Her Majesty the Queen v. Taylor Caleb Dagg, 2015 ONSC 2463

R. v. Dagg, 2015 ONSC 2463

CITATION: R. v. Dagg, 2015 ONSC 2463

COURT FILE NO.: 13-A12083

DATE: 2015/04/17

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

TAYLOR CALEB DAGG

Tara Dobec, for the Crown

Mash Frouhar, for the Accused

HEARD: March 30, 31 and April 1, 2, 6, 7, 8, 13, 14, 2015

REASONS FOR JUDGMENT

C. mcKINNON J.

1The accused Taylor Dagg, whose street name is “Marshall”, is charged that between the 16th day of June 2013 and the 20th day of July 2013: 1) he exercised influence over the movements of A. S. for the purpose of exploiting or facilitating her exploitation, an offence generally referred to as “human trafficking”; 2) that between the same dates he received money, knowing that it resulted from the human trafficking of A.S.; 3) that between the same dates he unlawfully confined A.S.; 4) that between the same dates he uttered a threat to cause bodily harm to A.S.; 5) that between the same dates he compelled A.S. to have sex with men and women against her will through intimidation by threats of violence; 6) that between the same dates he uttered a threat to cause bodily harm to A.S. and; 7) that between the same dates he stole a cellphone belonging to A.S. of a value not exceeding $5,000.

2The evidence heard at trial relating to Counts 4 and 6 involve a specific alleged threat made to A.S. For the purposes of this judgment no distinction can be made between those two counts.

The Testimony of A.S.

3At time of trial A.S. was 36 years of age and a self-admitted addict to alcohol and drugs. She is addicted to alcohol and crystal methamphetamine. At the time of the events in question in 2013, she was addicted to alcohol and crack cocaine. She began drinking at age 13 and was an alcoholic by age 15. She became addicted to crack cocaine at age 18, having been introduced to the drug by her aunt. She became addicted to crystal meth in the year prior to her appearance in court when she took up residence with a crystal meth addict. On the day prior to the commencement of her testimony she drank a bottle of alcohol and ingested crystal meth. Over the years she has had “clean periods” but invariably relapsed into serious addiction.

4A.S. is intelligent. She is a graduate of St. Lawrence College, holding a Bachelor of Arts degree in Psychology. For a time she worked with children and in particular autistic children. She has not been employed since the year 2011. During the year 2013 she attended a long-term recovery home named Empathy House located in Ottawa. She was there for five months. On June 16, 2013 she left Empathy House and immediately obtained a 26 ounce bottle of vodka and drank all of it, prompting an overwhelming desire to smoke crack cocaine. During this time she was at a friend’s home. Her friend was Phillip Chesney. She left his home in order to “score some crack cocaine” in Vanier.

5She described crack cocaine as “a high like nothing I have ever experienced”. Unfortunately the high lasts for a very short period of time, about three to five minutes, and the euphoria lasts only about twenty minutes. Following that she commences “jonesing”, exhibiting anxiety, agitation and a need to immediately get high again.

6She testified that during her 20’s, while living in Edmonton, she had prostituted herself in order to obtain crack cocaine. Prior to attending Empathy House in Ottawa, she had prostituted herself as a streetwalker in Vanier in order to obtain crack cocaine and had sold all her belongings during the course of that period of addiction. She was introduced to a woman named “Cat” and became her driver. Cat was a prostitute. Eventually A.S. began selling her own body to support her habit.

7After leaving Phillip Chesney’s house and going to Vanier, she met up with Pearl, a prostitute whom she knew previously. Pearl convinced A.S. that she should get off the street and that she knew some people on St. Laurent Boulevard who would put her up in hotel rooms where she could safely prostitute herself and obtain crack cocaine. She went to the St. Laurent Boulevard address with Pearl. She does not recall how she got there because “she was pretty messed up”. She arrived either at a duplex or a house and there met the accused “Marshall” together with another individual named “Apollo”, a girl named Etaa and another “Inuit woman.” The house was occupied by a person named Tony. The house belonged to Tony’s mother. Everyone was partying.

8After being introduced to Apollo and Marshall she agreed to a proposal whereby she would prostitute herself and the money would be shared 50/50 with Marshall. During the discussion, Apollo and Marshall were very generous in supplying her with crack cocaine. They gave her whatever she wanted all night. She said that she did not have to pay and “it made me feel that this is how it would be”. Her habit was to smoke the crack cocaine through a pipe with a glass stem. She would go through five or six grams a day. A gram would cost between $60 and $80. She was always desperate to “get a ringer”, namely those five minutes of extreme euphoria that crack cocaine induces.

9She stayed at the St. Laurent address “for a couple of days.” She stated that Apollo and Marshall were arranging to get a hotel room. She started working from the St. Laurent address servicing clients. Advertisements were taken out on a website called “Backpage”, a website that includes a domain dedicated to escorts. She said the ads were taken out by Marshall. A.S. worked for Marshall and Etaa worked for Apollo. She stated that while at the St. Laurent address Apollo and Etaa stayed upstairs most of the time and she stayed downstairs unless a client wanted a “duo” which she would perform with either Etaa or the Inuit woman, whose name she could not remember. Both Etaa and the Inuit woman gave their money to Apollo and A.S. gave her money to Marshall.

