COURT FILE NO.: 216/12

DATE: 20130412

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MARK ANTHONY BURTON

M. Brown, for the Crown

D. Moore, for Mr. Burton

HEARD: February 4-8,12-15, 25-27, March 1, 4-7, 28, April 8, 12, 2013

TROTTER J.

1. INTRODUCTION

[1] Mr. Burton originally stood charged on a 23-count Indictment. Generally, the offences concern allegations that Mr. Burton engaged in human trafficking and prostitution-related offences in relation to three young women, Amber T. (“Amber”), Ashley S. (“Ashley”) and Erica L. (“Erica”).[^1] None of these women knew each other before they met Mr. Burton. While Ashley and Erica became acquainted, neither met Amber. Ashley and Erica were around 18 or 19 at the time, while Amber was 16.

[2] At the conclusion of the Crown’s case, Mr. Burton entered pleas of guilty to a couple of offences (Count #18 (possession of property obtained by crime) and Count #21 (breach of s. 811 recognizance by failing to report)). The Crown withdrew Count #19 (possession of a stolen licence plate).

[3] There was an application for directed verdicts on a number of charges (Counts #14 (sexual assault), #15 (human trafficking), #16 (receiving a financial benefit through trafficking) and #20 (breach of s. 810.2 recognizance by being alone with someone under the age of 18 years)). The application failed. The trial proceeded on the remaining counts.

[4] The offences concerning Amber arise from a single transaction. It is alleged that Mr. Burton attempted to have Amber engage in various activities designed to generate money, including prostitution. Ultimately, Amber refused. The police spotted Mr. Burton on a stolen Vespa with Amber that same day. While he escaped, Amber did not, and she told them what happened.

[5] The case concerning Ashley and Erica is much more involved and covers a seven-month timeframe. Mr. Burton met and developed telephone relationships with both of them while he was in custody. He lied about his age, saying he was much younger than his 41 years. He lied about his background. He was supportive and charming and eventually gained their confidence.

[6] When Mr. Burton was released from jail, he met up with Erica almost immediately. Contact was soon established with Ashley, who came to Toronto from the Eastern part of the Province. According to Ashley and Erica, the three became virtually inseparable over the next months, leading an itinerant lifestyle, moving from couch-to-couch and motel-to-motel. Ashley and Erica claim that they were abused, sexually assaulted and forced into prostitution and required to hand over all of their money to Mr. Burton. This went on for a couple of months until one day they made their escape from Mr. Burton.

[7] Mr. Burton has a different version of events. In relation to Amber, Mr. Burton said that he believed that she was over the age of 18 and that his interest in her was purely sexual. He denied attempting to procure her into prostitution. With respect to Ashley and Erica, Mr. Burton testified that he was romantically involved with Erica until she turned to crack cocaine, at which point the relationship essentially ended. After that, he was involved in selling her crack cocaine. And that was Mr. Burton’s main point – he is a drug dealer who was not involved in prostitution. He said that he sold crack cocaine to Ashley on many occasions because she was an addict. He took no part in the prostitution activities of either woman.

2. SUMMARY OF THE EVIDENCE

(a) Agreed Statement of Facts

[8] Counsel filed an Agreed Statement of Facts. Included in the admissions are acknowledgements that all offences relating to a recognizance entered into under s. 810.2 of the Criminal Code in Counts #20 and #21, and the probation order in Counts #22 and #23, were valid and in force at the relevant time. It is further agreed that Mr. Burton was in custody from January 28, 2010 until February 28, 2011.

(b) Background Evidence

[9] There was a good deal of evidence about how Ashley and Erica came into contact with the police at the end of the summer of 2011, when these allegations came to light. Ms. Michelle Anderson, a social worker associated with Covenant House, provided a narrative account of these preliminary events. Her evidence was valuable in dispelling the suggestion of collusion between Ashley and Erica, at least in the preliminary stages of the investigation. Ashley and Erica were dealt with separately, and at different times, and little information was transmitted to one about the other. Similar evidence, which I accept, came from police witnesses.

(c) Amber (Counts #17, 18, 19 and 20)

[10] The events relating to Amber occurred on August 15, 2011. However, Amber met Mr. Burton a couple of months earlier, outside a youth shelter where she was staying. She was introduced to Mr. Burton by a friend. Mr. Burton identified himself as “Playboy” and apparently said he ran a playboy mansion. He asked her about working the streets as a prostitute. She told him that she was not interested. She said that he put her on the phone to speak to a woman, who told Amber what it was all about. The encounter ended when Mr. Burton wrote his phone number on a $20 bill and gave it to Amber, with a small amount of marijuana. Importantly, Amber told Mr. Burton she was 18 at the time.

[11] A few months later, on August 15, 2011, Amber was having money problems. She thought her boyfriend was going to jail and that she would lose her apartment. She called Mr. Burton, looking for help with money. She testified that she made it clear to him that she was not interested in prostitution-related activities. She visited him at what he described as his “studio”. She thought she might be going to a recording studio. It was just an apartment. When Amber arrived, Mr. Burton paid for her cab. Mr. Burton told Amber her options. She could: pose in nude photos; sit in a room while others smoked crack; work in a massage parlour; or be involved in prostitution. She was put on a phone with someone she described as sounding Chinese. He told her about what would be involved in working at a massage parlour and that she would have to provide oral sex for money. It was at this point that Amber apparently told Mr. Burton that she was just 16; he told her to say that she was 18. After she got off the phone, she told Mr. Burton that she was not interested. He told her to think about it, and it was left at that.

[12] According to Amber, Mr. Burton was driving her home on a Vespa. Neither wore helmets. They were apprehended by the police. Mr. Burton told Amber to “run” or “dodge” as the bike crashed into a curb. Mr. Burton got away. Amber did not. After speaking to the police at the scene, they drove her home. Amber testified that Mr. Burton sent her a text message in which he said that, if she kept her mouth shut, he would give her $200.

[13] In cross-examination, Amber admitted that she was a heavy user of cocaine when she met Mr. Burton on August 15, 2011. While she did not think she did cocaine that day, she admitted that she was doing cocaine almost daily. Amber admitted to inaccuracies or lies in her preliminary inquiry testimony concerning her former boyfriend, their relationship and her drug consumption habits. Amber also said that the police had told her that Mr. Burton was a very dangerous person and she could have gotten seriously hurt had she hung around with him further. Amber disagreed that it was not until she was on the back of the Vespa that she said she was 16. She denied that her motivation in giving information on Mr. Burton would assist her boyfriend’s situation.

[14] P.C. Mike Kim, a Toronto Police Service (TPS) officer was on patrol on August 15, 2011. At about 4 p.m., he saw Mr. Burton and Amber on the Vespa. He gave chase until the Vespa went into an apartment complex and crashed on a curb. P.C. Kim spoke to Amber. While P.C. Kim examined Amber’s phone for text messages, he made no effort to save them. P.C. Kim denied telling Amber bad things about Mr. Burton, although he acknowledged that his partner might have.

(d) Ashley (Counts #’s 10, 11, 12, 13, 14, 15, 16)

[15] Ashley was 22 when she testified about events that happened in mid-2011. Her brother introduced her to Mr. Burton, who was in custody at the time. Three-way calls were arranged to Ashley’s parents’ Brockville home, where she was living at the time. The two developed a telephone relationship.

[16] Ashley said that Mr. Burton said he was 29 years old and that he was a successful musician in a band called Pointe Blank. She looked up the band on the internet, but he was not in it. Mr. Burton said that he could give her the life she wanted. Ashley had been a drug addict since she was 17 ½ to 18 and she told Mr. Burton about this. He came across as a very caring person, who wanted to help her get clean. They sent letters to each other. When they were corresponding, she knew him as Ricky Downey, a name that Mr. Burton seemed to use quite often.

[17] At the time, Ashley had problems with her family and she seemed to move around quite a bit. In February, she was in a treatment centre in Ottawa. She was supposed to be there for three months. Ashley spoke to Mr. Burton once, while she was there. However, the Centre was very strict about outside contacts. One day she received a call from Erica, who pretended to be Ashley’s mother (for the purpose of being put through to Ashley). Mr. Burton was put on the line and he asked her to come to Toronto. This caused Ashley to leave the treatment centre.[^2] She said Mr. Burton sent her $100 for train fare to Toronto. However, she missed the train and decided to spend the money on groceries and went back to her parents’ home. Ashley started to see another man and stayed with him for a while. She relapsed and started using crack cocaine again. When that relationship failed, Ashley hitchhiked to Toronto.

[18] Ashley testified that she got to Toronto near the end of the winter in 2011. Because she was so messed up at the time, she was unable to be firm about dates. Ashley found her way to the apartment of Erica’s mother (Melinda). Erica came downstairs and paid for the taxi. Ashley met Mr. Burton upstairs and immediately fell in love with him. Ashley spoke with Mr. Burton and Erica about how to make money through prostitution. She said she was uncomfortable with it because she had never done it before. That same night, Mr. Burton gave her some crack cocaine.

[19] Erica helped Ashley set up a voice ad on an online dating service. Mr. Burton told her that she owed him for the cocaine. Ashley testified that she met a man through this service and ended up having sex with him for $200. She gave all of her money to Mr. Burton and he gave her more drugs. Ashley said that performing sex for money made her feel ashamed and disgusting and fuelled her need for drugs. She did the same thing a number of times, but for much less money. Ashley testified that Mr. Burton controlled the prices. As I will discuss below, Ashley said Erica got into prostitution, but not until later on.

[20] Despite what had developed, Ashley testified that she cared for Mr. Burton and wanted to believe they could have more in their relationship. She believed that Mr. Burton cared about her because he said so in Erica’s absence. Importantly, Ashley testified that she knew that Mr. Burton and Erica were in a relationship, but it was clear to her that Mr. Burton did not care for Erica the way she appeared to care for him. Ashley said that she did not have sexual intercourse with Mr. Burton. She would sometimes perform fellatio on him in exchange for crack. She said this happened on five or six occasions. Ashley said that Erica was there on two occasions when this happened.

