ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: R. v. Byron, 2013 ONSC 6427

COURT FILE NO.: 12- R1936

DATE: 2013-10-15

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen

Julian Lalande, for the Crown

• and -

Jamie Jamal Byron

Francois Dulude, for Mr. Byron

Accused

HEARD: May 6 - 17, 2013,

at Ottawa, Ontario

Madam Justice B. R. Warkentin

WARNING

A NON-PUBLICATION ORDER HAS BEEN MADE IN THIS PROCEEDING

UNDER S. 486.4 OF THE CRIMINAL CODE OF CANADA

Reasons For Judgment

1Mr. Byron is charged with 9 counts on this indictment. In brief, in counts 1, 2 and 5, Mr. Byron is charged with violating sections 212(1)(a), 212(1)(h) and 212(2.1) of the Criminal Code. It was alleged that Mr. Byron was procuring a person who was under the age of 18 for the purposes of engaging in prostitution; that he was aiding, abetting or compelling a person under the age of 18 to engage in prostitution and that he was living off the avails of that prostitution.

2In counts 3 and 4, Mr. Byron is charged with exercising control over the movements of a person who was under the age of 18 years for the purpose of exploiting or facilitating the exploitation of that person. He was also charged with having received a financial or other material benefit knowing that it resulted from that exercise of control and exploitation. These counts allege contravention of sections 279.011(1), 279.01(1) and 279.02 of the Criminal Code.

3In count 6, Mr Byron was charged with assault contrary to section 266 of the Criminal Code.

4The alleged victim of these offences was IB who was 17 years old when these offences were alleged to have occurred.

5Counts 7, 8 and 9 charge Mr. Byron with breaches of a recognizance contrary to section 811 and 145 (3) of the Criminal Code.

6On August 21, 2013 I delivered my verdict, finding Mr. Byron guilty on all counts as charged, with written reasons to follow. I have now prepared these reasons regarding that decision.

Evidence of the Complainant, IB

7The complainant, IB was 17 years old in early July of 2011 when on July 6, 2011, she and a friend ("AD") traveled from Windsor to Montreal at the suggestion of a third friend who was already in Montreal. The premise for the trip was to meet some new people, particularly then accused, Jamie Byron. Mr. Byron paid for train fare for IB and her friend to Toronto and arranged to have them driven from Toronto to Montreal.

8IB who has been diagnosed as bipolar also has a learning disability and possibly suffers from Fetal Alcohol Spectrum Disorder. Both her biological parents are deceased although she has some support from her step/adoptive father. IB had been a ward of the Children's Aid Society for a number of years prior to the events that transpired in the summer of 2011.

9Upon arrival in Montreal, IB and Mr. Byron were introduced to each other and stayed together at an apartment with a number of other individuals. IB testified that she believed that Mr. Byron wished to have a romantic relationship. The night that they arrived in Montreal, AD told IB that she was uncomfortable with what she perceived to be going on and decided to leave.

10IB chose to stay instead of leaving with her friend, citing the fact that she did not have the financial means to return to Windsor. Almost immediately thereafter, Mr. Byron informed her that she now belonged to and would be working for him. When she attempted to resist, telling him she was only 17 years of age, Mr. Byron threatened and physically assaulted her. He then purposely damaged her health card and destroyed her birth certificate (Statement of Live Birth record from Michigan where she was born).

11IB remained in Montreal with Mr. Byron for a few days during which Mr. Byron forced her to have sex with a man without a condom in exchange for $300.00. Mr. Byron made the all the arrangements with the man for this encounter and kept the money it generated. For the next two months, Mr. Byron moved IB on a circuit through a variety of cities in addition to Montreal, including Toronto, Barrie and Ottawa.

12IB testified that she was prostituted and forced to have sex for money with more than 100 men. Mr. Byron collected the entirety of the profits from those encounters and provided IB with a small amount of money with which she was expected to feed and clothe herself. If she resisted either the sexual encounters or attempted to retain the money she was paid, Mr. Byron used force to obtain her compliance.

13IB claimed she was forced to pose for on-line advertisements wearing only enough to ensure that the advertisements would not be removed from the web site due to nudity. Mr. Byron directed the content of the ads with the assistance of other prostitutes, in the placement of the ads. Over time the services IB offered on her web pages provided little or no protection form her from sexually transmitted diseases or infections.

14Mr. Byron made arrangements for hotel rooms in the various cities in which the prostitution activities happened and paid for the rooms with cash; cash that was obtained through IB's prostitution. This evidence was corroborated by hotel records, evidence of third party witnesses and by Mr. Byron, himself.

