ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-12-2112
DATE: 20140311
B E T W E E N:
HER MAJESTY THE QUEEN
S. Stackhouse, for the Crown
- and -
Gregory Salmon
R. Mwangi, for the Defendant
Defendant
HEARD: February 18, 19, 20, 2014 Judgment: March 11, 2014
REASONS FOR JUDGMENT
Subject to any further Order by a court of competent jurisdiction, an Order pursuant to s. 486.4 of the Criminal Code has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity, including the names of other Crown witnesses, shall not be published in any document or broadcast in any way.
André J.
[1] Mr. Salmon is charged, pursuant to s. 212 (2) of the Criminal Code, of living on the avails of a prostitute who happened to have been less than eighteen years of age on March 6, 2011.
[2] On that date, members of the Peel Regional Police Force responded to a newspaper ad and met the complainant at a room in a Toronto hotel. After advising the police that she was eighteen years of age, the female revealed her true identity and confirmed that she was sixteen years old.
[3] The defence urges the court to find Mr. Salmon not guilty because he believed that the complainant was eighteen years old and that he was merely helping a friend, rather than living on the avails of prostitution. The Crown demurs and suggests that Mr. Salmon was profiting from the complainant’s sexual encounters and that even if he believed that she was eighteen years old, he took no steps, under s.150.1(5) of the Code, to ascertain her age.
[4] I must therefore decide the following issues:
Did Mr. Salmon believe that the complainant was eighteen years old on March 6, 2011?
If so, did Mr. Salmon take all reasonable steps to ascertain the complainant’s age? If yes;
Did he live on the avails of prostitution as alleged?
FACTS:
[5] The complainant, who is now nineteen years old, testified that she had known Mr. Salmon for approximately one year prior to March 6, 2011.
[6] She was then in grade 10, a fact which was known to Mr. Salmon. He also knew she was sixteen years of age.
[7] She decided she wanted to become involved in prostitution. She did not have identification documents. She contacted Mr. Salmon, who had been in the process of looking for a place to live, after his lease had been terminated.
[8] She asked Mr. Salmon to rent a hotel room for her because she was sixteen and could not do so herself. He agreed. He rented a room at a hotel on Don Valley Parkway where she lived one week.
[9] She dealt with one to three clients a day and charged each client $80 for one half hour. She arranged to pay Mr. Salmon 30 percent of her earnings. He agreed to the arrangement and paid for the hotel room with the money she paid him.
[10] After one week, the complainant moved to another hotel, presumably to generate more business. She had Mr. Salmon take pictures of her while she was dressed in lingerie. She then put an ad in a local newspaper advertising her services.
[11] On March 6, 2011, members of the Peel Police called the number on the complainant’s advertisement which stated: “Big Booby Blondie $80 19 years”.
[12] The complainant directed one of the officers to a hotel room. Upon his arrival at the room, the complainant gave two false names and indicated that she was eighteen years old. She also stated that her date of birth was March 30, 1992.
[13] An officer found a victim services card in a wallet in the room. Through an occurrence number, the officers were able to confirm the complainant’s identity and date of birth. The complainant quickly acknowledged that she was sixteen years of age.
[14] During the approximately one hour the police officers were in the hotel room, the complainant’s telephone kept ringing. She advised the police that it was Mr. Salmon checking up on her.
[15] At one point, two of the officers looked through the peep hole in the hotel door and saw a male who turned out to be Mr. Salmon. They subsequently arrested him in the hallway close to the elevator.
[16] Mr. Salmon had $240 in his wallet. He later testified that some of it had come from the complainant.
[17] One police officer indicated that the complainant looked very young. He estimated that she was between 14 and 16 years of age. Another officer testified that the complainant looked like she was between 15 and 19 years of age when he saw her on March 6, 2011. A third officer described her as “young looking” and “very clean faced”.
ANALYSIS:
ISSUE NO. 1:
[18] Did Mr. Salmon believe that the complainant was eighteen years on March 6, 2011?
[19] Mr. Salmon testified that he did. He denied that he had known the complainant for a year before March 6, 2011. He also denied that he had an agreement with her in which she was obliged to pay him 30 percent of her earnings. He maintained that he was merely helping her to obtain accommodation because she had informed him that her parents had kicked her out of their home. He maintained that he rented the hotel rooms for her because she had lost her identification documents. He believed she was eighteen years old. He was merely acting as a Good Samaritan when he rented the rooms for her.