[21] Ashley testified that Mr. Burton was the only one to provide her with crack cocaine. Importantly, though, Ashley testified that she could have gone to someone else, but she did not want to.

[22] Ashley claimed to observe a lot of what went on between Erica and Mr. Burton. She said that he got very angry with Erica at times. Ashley saw Mr. Burton hit her twice. Ashley said: “Bruises, bruises, bruises. Black and blue, that girl.” While Mr. Burton got angry with Ashley, he never hit her. Ashley thought it was probably because she always did whatever he wanted. However, Mr. Burton told Ashley that he knew where her family lived and he would find her if she ever got him in trouble. Ashley testified that this made her feel scared.

[23] Chronology is an art to which none of the witnesses in this case was particularly adept. With some of the witnesses (Ashley and Erica), this might be explained by the consumption of crack cocaine. Still, it makes it difficult to piece together the order of what happened with any confidence. Suffice it to say, according to Ashley and Erica, they, along with Mr. Burton, moved from place to place to place. Sometimes they stayed in other people’s apartments, and sometimes at cheap motels. For example, they stayed with a friend of Mr. Burton’s called “Pops”, a drug addict who bought crack from Mr. Burton. The three also stayed with Erica’s Uncle Sean. Ashley said that she slept with Sean for $150 and the use of his credit cards. Clothes were purchased for her, but mainly for work. Ashley borrowed Erica’s clothes sometimes. Because these purchased clothes were put on Sean’s credit card, this lead to a falling out. Ashley agreed that the three lead a semi-homeless existence. Mr. Burton would sometimes go to stay with his mother. As Ashley said, “He had a place to stay, but we didn’t.”

[24] Ashley said that all of the money she made would go to Mr. Burton. She said that meals were few and far between, but then again, they were doing drugs all day. At one point, Ashley worked on the streets, using a motel room as a home base. She testified that Mr. Burton told her where to work. She returned to the motel to give him the money, consume drugs and then be sent out again. Mr. Burton found it hard to believe that she was only bringing in $20 to $40 each time. But, as Ashley testified, nobody wanted to pay a lot of money to have sex with a crack addict. This went on for a few months.

[25] Ashley testified that Mr. Burton would ask her to bring other girls to him. But they had to be young, though over 18, and good looking. However, this usually never worked out.

[26] Ashley testified that she attempted to leave Mr. Burton a couple of times. She met a man who took her to Oakville, to the Lighthouse Shelter. Ashley was pregnant and this man helped her get to Brockville. This was late spring or early summer. Mr. Burton did not like this man texting or calling her and one day smashed her phone. When Ashley returned to Brockville, it did not work out with her family. So, she called Mr. Burton again. He promised her a better lifestyle and told her that she would not have to sleep with anyone again. She said she returned to Toronto for drugs, and because of her attachment to Mr. Burton. She met him at the Comfort Inn.

[27] Mr. Burton then arranged for Ashley to work at a massage parlour for an Asian man named “Terry.” Ashley said Erica went to work there twice. Ashley was required to give apportion of what she made to Terry and the rest to Mr. Burton. Mr. Burton would take her to the building and she was not allowed to leave. She was sometimes there for six to seven hours at a time, performing sex acts. Mr. Burton checked up on her over the phone, asking how much she had made. At the time, they were staying at a hotel.

[28] It was while she was working at the massage parlour that Ashley was able to get away from Mr. Burton. One day, she lied to Terry in order to get out of the premises and then called her older brother, who took her to Covenant House, where the police were called. Ashley, who was pregnant, testified that she felt her baby move inside of her when she was at the massage parlour and this is when she knew that she had to leave.

[29] Ashley arrived at Covenant House on a Friday. The police came that day and then returned on Monday to get her for the purposes of giving a videotaped statement. In between the Friday and the Monday, Ashley got high and, as she said, “I just completely lost myself.” Ashley testified that she was “very messed up, sketched out and fidgety” that day. She said she did not reveal a lot of details to the police that day and she was in no condition to say anything.

[30] After giving her statement, but before Mr. Burton was arrested, Ashley went to a detox centre and then a rehab centre. She called Mr. Burton again and ended up going to Hamilton with him. She worked on the streets for a couple of days and nights. Mr. Burton went back to Toronto, leaving her there. Ashley eventually found her way back to Toronto and into rehab again. Ashley got clean and stayed clean until November of 2012. She had a child in January of 2012.

[31] Ashley testified to a number of other assorted incidents with Mr. Burton and Erica. One involved how Erica got started on crack cocaine. As Ashley testified, Mr. Burton asked her to try to get Erica to smoke crack for the first time. As discussed below, Erica has a different version, as does Mr. Burton.

[32] In cross-examination, Ashley admitted to making the videotaped statement to the police in August of 2011, a second police statement in March of 2012 and then testifying at the preliminary inquiry. She testified that there was nothing in these previous accounts that she wished to change.

[33] There were a couple of serious problems with Ashley’s evidence. For instance, Ashley said that she did not know Mr. Burton’s real name until much later in the sequence of events. She said that she always knew him as “Ricky Downey.” Ashley was shown a letter that she wrote to Mr. Burton when he was in jail. The letter was addressed to “Mark Burton.” Ashley explained that he told her to put that name on the envelope. She said that she never put two and two together. I find this difficult to believe.

[34] As noted earlier, in terms when her brother came to get her in Toronto, Ashley said that she left from the massage parlour. However, in a sworn and cautioned statement given to the police on March 15, 2012 (5 days before the preliminary inquiry), Ashley said that her brother came to get her at a hotel, not the massage parlour. Ashley said that she had been clean for seven months before giving this sworn statement. Furthermore, at the preliminary inquiry, Ashley testified that she was at the Dundas Street Hotel when she felt her baby move. Indeed, Ashley said that she spoke to Mr. Burton that morning, and he wanted her to meet him at the massage parlour later. However, she said “I never ended up going there.” She elaborated further: “I had called him to see if he was coming back to the hotel, and in that time that’s when I – after I had talked to him I decided that I didn’t want to continue on and I ended up leaving.”

[35] Ashley attempted to explain these inconsistencies by saying that she did not remember saying what she previously said or that what she said came out wrong and that she did actually go to the massage parlour that day. Ashley testified that she could guarantee that she would be on the security videotape of the massage parlour that day.

[36] This raises an interesting feature of this case. On August 16, 2011, a day after the Amber incident, a TPS officer went looking for Mr. Burton. He said that, among the checks he did, he stopped by 177 College Street, the place that was supposed to be the massage parlour of which Ashley and Erica spoke. The officer observed a security camera pointed at the entrance to the building. This officer did the specific job he was asked to do that day. However, no subsequent investigation by the officers assigned to the case was made of the premises to confirm whether there was massage parlour there and whether someone named “Terry” worked there. These are very basic investigative tasks, important in a case like this where, because of excessive drug use by some of the witnesses, credibility is bound to be an issue.

[37] In any event, I consider this to be a serious contradiction in Ashley’s testimony. The previous contradictions were both given while under oath. Along with other testimonial shortcomings, they significantly undermine her credibility.

[38] In terms of getting back in touch with Mr. Burton after she went to the police, Ashley testified that she called Mr. Burton because she wanted to talk to him. Confronted with the fact that she told the preliminary inquiry judge on two occasions that she simply “ran into” Mr. Burton, Ashley said she was never specifically asked who contacted whom.

[39] Ashley’s August 15th videotaped statement is highly problematic. This statement was not under oath, apparently because a commissioner of oaths was not available in the busy downtown Toronto detachment that Ashley was taken to for the purposes of being interviewed. However, Ashley was given a strong caution about the legal consequences of failing to tell the truth.

[40] In her trial testimony, Ashley admitted that there were lies in the statement. She explained that she was very messed up on crack and she had not slept for days. As she said, “I am not accepting or denying anything in that statement.” Ashley said she knew it was wrong to give such a statement, but she was scared and did it anyway. In this statement, among other things, Ashley lied about how she met Erica and Mr. Burton, how long she had been in Toronto, and the circumstances that brought her here. Ashley said that she had no reason to lie at the preliminary inquiry or at trial, because it would be a waste of her time to do so. But there were problems with Ashley’s testimony at the preliminary inquiry, about things such as how she got back to Brockville (hitchhiked versus a purchased ticket) and about the person she suspected of being the father of her child. Ashley said that she was on anti-depressants and other drugs that prevent her from remembering things. As she said, “I don’t want to remember.”

[41] Lastly, Ashley denied that things came to an end (at least prior to the Hamilton trip) because she and Erica stole two ounces of drugs and $1400 from Mr. Burton when he fell asleep. She also denied stealing from him on their sojourn to Hamilton, after she made her first statement to the police.

(e) Erica (Count #’s 1, 2, 3, 4, 5, 6, 7, 8 and 9)

[42] Erica was 21 when she testified at trial to events that covered the same general time span as Ashley’s account. She, too, developed a relationship with Mr. Burton over the phone, while he was in jail. According to Erica, she spoke to him on the phone almost daily. Mr. Burton told Erica his name was Ricky Downey and that he was a lot younger than he turned out to be. He also told Erica that he was in Pointe Blank. Erica testified that she did not care about the lies because Mr. Burton was very supportive and sometimes sent her money.

[43] Mr. Burton knew Erica’s mother (Melinda), a crack addict. Erica was living with her mother, along with her sister and stepfather. Erica testified that she had never seen, let alone consumed, crack at the time. She did marijuana from time to time. Around the time they met, Erica had been charged with offences along with her son’s father. It resulted in her losing custody of her son. She was on bail.

[44] Erica continued to speak to Mr. Burton on the phone until he got out of jail. She was unsure whether she was working or going to school at the time. However, when Mr. Burton got out of jail on February 28, 2011, she stopped going to school. Erica visited Mr. Burton once when he was in jail, mainly to thank him for sending her money. When he got out, Mr. Burton wanted to come to Melinda’s place, but Erica did not want him there. According to Erica, he went directly from the jail over to her mother’s. Apparently, that night, there was a lot of drinking and Mr. Burton flashed a lot of money around. Melinda obtained drugs from Mr. Burton that first night.