Other Evidence

15In late August, the Ottawa Police Service was contacted by the manager of the Extended Stay Hotel on Cooper Street in Ottawa about suspicious activity. The manager believed there was prostitution happening out of at least two of the hotel rooms in the hotel and that she believed one of the alleged prostitutes, IB, was only 17 years old.

16On August 31, 2011, a Detective Shane Henderson, posing as a john arranged a rendezvous with IB. He testified that as part of his work as an investigator of sex crimes he regularly reviewed ads posted by or on behalf of prostitutes on various web sites and that on August 31, 2011 his concern was principally to investigate whether a 17 year old was working as a prostitute and to remove her from that situation.

17Upon arriving at the Extended Stay hotel, he and three other officers located IB in one of the rooms suspected of being used for prostitution. There were two other prostitutes present both of whom were adults. After a brief interview, IB was taken from the hotel with her belongings and interviewed at the police station where she provided a lengthy video statement about her situation from the time she met with Mr. Byron in Montreal until the police found her on August 31, 2011.

18The other two prostitutes located in the hotel room on August 31, 2011 were also interviewed by police and testified at trial. Both these women were over the age of 18 and were escorts by choice. They and a third woman all worked as escorts in the same circles during the summer of 2011.

19All three women testified that it was their impression that Mr. Byron was IB's pimp. They were all aware that Mr. Byron paid the hotel room expenses for IB and that he was the one whom they believed to be making the arrangements for IB at each location. Two of these women described assisting Mr. Byron with preparing the web pages for the advertisements offering IB's services. They indicated that it was rare for a prostitute to offer the services that IB's web pages were offering because of the risk of disease or infection to the prostitute.

20One of the women who became close to IB during the summer of 2011 testified that IB spoke about being forced to turn all her money over to Mr. Byron. She also confirmed that IB confided that Mr. Byron was assaulting her and on one occasion assisted IB with putting ice on a black eye that IB claimed was as a result of Mr. Byron punching her.

21In another incident in a hotel in Toronto, the manager of the hotel testified that Mr. Byron approached him and offered IB's services to him in exchange for a reduction in the hotel room price. The hotel manager believed that IB was a prostitute and confirmed that it was Mr. Byron who was attempting to negotiate a deal on the hotel room in exchange for a sexual encounter with IB.

Evidence of the Accused, Jamie Byron

22Mr. Byron also testified. He claimed that he and IB had a romantic relationship and that it was her idea to become a prostitute. Mr. Byron claimed that he was only assisting her to do what she wanted to do, believing her to be 19 years old.

23In support of his position, Mr. Byron pointed to the communications on Facebook and text messages that occurred between IB and himself during the period the Crown alleged he was forcing her into prostitution. It was Mr. Byron's position that these interactions were more indicative of a romantic relationship or friendship, and one that showed IB was making her own decisions.

24Mr. Byron acknowledged that he and IB had various disputes and arguments but that it was IB who was the aggressor and he only reacted to the extent necessary to prevent himself from being hurt.

25On cross-examination, Mr. Byron agreed that he traveled with IB and made the hotel arrangements for her with money she earned from prostitution. He confirmed that it was his telephone number that was used on the web pages that were advertising IB's services. He also admitted to lying to the police in his initial interview more than 25 times.

Criminal Code

26The relevant sections of the Criminal Code are as follows:

212. (1) Every one who

(a) procures, attempts to procure or solicits a person to have illicit sexual intercourse with another person, whether in or out of Canada, …

(h) for the purposes of gain, exercises control, direction or influence over the movements of a person in such manner as to show that he is aiding, abetting or compelling that person to engage in or carry on prostitution with any person or generally, or

(j) lives wholly or in part on the avails of prostitution of another person, ….

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

(2) Despite paragraph (1)(j), every person who lives wholly or in part on the avails of prostitution of another person who is under the age of eighteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years and to a minimum punishment of imprisonment for a term of two years.

(2.1) Notwithstanding paragraph (1)(j) and subsection (2), every person who lives wholly or in part on the avails of prostitution of another person under the age of eighteen years, and who

(a) for the purposes of profit, aids, abets, counsels or compels the person under that age to engage in or carry on prostitution with any person or generally, and

(b) uses, threatens to use or attempts to use violence, intimidation or coercion in relation to the person under that age,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years but not less than five years.

(3) Evidence that a person lives with or is habitually in the company of a prostitute or lives in a common bawdy-house is, in the absence of evidence to the contrary, proof that the person lives on the avails of prostitution, for the purposes of paragraph (1)(j) and subsections (2) and (2.1).

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

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

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

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

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

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

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

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

279.02 Every person who receives a financial or other material benefit, knowing that it results from the commission of an offence under subsection 279.01(1) or 279.011(1), is guilty of an indictable offence and liable to imprisonment for a term of not more than ten years.