10The advertisements in Backpage were placed by Marshall on either his or her cellphone. She could not remember the number of advertisements placed. She stated “When I am drinking and using I get blurred and even have blackouts and I can forget pieces”. She stated that photos of her face were downloaded from her cellphone from Facebook and some that Marshall took, but that the bodies of younger women were attached to her face. The bodies attached to her face were those of Etaa and another prostitute named “Brooklyn”, who worked for Marshall.

11While at the St. Laurent address she also did “out calls” where she would leave the residence and visit clients at their residences or at hotels. She would be driven to these appointments by Tony, in Tony’s car. She would charge $140 for one half hour of sex and $180 to $200 for one hour. A “blowjob” would cost less than $120 and Marshall would sometimes advertise special rates at $80. “Duos” would cost $260 to $300 for a half hour and $280 to $360 for an hour. Additional charges were added if clients wished to have anal intercourse or “bareback” intercourse - having sex without a condom.

12It was apparent that the testimony of A.S. with respect to pricing both in her examination-in-chief and in cross-examination indicated that her memory was clouded, and that she might have been guessing about the prices.

13A.S. testified that all clients would speak directly to the girls whose phone numbers were listed in the Backpage ads. Clients did not want to know that there were men watching over the girls. A.S. worked upstairs in the bedroom. When she would work Apollo and Marshall would be in the basement or would step out for a half hour or so and then come back. She would always be paid in cash. She gave half of her earnings to Marshall but then had to pay for her crack cocaine. She stated that she was both drinking and using crack cocaine. “I can drink all day and all night until I pass out or fall asleep.” She would have a 26 ounce bottle of liquor a day or more. She said that Tony and Marshall were constantly going to the liquor store for her. She could not remember if she herself went. She had no food during this time and that she was there for at least two days. She was asked if it was unusual not to eat and she said “If I’m on a run, no.”

14Following the use of the St. Laurent address as a base of operation, A.S. testified that she “may have gone to one other place” but ended up at the Stardust Motel on Carling Avenue. She could not remember how long she was there but “it was more than two nights”. She recollected that she was there with Marshall and Apollo was there with Etaa. Brooklyn would also “come and go.” There were two double beds and a bathroom. When clients would attend, she stated that Apollo and Marshall would stay in the bathroom and lock it or else leave the premises and come back in a half hour or so. She performed duos with Brooklyn. She could not recall how many. She said there were more than ten customers while she was there. She does not recall the amount of money she earned. She recollected that she had to give Marshall all her money because she was using a lot of crack cocaine and that Marshall had to pay for the motel and the advertising.

15She said that Apollo was mean to her and would call her a “crack whore.” She said she was never offered food, only alcohol and crack cocaine. She said they would just give her enough crack to keep her from “jonesing”. She said that Apollo threatened to hurt her and that she never felt she had any choice but to continue prostituting herself and giving all her money to Marshall. She said that Marshall had promised to buy her clothing but did not. On one occasion Apollo brought her to a used clothing store and bought her a few outfits, and Brooklyn also gave her some of her own clothing.

16At one point, Etaa left the Stardust and Apollo was very angry. Apollo saw a girl at a bus stop who appeared to be “jonesing” and asked A.S. to approach her and ask her if she wanted to make money on Backpage. The girl, whose name was “Tracey”, agreed, and replaced Etaa during the time Etaa was gone.

17She recollects that after being at the Stardust Motel she went to the Delta Hotel, although she was not sure of the order of hotels she occupied. She knows she went to the Delta and the Concord in Ottawa for “quite a few days” then to the Crown Plaza in Gatineau, then back to the Concord. While waiting for admission into some of these hotels she would stay at an address on King George Street. She recollects being brought to two houses while working. She referred to one of these houses as a “chop house”, which was occupied by a cocaine supplier. Another house belonged to Marshall’s girlfriend’s parents. His girlfriend was named Roxanne.

18She recollects that she was not being supplied with basic toiletries by Apollo and Marshall, and so while at Shoppers Drug Mart she would steal makeup and other items which she did about three or four times. She felt that she was not being fairly treated and not being provided with sufficient crack cocaine to cover the income she was making. On a few occasions she stole money in order to buy liquor and hygienic products.

19She stated that Marshall would leave on a daily basis “for a couple of hours” and on a number of times overnight. She did not know what he was doing. When Marshall would leave “Apollo would take over.”

20She testified that Apollo liked to “mentally torment” her and assaulted her on two occasions. On one occasion while at the Delta she got drunk and verbally abused Apollo. She called him “a nigger”, “a piece of shit”, “a bully”, “an abuser” and “a manipulating motherfucker.” She stated that she was defiant when drinking and quite vocal and could be “very aggressive”. On that occasion A.S. said that Apollo “came at me and it is a little foggy; someone broke it up”.

