessment of the reliability of her account.

[165] Facebook Messenger Evidence and Early Period

I have considered whether quite apart from the impact of the evidence of the Facebook Messenger exchanges, any of the counts against Mr. Turnbull are proved beyond reasonable doubt. I have already indicated that it has the effect of raising a reasonable doubt in relation to the charges against Mr. Kruzik, and certainly in relation to the early period of the allegations, I can no more convict Mr. Turnbull than Mr. Kruzik, in the absence of a firm understanding of how and when the complainant became involved in prostitution or escorting, and when, in the Crown's submission, she was subject to Turnbull's influence direction or control.

[166] Failure to Prove Exploitation

Failure to prove exploitation leads to the failure of counts 1, 7 and 8, as well.

[167] Entire Account Cast into Doubt

I do not wish to minimize the impact of the Facebook Messenger evidence on C.B.'s testimony. Certainly my concerns with her credibility, in terms of both her ability to recall and afford reliable evidence, extend to all of her testimony. While I have considered the whole of the evidence in reaching conclusions about the Crown's case, and entertain the doubts arising from numerous facets of the evidence at trial, I am obliged to acknowledge that in light of the Facebook Messenger evidence alone, C.B.'s entire account is cast into sufficient doubt as to preclude safe findings of guilt.

[168] Acquittals on All Counts

With that, I register acquittals on all counts before the Court.

Decision Announced: July 26, 2019

Reasons for Judgment Released: August 26, 2019

Signed: Justice Rebecca Shamai