[20] I have serious concerns about Mr. Salmon’s credibility. The circumstances under which he claims to have rented the hotel room for the complainant lack an air of reality. He maintained that he met her through a co-worker who apparently liked her. This friend asked Mr. Salmon to speak to her on his behalf. He spoke to her for five minutes. He believed she was 18 or 19 years old. His friend advised him that she was 18 years old.
[21] The complainant then called him and suggested that they rent a room at a hotel in Toronto. Despite having a girlfriend, he agreed to do so. He claimed that his co-worker had no problems with the arrangements. He rented the room on a Friday or Saturday. The complainant then gave him $300 to $400 to pay for two to three days for the room, which cost $110 to $112 daily. It was not until the following Wednesday that Mr. Salmon found out that the complainant was being paid for sexual favours.
[22] While anything is possible, it is highly unlikely that the complainant would have asked a virtual stranger to rent a hotel room on her behalf. Furthermore, it is also unlikely that Mr. Salmon would not have had concerns about the complainant’s age, given that she told him that she had no identification documents. One would have thought that at the very minimum, Mr. Salmon would have asked her how old she was, once he found out what she was doing in the hotel room.
[23] Second, it is highly unlikely that Mr. Salmon would not have inquired about the complainant’s age. She claimed that her father had kicked her out. He believed she attended alternative school. She had no identification documents. She had no known source of income and yet she gave him $300 to $400 on the Tuesday when he rented the hotel room.
[24] Third, I have serious doubts about the veracity of Mr. Salmon’s testimony because much of his testimony concerning how he met the complainant and the circumstances in which he rented a hotel room for her was never put to the complainant by his counsel. For example, defence counsel never put to her that Mr. Salmon had met her through his co-worker, and had initially spoken to her for five minutes. The failure to cross-examine a witness on an issue before introducing evidence seeking to contradict the witness is not a bar to admissibility but it may nevertheless undermine the weight to be placed on that evidence. Browne v. Dunn (1893), 1893 65 (FOREP), 6R. 67 (H.L.)
[25] For the above reasons, not only do I disbelieve Mr. Salmon’s testimony that he believed the complainant was eighteen years of age, but it is incapable of raising a reasonable doubt about whether he knew she was under eighteen years of age.
[26] On the other hand, I cannot conclude, based on the evidence that I accept, that the Crown has proven beyond a reasonable doubt that Mr. Salmon knew that the complainant was under eighteen years of age.
[27] The Crown is correct that the complainant presented as a very credible witness. She was reluctant to get Mr. Salmon in trouble. She regarded him as a friend. She took responsibility for her decision to engage in prostitution. She testified that it was her decision to pay Mr. Salmon 30 percent of her earnings. She said that she controlled everything and that he did not force her to do anything.
[28] However, she repeatedly provided false information about her age. She advertised herself as being nineteen years old. She gave the police officers two false names. She gave them a specific date of birth, March 30, 1992, which turned out to have been false.
[29] Second, when asked at a preliminary hearing on June 12, 2012, if she had told Mr. Salmon that she was 16 years old, she replied that she did not know. During the trial however, she testified that she had.
[30] Given the prior inconsistent statement, along with the false information that the complainant provided about her age, I am not satisfied beyond a reasonable doubt that Mr. Salmon knew that the complainant was sixteen years of age on March 6, 2011.
ISSUE NO. 2:
[31] Did Mr. Salmon take all reasonable steps to ascertain the complainant’s age?
[32] Section 150.1(5) states that:
It is not a defence to a charge under s.153, 159, 170, 171 or 172 or subs.212(2) or (4) that the accused believed the complainant was eighteen years of age or more at the time of the offence is alleged to have been committed unless the accused took all reasonable steps to ascertain the age of the complainant.
[33] To rely on the defence set out in this section, Mr Salmon must show what steps he took to ascertain the complainant’s age and that those steps were all that could reasonably have been required of him in the circumstances. R. v. Osborne (1992), 1992 7117 (NL CA), 17 C.R. (4th) 350, 102 Nfld. & P.E.I. R.194 (NFLD. C.A.)