21The second assault occurred at the Crown Plaza in Gatineau, she believed. Marshall was not present. Apollo had gone to get some alcohol. She had stolen $20 and went to the liquor store on her own and drank the entire bottle. She then confronted Apollo and stated “What the fuck, I am tired of how you treat me” and made other insulting comments. At that point Apollo punched and kicked her and called her “a bitch”. She had bruises on her legs. She stated that she bruised easily. She testified that Apollo would not touch her face. She testified “I don’t recall that Apollo ever told Marshall but Marshall would make reference to Apollo’s ability to keep me subdued.” She recollects that after the incident at the Crown Plaza the next time she saw Marshall was at his girlfriend Roxanne’s mother’s place. She is “pretty sure” that she mentioned her injuries to Marshall, but “I was drinking and using. I’m not one hundred percent sure.”

22She testified about two sexual assaults committed by Apollo. The first occurred at the Concord in Ottawa. She had come out of the bathroom and Apollo asked her to “suck my dick”. She did and then he threw a piece of crack cocaine at her and called her “a dirty whore”. The second incident occurred at “some guy’s place in Vanier.” Apollo apparently said “I really like the way you suck my dick. Do it again but this time ride me.” She stated that she was high so she complied, after which Apollo threw some crack at her and called her “a dirty crack whore. That’s all you will ever be.” On both occasions she testified that she was afraid of what Apollo might do to her if she did not comply. Marshall was not present during these assaults.

23She testified that she was fearful of Apollo because of the way he treated Etaa. She knew that he had beaten Etaa and heard her being beat up on one occasion in an upstairs room. He beat her because she had left him. She stated that she believed that Marshall was aware that Apollo beat Etaa on one occasion at “some person’s house”. She recalled that there was a black guy in a “chop house” and she overhead Marshall and the black guy talking about the beating being administered to Etaa by Apollo upstairs, and that she recalled hearing statements from the men such as “She had it coming”, “Whores should have respect”. Nonetheless, Etaa always returned to Apollo.

24When asked whether Marshall ever attacked her or assaulted her she testified that he never physically assaulted her. What he did do was “put me down”, “insult me”, calling her “a crack whore,” “a loser,” and say: “You’re so pathetic.”

25As to the death threat, she testified that she had awaken Marshall from sleep and asked him for crack cocaine and he stated “Bitch, I’m going to cut you if you don’t leave me alone.” In cross-examination and in previous statements she testified that he threatened to cut her in the leg.

26She testified that when she would do “out calls” she would use a driving service. These drivers would be arranged by Marshall or Apollo. She recalls doing a number of out calls “more than five or six, fewer than ten. Marshall was with me for about four or five. The rest were my own. I would have to call when I was coming back on a cellphone.”

27When asked about the theft of her cellphone, she stated that while they were staying in the Crown Plaza in Gatineau she had sent messages to her mother and sister, telling them that she needed help and that she was in trouble. She testified that Marshall and Apollo had “dozed off” and that she telephoned her mother who told her to “simply leave”. A.S. testified that she told her mother “They will find me.” She stated that her sister lived in Ottawa. Apollo and Marshall saw messages on her cellphone, leading to the confiscation of the phone. When asked as to when the phone was taken she said “It was closer to the end. There is a lot of fogginess because of the drinking and using. Every day kinda melded into another at the Crown Plaza.”

28She testified that while at the Delta she created a major scene. She put on a negligee and pranced around the lobby. She spoke to patrons. She stated that she was hoping that someone would call the police so that she would be “kicked out.” She got belligerent with Apollo. She recollects that Apollo, Marshall, Tracey and Brooklyn were all present in the hotel room. The police were called and attended. After the police knocked at the door she said that Apollo stated “Don’t you dare say a fucking thing.” She was afraid that Apollo would hurt her. A female police officer confronted her with Backpage ads. She did not admit to the accusation and all of the occupants were asked to leave the hotel.

29A police report dated June 25, 2013 confirms that police attended at the Delta Hotel after a request from the hotel to have an escort removed. Constable Christina Schultz spoke to A.S and saw that she matched an advertisement from Backpage. A.S. identified herself verbally and also with an Ontario driver’s license. Another person identified himself as Taylor Dagg the accused. Another person identified herself as “Lynn Thierry” and a fourth person, who fits the description of Apollo, identified himself as “Bryon Wilkins”. It is noted in the police report that all parties were removed without incident and were cooperative.

30A significant incident occurred on July 3, 2013 while she was allegedly being held captive by Apollo and Marshall. She had gone to her friend Phillip Chesney’s house. She testified that she told Marshall that this was an “out call.” When they arrived at Phillip’s house there were police cars present. Nonetheless she entered and demanded money from Phil saying that if he did not give her money she would be beaten up by her pimp. When she left Marshall was gone, presumably because he was fearful of the presence of police cars.

31A record of the 911 call was made available to the court. The officer who attended was the same officer who had attended at the Delta Hotel, Constable Christine Shultz. The 911 call details that Phillip Chesney was calling for help. A.S. can be heard swearing in the background and screaming for Mr. Chesney to give her a phone. She was demanding money from Mr. Chesney. She also wanted some of her personal belongings which were stored at his house. She is heard telling Mr. Chesney that she will get beat up if she does not show up with money. She is heard yelling, demanding $100. After the police arrive no one is taken anywhere. Constable Shultz’s notes show “All good here. Familiar with the prostitute.”