[45] At some point, Erica became aware of Ashley, but did not meet her until late March. Erica said that, before Ashley entered the picture, her relationship with Mr. Burton was “nice.” She hung around with Mr. Burton and he bought her food, alcohol and clothes. She denied that she had a romantic relationship with Mr. Burton, but she said he tried to get her to be his girlfriend. Erica admitted that Mr. Burton took her to meet his mother at one point in time.

[46] Erica said that Mr. Burton stayed at Melinda’s place for a while. Mr. Burton was not using alcohol or drugs at the time. As Erica said in her evidence, Mr. Burton cannot handle alcohol or drugs. He apparently has low tolerance. This observation will take on more significance later on in these Reasons for Judgment.

[47] At the time, Erica was supporting herself with a modest government allowance. She also received $1,000 per month for the purpose of attending school, but apparently Mr. Burton did not know about this. She also said, she had a couple of jobs, but was short on details about them.

[48] As time went on, Mr. Burton became more of a fixture Melinda’s home. He gave her drugs to “shut her up.” Erica said that it was like he was piecing her mother off so that he could be close to Erica. It was like he was the boss of the house. He once smacked her in front of her mother and step-father.

[49] Erica testified that, at some point, Mr. Burton said that he wanted her to become involved in his business, but she was not sure what that business was. She said that she had read about Mr. Burton on the internet and was concerned that his business might involve prostitution, but he convinced her it was not. Erica testified that she became involved in Mr. Burton’s drug dealing. She said some of his dealers did not want to deal with him anymore. So, she helped with pickups and deliveries, while Mr. Burton waited outside in a taxi. Erica testified that Mr. Burton convinced her that she was his right hand person, or his “Queen”, even though they had no sexual contact. He apparently groomed her to approach other women and get them to join his so-called street family. He promised her that she would not have to work the streets because she was too good for that. Still, she was made to give some of her clothes to these other girls, which she did not like.

[50] Erica recounted the same basic story as Ashley about making contact with her at the rehab centre. Erica was instructed to pretend she was Ashley’s mother and then hand the phone over to Mr. Burton once contact was established. Erica testified that Mr. Burton forwarded her $100 to travel to Toronto, but that she “ran off” with the money.

[51] The first day Ashley came to Toronto, she went to Melinda’s. Ashley said that she wanted to work. Mr. Burton and Erica got her set up on the chatline and Ashley saw two men that evening. She received $150 from the first date (a price she was never able to get again) and gave it all to Mr. Burton. He provided her with crack in return, which she smoked in the washroom.

[52] As Erica testified, the three moved into the apartment of Erica’s Uncle Sean. He was an alcoholic and Mr. Burton apparently showed up with beer. It was just Ashley who was working as a prostitute at the time. Mr. Burton convinced her uncle to pay to sleep with Ashley (for an inflated price) and he convinced Ashley to steal his VISA card. They went on a spending spree at the Dufferin Mall with Sean’s credit card. At the mall, Mr. Burton bought a lot clothes for Erica, but fewer for Ashley. He apparently said, “She smokes crack; she owes me.”

[53] Erica smoked crack for the first time at her Uncle’s. Erica said that Mr. Burton got her drunk and made her smoke crack. This is how Erica apparently became addicted to crack. At times, Mr. Burton would try to get her to perform oral sex on him. However, it would appear that her addiction was not as severe as Ashley’s. As Erica observed, Ashley seemed to smoke as much crack as she could.

[54] Erica testified that she was not in a romantic relationship with Mr. Burton. However, early on during Ashley’s time in Toronto, Erica saw a video on Mr. Burton’s cell phone of Ashley performing oral sex on him. Erica testified, and as Ashley confirmed, this made Erica extremely jealous and angry. Also, and as will be discussed shortly, Mr. Burton got a new tattoo of Erica’s lips on his neck. I do not accept Erica’s evidence that there was never a romantic relationship with Mr. Burton.

[55] Erica spoke of a string of assaults. She testified to being punched in the face by Mr. Burton and about being thrown down into a glass table. She also said that he threatened her. She was hit when she resisted his commands or when she stood up to him.

[56] When the three eventually left Sean’s apartment, they stayed at a string of hotels in the downtown core, including the Dundas Square Hotel and the Andrews Motel. Ashley was making money off the streets. Erica could not remember when she worked the streets, but when she did so, she preferred to rob men who wanted to use her as prostitute, rather than engage in sex acts with them. Still, Erica would turn the money over to Mr. Burton. When they were in a hotel on Dundas Street, she said that Mr. Burton would set up dates for her. But she said that Mr. Burton mainly kept her around to do sexual things for him for crack. Erica said that, while she did not want to do it, she did it to obtain crack cocaine. Moreover, Erica testified that, on the one hand, he did not give her enough drugs to satisfy her needs; on the other hand, he would not let her go to other dealers. He said he would beat her up if she did.

[57] When they were all at a downtown motel, Mr. Burton had Erica working at a massage parlour at Bathurst and College. It was run by someone Erica described as a “Chinese guy” called “Terry.” She described a pay structure that involved paying some money to Terry and the rest to Mr. Burton. The first night Erica was there, there was no business. Erica eventually went back and engaged in sexual activity at the massage parlour. She became very distressed at what she was doing and started picking at the skin on her face and body when she got high.

[58] In terms of Ashley, Erica said that there were a couple of days here and there when she was not in the picture. However, there were two occasions when she left for a longer period. The first time she came back after a month or two. The second time she left she was gone for good. Shortly after that, the police came looking for Erica.

[59] Towards the end of this scenario described by Erica, she said that she was at the Dundas Square Hotel and the police arrived, looking for her. She told the officer that she was okay. The officer, Lisa Kurts, confirmed that this was on August 9, 2011.[^3] Erica told Mr. Burton what had happened. He called her a rat and never came back to that hotel again. Erica could not remember whether she saw him again. But, by that time, Erica believed she was of no use to Mr. Burton, because she was bruised and all picked at. She said that nobody was interested in her at the massage parlour. Erica had her own court dates, but she ended up missing one of them because she was scared she would be subpoenaed to testify against Mr. Burton. She eventually did come forward and, after some coaxing, provided a statement to the police while she was in custody.

[60] There were a few other incidents described by Erica that need to be mentioned. First, there was a complaint by Mona Farmer to the police about a threat that Mr. Burton had apparently made to her. I need not get into the details of this affair. Ms. Farmer testified and she, too, like many of the other witnesses in this case, is a drug addict with poor recall. When Ms. Farmer did finally attend for trial after it was adjourned for two days to await the pleasure of her attendance, she gave evidence that I found to be completely unreliable and biased against Mr. Burton. Erica was tasked with intervening with Ms. Farmer to have her withdraw the complaint. Erica testified about going to police headquarters one day with Mr. Burton when he was required to report. Mr. Burton instructed her to tell the officer that she was his girlfriend. As confirmed by D.C. Scott Peters of the TPS, on May 17, 2011, he received a call from Erica, trying to make sure that Mr. Burton did not get arrested in relation to the Farmer complaint. Later that same day, Erica accompanied Mr. Burton to the station and met D.C. Peters. Erica said things were good between them and they spoke about Mona Farmer. Erica said that Ms. Farmer was jealous because she (Erica) was dating Mr. Burton and he was older. D.C. Peters observed that they seemed quite relaxed and comfortable with each other. Erica said she was threatened and intimidated into doing what she did that day and that it was all a lie. In cross-examination, the officer said that he thought they were in a relationship. He observed Erica and she did not seem twitchy or restless or showing the signs of crack cocaine use.

[61] When Mr. Burton subsequently reported to D.C. Peters on May 24, 2011, he had a new tattoo on his neck. It was of red lips that Erica had wanted him to have on his neck, made from an impression she had made on a napkin.

[62] Erica also described an incident of being required to carry a gun for Mr. Burton on a visit to one of his dealers. She had to put it in her pants and was unable to bend her knee as she walked. Erica was made to walk 10’ ahead of Mr. Burton. She said that she was concerned because she was on bail at the time.

[63] Erica has a criminal record. In 2008, as a youth, she had five findings of guilt, all for offences of dishonesty. In late 2011, shortly after the alleged events in this case came to an end, she pleaded guilty to one count of possession of property obtained by crime. After her association with Mr. Burton ended, she continued to use drugs, but generally not crack cocaine. She used crystal meth for about seven months. For a while, she became a cocaine user again. Erica used crystal meth around the time of the preliminary inquiry, and then up until June of 2012. She returned to crack, intermittently, leading up to her participation in this trial.

[64] The firearm incident just mentioned is a good point of departure for considering some of the important aspects of Erica’s cross-examination. Erica testified that she had a very vivid memory of the event and that she was certain that it was a rifle. However, in a statement given to the police after she had been in custody for about a month (and after drugs had presumably cleared her system), she told the police that event had happened when there were “orange and yellow leaves on the ground.” The problem with this statement is that Erica was never associated with Mr. Burton in the fall of any year, when there would have been leaves on the ground. In terms of whether the firearm was a rifle or not, Erica’s trial testimony was seriously contradicted by her evidence at the preliminary inquiry. Erica volunteered the following details in her examination-in-chief at that proceeding: “But, I mean, you could see, like, clearly it was a shotgun. It was a sawed off shotgun, you know. I know that it was a sawed off, because my house got raided for the same thing.” The reference to the raid on her house related to an incident that resulted in her being on bail. Despite the elaborate preliminary inquiry testimony, Erica was adamant that the gun she was asked to carry was a rifle.

[65] This contradiction in Erica’s evidence is serious. She denied that she was confusing Mr. Burton with someone else. I conclude that the incident was either made up for the purpose of making Mr. Burton look bad, or it was a real incident that was mistakenly attributed to Mr. Burton.