266. Every one, who commits an assault is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding five years; or

(b) an offence punishable on summary conviction.

Analysis

27IB was interviewed by Detective Henderson five times between the time he located her in the hotel room in Ottawa on August 31, 2011 and March 2012. In addition, IB provided a lengthy written statement and testified at a preliminary hearing in May 2012. IB's evidence about having been coerced into believing she was going to Montreal for a romantic liaison and then forced into prostitution against her will never wavered in any of her statements or in her testimony at trial. She also provided a significant amount of detail about the prostitution activities in her first interview that corresponded with the documentary evidence the police later obtained from hotel bills, cell phone records and on-line advertisements of her services.

28The evidence of IB was corroborated, not only with the documentary evidence, but also by the evidence of three other escorts and by a hotel manager who claimed to have been offered the sexual services of IB by Mr. Byron in exchange for a deal on the hotel room.

29Some of IB's evidence conflicted with the evidence of other witnesses. In particular, it was AD's evidence that IB was part of a conversation on the night they first arrived in Montreal where AD was offered the role of being the driver for IB when providing escort services. AD also claimed that IB told her she was prostituting herself. IB denied being present during these discussions and denied that she was engaging in prostitution voluntarily.

30It was apparent from the evidence that neither AD nor IB realized the situation into which they were headed when they agreed to travel to Montreal. The evidence in support of this included photos and Facebook comments about their planned trip to Montreal, all of which indicated they were oblivious to what they encountered upon arrival. AD appears to have very shortly after arrival recognized the risk to herself and obtained help from her family to return to Windsor the next day.

31IB was not so fortunate. She was a ward of the CAS and was required to remain in the province of Ontario, a restriction she had violated by her trip to Montreal. She testified that she was afraid of being arrested for this violation and that she had no means by which to return to Windsor on her own.

32On another occasion, IB claimed to have hidden enough money from Mr. Byron and managed to escape by returning to Windsor in the summer of 2011. She claimed that Mr. Byron followed her to Windsor and forced her back into prostitution. The defence questioned why she did not seek help then but instead allowed herself to return with Mr. Byron.

33Similarly, after IB was removed from Mr. Byron's control by police on August 31, 2011, she attempted to communicate with him on several occasions via Facebook and text messages.

34It was the defence theory that IB intended to become a prostitute and used Mr. Byron to achieve that purpose. They suggested that IB misled Mr. Byron into believing she was 19 years old. Mr. Byron, as IB's romantic partner and friend, assisted her by renting hotel rooms for her and supplying cell phones and placing web advertisements. Mr. Byron claimed he never took the money that IB earned except to the extent she gave him funds to pay for hotel rooms and other expenses. He also claimed that he never stayed with IB and did not exercise any control over her, that she made her own decisions, one of which was to prostitute herself.

35I reject the explanation by Mr. Byron regarding his role in the prostitution of IB and also reject the defence theory of what occurred.

36I accept the testimony of IB as well as the evidence presented by the Crown. Specifically, I accept the evidence that Mr. Byron was the person who both procured IB for the purposes of exploiting her and forcing her into prostitution by luring her to Montreal. He then used his influence over her including the use of threats and intimidation in order to force her to have sex with other men in exchange for money. Mr. Byron managed or controlled virtually all aspects of IB's prostitution activities and held himself out to be her pimp to others with whom they interacted.

37Mr. Byron then forced IB to turn over the money she received from prostitution to him and used those funds for his own gain.

38I accept that on one or more occasion Mr. Byron used physical violence in order to subdue IB and force her to conform to his wishes.

39Finally, I also find that Mr. Byron knew that IB was only 17 years of age and that he deliberately destroyed her birth certificate in order to hide this fact.

40The inconsistencies in IB's evidence are easily explained when one considers the vulnerable position she was in. IB at age 17 was still under the control of the CAS and had restrictions imposed upon her. She had a learning disability as well as other vulnerabilities that prevented her from fully appreciating the circumstances she was in or how to properly extricate herself from them. She was an ideal victim for someone like Mr. Byron who sought to exploit her for his own purposes.

41Once Mr. Byron had her under his control, she responded in the only way she was capable of responding and that was by compliance. However, compliance does not correspond to consent or to being the directing mind. I accept IB's version of events; that she felt she had no other options but to do as she was directed by Mr. Byron. He controlled her movements, he kept the money that she earned and he was continually placing advertisements for her services that put her health and safety at risk. She in essence became dependant on him and her responses toward him indicated this.

42As I have already determined, for these reasons, I found Mr. Jamie Jamal Byron guilty of all counts as charged.