32A.S. testified that when Constable Shultz spoke to her she told her nothing because she feared the consequences and Constable Shultz simply left. Constable Shultz testified that she drove A.S. in her police vehicle to an address in Vanier where A.S. got out. It is clear from all the evidence involving this incident that the memory of A.S. is seriously clouded and obviously in error.

33A.S. was questioned about the circumstances of her leaving Apollo and Marshall. She stated that she simply told Marshall she was going on an out call and never came back. She went to a previous client whom she had befriended and “told him about the stuff that was going on and that she had to get away”. She testified that she stayed at his home for several days. This person was M.H. She then met another girl who wanted to work with her on Backpage. A.S. was drinking and in need of crack cocaine so she agreed to prostitute herself once again.

34Eventually she was caught for stealing alcohol at a liquor store. She was asked “Give me one reason that you should not go to jail.” She spoke about her time with Apollo and Marshall. Later on she was interviewed by the investigating officers in this case, Detectives Hussein Assaad and Blake Pope. She gave an initial statement and then three subsequent videotaped statements under oath.

35Notwithstanding her interaction with the police, she continued to use crack cocaine, and was drinking and prostituting herself by advertising on Backpage using her own facial photo and a contact telephone number. She was working out of another crack dealer’s house, a man named Frank Whelan. She stated that she “never felt unsafe” with Frank and shared half of what she made with him. Frank would give her crack cocaine. She testified that she felt that she could not leave Apollo or Marshall because if she left they would find her and make her pay “one way or another.”

36While with Frank, she began working with a woman named Tanisha. This woman physically assaulted A.S. and stole her purse, including all her identification. She pushed her down and put her face in the mud. Notwithstanding this, A.S. insisted that she had no fear of Tanisha and could not explain why she never demanded to have her purse including all her identification returned to her.

The Testimony of Philip Chesney

37Philip Chesney met A.S. through a dating site called “Plenty of Fish”. They had coffee together and started dating. They began as friends and became lovers. Soon after A.S. went to Empathy House for rehabilitation. After leaving rehab she came back to Mr. Chesney’s house and stayed for a couple of days but she was drinking and wanting money. Because he had two children he did not wish to have A.S. around. He often gave her money and phoned the police a number of times. He recollects the police attending his house on three occasions.

38He spoke about the July 3 incident. He testified that A.S. came to his house in “fear of her life.” He phoned the police to see if they could help and he soon realized that she was very high on drugs. She was “fidgety and needing a fix.” He had seen this before. She said she had to pay somebody for drugs. He gave her money. The police attended. He told the police what A.S. had told him, namely that she was doing drugs and engaging in prostitution. Eventually A.S. left. He did not know where she went. He was personally afraid that her pimp might find him although he never saw a pimp.

39On another occasion she came to his house and wanted some of her clothing. He phoned 911 again because she was “freaking out”. She owed money. The police attended. This was the occasion when Detectives Assaad and Pope interviewed her. Mr. Chesney’s memory is that on the second occasion “she was saying the exact same thing” as the previous occasion, namely that if she did not get money her pimp would beat her up. This is apparently when she was working with Frank Whelan after leaving Marshall and Apollo. He stated that A.S. was scared and that he could see the “fear in her eyes.”

40Mr. Chesney’s recollection is that he called the police a number of times trying to talk A.S. into interacting with the police and get help, but A.S. was angry because he phoned the police. He recalled her coming to his house on a number of occasions to “sleep it off” but he would want her to leave because of the concern he had for his children. He recalled on one occasion she came and slept for “three complete days” at his house, although could not put a date on it. He gave her money numerous times and never asked for any of it back.

41Mr. Chesney recalls handing his telephone to A.S. and asking her to telephone her mother or sister for help. A.S. told him she had done so. Mr. Chesney stated that he later telephoned the mother of A.S. and asked whether A.S. had contacted her at any time and the mother said that she had not.

The Evidence of Taylor Dagg

42Based on the allegations made by A.S. with respect to her treatment at the hands of Apollo and Marshall, Mr. Dagg was arrested. He had ingested drugs just prior to his arrest. He lied about the amount of drugs he had ingested and was therefore taken to hospital. He was handcuffed to his bed. He asked to see Detective Assaad.

43When Detectives Assaad and Pope arrived he was asked whether he wished to speak to counsel but declined, stating he would rather speak “off record.” He was told that there could be no off record discussion and that the interview would be audiotaped. In fact it was captured both on audiotape and videotape although the video camera was not directed at Mr. Dagg except for a very short period of time. I am satisfied that although there is a gap of 15 minutes during the lengthy interview, the audio and videotapes capture all information relating to the charges facing the accused and is reliable for the purposes of assessing the accused’s side of the story.

44The accused admitted that he knew A.S. and that he went by the name “Marshall.” He told the police that Pearl brought A.S. to a house in Manor Park. A.S. was drunk and talking about wanting drugs. She had just gotten out of rehab. She was calling her mom and asking for money. The accused could not understand why A.S. would just come out of rehab and want to return to prostitution and drugs. A.S. owed Pearl money. A.S. called her father in Alberta asking for money but does not believe that she received any. She was told about Backpage and “she wanted to try it.” They had a conversation about her background. He was aware of her education and stated that it made no sense why she would want to return to prostitution and taking drugs so quickly after rehab.