[66] This may have been part of a bigger problem. At the trial, Erica testified that her consumption of drugs had no effect on her memory and that she remembered everything that happened to her. As she said, “Things come into your head.” However at the preliminary inquiry, she testified that because she has post-traumatic stress disorder, she could not remember certain things.

[67] Also, Erica was in custody when she gave her first statement against Mr. Burton. Of course, from a police perspective, this was less than ideal. It was suggested to Erica that she gave information against Mr. Burton in the hope that she would be released. Erica said this might have been the case, but she was still concerned for her own safety. The second interview that she gave to the police was on October 26, 2011. The very next day, on October 27, 2011, she pleaded guilty to a single count of possession of stolen property.

[68] When Erica came into custody in October, she had injuries caused by a man named “Omar.” He left a large bite mark and a bruise on her face. Apparently Omar was Mr. Burton’s archenemy. Erica admitted that, when she was in custody, she told the correctional officers that she had been kidnapped by a pimp (referring to Mr. Burton). Erica explained that is what it felt like, but that “I realize now it was a choice.”

[69] Erica was also inconsistent about the first meeting with Mr. Burton after he got out of custody. As I have already described, at trial, she testified that Mr. Burton came directly to her mother’s apartment. This is important because Erica said that she did not want Mr. Burton coming over to her mother’s and, more generally, they did not have a romantic relationship. However, at the preliminary inquiry Erica testified that she met Mr. Burton at the Main subway station at a falafel place. When she was asked in cross-examination at the preliminary inquiry whether she remembered the first meeting place, Erica emphatically said: “Of course I remember where I met him. Yes.” She then said that they drank and drank and then got a hotel, which was in her name. At trial, Erica maintained that this was a few days after he got out and perhaps she misunderstood the questions at the preliminary inquiry. I do not accept this explanation.

[70] At trial, Erica testified that she stopped seeing her son because she was afraid that Mr. Burton would follow her and find out where her son lived. However, in a statement to the police on October 25, 2011, she said she stopped seeing her son because she felt ashamed of how she looked. At trial, she explained that it was both.

[71] At trial, Erica was clear that, while nothing of a sexual nature transpired on her first day at the massage parlour, there were subsequent occasions when she performed sex acts. At the preliminary inquiry, she said that she did not perform any sex acts at the massage parlour. This was another serious inconsistency, accompanied by a very poor explanation.

[72] Erica denied that she had a romantic relationship with Mr. Burton and that they continued as boyfriend and girlfriend until she became addicted to crack cocaine. She denied getting Mr. Burton drunk and then robbing him of drugs and money and then telling people she and Ashley had robbed him. Interestingly, in different parts of her evidence, Erica bragged about robbing various people (potential customers, a man who was trying to help Ashley and others). Nevertheless, she denied stealing from Mr. Burton.

[73] There were other incidents or vignettes that Erica was confronted with, which she also denied, such as showing up to an after-hours betting place and also going to an Isabella Street apartment and causing trouble for Mr. Burton and the person who occupied the apartment. However, given the conclusions I ultimately reach, which I will explain below, I do not need to address these incidents.

(f) Terrence Ramlal

[74] Terrence Ramlal testified on behalf of the defence. Mr. Ramlal is a drug user and he stays at an apartment or hotel at 200 Bleeker Street. He is an acquaintance of Mr. Burton. He said that, sometime in 2011, Erica came to his place and said “I just did something stupid” and that she had robbed this guy named “Playboy” of $1500 and drugs and that she needed a place to stay. Mr. Ramlal testified that Erica was upset when she said this. While he allowed her to be in his apartment from time to time, Mr. Ramlal said that she could not stay with him. He believed this occurred in the summer of 2011. Also, of interest, Mr. Ramlal seemed to think that Erica was doing needles in the bathroom of his apartment.

(g) Mr. Burton

[75] Mr. Burton has an extensive criminal record that was introduced during his examination-in-chief. The record dates back to 1986. It includes many convictions for offences of dishonesty, drug offences, violent offences (including sexual violence) and prostitution-related offences. It continues pretty much non-stop until 2010.

[76] Mr. Burton agreed that he met Ashley and Erica while he was in jail. He said he spoke to Erica about a dozen times, but that he spoke with Ashley much more frequently, mainly because she was easier to relate to. He admitted to lying about his age and telling them he was in a band. He said that he felt old and that was his motivation for telling those lies.

[77] When he got out of jail, it was Mr. Burton’s intention to turn his life around. He signed the s. 810.2 peace bond and he did his best in the beginning. But things eventually took a turn. As soon as he was released, Mr. Burton stayed with his mother. One of the themes that came through in Mr. Burton’s evidence was his great respect for his mother. The day after he got out, and after spending time with his mother, Mr. Burton met up with Erica. They met at the Main Station. They consumed vodka and marijuana and then went to a motel, which Erica paid for. The next night, Mr. Burton returned to his mother’s.

[78] When he got out, Mr. Burton was desperately in need of money. The money he did have on hand, in addition to the start up money he received from welfare upon his release, he used to buy drugs that he could sell to generate funds. He did obtain drugs and stayed at Melinda’s apartment for one night. He disputed that he stayed there after that. As he said, he was not prepared to feed people crack cocaine.

[79] Mr. Burton testified that he went downtown and stayed in a few shelters, followed by a few cheap hotels. He could not stay at home because he did not get along with his father. Mr. Burton found a poker game at College and Spadina. Because he played clean and sober, he found it quite easy to win money. This was around March of 2011. At the time, he was seeing Erica. However, she was becoming increasingly jealous and clingy. Mr. Burton said he liked this at first, because it made him feel wanted, but this soon wore thin. Erica apparently beat up another girl in front of him. She brought undue attention in his direction and he referred to her as a “Heat Score.” As he said in his testimony, “I was very much in love with her at first, but after seeing her beat up a person in front of me, it made me re-think.” He did consider her to be his girlfriend and he spent a lot of money on her.

[80] In terms of Ashley’s arrival, Mr. Burton testified that she made contact with Erica and him from the rehab centre. Mr. Burton said that it was Erica who wanted Ashley to come to Toronto. He denied sending her a $100 to come to Toronto. Mr. Burton was very excited about the prospect of meeting Ashley in person, but, to use his words, “everything went south” when he met her because he was not attracted to her. Still, they partied together and he gave her a $50 piece of crack cocaine for $50. Mr. Burton testified that Ashley said that she was coming to Toronto to see her brother and to get crack cocaine.

[81] Mr. Burton testified that he did not see Ashley for about 4 weeks after their first meeting. She came to the Dundas Street Inn one day with $130 and purchased crack cocaine. After smoking it in the washroom, Ashley performed fellatio on Mr. Burton.

[82] Mr. Burton testified that he made his money selling crack cocaine. He said, “I don’t need prostitutes to make money.” He said that his dealing provided abundant money 24/7. He said that his “generosity is unlike any other person’s. I spend money and enjoy myself. People wanted to be with me. People lived off me.”

[83] Mr. Burton has very prominent tattoos on his face, including the “Playboy” symbol. He said that he had some of them done in the penitentiary so that he would not get hurt.

[84] Mr. Burton denied that he ever stayed at Erica’s uncle’s place. He said that the place was filthy. He also said that Sean drinks himself into a state of incontinence, another reason why Mr. Burton would not ever want to stay there.

[85] Mr. Burton testified that he had a serious falling out with Erica over an incident at Sean’s. They had all been drinking and partying. He went into the washroom at one point and saw Ashley and Erica inside, and Erica had a crack pipe in her mouth. He said he got angry and slammed the door and left. For the next two days, Erica called him repeatedly. So did Ashley, who informed him that the incident that he witnessed was not the first time that Erica had consumed crack. Erica followed him around and even turned up at one of his poker games, threatening to turn him into the police. As Mr. Burton said, he had to walk away, but Erica was making it difficult for him to do so. This was in the beginning of July.

[86] In terms of sexual activity, Mr. Burton testified that Erica gave him oral sex quite a bit, but they did not have intercourse very often. He said that he had oral sex from Ashley 30 to 40 times. He said he would never give her crack in exchange for oral sex because you cannot “re-up” with that.

[87] Ashley was like a friend and a customer. In terms of the availability of crack cocaine, Mr. Burton testified that, “When you’re a crackhead, you can buy off anyone. It was endless.” Mr. Burton said that dealers generally treat customers “like shit.” He said that he is nice to people, “even though I know I am doing harm.”

[88] In terms of the gun incident, Mr. Burton denied it, saying Erica told it to make him look vicious. Moreover, he said that he never involved Erica in his drug dealing activity especially after learning she was a user. He said that would have been an “ass move.” Similarly, Ashley never purchased crack for him because she was too much of an addict to be given that responsibility.

[89] At times, Mr. Burton stayed with a friend, named Sue Hackett, who lived on Isabella Street. It was on and off for three months. She apparently had a nice apartment, the nicest apartment that he had ever been in. However, Ms. Hackett was a drug user, who used needles. Mr. Burton testified that he was paranoid of accidentally sticking himself with one of these needles. While Ashley was never at this apartment, Erica showed up a couple of times. She appeared jealous of Ms. Hackett and went into a rage. The second time she told Mr. Burton that “something is going to happen to you.”

[90] Generally, Mr. Burton denied or put a spin on many of the incidents that he was alleged to be part of by Ashley and Erica. For example:

• Mr. Burton denied the Sean credit card incident. Mr. Burton said, if he has money, everyone is eating. He referred to himself as a bank machine. He said that it was nonsense that either Ashley or Erica went hungry when they were around him. He denied that he has ever been to the Dufferin Mall.

• He denied any association with a person called “Terry” or a massage parlour on College Street. As he said, “All of my clientele is for drugs.”

• He denied that he ever smashed Ashley’s phone because of jealousy over the man that took her to Lighthouse. He said that, for one thing, Ashley never really had a phone.