[34] Some of the steps Mr. Salmon should reasonably have taken to ascertain the complainant’s age, given her lack of identification documents; her youthful appearance; the fact that she had been living at her home and the activities she was engaged in; included, at the very minimum, questioning her about her age, her grade in school and the reason why she had been kicked out of the family home.
[35] Mr. Salmon, however, based on his own evidence, took absolutely no steps to ascertain the complainant’s age. To that extent, he cannot absolve himself by relying on his testimony that he believed that the complainant was eighteen years old at the time of the alleged incident.
ISSUE NO. 3:
[36] Did Mr. Salmon live on the avails of prostitution at the time of the commission of the offence?
[37] In R. v. Grilo, 1991 7241 (ON CA), 2 O.R. (3d) 514 (C.A.), a case where the accused and the prostitute lived together, the Ontario Court of Appeal, at page 61, defined the phrase “living on the avails of prostitution” as:
Living on the avails is directed at the idle parasite who reaps the benefit of prostitution without any legal or moral claim from the person who happens to be a prostitute.
[38] Evidence that an accused received and kept money earned by the complainant from prostitution has been held to be sufficient to sustain a finding that the accused was living on the avails of prostitution. R. v. Bennett, 2004 36124 (ON CA), [2004] O.J. No. 1146 (Ont. C.A.) at para. 41. The offence of living on the avails of prostitution does not require proof of coercion. R. v. Barrow, 2001 8550 (ON CA).
[39] In Canada (Attorney General) v. Bedford, 2013 SCC 72, 2013 S.C.C. 72 (), the Supreme Court of Canada held that s.212 (i)(j), which criminalized living on the avails of prostitution of another person, wholly or in part, infringed s. 7 of the Canadian Charter of Rights and Freedoms, given that it denies prostitutes access to security-enhancing safeguards, thereby negatively impacting the security of the person, (paras. 66 & 67). There is no suggestion by defence counsel that this decision applies to the case at bar or that if it did, the Bedford decision applies retrospectively to the date of the alleged offence. Indeed, in R. v. Stevens, 1988 44 (SCC), [1988] 1 S.C.R. 1153 at page 1158, the Supreme Court of Canada noted that the following decision in R. v. James 1986 147 (ON C.A.) (1986), 27 C.C.C. (3d) 1, at pages 21 and 25, affirmed, 1988 70 (SCC) is correct:
[O]ne applies the law in force at the time when the act that is alleged to be in contravention of a Charter right or freedom occurs…[I]t is important that actions be determined by law, including the Constitution, in effect at the time of the action.
[40] Did Mr. Salmon live or partly live on the avails of prostitution when he rented the hotel rooms for the complainant and received money from her to pay for the rooms?
[41] In my view he did. Even if Mr. Salmon was gainfully employed, or did not live with the complainant, or did not get a fixed percentage of the complainant’s earnings as she claimed, he nevertheless received money from her work as a prostitute, a portion of which he used to pay for the hotel room.
[42] In paying for the room, Mr. Salmon facilitated the complainant’s work as a prostitute, thereby enabling her to earn money in exchange for sexual services.
[43] Defence counsel submits, based on the case of Shaw v. Director of Public Prosecutions [1996] 2 All E.R. 446, [1962] A.C. 237 (H.L.) at page 450, that to be found to have been living on the avails of prostitution, I must find that Mr. Salmon was paid by the complainant for goods and services for the purpose of her prostitution which he would not have supplied but for the fact that she was a prostitute. He submits that renting the room was merely a gesture of friendship which Mr. Salmon would have done even if the complainant had not been engaged in prostitution.
[44] I disagree. Mr. Salmon rented the room in the expectation of being paid by the complainant. But for the act of prostitution, she would have been unable to repay him. He may have clothed this business relationship in the robes of friendship, but there was a mercenary aspect to his relationship with the complainant.
[45] He rented the room for her and expected to reap the financial benefit of his gesture.
[46] For the above reasons, I find Mr. Salmon guilty.
André J.
Released: March 11, 2014
COURT FILE NO.: CR-12-2112
DATE: 20140311
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
GREGORY SALMON
Defendant
REASONS FOR JUDGMENT
André J.
Released: March 11, 2014