45The accused denied that he made any promises that he would give her clothing, feed her, give her drugs or take care of her. He stated that she would not eat because she was high on crack. He stated that a girl working for him should be comfortable and safe but that he did not cover all the expenses. The girl would receive 50% of the net profit.

46He stated that his agreement was with A.S. and that Apollo was not part of the agreement. He confirmed that Apollo was doing business with Etaa. He stated that in time he found the whole situation with Apollo and A.S was becoming “chaotic” and he just wanted to get out of the situation. He eventually stopped dealing drugs.

47He confirmed that one night at the Delta A.S. got drunk and got into an argument with Apollo. He admitted posting ads on Backpage and believed that it was on A.S.’s phone. He told her what to write and A.S. would write it. By paying $7.00 the advertisement would move to the top of the list. These advertisements were paid using “vanilla cards” which can be purchased at corner stores in multiples of $25.

48He confirmed that they were at the Stardust and got “kicked out of there.” He also stated that he hid in the closet of the Stardust to protect A.S. from being raped by a particular john who might take off with the money. He confirmed that he was at the Delta when the police came and that they were kicked out of the Delta. A.S. had been walking about the hotel “with her shirt hanging open.”

49He confirmed that they were at a hotel in Gatineau although did not call it the Crown Plaza. He recalled that at a hotel in Gatineau Apollo was “freaking out” because A.S. was “walking around the hallway” and that A.S. was calling a guy named “Paul”. I think it is clear that whenever “Paul” is referred to by the accused it in fact it refers to Phillip Chesney.

50He confirmed that Apollo had beaten her on the day that she was walking around with no shirt on. The accused denied, however, that he was present when Apollo hit A.S. but admitted that she showed him a bruise on her leg and arm.

51He stated that he told A.S. that she could go and in fact one day dropped her off at a friend’s house. The person called the police. This would have been Phillip Chesney’s house, because the address he recalled belonged to Mr. Chesney.

52With respect to the alleged theft of the cellphone the accused initially denied taking and selling her phone but subsequently admitted to taking possession of the phone and selling it to an electronics store for $80. He denied going through her cellphone to look at text messages or Facebook messages.

53With respect to the stabbing threat the accused said that so-called threat was “nothing but humor”. He insisted in taking a lie detector test. He stated that A.S. laughed. He admitted that he told her that he would stab her in the leg but that it was always intended as a joke.

54The accused stated that he got very tired of the environment with all the fighting and yelling. He admitted that he would leave A.S. with Apollo and that Apollo had a bad temper.

55He admitted that after A.S. left he checked Backpage and saw A.S.’s ad and was upset because she was using his own girlfriend’s photo as her body. He was sure that A.S. was working for another man.

56The story of the accused evolved as he kept speaking. Initially he denied receiving money from A.S. He initially stated that he knew her for only about one week. He initially denied dealing in drugs and eventually admitted that he did in fact attend a number of hotels and that he did deal in drugs and did receive money from A.S. He also told the police that he owed money on a drug debt amounting to $7,000.

57He stated that he offered on a number of occasions to take her to a boyfriend to get her off crack. He could not figure out why she would be doing this. He recalled taking her to her boyfriend Paul’s place, whom the court assumes to be Phillip Chesney. He also testified that “Paul” would frequently telephone A.S.

58Throughout the statement the accused emphatically denied confining A.S. He “never laid a hand on her” and he was never around when A.S. was assaulted. He again said he would immediately take a lie detector test to prove he did not confine her. The police told him that the lie detector technician was unavailable.

59Implicitly he stated that A.S. was actually consuming more crack cocaine and alcohol than the money she was earning.

The Cross Examination of A.S.

60A.S. was cross-examined at length. A.S. had made a number of previous statements under oath. She was interviewed by Detectives Assaad and Pope on July 21, 2013. She was interviewed again on July 25 when she went to observe a photo line-up. She was interviewed again by Detective Pope on August 13 and she also testified under oath at the preliminary hearing held in May 2014.

61A number of contradictions arose during the cross-examination of A.S., particularly in relation to previous statements made under oath. Some are cataloged hereafter.

62At trial, A.S. testified that she had come to Ottawa to Kingston by train in order to testify. Under cross-examination it was learned that she missed the train on two occasions and Detective Pope was required to drive to Kingston to pick her up and bring her to Ottawa.

63At trial, A.S. testified that Marshall would leave on a daily basis and would be gone for two to five hours at a time and a few times he was gone for two days at a time. In cross-examination she was asked whether Marshall would have been gone for four days and she stated that she could not recall any time longer than one or two days. In her videotaped statement given to Detectives Assaad and Pope on July 21, 2013 A.S. stated that Marshall had gone for four days.

64With respect to the night at the Delta Hotel, when the police showed up after being called to remove A.S., she insisted in her testimony at trial that, excluding herself, there were four other people in the room. In cross-examination she stated that she believed that Etaa was also in the room which would have made a total of six people in the room. Later in the cross-examination she said that she was unsure as to whether Etaa was present but she was positive that there were “at least two other girls in the room”. However, it is clear from the police report that there was only one other girl in the room who identified herself as Lynn Thierry, and a total of four people in the room, including A.S.