[91] Mr. Burton agreed that Ashley and Erica performed fellatio on him at the same time. He said this happened once, and at the Dundas Inn. Mr. Burton testified that they came to the hotel. Eventually a bottle of Jagermeister was produced and they kept telling him to drink or have another shot. He had two shots and he sat up on the bed. He passed out and when he woke up, his drugs and money were missing. He panicked because it was a huge amount of money and he owed a dealer from whom he was buying. He told everyone on the street about it. Mr. Burton said that he had to dodge the guy until he could come up with the money.

[92] Incidentally, Mr. Burton testified that he did keep a small amount of drugs in between his buttock cheeks. This corresponds with evidence that both Ashley and Erica gave. However, he said that he stashed larger amounts under his bed.

[93] About 14 to 15 days after this theft, Ashley called Mr. Burton and told him that Erica had robbed him. She denied being any part of it. At the time, he was in a car with a friend, who drove over to where she was. Ashley had $200 on her at the time and gave it to Mr. Burton. Mr. Burton’s friend drove the three of them to Hamilton, but his friend went off on his own once they arrived. Mr. Burton and Ashley went to a home of someone he knew. Ashley did drugs and gave him oral sex. He went to sleep and when he woke up, the $200 to $300 he had in his pocket was gone. All that was left was $20. Mr. Burton was able to take the GO train back to Toronto, which cost $12.50. As Mr. Burton said, Ashley robbed him twice.

[94] And this was Mr. Burton’s main position – Ashley and Erica robbed him to get him out of the picture.

[95] In terms of Amber, Mr. Burton acknowledged that he was introduced to her by a friend. However, he said it was outside a church and he did not realize it was a youth shelter. Mr. Burton said that the first thing that he asked her was her age and she said she was 18. He did give her a $20 bill with his phone number on it and some marijuana wrapped inside. Mr. Burton said his intention was to spend time with her and perhaps have sex with her.

[96] Mr. Burton acknowledged that Amber called him a while later and wanted to get together and talk. He invited her over to Pop’s place and agreed to pay for her cab, which ended up costing $35. Two of his friends were in the apartment. While Amber said she saw drugs in the apartment, Mr. Burton disputed that it was ecstasy. He said no one he knows does that drug. Mr. Burton said that he found Amber attractive and wanted to have sex with her. When they were on the Vespa, they were on the way to pick up some marijuana. He said that he panicked when he saw the police because he did not have a helmet and did not have a licence.

[97] In relation to Amber, Mr. Burton denied trying to get her into prostitution. He denied putting her on the phone with anyone at a massage parlour.

[98] Because of a number of things that Mr. Burton said in his examination-in-chief, the Crown applied to cross-examine Mr. Burton on the details of his criminal record, going beyond the information that is listed in that document. I agreed with the Crown that Mr. Burton had placed his character in issue. Accordingly, I ruled that she would be permitted to cross-examine him on the background details of his record: see R. v. L.K.W. (1999), 2000 SCC 53, 148 C.C.C. (3d) 449 (Ont. C.A.). Despite receiving this favourable ruling, experienced Crown counsel did not pursue this line of cross-examination.

[99] Nevertheless, the Crown vigorously cross-examined Mr. Burton. In terms of Amber, Mr. Burton was confronted with a voicemail that he left for D.C. Peters on August 20, 2011, five days after the Vespa incident. Mr. Burton was supposed to report pursuant to his s. 810.2 peace bond on August 16, 2011, but failed to do so. He failed to report pursuant to a probation order on August 17, 2011. In fact, Mr. Burton called his probation officer to say that he was sick and that he would report on August 22, 2011.

[100] Among other things, Mr. Burton was confronted with the fact that, while he said that he originally met Amber outside a church, in his voicemail message, he said it was a “shelter.” Also, Mr. Burton said that he did not find out that she was 16 until they were on the Vespa, being chased by the police. He said that he told Amber that he did not have a licence and asked if she did. She said, “I am only 16.” He denied that she told him earlier.

[101] In his voicemail, Mr. Burton told D.C. Peters that he “borrowed” someone’s bike. At trial, Mr. Burton admitted to it having been stolen.

[102] Mr. Burton was challenged on why he wrote his telephone number on a $20 bill and why he gave this virtual stranger free marijuana as well. He said that neither he nor his friend could find a piece of paper to write his number on. He was adamant in his denial of trying to impress Amber. I do not accept this evidence.

[103] Mr. Burton denied that, when Amber contacted him, she said she needed money. He said that she just wanted to hook up with him. Mr. Burton did not recall telling D.C. Peters in his voicemail that Amber said she had no money and needed some kind of help.

[104] Also, Mr. Burton testified in-chief that the taxi cost $35. He went so far as describing that he gave the taxi driver two $20 bills and got $5 in return. However, in his voicemail, he told D.C. Peters the taxi cost $25 or $27. He acknowledged that he might have been mistaken because it happened two years earlier.

[105] Despite being confronted with all of these inconsistencies, Mr. Burton denied that he fled from the police because he knew that he was not supposed to be alone with anyone under the age of 18.

[106] Mr. Burton said that he laid low after the incident with Amber. It was after this incident that he ended up going to Hamilton with Ashley. He said that he was scared the police would be looking for him. That is why he missed his reporting obligations. Also, he was concerned that the police might be able to lift his DNA from the slippers/flip-flops he ended up leaving behind when he fled from the police after crashing the Vespa. This I find to be a ridiculous exaggeration.

[107] Mr. Burton was asked about his nickname “Playboy.” He said, “I don’t know, it’s just me being stupid.” He explained that, while he has used the name for a long time, it has no association with prostitution. He testified that underneath the Playboy tattoo is a teardrop. The Playboy tattoo was meant to cover that one up. He said that he wanted to remove the tattoos, but that it is very expensive. He got more tattoos in jail for his own protection. He did not get the tattoos removed in the six or seven months he was out of jail because housing was his main priority.

[108] In relation to Ashley and Erica, Mr. Burton said that he spoke to Ashley far more than Erica on the phone. Eventually, he spoke to Ashley about her addiction, but Mr. Burton denied ever offering to help her with it. He told her that, when he gets out, they should hook up. Mr. Burton said that he had been clean from crack for over 20 years and has not relapsed.

[109] When confronted with his admitted lies to the two women, Mr. Burton said it was out of stupidity or immaturity. He said that he made things up because he has nothing to be proud of. He did it to impress them and convince them that he is worth something. Confronted about his lie about his name, he said he uses the name “Ricky Downey” because his real, birth name is Ricky Francis. He was adopted as a child. He said he still had an attraction to his real name. He does not use his real name because he is ashamed of his past. All of these answers impressed me as genuine.

[110] Mr. Burton expressed his displeasure for Melinda. He was upset with her for having his mother send her (Melinda) money. Mr. Burton, who is very protective of his mother, said Melinda took advantage of her. Mr. Burton denied that Melinda’s apartment was open to him. He said he was there twice and that he gave her (and her partner, Brad) drugs for money.

[111] In cross-examination, Mr. Burton maintained that he made all of his money during the relevant time period from drugs and poker. He was very proud of his ability to win at poker. He admitted that he did not win all the time. As he said, “nobody does.” He said he would spend his money on necessities, food and clothes. He also spent a lot on Erica and eventually thought that she was taking advantage of him.

[112] Mr. Burton admitted to a limited sexual relationship with Erica, perhaps having sex (including intercourse and oral sex) on three or four occasions. He never exchanged crack for sex with her. When he heard that she was smoking crack, he did not want to have anything else to do with her. He said that he had sex with her once, at the Dundas Inn, after she started smoking crack.

[113] As between Ashley and Erica, Mr. Burton said that he thought he had feelings for Ashley, but when he met her, he knew he did not. With Erica, it was different. He cared about her deeply at the beginning. But then he felt abandoned by her when she went to work as a stripper. He said he did not feel abandoned by Ashley and did not really care if she came back.

[114] Mr. Burton denied sending money to Ashley at a Money Mart for her to come to Toronto. When confronted with an Agreed Statement of Facts (referred to in Note 2, above), concerning the timing and reason for her discharge from rehab, Mr. Burton maintained his position that Ashley came to Toronto on her own, in order to see her brother. The first thing she wanted when she spoke to Mr. Burton was drugs.

[115] Once he was out of custody, Mr. Burton saw Ashley far more often than he saw Erica. She regularly bought drugs from Mr. Burton, but he did not see her every day. He denied being her only source of crack cocaine. Mr. Burton repeated that she performed oral sex on him 30 to 40 times. This was not every time that they got together. He said it was up to her if she wanted to do oral sex. He said that “She purchases drugs and likes to get freaky.” There is some tacit support for this testimony in Erica’s evidence. In many ways, Erica was not particularly kind to Ashley in her evidence. At one point, in the context of discussing the allegations of prostitution, Erica testified that she thought that Ashley was a sex addict.

[116] Mr. Burton admitted that he sold a lot of crack to Ashley, but he said, not in so many words, that she always got what she paid for. He admitted to making money from Ashley by selling her crack. But as Mr. Burton answered at one point, “Just because she is a prostitute doesn’t mean I can’t sell her crack.”

[117] Mr. Burton was seriously challenged on his evidence that Ashley and Erica robbed him. He testified that, on a good day, he would have $300 on his person, though he said he once had almost $1,000. He agreed that he would usually have a large amount of drugs or money, but not both. As he said, it depended upon how much he owed. It was suggested to Mr. Burton that it was improbable that he had almost $1,500 and 2 ounces of cocaine at the same time. But he maintained his position. He said that he was robbed of money that he owed to someone else, money that he has still not paid back. He said that is why they got rid of him, and that is what this case is all about.

(h) Out-of-Court Statements

[118] As part of his defence, Mr. Burton wished to adduce the evidence of two individuals, Sue Hackett and Chris Biggs. Neither was available to give evidence at trial. Accordingly, Mr. Moore argued that statements of these witnesses that were taken by Mr. Lucas Rebic, now a member of the Ontario Bar, but an articling student at the time, should be admitted pursuant to the principles in R. v. Khelawon (1996), 2006 SCC 57, 215 C.C.C. (3d) 161 (S.C.C.).

[119] Mr. Rebic testified and said that he took a statement from Ms. Hackett on October 11, 2011. Mr. Biggs’ statement was taken in August of 2012. As Mr. Rebic testified, Mr. Biggs had no fixed address, so it was difficult to keep contact with him. As for Ms. Hackett, Mr. Rebic attempted to contact Ms. Hackett in December 2012 and January 2013. He was successful. She promised to attend on a number of occasions, but never did make good on her promises.

[120] After Mr. Rebic’s evidence was complete, the case was adjourned in an attempt to have Ms. Hackett located. The TPS kindly offered its help. All efforts proved unsuccessful. Both videos were played and arguments were made concerning admissibility. Suffice it to mention now, Ms. Hackett gave a statement about incidents at her condominium when Erica showed up on occasion. Mr. Biggs provided a statement concerning Erica’s presence at an after-hours poker game, when she showed up to berate and hit Mr. Burton. It was agreed that the results of this mid-trial application would be reflected in these Reasons for Judgment.

3. ANALYSIS

(a) Out-of-Court Statements

[121] Given my ultimate assessments of credibility in this case, it is not necessary for me to decide this application. However, I make the following brief observations. First, I am satisfied that the necessity requirement was met in terms of both witnesses. While efforts to contact and subpoena Ms. Hackett might have commenced somewhat late, her broken promises absolve counsel of the ultimate responsibility for her failure to attend.

[122] I am concerned about reliability, however. Despite best efforts to be conscientious, the statements were taken in a manner that was wanting. While they were under oath, videotaped and accompanied by the appropriate warnings and cautions, the manner of questioning was unsatisfactory. While I am sure it was not intentional, the questioning was often leading, and sometimes suggestive. Answers that appeared favourable to the defence were met with praise and encouragement. It would not have been fair to admit these statements. The absence of opportunity to cross-examine would have been extremely prejudicial to the Crown. But as I have said, I need not definitively decide this issue.

(b) Discreditable Conduct Application

[123] The Crown makes an application to have the viva voce evidence of each complainant admitted as evidence of discreditable conduct of Mr. Burton in order to: (a) demonstrate a pattern of behaviour (namely that Mr. Burton has a situation specific propensity to solicit, exploit and exercise control over young women for the purposes of prostitution); (b) to establish Mr. Burton’s motive and to rebut a defence of innocent association; (c) to rebut allegations of collusion or recent fabrication by the complainants; (d) to explain the delay by Ashley and Erica in disclosing the allegations; and (e) to support the evidence of each complainant.

[124] Mr. Moore resisted the application. However, as he observed, Ashley and Erica, were largely witnesses to each other’s situation.

[125] In approaching this application, I am governed by the principles in R. v. Handy (2002), 2002 SCC 56, 164 C.C.C. (3d) 481 (S.C.C.). This decision requires a focused use of evidence of discreditable conduct; that is, the Crown is required to clearly articulate the proper use(s) to be made of the evidence in question (pp. 503-504). As I have just reviewed, the Crown has done just that. But it is important to keep close focus on the live issues at trial. I am satisfied that the Crown has established this threshold of admissibility.

[126] Secondly, collusion is always a possibility in this type of case. However, there must be an air of reality to such a claim before it is pursued further. The mere possibility of collusion is insufficient: see R. v. J.W., 2013 ONCA 89, paras. 36-38 and R. v. Handy, supra, at pp. 512-514. There is no air of reality to a claim of collusion in this case and Mr. Moore does not advance it. In terms of Amber, there was no evidence that she ever met Ashley or Erica. As for Ashley and Erica, while there may have been some incidental contact between the two, after charges were laid, there was no real suggestion of collusion. Moreover, the police and Ms. Andersen (from Covenant House) were careful not to contaminate either complainant.

[127] The next step requires the identification of what Binnie J. referred to as “connecting factors”. As he said at p. 506: “The decided cases suggest the need to pay close attention to similarities in character, proximity in time and frequency of occurrence.” Of course, this goes beyond mechanically tabulating consistencies and inconsistencies in the evidence: see R. v. Shearing, 2002, SCC 58, at para. 60.

[128] In this case, I am satisfied that there are sufficient similarities (especially in terms of the character of the alleged conduct and proximity of time) in the evidence of Ashley and Erica to potentially give force to the inferences that the Crown invites me to draw. The manner in which Mr. Burton is alleged to have approached Ashley and Erica and how he treated them afterwards is very similar in some ways. Indeed, they essentially went through this ordeal together, according to their accounts. However, I reach the opposite conclusion in relation to Amber. While there were some general similarities with the evidence of Ashley and Erica (in terms of attempting to initiate Amber into prostitution), there were a number of differences, in terms of who approached whom, and the nature of Mr. Burton’s alleged conduct. I acknowledge that there were some similarities – such as Amber’s age, her fondness for drugs, her financial need, and being put in touch with someone who was apparently associated with a massage parlour.[^4] The problem, from the Crown’s perspective, is that the situation with Amber never really got off the ground. It stopped before it could develop into anything comparable to the accounts of Ashley and Erica. For that reason, I am not satisfied that the evidence of Amber has sufficient probative value for similar fact purposes as it relates to Ashley and Erica, and vice versa.

[129] The potential for prejudice in this case is muted for a number of reasons. First, the evidence is not extraneous to the case; it is already properly before me as in the individual accounts of Ashley and Erica. This feature of the case, combined with the essence of Mr. Burton’s position (“I am an accomplished drug dealer and not human trafficker”) removes any realistic potential for greater moral prejudice and reasoning prejudice than already exists: see R. v. Handy, supra, pp. 511-512. Moreover, there is no concern with a jury being inflamed, given that Mr. Burton has elected to be tried by judge alone: see R. v. Roks (2011), 2011 ONCA 526, 274 C.C.C. (3d) 1 (Ont. C.A.), R. v. T.B. (2009), 2009 ONCA 177, 243 C.C.C. (3d) 158 (Ont. C.A.), R. v. J.M. (2010), 2010 ONCA 117, 251 C.C.C. (3d) 325 (Ont. C.A.) and R. v. J.W., supra.

[130] In conclusion, I am satisfied on a balance of probabilities that the evidence may be used in the manner requested by the Crown as between Ashley and Erica. However, I am not satisfied that there are sufficient similarities between the evidence of Ashley and Erica as it relates to Amber. I wish to point out that this analysis is focused solely on the issue of the use to which the evidence may be put. In reaching these conclusions, I have yet to assess the credibility of any of the complainants.

(c) Findings

[131] In a very general sense, this case comes down to an assessment of credibility. Very few of my ultimate findings turn on offence definitions. Mr. Burton has adduced evidence that contradicts all three of the complainants. As Mr. Moore submitted, the principles in R. v. W. (D.), [1991] 1 S.C.R. 742 are directly engaged in this case.

[132] I have already made a number of comments concerning the credibility of the witnesses as I reviewed their evidence. It is necessary to further comment on credibility as I express my ultimate conclusions on the individual counts in the indictment.

[133] Before doing so, I wish to make a few observations about the legal framework for assessing Mr. Burton’s credibility. Of course, the criminal record of any accused witness is admissible under s. 12 of the Canada Evidence Act, R.S.C. 1985, c. C-5, and may be used by the trier of fact in assessing credibility: R. v. Brown (1978), 38 C.C.C. (2d) 339 (Ont. C.A.). Needless to say, Mr. Burton’s criminal record, especially those convictions for crimes of dishonesty, reflects very poorly on his credibility. However, no part of the record may be used to infer that Mr. Burton is the type of person who is more likely to commit any of the offences with which he now stands charged. Similarly, and as already adverted to, the record was not used as a vehicle for rebutting Mr. Burton’s assertions of his own good character: see R. v. L.K.W., supra.

[134] In the course of his evidence, describing the narrative of events, Mr. Burton spoke of what can only be a highly disreputable lifestyle. Indeed, he bragged about being an accomplished drug dealer. This evidence was admissible to the overall narrative of events; indeed, it was at the core of Mr. Burton’s defence. I may use this evidence in assessing Mr. Burton’s credibility as a witness, but not for the purposes of inferring that he is more likely to have committed any of the offences with which he is charged: see R. v. Teresinski (1992), 70 C.C.C. (3d) 268 (Ont. C.A.), leave to appeal refused 73 C.C.C. (3d) vi. See also R. v. Hogan (1982), 2 C.C.C. (3d) 557 (Ont. C.A.), R. v. Chambers (1991), 59 C.C.C. (3d) 321 (S.C.C.) and R. v. Cameron (1995), 96 C.C.C. (3d) 346 (Ont. C.A.). Needless to say, this theme in the evidence reflects adversely on Mr. Burton’s evidence.

[135] Of course neither of these principles permits me to approach Mr. Burton’s evidence on an all or nothing basis. As in any case, and with any witness, I may accept some, none or all of Mr. Burton’s evidence.

[136] I have already touched on certain aspects of Mr. Burton’s evidence. He comes to this case with considerable baggage. As Mr. Moore said in relation to his criminal record, “it speaks for itself.” It is something that reflects very negatively on his credibility, as does his shameful lifestyle as a crack dealer. As Mr. Burton said, he knows he is hurting people in doing what he does.

[137] In parts of his testimony, Mr. Burton was boastful and expansive about his life, character and his goodwill to others. I reject a lot of that evidence. However, Mr. Burton was very convincing in some respects and withstood cross-examination, by very capable counsel, quite well. The one thing that Mr. Burton had going for him, which none of the other witnesses did, was a clear head. He was the only person to not be under the influence or grip of crack cocaine. As it will soon become apparent, I reject parts of Mr. Burton’s evidence. However, other aspects I am not prepared to reject. For example, I do not reject Mr. Burton’s evidence of having been the victim of a theft by Ashley and Erica. Now, I wish to be clear – I do not accept his suggestion that the only reason he is facing the current charges is because this was a way for Ashley and Erica to get him out of the picture. But I am left with a concern that it might have happened. Mr. Burton’s evidence on this point is given a lift, ever so slightly, by the evidence of Mr. Ramlal.