65At trial, A.S. testified that she was afraid of Apollo because of his reaction to Etaa leaving. She stated that he would never physically look for Etaa but he would pace around the room or call her and say how he would hurt her when he got his hands on her. She was directly asked whether Apollo ever physically left to go find Etaa and she stated that he did not. In her July 21 statement, she stated “I watched him go and hunt down Etaa when she took off…because she’d always fuck off to Vanier. He would get other girls…give dope to other girls to tell him where she was. He called her phone and went to places he knew she’d regulate (sic) or he’d wait until he was given information that she would be in certain places and he’d be there.”

66At trial A.S. stated that she was never left alone without either Marshall or Apollo being present. In her July 21 statement she insisted that she had never been left alone. During cross-examination she admitted that she was left alone with clients “but not long enough to make a run for it”. Later on she stated that she would go out to get food or cigarettes or alcohol for Apollo and sometimes for Marshall. At all such times she would be alone with her purse in hand and a cellphone. Moreover she was alone during the making of out calls and went to visit a former client, Mr. H. and stayed overnight at his home, on her own admission. On numerous occasions she went to purchase liquor and also went to drug stores where she would shoplift.

67During the trial A.S. mentioned on a number of occasions that she was as much afraid of Marshall as she was of Apollo. She described that the reason she was afraid of Marshall is because she would be left with Apollo who frightened her. She stated that she was afraid of both of them. In her videotaped statement given under oath on August 13, 2013 to Detective Pope the following exchange took place. Detective Pope asked “As you explained to me, Marshall…well you weren’t as afraid of him right?” A.S.: “No.” Detective Pope: “You were only afraid of him because of…” A.S.: “Apollo. Marshall had his moments where he would, you know, have his freak outs…but I was never afraid of him. Like he didn’t…he didn’t scare me at all.”

68Dealing with the number of customers that she serviced daily, at trial A.S. testified that she would service “approximately five to ten clients per day.” She agreed that she had exaggerated the number of clients she serviced in her previous statements. In her July 21, 2013 videotaped statement taken under oath she told Detectives Hussein and Pope that she serviced “20 to 25 johns per day” then amended that to say “15 to 20 johns per day”. On her July 25, 2013 videotaped statement taken under oath when she went into the police station to observe a photo lineup she was asked by Detective Pope whether she was exaggerating the number of clients that she serviced and she said, “No” She stated that the minimum was “15 clients per day.”

69At trial A.S. testified she had worked as a prostitute in Edmonton prior to coming to Ottawa. She stated that this was when she was 24 or 25 years of age. At the preliminary hearing held on May 20, 2014 she denied ever prostituting herself before coming to Ottawa. When asked about her contradictory evidence she stated: “I was embarrassed.”

70With respect to continuing to advertise on Backpage following the August 13, 2013 videotaped statement taken under oath, at the preliminary hearing she denied ever advertising prostitution services on Backpage after August 13, 2013. At trial, when shown Backpage advertisements following the date of August 13, 2013 she was forced to admit that she was in fact prostituting herself on Backpage after August 13, 2013. Her explanation for the contradiction was “I was ashamed.”

71At trial A.S. testified that except for one dress she had to give all the clothing that Brooklyn had lent her back to Brooklyn. In her statement of July 21, 2013, she stated that she was permitted to keep all the clothes that Brooklyn had given her and did not have to give them back.

72At trial, she recollected that Marshall was initially present when she went for the first time to the Concord. In her July 21 statement she told police that Marshall was gone for four full days when she was at the Concord.

73At trial, A.S. testified that she recognized certain phone numbers on the Backpage advertisements and could distinguish which were Marshall’s and which were Apollo’s. This certainty occurred after a brief adjournment in the trial. Prior to the adjournment she could not recall these numbers. In her videotaped statement taken July 21, 2013 she had no idea what numbers were Marshall’s or Apollo’s. The same can be said for the August 13, 2013 statement and for her evidence at the preliminary inquiry. One is prompted to ask how, two years after the fact, she could suddenly remember Marshall’s and Apollo’s phone numbers, when she could not remember them fresh after the event. She testified that her memories returned “in flashes.”

74At trial she stated that when she finally decided to leave Apollo and Marshall she went to see a former client whom she had befriended, Mr. M.H. She testified that she took a risk and did not come back: “I went to Mr. H.’s and stayed there and he told me he would keep me safe.” At the preliminary inquiry on May 22, 2014, A.S. testified that she went to Mr. H’s place and stayed overnight just to get away for a bit and then returned to Marshall and Apollo.

75At trial when it was suggested to her that she laughed when the alleged threat that Marshall was going to stab her in the leg was made, she emphatically denied laughing. In her statement given on August 13, 2013 she told Detective Pope that she laughed when Marshall made the threat. At no time during their time together did she ever observe Marshall with any sort of weapon. During his interview with the police Marshall admitted he carried an Exacto knife, but presumably he would not possess it while sleeping. In any event, even if he had the knife in his possession at the time, he never showed it to A.S.