(i) Offences Concerning Amber (Counts #17 and #18)

[138] There are certain problems that accompany Amber’s testimony, such as her drug use and her lies at the preliminary inquiry. Overall, I am not particularly troubled by them. However, there was a part of Amber’s evidence that I found problematic. When Mr. Burton described her options to her in terms of making money, in addition to prostitution and working in a massage parlour, one of them was sitting in a room and watching others smoke crack cocaine. I find this somewhat curious as I fail to see what the point would be in doing that. Mr. Burton expressed similar incredulity in his evidence. However, while these problems with Ambers’ evidence must be taken into account, they do not completely undermine it. Amber was not nearly as deeply embedded in Mr. Burton’s world as Ashley and Erica. Her interactions with him were brief. While certain motives to fabricate were put to her in cross-examination (such as the police instilling her with fear by convincing her that Mr. Burton was a bad man), I found none of them to be particularly compelling. In any event, Amber denied all of them.

[139] On the other hand, Mr. Burton’s evidence in relation to Amber was highly problematic. It was not so much what he said in court; it was the manner in which he was contradicted by the voicemail he left for D.C. Peters. Mr. Burton was contradicted on important points of his account of the Vespa incident. He also neglected to mention that the Vespa was stolen. Even on his own account, which I reject, he failed to mention that the girl on the bike was actually 16 years old. This was one of the most serious aspects of the incident. Shortly after that, he knew the police were looking for him. It would appear that he went into hiding or laid low for a bit by going to Hamilton. I doubt very much if this occurred because he was worried about a Highway Traffic Act violation. Even though it is not confirmed by demonstrative evidence, I accept that Mr. Burton sent a text to Amber with an offer of $200 to keep her mouth shut. In short, Mr. Burton’s evidence is not credible regarding Amber’s allegations. It does not even raise a reasonable doubt in my mind.

[140] I find that, when Mr. Burton first met Amber (outside the shelter), he was trying to impress her. I also accept that she was trying to impress him too, by telling him that she was 18 years old. I find that she did contact him again, in the context of looking for money. Mr. Burton’s version that she was merely trying to hook up with him is undermined by his voicemail to D.C. Peters in which he said she wanted money or help. Accepting that money or help was her motivation, her version of what happened afterwards, while not perfect, is compelling. I find that he did tell her how she could make money, all from illicit activities, some of which involved the exchange of sex for money. In the overall context, I am convinced that she finally came clean about her age when the stakes were raised by Mr. Burton put her on the telephone with someone who was associated with running a massage parlour. Mr. Burton’s account of how Amber’s true age was disclosed while on the Vespa is fictitious and I reject it.

[141] These findings do not end the matter in terms of the two counts concerning Amber. First, it was argued that the Crown failed to prove that Mr. Burton was “alone” with Amber. The use of this term in the context of Mr. Burton’s s. 810.2 order is less than ideal. The purpose of the prohibition was to make sure that he was not in the presence of anyone under 18 years old unless someone else was also present. Nevertheless, I am satisfied that Mr. Burton was alone with Amber at various points on August 15, 2011. It is important to note that the condition does not say “alone and in private” or “alone and in seclusion.” It just says “alone.” I give this expression its common sense meaning. “Alone” in this context means being in the exclusive presence of. Nobody else was with them on a number of occasions after Amber got out of the taxi. They were certainly alone while they were on the Vespa, even if they were in a public place. I find what happened on August 15, 2011 was precisely what the s. 810.2 order was designed to prevent. While some of what occurred was in the presence of others, there were periods when nobody else was with Mr. Burton and the 16-year-old Amber. Accordingly, there will be a conviction on Count #20.

[142] Whether Mr. Burton should be found guilty on Count #17 (attempt to procure) turns on the definition of what it means to “procure” in the context of the s. 212(1)(d) of the Criminal Code. In R. v. Barrow (2001), 155 C.C.C. (3d) 362 (Ont. C.A.), the Court addressed the definition of procuring in the context of Ms. Barrow’s interactions with two undercover police officers. As the decision illustrates, “procuring” has a specific legal definition; whether certain conduct amounts to procuring is a question of fact. As Rosenberg J.A. explained in the context of the evidence of one of the undercover officers (at pp. 378-379):

"Procure" for the purposes of s. 212 has been interpreted by this Court and the Supreme Court of Canada in R. v. Deutsch (1983), 5 C.C.C. (3d) 41 (Ont. C.A.) affirmed (1986), 27 C.C.C. (3d) 385 (S.C.C.). Le Dain J. held as follows at p. 403:

In the case at bar the Court of Appeal agreed with the trial judge on the applicable meaning of "procure". The meaning selected by the trial judge and approved by the Court of Appeal was "to cause, or to induce, or to have a persuasive effect upon the conduct that is alleged." Martin J.A. expressed his agreement at p. 49 with the following statement of the issue by the trial judge: "The question for decision is did Mr. Deutsch attempt to cause or attempt to induce or attempt to have a persuasive effect upon the woman in question to have illicit sexual intercourse with another person ...". I agree that the sources referred to by the trial judge and Martin J.A. support the meaning given by them to the word "procure".

The charge of attempting to procure Constable Urajnik to have illicit sexual intercourse related to the date at the motel, which was arranged for her by the appellant. Despite the care with which the appellant conducted the interviews with the officers and her obvious intention not to pressure them into having either illicit sexual intercourse or to become prostitutes, I am satisfied that it was open to the Trial Judge to find that the element of procuring was made out in relation to Constable Urajnik. This was essentially a question of fact. There was some evidence of an attempt by the appellant to have a persuasive effect upon the officer. The appellant advised the officer, whom the appellant had hired after the initial interview, to obtain condoms before going to the motel room and told her that she had to go through with the appointment because the appellant did not have another escort who could attend. This was all in the context of the earlier conversations where it was made clear that some of the clients were expecting the escort to perform sexual acts for the $150 fee. It was open to the Trial Judge, who had the advantage of hearing the officer and listening to the tape recordings, to find that the conversations leading up to the motel date were intended by the appellant to have the required persuasive effect. I would uphold the conviction for attempting to procure illicit sexual intercourse in relation to Constable Urajnik. [my emphasis throughout]

The Court found that Ms. Barrow’s contact with a second officer did not rise to the same level. In contrast to the first officer, no date had been arranged for the second officer to attend. As Rosenberg J.A. held (pp. 379-380): “Even taking into account the trial judge’s advantage, my readings of the transcript and the tape recordings shows little more than the appellant acquainting the officer with the business.” Also, in that case, the appellant told the officer to think about it and make sure it was what she wanted to do.

[143] The issue was addressed again in R. v. Bennett (2004), 184 C.C.C. (3d) 290 (Ont. C.A.). Counsel for the appellant argued that to establish procuring, there must be acts of persistence and persuasion that overcame the complainant’s resistance by overpowering her will. The Court rejected this argument in the following way (p. 304):

The appellant's definition of "procure" may be apt for the defence of entrapment but it does not apply to procuring under s. 212(1)(b) of the Code. Under that provision, an accused need only induce or persuade the target: R. v. Deutsch, [1986] 2 S.C.R. 2. J.F.'s evidence amply establishes that the appellant attempted to do just that.

[144] The question becomes whether Mr. Burton’s actions and words amounted to an attempt to induce or persuade Amber to become involved in prostitution.[^5] I accept Amber’s evidence on this point and I am satisfied beyond a reasonable doubt that Mr. Burton was trying to get her involved in prostitution. It might be said that, when Mr. Burton was discussing Amber’s options, he might have been generally discussing the nature of the business, similar to the second police witness discussed in R. v. Barrow, supra. However, when he put Amber in touch with the person at the massage parlour, his actions crossed the line and he was in the process of attempting to induce or persuade her to engage in prostitution. This was similar in some ways to the situation of the first police witness in R. v. Barrow (who had a date arranged for her by the accused). See also the facts in R. v. Husain, 2012 ONCA 697. The fact that Mr. Burton provided Amber with other employment options does not detract from this conclusion. Nor does the fact that that, after Amber refused, Mr. Burton told her to “think about it”. These types of expressions or words to similar effect do not necessarily detract from a finding of attempted procuring: see R. v. Barrow, supra and R. v. Deutsch, supra. They do not in this case.

[145] There will be findings of guilt on Count #’s 17 and 20.

(j) Offences Concerning Ashley (Counts #’s 10, 11, 12, 13, 14, 15, 16)

[146] As with the offences concerning Erica, most of my findings in relation to the offences in which Ashley is a complainant are rooted in a credibility assessment. As I have already observed when reviewing Ashley’s evidence, it was wanting in many respects. Even before coming to Toronto, Ashley was addicted to crack cocaine. Her addiction was so severe that she availed herself of rehab in Ottawa, shortly before coming to Toronto. When she arrived in Toronto, she relapsed in the most severe way. Throughout the time that she was associated with Mr. Burton, her addiction was rampant and out of control. This is confirmed by Erica and Mr. Burton. Indeed, when she gave her very first interview, it was after a weekend of serious consumption.

[147] The initial statement that Ashley gave to the police on August 15, 2011 was seriously flawed in its many omissions and in its contradictions with her testimony at trial. While the statement was not given under oath, Ashley was cautioned about the criminal repercussions of giving a false statement. Ashley said that she was very messed up on crack cocaine when she gave the statement. But this can only go so far. As defence counsel suggested, the statement seemed designed to paint herself in the most innocent of lights, a small-town girl who came to the big city to be suddenly preyed upon, victimized and made to be addicted to crack in just three weeks. The reality, even according to Ashley’s sworn testimony, was very different, and very complicated.