76At trial when she was asked if she was given too much drugs and alcohol by Apollo or Marshall so that she would black out, she confirmed this to be the case. On August 13, 2013 during her videotaped statement with Detective Pope she was asked that exact same question and denied that she was given too much drugs or alcohol because: “I had to work”.

77At trial A.S. stated that she never took money from Phillip Chesney and just went there to “get away” or to “get clothes.” Mr. Chesney testified that he gave her money on numerous occasions. He also testified that she came to his home a number of times and that he called police but that she would refuse to speak to them. Mr. Chesney also testified that he gave her his telephone to phone her mother and text her sister and that she told him that she had. Subsequently Mr. Chesney checked with the mother of A.S. who told him that A.S. had never called her.

78At trial A.S. admitted to lying to Mr. Chesney and tricking him on a number of occasions in order to go to his home. She admitted to lying to Apollo and Marshall on many occasions. She admitted to stealing money from them.

79There are further examples of discrepancies, including within her own testimony, but suffice to say the discrepancies in the testimony of A.S. cause the court grave concern.

Analysis

80The charges facing the accused are serious ones, prompting serious penalties. The accused has been held in custody on these charges since his arrest on September 13, 2013.

81Count 1 involves human trafficking. Section 279.01(1) of the Criminal Code provides that:

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.

82Section 279.04 provides that:

279.04 For the purposes of sections 279.01 to 279.03, a person exploits another person if they

(a) cause them to provide, or offer to provide, labour or a service by engaging in conduct that, in all the circumstances, could reasonably be expected to cause the other person to believe that their safety or the safety of a person known to them would be threatened if they failed to provide, or offer to provide, the labour or service…

83Subsection (2) of s. 279.04 provides that in determining whether an accused exploits another person under subsection (1) the court may consider, among other factors, whether the accused:

(a) used or threatened to use force or another form of coercion;

(b) used deception; or

(c) abused a position of trust, power or authority.

84The Crown’s theory is that the accused, through the use of Apollo, caused A.S. to believe that her safety was threatened unless she continued to prostitute herself. Moreover, the accused personally, and with Apollo, exercised control, direction or influenced the movements of A.S.

85The accused emphatically denied this suggestion and in fact told the Detectives that he offered on a number of occasions to deliver A.S. to her boyfriend Paul (Phillip Chesney) and that in any event, the accused was never around. On the evidence of A.S. herself, she said that the accused would leave each day and on a number of occasions for a couple of days and, if we are to believe what she had previously told the police, on one occasion for four days. It is obvious that the accused being absent so frequently during the time A.S. testified that she was under the control of the accused and Apollo raises serious questions. One must look at whether the accused and Apollo were acting in consort and that the accused at all times knew that Apollo was exercising influence over the movements of A.S., causing her to fear.

86In considering the evidence of the accused on point, and considering the contradictory evidence of A.S. on point, I am left with a reasonable doubt as to whether the accused aided and abetted Apollo, or alternatively had knowledge of how Apollo was treating A.S. while the accused was absent. While the accused was made aware that she had been bruised by Apollo and the accused knew that Apollo had a temper, he had no reason to believe that on the occasions that she was with Apollo, A.S. could not remove herself from the situation.

87Stated differently, I have a reasonable doubt that the accused was a party to any control that Apollo may have exerted over the movements of A.S. or that she was the subject of threats which would cause her to believe that her safety was threatened. Perhaps more important, I am unable to disbelieve the accused when he told Detectives Assaad and Pope that he invited A.S. to leave on more than one occasion, and offered to drive her to Paul’s home. (Phillip Chesney) We know he did so on one occasion.

88My view is buttressed by the fact that throughout her lengthy testimony A.S. did out calls for clients, found her way to Shoppers Drug Mart where she was able to shoplift, attended shops to purchase alcohol for herself and for Apollo, and food for Apollo and the accused, was able to stay overnight at her friend’s Mr. H., was able to visit Mr. Chesney and on at least two occasions or more, according to Mr. Chesney’s evidence, and interacted with police on more than one occasion where she could easily have sought safety.

89Furthermore, her professed fear of retribution is completely comprised by the fact that immediately after leaving the accused and Apollo, she set up business with Mr. Whelan and advertised her services showing her own face on Backpage with a contact number, knowing that Apollo and the accused were subscribers to Backpage. I am also mindful of her statement to Detective Pope on August 13, 2013 that the accused “didn’t scare me at all…I was never afraid of him.”

90In the result the accused must be acquitted on the Count charging human trafficking. Because of the acquittal on the first Count the accused cannot be convicted on the second Count, namely receiving money knowing that it resulted from the commission of an offence contrary to the first Count.

91Count 3 charges that the accused confined A.S. contrary to s. 279(2) of the Criminal Code. Given my conclusion on Counts 1 and 2, there is simply no evidence to substantiate a charge of confinement. In R. v. Gratton 18 C.C.C. (3rd) 462, Cory J.A. (as he then was) defined confinement as:

…physical restraint, contrary to the wishes of the person restrained, but to which the victim submits unwillingly, thereby depriving the person of his or her liberty to move from one place to another…Such confinement need not be by of physical application of bindings.

92Given my findings in relation to Count 1, it cannot be reasonably concluded that the accused confined A.S., certainly not personally or as an alleged party. If it could be said that through fear A.S. felt confined at times with Apollo, I have a reasonable doubt that the accused was aware of any such acts of confinement possibly initiated by Apollo and the accused shall be acquitted on Count 3.

93Counts 4 and 6 charge that the accused knowingly uttered a threat to cause bodily harm to A.S.

94This threat, as testified to by A.S. during trial, occurred after she had awakened the accused in order to get more crack cocaine from him and he stated “Bitch, I’m going to cut you if you don’t leave me alone.” Subsequently and in previous statements, it was stated that the threat was to cut her in the leg.

95As has already been noted A.S. originally stated under oath to the police that she laughed at this threat and had no fear of the accused. The accused stated that the threat was made in jest and that A.S. laughed when he made it. She never observed the accused to possess any sort of weapon.

96In assessing whether the threat was made seriously, I recall certain testimony given by A.S. during the trial that when the accused was composing an advertisement for Backpage which read “roses are red, violets are blue, come and spend some time with me and I will take care of you.” she laughed and made fun of the accused. This leads me to believe that her relationship with the accused was at times lighthearted and it is therefore not beyond belief that when he made the threat it was not meant to be taken seriously and A.S. took it as a joke. To constitute a threat, the words spoken must be meant to be taken seriously: see R. v. Clemente 1994 (SCC), [1994] S.C.J. No. 50 at para. 14. I have reasonable doubt as to whether the accused made a serious threat and he will be acquitted on Counts 4 and 6.

97Count 5 alleges that the accused “wrongfully and without lawful authority, for the purpose of compelling A.S. to do something that person had a lawful right to abstain from doing, namely to have sex with men and women against her will, intimidated by threats that violence would be done to that person”.

98The elements of this offence are essentially the same as the elements of the offence found in Count 1 upon which the accused has already been acquitted. As stated, I have a reasonable doubt that any threats were made to A.S. in order to prostitute herself with men or perform “duos” with a male client and another female prostitute and that she did so against her will and through intimidation.

99In my view the evidence establishes that A.S. was at all times a willing prostitute with one overarching purpose in prostituting herself which was to acquire alcohol and crack cocaine to feed her addiction. I find that the accused did not intimidate A.S. by threats that violence would be done to her unless she had sex with men and women against her will and I have a reasonable doubt that he was a party to any such intimidation that Apollo may have exercised over her. Moreover, the evidence does not establish that Apollo at any time made such threats to A.S. in order to have sex with male clients or perform duos with male clients and another female prostitute. The accused shall be acquitted on Count 5.

100Count 7 alleges that the accused stole the cellphone belonging to A.S. Section 322 of the Criminal Code defines theft as “one who fraudulently and without color of right takes, or fraudulently and without color of right converts to his use…anything animate or inanimate, with intent…to deprive, temporarily or absolutely, the owner of it…of his property or interest in it…”

101During his interview with the police, the accused admitted that he had deprived A.S. of her property interest in the cellphone and sold it for $80. There was no suggestion in the evidence that this was in payment for a drug debt as suggested by Mr. Frouhar in argument. Throughout his police interview the accused impressed me as being a highly intelligent individual, quite capable of explaining himself. If the cellphone to which he admitted was the property of A.S. and selling it for $80 actually had been the result of a drug debt he would have quickly pointed that out. He did not. I find him guilty of theft under $5,000.

102These reasons amply demonstrate that the explanation of the accused with respect to his interaction with A.S. I believe the accused, and in instances where I might not believe the accused, he has raised a reasonable doubt in my mind.

103I should perhaps go further and state this. Even if I completely disbelieved the accused and rejected his explanation I would be unable to convict him on the evidence of A.S. Her evidence was too riddled with contradictions to be reliable. While she was a sincere witness and struggling to be honest, the occasions to which she testified were ones where she was completely impaired by alcohol and crack cocaine. She herself stated on a number of occasions how blurry her memory was and how she “forgot pieces” and had “blackouts.” While her demeanor was sincere her evidence was manifestly unreliable and it would be an error in law to rely upon her testimony in order to find the accused guilty. See: R. v. W.S. (1994) 1994 (ON CA), 18 O.R. (3d), 509 (O.C.A.) per Finlayson, J.A. at para. 19.

104A.S. was a slave to her addiction. On the evidence she had ample opportunity to leave the accused. The evidence establishes that Brooklyn, who also worked for the accused, was free to come and go as she wished. Brooklyn was not an addict. As stated, there were numerous occasions where A.S. was alone, visiting stores, shoplifting at Shoppers Drug Marts, doing out calls to clients, visiting her friend Mr. H., visiting Mr. Chesney, interacting with police on at least two occasions, capable of phoning her mother, or contacting her sister, her father, her stepfather or her stepmother. I find that she had ample opportunity to escape her predicament but was trapped by her addiction. Her addiction was not created by the accused. Rather, she found in the accused an opportunity to satisfy her addiction.

105Nothing of what I say should be taken to excuse Apollo’s conduct in relation to A.S., but as stated, in the circumstances of this case, any sins Apollo may have committed cannot be laid upon the shoulders of the accused.

106But for the finding of guilty on the theft of the cellphone, the accused is acquitted on all other Counts.

C. McKinnon J.