[148] The damage was compounded by the inconsistencies between her trial testimony, her subsequently sworn statement to the police, and with her evidence at the preliminary inquiry. I have already detailed many of these inconsistencies.

[149] In the end, and in view of Ashley’s serious (and pre-existing) cocaine addiction, and her admitted memory problems, and her acknowledgment that she does not want to remember the events during that period of time, I find her evidence to be unreliable. As I will detail in a moment, I have similar problems with Erica’s evidence. Consequently, the similar fact inferences that are available to me in my analysis of Ashley’s evidence are undermined by the unreliability of Erica’s evidence.

[150] Standing alone, Ashley’s evidence about what happened to her when she came to Toronto, why certain things occurred, and Mr. Burton’s role is unreliable. It would be unsafe to convict Mr. Burton for the majority of the offences relating to Ashley for which he stands charged. When stood next to Mr. Burton’s evidence, I have a reasonable doubt on all of the counts that relate to Ashley. As I have noted above, while Mr. Burton’s evidence was also problematic in some respects, I found him to be a convincing witness as it related to Ashley. I accept his evidence that Ashley was an addict who was out of control at the time. I have a reasonable doubt that his relationship with her was a drug dealer-drug user with benefits, as Mr. Moore characterized it. Importantly, I find that Ashley paid for the crack cocaine that she received from Mr. Burton.

[151] There was an additional issue in relation to Count #14, which alleges a sexual assault against Ashley. The Crown alleges that the offence is made out by virtue of a plain lack of consent. Alternatively, the Crown argues that any apparent consent on the part of Ashley was vitiated by s. 273.1(2) of the Criminal Code, based on Mr. Burton abusing his position of “trust, power and authority.”

[152] This issue was raised in an application for a directed verdict on this count. I dismissed the application with Reasons, the content of which I adopt here. In brief compass, the Court of Appeal has recognized that consent may be vitiated in the circumstances that exist here, so long as there is a subjective element on the part of the complainant relating to her dependency on the drug dealer as a supplier such that the complainant could not give independent consent to sexual advances: see R. v. A.H. (2000), 148 C.C.C. (3d) 86 (Ont. C.A.) and R. v. Lutoslawski (2010), 2010 ONCA 207, 258 C.C.C. (3d) 1 (Ont. C.A.), aff’d on other grounds 2010 SCC 49, 262 C.C.C. (3d) 1 (Ont. C.A.).

[153] On the directed verdict application, there was an evidentiary basis to allow the sexual assault count to go forward on the basis of s. 273.1(2)(c). However, having the benefit of hearing all of the evidence at trial, including Mr. Burton’s account, I have a reasonable doubt on whether liability for sexual assault on this basis has been established. I accept Mr. Burton’s evidence that Ashley dropped in and out of the picture during the relevant period of time. The one constant was her persistent drug addiction. When she was not with Mr. Burton, she must have gotten her drugs elsewhere. Indeed, after she reported Mr. Burton to the police at Covenant House in August 2011, she immediately went out on a drug binge that weekend. The drugs came from another source. I am not convinced that Ashley had a dependency on Mr. Burton as a supplier of drugs that was sufficient to undermine her ability to consent.

[154] In conclusion, I am left in a state of reasonable doubt about all of the offences in relation to Ashley. I can have no confidence that things happened in the way that she described. I have a doubt that she was a willing participant in Mr. Burton’s orbit, addicted to cocaine. The money from prostitution that was passed onto Mr. Burton for crack cocaine was not accompanied by the requisite circumstances of exploitation in order to satisfy the requirements of s. 212(1)(j) of the Criminal Code: see Bedford v. Canada (Attorney General) (2012), 2012 ONCA 186, 282 C.C.C. (3d) 1 (Ont. C.A.), at pp. 77-78.

[155] Consequently, I find Mr. Burton not guilty on Counts #’s 10, 11, 12, 13, 14, 15 and 16.

(k) Offences Concerning Erica (Count #’s 1, 2, 3, 4, 5, 6, 7, 8 and 9)

[156] I approach the bulk of the allegations concerning Erica in the same way, focusing on credibility. As I have tried to detail above, Erica’s credibility was undermined in a number of ways. Her addiction to crack cocaine was not nearly as bad as Ashley’s, and it was not in play for as long. However, it is a factor that I must take into account in assessing the reliability of her account of what occurred during the relevant time frame. When confronted with this issue in cross-examination, Erica was equivocal. On the one hand, she said she remembered everything; at the preliminary inquiry, she said that she had post-traumatic stress disorder that had a real effect on her memory.

[157] More concerning were the improbabilities and inconsistencies in Erica’s evidence. The most troubling aspect was Erica’s refusal to acknowledge the true nature of her relationship with Mr. Burton. Erica’s evidence seemed to be at odds with the rest of the evidence on this point, including the evidence of D.C. Peters. While D.C. Peters’ evidence concerning the relationship between Mr. Burton and Erica was somewhat impressionistic, he was the only truly independent witness on this issue in this case.

[158] There were other serious inconsistencies in Erica’s evidence on a number of different issues, including (but not limited to): her first meeting with Mr. Burton, whether she performed sex acts in a massage parlour and the shotgun incident. And because of my findings in relation to Ashley’s credibility, the similar fact use that the Crown invites me to make of this evidence is of no value. I also wish to record my conclusion, both in relation to Ashley and Erica, that had I ruled Amber’s evidence admissible for similar fact purposes, given the significant dissimilarities with her evidence, it would not have had sufficient cogency to make up for the serious shortcomings in the evidence of Ashley and Erica.

[159] When added to the mix, Mr. Burton’s evidence confirms the doubt I already entertain about these offences. I accept his evidence about the nature of their relationship (i.e., that it was girlfriend/boyfriend), at least initially. However, I am less confident about his explanation for their so-called break-up. On the one hand, he said it was crack cocaine that turned him off Erica for good. On the other hand he said he felt abandoned by Erica when she went with another man to Mississauga to work as a dancer. On yet another hand, he had concerns when he saw Erica beat up another girl. Still, his evidence confirms the doubt that I have in Erica’s evidence. I cannot rely upon her evidence to conclude with any certainty that the things she said happened did, in fact, happen.

[160] Accordingly, I find Mr. Burton not guilty on Count #’s 1, 2, 3, 4, 5, 6, 7, 8, 9

(l) Other Offences (Counts #22 and 23)

[161] In Counts #22 and #23, Mr. Burton is charged with breaching two separate probation orders, contrary to s. 733.1 of the Criminal Code. The alleged breach for both orders is failing to keep the peace and be of good behaviour from January 1, 2011 until August 23, 2011. On the strength of his pleas of guilty to breaching his s. 810.2 peace bond by failing to report, and for being in possession of the stolen Vespa, both offences are made out. My finding that the s. 810.2 peace bond was breached by Mr. Burton being alone with a person under the age of 18, and the conviction for attempting to procure, also establish both breaches. Accordingly, there will be findings of guilt on Counts #22 and 23.

4. CONCLUSIONS

[162] As explained at the beginning of my reasons, Mr. Burton entered pleas of guilty to Count #18 (possession of stolen property) and Count 21 (breach of a s. 810.2 order). The Crown withdrew Count #19 (possession of stolen property). On the remaining counts, I reach the following verdicts: Count #1 (procuring – Erica) – not guilty; Count #2 (exercise control – Erica) – not guilty; Count #3 (live on avails – Erica) – not guilty; Count #4 (assault – Erica) – not guilty; Count #5 (utter threat – Erica) – not guilty; Count #6 (utter threat – Melinda) – not guilty; Count #7 (sexual assault – Erica) – not guilty; Count #8 (human trafficking – Erica) – not guilty; Count #9 (benefit from human trafficking – Erica) – not guilty; Count #10 (procuring – Ashley) – not guilty; Count #11 (living on avails – Ashley) – not guilty; Count #12 (exercise control – Ashley) – not guilty; Count #13 (procuring illicit intercourse – Ashley) – not guilty; Count #14 (sexual assault – Ashley) – not guilty; Count #15 (human trafficking – Ashley) – not guilty; Count #16 (benefit from human trafficking – Ashley) – not guilty; Count #17 (attempt to procure – Amber) – guilty; Count #20 (breach of 810.2 order – Amber) – guilty; Count #22 (breach probation) – guilty; Count #23 (breach of probation) – guilty.

[163] Before leaving this case, I make the following observation. In jury cases, trial judges routinely tell jurors that, if after their deliberations, they conclude that the accused person is probably guilty, they must return a verdict of not guilty because the Crown would have failed to prove guilt beyond a reasonable doubt. The not guilty verdicts that I have rendered today are the product of the same chain of reasoning. Nothing more.

TROTTER J.

Released: April 12, 2013

COURT FILE NO.: 216/12

DATE: 20130412

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

MARK ANTHONY BURTON

REASONS FOR JUDGMENT

TROTTER J.

Released: April 12, 2013

[^1]: The identities of all three complainants are protected by an order made under s. 486.4 of the Criminal Code.

[^2]: The circumstances of Ashley’s departure from the Centre are contained in an Agreed Statement of Facts. She left on March 2, 2011. Her stated reason was to meet her boyfriend in Toronto. She was dropped off at the train station.

[^3]: Interestingly, another officer, who was looking for Mr. Burton after the Amber incident, checked for Mr. Burton at the same hotel on August 16, 2011. He was told by an employee that he had not seen Mr. Burton for 15 days.

[^4]: The proposition that Amber was actually speaking to someone at a massage parlour requires a hearsay inference. But from the Crown’s perspective, what matters is that Mr. Burton put her in touch with someone in an attempt to convince Amber to engage in this type of conduct.

[^5]: For the purposes of this section, “prostitution” means the exchange of sexual services in return for payment. Intercourse is not a requirement: see R. v. Akouros, [2006] O.J. No. 285 (S.C.J.) and R. v. Mara (1997), 105 C.C.C. (3d) 147 (Ont. C.A.).